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Carrie M. Francis (020453)

Stefan M. Palys (024752) 

Michael Vincent (029864)

STINSON LLP

1850 North Central Avenue, Suite 2100 

Phoenix, Arizona 85004-4584 

Tel: (602) 279-1600 

Fax: (602) 240-6925 

Email: carrie.francis@stinson.com

stefan.palys@stinson.com

michael.vincent@stinson.com 

Attorneys for Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Jeremy Thacker, No. 2:18-cv-00063-PHX-DGC

DEFENDANTS’ RESPONSE TO 

PLAINTIFF’S MOTION IN LIMINE 

NO. 2 – ARGUMENT RE: 

“FAILURE TO DISPUTE” 

Plaintiff,

v.

GPS Insight, LLC; Robert J. Donat, 

Individually and as Trustee of The 

Robert Donat Living Trust Dated April 

19, 2017, 

Defendants.

This is yet another previously addressed issue. (Doc. 151 (Court found issue of 

fact for jury to resolve regarding Plaintiff’s credit card use, and noted “Plaintiff admits to 

making the personal charges, and did not object to their deduction”)). The difference is 

now Plaintiff seems to suggest he objected to all deductions at issue, whereas the last time 

this was raised he conceded he had taken issue with only some charges, so what to make 

of his use of a GPSI card for personal expenses was a matter for the jury. Compare Doc. 

179 (motion in limine) with Doc. 127 at 19 (“Thacker also knew that some personal 

expenses were going to be deducted” but “disputes some of the charges.”). As the Court 

previously ruled, there is a factual dispute concerning the evidence that the jury should 

resolve. (Doc. 151 at 21-23). 

The evidence at issue is relevant to both Plaintiff’s tortious interference and 

defamation claims. To summarize the prior briefing on this issue, (Docs. 112 at 8, 127 at 

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19, 133 at 8), as background, in 2014, Plaintiff was warned if he used a GPSI card for 

personal expenses again, he would be terminated. Shortly after his termination in 2017, 

GPSI found out Plaintiff had done just that. Charges included a weekend at a local spa, 

plane tickets for a female acquaintance, $300 on Amazon, electronics for Thacker’s 

house, a barware set, bedsheets, and $400 for a flight that Thacker bought for a co-worker 

as a birthday present. (Doc. 112 at Exs. 25-26; Tr. Ex. 262-264). Donat’s argument 

concerning tortious interference is that Plaintiff will be unable to show his employment 

with GPSI would continue absent the alleged interference because he would have been 

fired over these charges. (Doc. 171-1 at 6-7). As to defamation, Plaintiff claims Donat 

defamed him by supposedly stating that Plaintiff “stole,” “bought toys illegally with the 

company credit card,” and “was the subject of an ongoing prosecution for felony theft . . 

. .” (Doc. 171-1 at 11). Truth is a defense, and the transactions at issue are the basis of 

that defense. (Id.) 

Plaintiff contends it “is so blatantly incorrect” that he did not dispute deductions 

from his final pay for these charges “that to allow this suggestion to the jury in opening 

statement or at any other time would be unfairly prejudicial.” (Doc. 179 at 1). He 

contends that this is so because he supposedly did dispute the charges.1 (Id. citing Tr. Ex. 

235). In exhibit 235, Plaintiff disputes the deductions for about $50 of audio books and 

a particular flight as business expenses; but he does not dispute the remainder of the 

charges, like the barware set, spa weekend, birthday present flight, or sheets. This 

explains Plaintiff’s prior concession that he “knew that some personal expenses were 

going to be deducted” but “disputes some of the charges.” (Doc. 127 at 19) 

The fact that Plaintiff did not dispute some of the charges tends to make it more 

likely that he knew they were improperly charged, and so is relevant to Donat’s defense 

that GPSI would have terminated Plaintiff regardless of any alleged interference. Jason 

 

1

 Plaintiff additionally references his arguments concerning the timeliness of the 

disclosure of evidence, which Defendants fully addressed in response to Plaintiff’s 

Motion in Limine No. 1. 

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Walker will testify that, given the prior warning to Plaintiff about misusing the company 

credit card, he would have done just that over these charges. Moreover, Plaintiff’s failure 

to dispute these charges tends to make it more likely that Donat’s alleged statements were 

true – Plaintiff did steal, Plaintiff did buy toys illegally with the company credit card,2

and the Scottsdale Police Department did refer their investigation of Plaintiff to the 

Maricopa County Attorneys’ Office. (See Plaintiff’s Ex. 104 (police report); Defendants’ 

Ex. 215 (police report and supplements)). Indeed, while Plaintiff filed a kitchen-sink 

complaint, he did not sue for alleged wrongfully withheld pay as a result of the 

deductions. 

The premise of the motion in limine is therefore wrong, whether Plaintiff is 

contending that he objected in toto to the deductions (he didn’t) or whether he claims he 

“disputed their accuracy on summary judgment . . . .” (Doc. 179 at 1:28; compare Doc. 

127 at 19 (Plaintiff’s summary judgment brief: “Now that an accounting has been 

provided, he disputes some of the charges.” (emphasis added)). Since the premise of 

Plaintiff’s motion is incorrect, it should be denied. If he would like to dispute certain of 

the charges, he is free to present his version of the facts to the jury and let them decide. 

His motion presents no reason why all evidence on point should be excluded. 

RESPECTFULLY SUBMITTED this 5th day of December, 2019. 

 STINSON LLP 

By: /s/ Stefan M. Palys 

 Carrie M. Francis

Stefan M. Palys 

Michael Vincent 

1850 North Central Avenue, Suite 2100 

Phoenix, Arizona 85004-4584 

 

 

2

 It was literally toys. (Doc. 112-3 (6/24/16 charge for children’s toys); Tr. Ex. 263) 

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 SCHNEIDER & ONOFRY, PC

By: /s/ Timothy B. O’Connor [with permission]

 Timothy B. O’Connor

365 East Coronado Road 

Phoenix, Arizona 85004

 

Attorneys for Defendants

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CERTIFICATE OF SERVICE 

I hereby certify that on December 5, 2019, I caused the foregoing document to be 

filed electronically with the Clerk of Court through ECF; and that ECF will send an 

e-notice of the electronic filing to: 

Joshua W. Carden 

JOSHUA CARDEN LAW FIRM, P.C. 

16427 North Scottsdale Road, Suite 410 

Scottsdale, AZ 85254 

joshua@cardenlawfirm.com 

Attorney for Plaintiff 

Timothy B. O’Connor, Esq. 

SCHNEIDER & ONOFRY, P.C. 

365 East Coronado Road 

Phoenix, Arizona 85004 

toconnor@soarizonalaw.com

Attorneys for Defendant Robert Donat 

I hereby certify that on December 5, 2019, a courtesy copy will be e-mailed to: 

Judge David G. Campbell 

United States District Court 

Sandra Day O’Connor U.S. Courthouse, Suite 623 

401 West Washington Street, SPC 58 

Phoenix, Arizona 85003-2161 

/s/ Linda Holder

Case 2:18-cv-00063-DGC Document 183 Filed 12/05/19 Page 5 of 5