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1138 NORTH ALMA SCHOOL ROAD, SUITE 101

MESA, ARIZONA 85201

Telephone: 480.461.5300 | Fax: 480.833.9392

David R. Schwartz - #009264

das@udallshumway.com

Kimberly R. Davis - #030210

krd@udallshumway.com

Attorneys for Defendant Maricopa 

County Community College District

Maria Wise and Vivian Miranda

UNITED STATES DISTRICT COURT

DISRICT OF ARIZONA

James Rogers, an individual,

Plaintiff,

v.

Maricopa County Community College 

District, a political subdivision of 

Arizona; Maria Wise, an individual; and

Vivian Miranda-Strawbridge, an 

individual 

Defendants.

NO. CV2018-00605 PHX-GMS

DEFENDANTS’ MOTION TO 

ALLOW AN EARLY MOTION FOR 

PARTIAL SUMMARY JUDGMENT

Defendants hereby move for this Court to allow Defendants to file an early 

motion for partial summary judgment under Rule 56 after compliance with the conferral 

process set forth in this Court’s standard Case Management Order. This Court’s 

standard Case Management Order limits the parties to one summary judgment motion 

absent leave of court. Defendants believe no discovery is necessary for the resolution of 

the issues it wishes to bring before the Court at this time. Defendants also anticipate 

that they will file after discovery is completed another motion for summary judgment on 

whatever issues are remain. Defendants wish to bring certain dispositive issues, 

including the notice of claims defense, before this Court as soon as possible and the 

notice of claim defense is required to be raised early to avoid any issue of waiver. 

Case 2:18-cv-00605-DWL Document 16 Filed 04/27/18 Page 1 of 3
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County of La Paz v. Yakima Compost Co., Inc., 224 Ariz. 590, ¶ 7-8, 233 P.3d 1169 

(App. 2010), review denied (2010). 

The motion for partial summary judgment would address the following issues: 

(1) whether a valid FMLA claim (Third Claim for Relief) can exist where Plaintiff was 

unable to perform any essential function of his prior position when his 12 weeks of 

FMLA leave were exhausted in June 2017 as reflected in the certifications and 

documentation Plaintiff provided to the District that he was unable to work until 

January 2018; (2) assuming a FMLA claim can be asserted, whether the changes to 

Plaintiff’s old position alleged in the Complaint while he was on FMLA leave could 

violate the FMLA or were mere deminimis changes; (3) whether this Court lacks 

jurisdiction over the ADA discrimination claim (Third Claim for Relief) when it was 

not administratively exhausted before the EEOC as Plaintiff received his right to sue 

letter in November 2017 before he was even able to return to work in January 2018; and 

(4) whether the state law intentional infliction of emotional distress claim is barred or 

just limited under the one-year statute of limitation, A.R.S. § 12-821, and/or the notice 

of claim statute, A.R.S. § 12-821.01.

. . .

. . .

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Defendants request permission to file a motion for partial summary judgment on 

the above issues as soon as this Court will allow. Defendants have already sent a letter 

of conferral to Plaintiff’s counsel regarding these issues to comply with the language 

from this Court’s standard form of Case Management Order. Defendants also anticipate

that after discovery a second motion for summary judgment will likely be made by them 

on any remaining claims in this action.

DATED: April 27, 2018.

UDALL SHUMWAY PLC

/s/ David R. Schwartz 

David R. Schwartz

Kimberly R. Davis 

1138 North Alma School Road

Suite 101

Mesa, AZ 85201

Attorneys for Defendant Maricopa County 

Community College District, Wise and Miranda

CERTIFICATE OF SERVICE

I hereby certify that on April 27, 2018 I electronically lodged the attached 

document using ECF for filing and transmitted the document through ECF to the 

following registered ECF users:

Israel G. Torres

James E. Barton, II

Saman Golestan

TORRES LAW GROUP, PLLC

2239 W. Baseline Rd.

Tempe, AZ 85283

Attorneys for Plaintiff

/s/ Kimberly Kershner

5162868.1

109883.024

Case 2:18-cv-00605-DWL Document 16 Filed 04/27/18 Page 3 of 3