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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. 5 – THACKER FAMILY 

HISTORY / CHILD SUPPORT 

Plaintiff,

v.

GPS Insight, LLC; Robert J. Donat, 

Individually and as Trustee of The 

Robert Donat Living Trust Dated April 

19, 2017, 

Defendants.

Plaintiff challenges Exhibit 211 (Exhibit A) and discussion of its contents. The 

exhibit, and evidence relating to it, are relevant to Plaintiff’s reputation and to his 

defamation damages. As background, in 2014 Plaintiff told GPSI his child support 

obligations put him in a financial bind. Ex. A, at GPSI_00083900. Plaintiff hoped to get 

the support reduced, but believed his sales commissions would inflate his pay to the point 

he would not be eligible for relief. Id. Plaintiff then suggested “asking [a co-worker] if he 

would be willing to get paid my commissions and just give [Plaintiff] the cash after the 

fact.” Id. In other words, Plaintiff wanted GPSI to help him mislead the Court so he 

could save “$12,000 to $20,000 per year for the next 2.5 years.” Id. GPSI declined.

In this case, Plaintiff paints himself as a victim who was terminated because Rob 

Donat was supposedly jealous of him, and wants the jury to believe that he has suffered 

emotional distress from his termination and the statements allegedly made about him. 

Case 2:18-cv-00063-DGC Document 181 Filed 12/05/19 Page 1 of 9
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Defendants’ theory is that Plaintiff was attempting to orchestrate his firing at time when 

he already knew he would leave the company, in the hopes of being able to file this 

lawsuit. That Plaintiff was previously willing to provide false information to a Court bears 

on Plaintiff’s then existing character and reputation.1 Schafer v. Time, Inc., 142 F.3d 1361, 

1371-72 (11th Cir. 1998) (“a charge of defamation or libel commonly makes damage to 

the victim’s reputation or character an essential element of the case.”); Fed. R. Evid. 405. 

Defamation damages are meant to compensate for the delta between Plaintiff’s character 

before and after the defamatory statement. See Roper v. Mabry, 551 P.2d 1381, 1385 

(Wash. Ct. App. 1976) (“As a general rule, in a defamation action, the defendant may 

offer evidence that a plaintiff's reputation is already bad, in spite of the alleged 

defamation, in order to mitigate damages.”); Walkon Carpet Corp. v. Klapprodt, 231 

N.W.2d 370, 374 (S.D. 1975) (when damage to reputation is part of a plaintiff’s claim, 

“evidence of his reputation or past misdeeds [is] admissible both in establishing truth and 

in mitigating damages” (citation omitted)); Finklea v. Jacksonville Daily Progress, 742 

S.W.2d 512, 517 (Tex. App. 1987) (“It has long been the rule in Texas that the plaintiff’s 

tarnished reputation may be shown in mitigation of damages.”). Here, then, Plaintiff’s 

poor character before the alleged defamatory statements bear on just how much harm has 

been done by the alleged statements, and so tend to prove he has suffered less damage. 

See Schafer, 142 F.3d at 1372 (noting the jury was permitted “to consider plaintiff’s bad 

 

1

 The supposedly contrary cases Plaintiff cites are irrelevant and not on point as there is 

no connection between the child support obligation and a matter that was at issue. Rogers 

v. S. Star Logistics, Inc., 2015 WL 3450643, 2 (M.D. Ala. 2015) (Court granted 

unopposed motion in limine in a car accident case finding child support arrearages as 

being irrelevant to whether the plaintiff was contributorily negligent or to his damages); 

Nibbs v. Goulart, 822 F. Supp. 2d 339, 346 (S.D.N.Y. 2011) (§ 1983 case, unpaid child 

support obligations could not have created a motive to bring suit because the obligations 

arose after the suit was filed); Montgomery v. NLR Co., 2007 WL 3171961, 2 (D. Vt. 

2007) (personal injury suit filed in the 2000s; unpaid child support in the 1960s and 1970s 

not relevant to claims for damages for familial association, and unduly prejudicial); U.S. 

v. Newell, 584 F. Supp. 2d 272, 274-75 (D. Me. 2008) (preliminarily ruling that unpaid 

child support obligations not relevant, where government does not indicate it intends to 

elicit the evidence; but reserving the right to revisit the ruling if a proffer is made before 

presenting it at trial). Here, by contrast, the support is relevant to existing reputation, 

credibility and damages. 

Case 2:18-cv-00063-DGC Document 181 Filed 12/05/19 Page 2 of 9
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reputation in mitigation of damages”). In fact, Schafer affirmed the district court’s 

admission of evidence of the defamation-plaintiff’s unpaid child support obligations for 

just this reason. Id. at 1371-72. Here, a jury could conclude Plaintiff’s reputation prior 

to the alleged defamatory statements was less-than-pristine because people know of his 

willingness to mislead a Court. 

Exhibit 211 is also relevant to whether Plaintiff can prove that his contract would 

have continued for purposes of his tortious interference claim and his defamation claim. 

As argued in response to his 1st and 2nd motions in limine, Donat’s position is that Plaintiff 

would have been terminated shortly after he actually was due to his misuse of a company 

credit card. Plaintiff’s theory regarding misuse of the credit card is that GPSI gave him 

permission to use it in 2014 for personal expenses precisely because of the strain from 

the child support obligations. See Plaintiff’s Deposition at 67-68 (“Q: How did it come 

about that you were given permission to use the card to charge personal expenses? A: I 

was – my paychecks were coming it at something around $400 per – every other week 

due to child support being deducted, and I didn’t know how to survive and pay my rent 

at the time. So I went to them and asked . . . [a]nd their response to that was to use the 

credit card for all my personal expenses.”). This discussion is missing from the connected 

email Exhibit 211, which tends to prove Defendants’ version of the facts, i.e., that this 

discussion did not happen at all. Plaintiff believes that he always had this permission, 

which is why Donat’s alleged statements about his stealing, prosecution, and illegal 

purchases are supposedly false. So the jury will have to wade in to the child support 

evidence to resolve these issues as well. 

Plaintiff’s motion should be denied because evidence relating to child support is 

relevant to all of the issues above. Given the high degree of relevance to reputation, 

credibility, damages, and elements of Plaintiff’s claims, the evidence is not unfairly 

prejudicial and should be presented to the jury. 

Case 2:18-cv-00063-DGC Document 181 Filed 12/05/19 Page 3 of 9
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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

 

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

Case 2:18-cv-00063-DGC Document 181 Filed 12/05/19 Page 4 of 9
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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 181 Filed 12/05/19 Page 5 of 9
Exhibit A

Case 2:18-cv-00063-DGC Document 181 Filed 12/05/19 Page 6 of 9
From: Jeremy Thacker [/0=MEX05/0U=EXCHANGE ADMINISTRATIVE GROUP

(FYDI BO HF 23SPDLT)/CN =RECI PI ENTS/CN=J ERE MY.THACKERCOB]

Sent: 10/28/2014 4:21:50 PM

To: jeremy@thackerfamily.com

Subject: FW: Overwhelmed

Sent from my Android phone using TouchDown (www.nitrodesk.com)

Original Message 

From: Jason Walker [jason.walker@gpsinsight.com]

Received: Tuesday, 28 Oct 2014, 9:12AM

To: Jeremy Thacker [jeremy.thacker@gpsinsight.comj

CC: Tyler Mortensen [tylermortensen@gpsinsight.com]

Subject: RE: Overwhelmed

Jeremy,

Thanks for the clarification. I certainly understand the child support fiasco as I have dealt with similar issues in the past

(although not as severe) and it is very frustrating. I have been trying to figure out a way to help you get this resolved.

(Don't have any answers yet, but I am working on it) Tyler and I are committed to helping you figure this out if at all

possible. I made some additional comments in line below...

From: Jeremy Thacker

Sent: Monday, October 27, 2014 6:56 PM

To: Jason Walker

Cc: Tyler Mortensen

Subject: Overwhelmed

Jason,

Overwhelmed. It is about the only word that I can come up with that summarizes my thoughts on my personal situation with my family

and past. Beginning to explain the situation is a daunting and overwhelming task as well. Overwhelmed is not always a bad thing

though. I'd like to begin by saying how overwhelmed with gratitude I am for the way that I've been treated by GPS Insight. To do

something shifty that puts people in a bad situation and then to be treated with kindness and concern from those same people is

overwhelming. I am extraordinarily grateful.

While I could go on and on for the things and people I'm appreciative for, I don't want to overwhelm you with the length of this email. I'll

try to make a long and complicated situation as short as possible.

4 years ago, my parents took custody of my children from my ex-wife and I. While I have no secrets and don't mind telling that story, I'll

stick to the matter at hand and let you ask if you'd like more details. Up until November of last year, I paid $500 per month in child

support to my parents and my ex-wife paid a couple of hundred. In November, my parents filed for a modification based on current

i ncomes of my ex and I. Neither of us attended the hearing for multiple reasons. First, neither of us could afford an attorney. Second,

child support is, typically, based on a percentage of income and is a pretty standard procedure. I was anticipating my child support

going up by $200 per month based on my research and everything I read about it. The ruling came back that my child support was

going up to $1,650 per month and my ex's was going to $600 per month. To say I was shocked is an understatement. The income that

they used to come up with this judgement was based on my salary plus the draw that I was receiving at the time. I was expecting

that. What I wasn't expecting is that they concluded that since together my ex and I made over six figures that if we lived together in

Monroe that we could afford private school, orthodontics, and extra-curricular activities. Based on that, the court ruled that I would need

to pay an additional $1,000 per month on top of the normal child support.

I n June, my draw ended and my income dropped considerably. My net paychecks were in the $600-800 range twice per month. I saw

this as my opportunity to get my child support reduced to the fair amount that it should have been all along. By no means am I trying to

skip out on what I should be paying for child support. I just don't want to pay the extra $1,000 per month that was only added on

because I couldn't afford an attorney and because my family is friends with the court officer that made the decision. In June, I started

contacting lawyers in the area about my case...which is more difficult than it may seem when I'm a thousand miles away and my family

is prominent in the area. After a couple of weeks of dealing with an attorney from Shreveport (an hour and a half from Monroe where

my case is), she referred me to another attorney that was closer to the court. In July, I hired Ashley Page as my attorney. She told me

that the modification should be very simple and quick. On July 22nd, she told me that she didn't expect it to take more than 30 days. I

GPSI_00083899

Case 2:18-cv-00063-DGC Document 181 Filed 12/05/19 Page 7 of 9
paid her $1,500 in July and am expected to pay another $1,500 once it goes to court. She, also, told me that my modified payment

would be from the date that she filed the papers not the actual court date. So since she filed in July, even if the court date was in

September, the change would date back to July. [Jason Walker] Loray had mentioned to me that there was a possibility that if you

called the state bar of LA you may be able to get a new attorney on a pro bono basis. Apparently, lawyers do this to make themselves

feel l ike they are giving back??? Have you tried to look into this at all?

At the time my draw was ending, I happened to start closing some deals including Pasadena. This put me in a bit of a catch 22. If I

showed income for the deals that I was closing, I would not be able to get a modification because Louisiana requires a 20 or 30%

reduction in income to apply for a modification. At this time, I went to Tyler and told him about the situation. He told me that I could put

personal expenses on the company card and we would reconcile on the back-end. At that time, I had no idea things would drag out like

they have. Based on the expectations set by my attorney, I thought things would be done by the end of August or early September. I

would have a $2-3k credit for child support for August and a portion of September, the $10,000 or so in commissions for Pasadena and

other deals, and my income would go up $1,000 per month because of the child support reduction going forward. Well that didn't

happen. After 45 days, I would email my attorney updated paychecks and documentation regarding my income. She didn't respond to

those emails but I hadn't asked any questions either. At 60 days, I started getting worried and asking questions via email. After a week

of no responses, I tried calling her and only got VM. BTW, she doesn't own a firm or have employees. Finally, I text her and she

responded. The response was something along the line of "I've been busy and I'll respond to you soon". After 2 weeks of these kinds

of text, I sent her a more direct email demanding communication and gave her a deadline to respond. At 5 PM on the afternoon of that

deadline, she responded to my questions. She said that the original request for a court date had been rejected and she didn't elaborate

on why but reading between the lines it seemed that she had filed the wrong dates or not followed the correct procedure. She said that

it could be up to another 60 days from that date (2.5 weeks ago now). When I asked if the support would still be modified from the

original date, she said that she didn't know and it would be the courts decision. Since then, I have reached out on multiple occasions

but haven't heard anything from her. I have no evidence of whether she has ever filed anything. [Jason Walker] Per my comment

above, it may be good to get someone local to reach out to her and put a fire under her ass. I do have another idea that I will come

down and talk to you about.

I am clearly stuck between a rock and a hard place. On one hand, I can't live off of $1,200-1,400 per month. It doesn't matter how I

budget or what steps I take, I can't figure out a way to live off of that amount. [Jason Walker] I get it... On the other hand, if I get paid

the commissions and income that I have due to me then I won't be able to get my child support modified and that will cost me between

$12,000 and $20,000 per year for the next 2.5 years. If I take the income now, it would temporarily help me out from a cash flow

perspective but it could very well put me in a worse hole down the road if I had a couple of months where commissions didn't happen or

were delayed. Clearly the best scenario is for me to get the child support modified as soon as possible. The best way to do that would

be to hire a new attorney that can move on this quickly. Unfortunately, I can't afford to do that either. Plus, if I hire a new attorney, I

can only assume that I would forfeit the money I've paid this attorney plus the $3,000 in child support reductions I was expecting. I

could always sue my current attorney but that seems like the last thing on earth I want to get involved with. [Jason Walker] Not a good

i dea...

So my question is how do I survive between now and the court modification without showing income that would make the whole thing

null and void. I am open to any and all suggestions. Like I've told Tyler, I don't expect any help from the company. It's not anyone's

problem but my own and I put myself in this position. I was really hoping that when I had to answer for my use of the credit card that I

would be able to say "I'm sorry. That was a horrible situation and it's over with and you don't have to worry about because that situation

won't happen again." Unfortunately, I don't know when this modification is going to take place and I don't know how to get a concrete

answer on that. I am still, currently, in the position of getting $700 paychecks that are barely enough to cover my rent and

electricity. So while I am very sorry for the hassle I've caused everyone, I am still in this position of desperation. One possible solution

that I've thought of is asking Lance if he would be willing to get paid my commissions and just give me the cash after the fact. I don't

think that would put the company in the position of breaking any rules and it would just be up to Lance and Ito do the accounting on the

backside. I have not brought this up to Lance and, frankly, am not even sure I want to put him in that position. [Jason Walker] This is

probably not the best idea. I may want to discuss this with Rob to see if I can get him to help in some way. No promises, but I think if I

lay this out he will be fairly sympathetic/empathetic to your situation.

This afternoon, Wayne asked me if I wanted to get paid on Pasadena on the 5th. I told him 'yes and no'. I would like to talk with you

about this and any ideas that you may have. If the answer is that I need to get paid and just deal with the consequences of the child

support, I'll do that. I'm very tired of putting stress on people around me and I'm so ready for all of this to end. With that said, I do not

know if I can go through this hell again. If I don't get the child support modified, I will not have any room for error in my financial life for

sometime to come. Even if I'm as successful as I'm expecting to be at GPS Insight, any delay in pay, emergency, repair, or unexpected

expense could destroy me. If I can get the support modified, I can live comfortably off of my base alone and save a tremendous

amount of money when I'm getting commission checks on top of that.[Jason Walker] We are committed to helping you make at least

$200k next year.

When I came into the office on Friday and saw you in Tyler's office, I was prepared for the fact that I might be fired. The last thing I

expected was for you to have your wife help me with my legal issues. It is hard to explain how I felt at that moment. I feel very

fortunate to work at GPS Insight and surrounded by people like you and Tyler who look at me as more than just a cog or

number. Thanks for your help and I promise that I intend to make your belief and support in me proven worthwhile. [Jason Walker] No

worries

Gratefully,

Jeremy Thacker

GPSI_00083900

Case 2:18-cv-00063-DGC Document 181 Filed 12/05/19 Page 8 of 9
P.S. I'm really sorry how long and rambling this was. Even then, am certain parts of this don't make sense because got sidetracked

or left out details. Feel free to ask any questions about anything.

GPSI_00083901

Case 2:18-cv-00063-DGC Document 181 Filed 12/05/19 Page 9 of 9