Arise for Social Justice, et al. v. City of Springfield, et al.

Opposition re MOTION to Modify Trial Procedures

D. Mass.March 5, 2007

LIBA/1771450.1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ARISE FOR SOCIAL JUSTICE; ¿OISTE?; NEW ENGLAND STATE-AREA CONFERENCE OF THE NAACP; REV. TALBERT W. SWAN, II; NORMAN W. OLIVER; DARLENE ANDERSON; GUMERSINDO GOMEZ; FRANK BUNTIN; RAFAEL RODRIGUEZ; and DIANA NURSE, Plaintiffs, v. CITY OF SPRINGFIELD and SPRINGFIELD ELECTION COMMISSION, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 05-30080 MAP OPPOSITION TO MOTION TO MODIFY TRIAL PROCEDURES Plaintiffs strenuously object to defendants’ motion t modify trial procedures, which has been filed literally on the eve of trial. Defendants have had plaintiffs’ affidavits since February 2, 2007.1 Defendants’ request to change procedures that the Court put in place long ago comes too late. Furthermore, contrary to defendants’ Certificate of C nsultation, defendants raised the issue of supplementation on February 26, 2007, and plaintiffs responded the next day with a letter, a copy of which is attached reto as Exhibit A. The letter stated opposition to wholesale supplementation, and noted that “Both sides had to submit their affidavits simultaneously, and if we begin a process of supplementation, it could go on ad 1 Plaintiffs filed 28 of their 29 trial affidavits on February 2, 2007, and filed one additional affidv t on February 5, 2007. Case 3:05-cv-30080-MAP Document 145 Filed 03/05/2007 Page 1 of 4 LIBA/1771450.1 2 infinitum.” The letter then proposed that defendants identify topics for supplementation to see if the parties could reach agreement about them. The letter also stated that any supplementation should be by affidavit before the close of plaintiffs’ case. Defendants responded with an email, a copy of which is attached hereto as Exhibit B, stating that plaintiffs’ suggestion was “ludicrous,” and expressing the intention to make a counterproposal. Defendants never made a counterproposal concerning supplementation. CONCLUSION Therefore, plaintiffs respectfully request that the motion to modify trial procedures be denied. Case 3:05-cv-30080-MAP Document 145 Filed 03/05/2007 Page 2 of 4 LIBA/1771450.1 3 Respectfully submitted, ARISE FOR SOCIAL JUSTICE; ¿OISTE?; NEW ENGLAND STATE-AREA CONFERENCE OF THE NAACP; REV. TALBERT W. SWAN, II; NORMAN W. OLIVER; DARLENE ANDERSON; GUMERSINDO GOMEZ; FRANK BUNTIN; RAFAEL RODRIQUEZ; and DIANA NURSE By their attorneys, /s/ Paul E. Nemser Paul E. Nemser (BBO #369180) Monica M. Franceschini (BBO #651208) Anna-Marie L. Tabor (BBO #662364) GOODWIN PROCTER LLP Exchange Place 53 State Street Boston, MA 02109 (617) 570-1000 Dated: March 5, 2007 /s/ Nadine Cohen Nadine Cohen (BBO #090040) LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW OF THE BOSTON BAR ASSOCIATION 294 Washington Street, Suite 443 Boston, MA 02108 (617) 988-0609 Case 3:05-cv-30080-MAP Document 145 Filed 03/05/2007 Page 3 of 4 LIBA/1771450.1 4 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing Opposition to Motion to Modify Trial Procedures was filed electronically with this Court on this 5th day of March, 2007 and that all parties will be served via the Court’s electronic filing system. /s/ Paul E. Nemser _____ Paul E. Nemser (BBO #369180) Case 3:05-cv-30080-MAP Document 145 Filed 03/05/2007 Page 4 of 4 EXHIBIT A Case 3:05-cv-30080-MAP Document 145-2 Filed 03/05/2007 Page 1 of 2 GOODWIN PROCTER Paul E . Nemser Goodwin Procter LAP 617 .570 .1388 Counselors at Law pnemser@ Exchange Place goodwinprocter .co m Boston, MA 0210 9 T : 617 .570 .1000 F : 617 .523 .123 1 February 27, 2007 By E-Mail and First Class Mail Edward M. Pikula, Esq . Deanne Bogan Ross, Esq . Springfield Law Department 36 Court Street Springfield, MA 0110 3 Re: Arise for Social Justice, et al . v. City of Springfield, et al . Civil Action No . 05-30080 MA P Dear Ed and Deanne : We've given some thought to the issue you raise about including testimony responsive to our affidavits . We are opposed to any kind of wholesale supplementation by live testimony or by affidavit . Both sides had to submit their affidavits simultaneously, and if we begin a process of supplementation, it could go on ad infinitum . That said, we propose that you identify the topics on which you wish to supplement to see if we can agree whether supplementation is necessary . You mentioned, for example, the Michelle Webber issue, and we are willing to discuss supplementation on that topic . We do believe that any supplementation should be done by affidavit, and any supplemental affidavit should be submitted before the close of plaintiffs' case . Very truly yours, G AG,,,~~ A2,;I) Paul E . Nemser PEN :ra LIBA/1768003 .1 Case 3:05-cv-30080-MAP Document 145-2 Filed 03/05/2007 Page 2 of 2 EXHIBIT B Case 3:05-cv-30080-MAP Document 145-3 Filed 03/05/2007 Page 1 of 3 Franceschini, Monica M From: Pikula, Edward [epikula@springfieldcityhall.com] Sent: Wednesday, February 28, 2007 11:43 AM To: Tabor, Anna-Marie; deb.ross@verizon.net Cc: Nemser, Paul E; Franceschini, Monica M; Nadine Cohen Subject: RE: Arise for Social Justice, et al. v. City of Springfield, et al. 3/5/2007 i have reviewed this letter. your proposal is ludicrous. the way trials work is plaintiff goes first and then defendant. until you are done, we can't respond. simultaneous filing was a good idea to save time, but it can't be used to deprive the defendants their right to a fair trial. this looks to me like another attempt by your firm to gain an unfair advantage. i will prepare a counter proposal later today or tomorrow. Attorney Edward M. Pikula City of Springfield Law Department 36 Court Street Springfield, Massachusetts 01103 Phone: (413) 787- 6085 Fax: (413) 787- 6173 This e-mail message is generated from the City of Springfield Law Department, and contains information that is confidential and may be privileged as an attorney/client communication or as attorney work product. The information is intended to be disclosed solely to the addressee(s). If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this email information is prohibited. If you have received this email in error, please notify the sender by return e-mail and delete it from your computer system. ! ""! !" # #$ %& '( ) # %& * & ) +* , - . ' + , -, Ed and Deanne, Please see the attached letter. Best regards, Anna <> Anna-Marie L. Tabor, E sq. Goodwin Procter LLP | E xchange Place, Bos ton, MA 02109 | T 617.570.1619 | F 617.523.1231 | atabor@ goodwinprocter.com Case 3:05-cv-30080-MAP Document 145-3 Filed 03/05/2007 Page 2 of 3 ******************************************************************* IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. ******************************************************************* ******************************************************************* This message is intended only for the designated recipient(s). 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