United States District Court, D. Arizona
G. MURRAY SNOW, District Judge.
Pending before the Court is Defendants' Motion for Summary Judgment (Doc. 21) and Motion to Strike Plaintiff's Appendix to Response to Motion For Summary Judgment. (Doc. 29.) For the following reasons, the Court grants Defendants' Motion for Summary Judgment and denies the Motion to Strike as moot.
The following facts are undisputed, unless otherwise noted. On Thursday, May 17, 2012, Kathy Gee went to the Gilbert Police Department to file a criminal report against Dr. Samer Sannoufi. An officer recorded Ms. Gee's statement, in which she indicated that on the previous day, May 16, 2012, she accompanied her grandfather to his appointment at Sannoufi's medical practice. Ms. Gee reported that, after discussing her fertility concerns with Sannoufi while her grandfather was out of the room, he offered to perform a free physical examination, at which time Ms. Gee alleges Plaintiff placed his fingers inside her vagina, rubbed her clitoris, and pinched the nipple on her left breast. She told the officer that Plaintiff asked if she was "turned on" by these actions. (Doc. 22, Ex. A, at 4.) According to Gee, the exam took approximately ten to fifteen minutes.
On Monday, May 21, 2012, Detective Darrell Krueger received a notification of assignment to Gee's case. At the time, Krueger had been an officer with the Gilbert Police Department for a decade, and a detective in the child/sex crimes unit since November of the previous year. In his position, Krueger had undergone specific training in investigating sex crimes. Detective Krueger personally interviewed Gee on May 21, during which she repeated her allegations against Plaintiff. Plaintiff insists that Ms. Gee's version of events changed repeatedly throughout her statements to police, such as whether the Plaintiff had worn gloves or sanitized his hands during the incident. After the interview, Detective Krueger assisted Ms. Gee in attempting to reach Sannoufi by telephone in order to gain physical evidence implicating him in the alleged assault, and it was eventually arranged that she would return to his office the following day, May 22, 2012, around 1:30 in the afternoon. Ms. Gee agreed to carry an audio-recording device with her to this follow-up. Gilbert police accompanied Ms. Gee to the office and listened in during her interaction with Plaintiff.
A recording of their conversation reveals that Ms. Gee prompted Sannoufi to discuss the events that had supposedly transpired the day before. When Ms. Gee brought up his attempts to stimulate her, Sannoufi said in response:
No, okay this is-no, first of all, yes, all that should come- come together. You should have secretion, you should have, um, you can-you should get moist, and you should have- you should see some things aroused. And by the way, I normally don't do this to strangers, not every patient. If you were a stranger I would just write your labs. I don't give a fuck.
(Doc. 22, Ex. B, at 15.) He went on to state that when he "checked there's no, you know... no secretion." ( Id. ) Although when Ms. Gee inquired about his references to her being "turned on, " he denied ever having asked her that, he added that he had "wanted to check if [she] had a hard nipple." ( Id. at 17.) Plaintiff also acknowledged that "no one would" help Ms. Gee the way he had, and stated, in reference to his examination, that "this is actually off the book." ( Id. at 18.) At the conclusion of the appointment Plaintiff offered to order more tests for Ms. Gee, they exchanged cell phone numbers, and Plaintiff said Ms. Gee should call him and he would "take care of [her]." ( Id. at 21.)
On Wednesday, May 23, 2012 Detective Krueger arrested Plaintiff at his office. On Krueger's recommendation, a Deputy County Attorney for Maricopa County filed a Direct Complaint against Plaintiff; a grand jury then issued a supervening indictment on May 30, 2012. Detective Krueger testified before this grand jury. According to Plaintiff, Detective Krueger falsely stated that Plaintiff specifically discussed the alleged acts of sexual abuse with Ms. Gee on the audio recording. On motion from the Plaintiff, the Maricopa County Superior Court conducted a hearing on June 15, 2012 to consider Plaintiff's request for bail and release. Detective Krueger also spoke at this hearing, and Plaintiff challenges the veracity of Krueger's testimony then as well. Ultimately, Plaintiff was denied bail and he remained in custody until the criminal proceedings against him began on November 6, 2012.
An investigator hired by Plaintiff discovered a variety of information concerning Ms. Gee that became known at trial. For example, her boyfriend at the time testified at trial that Ms. Gee asked him to lie to the investigator about the incident involving Plaintiff, and that he believed her to have been dishonest about what she stated happened. The accounts of various members of Plaintiff's office challenged key facts that Ms. Gee had relayed to police, such as the length of time she was alone with Plaintiff, and that he had performed any sort of pelvic exam on her, as it was contrary to office policy to not summon a female staff member to the room during such procedures. Ms. Gee apparently gave false information to Plaintiff about her plans to move to Australia with her boyfriend, and manufactured the fertility problems she purportedly sought Plaintiff's medical advice for: Ms. Gee admitted during trial that she had been pregnant several times in the months leading up to May 16, 2012, and that she suffered a miscarriage approximately ten days prior to her initial meeting with Plaintiff. Ms. Gee also supposedly went on a date within hours of the alleged sexual assault, and maintained profiles on two dating websites, including one aimed at pairing individuals interested in both a romantic and financial relationship.
Both sides presented their closing arguments at the end of December, and the jury returned a "not guilty" verdict on all counts on January 4, 2013. Plaintiff filed the instant action for damages on December 20, 2013, after having served on Defendants a Notice of Claim as required by Arizona Revised Statutes section 12-821.01(A) on May 15, 2013. Defendants removed the case to federal court on March 5, 2014, and now seek summary judgment on all counts. (Doc. 21.)
I. Motion to Strike
Under Federal Rule of Civil Procedure 56(c)(2), a "party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Defendants have filed a Motion to Strike Plaintiff's Appendix to Response to Motion for Summary Judgment and all exhibits attached thereto on the grounds that Plaintiff's appendix is not authorized by any Federal Rule of Civil Procedure and contains an affidavit from a witness, Dorian Bond, that was not properly disclosed by Plaintiff pursuant to his Rule 26(a) discovery obligations. (Doc. 29.) The Court has reviewed the contents of the appendix and determined that they do not alter its ...