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Kloberdanz v. Arpaio

United States District Court, D. Arizona

May 24, 2016

Daniel L. Kloberdanz, Plaintiff,
Joseph M. Arpaio, et al., Defendants.




         At docket 121 plaintiff Daniel L. Kloberdanz (“Kloberdanz”) moves for an order precluding defendants from introducing evidence of his relationship with Ronda McCulloch. Defendants respond at docket 126. No reply was filed. At docket 122 Kloberdanz moves for an order foreclosing introduction of evidence that as a lawyer he was obligated to make a report regarding his condition to the State Bar of Arizona. Defendants respond at docket 127. No reply was filed. Oral argument was not requested on either motion, and oral argument would not assist the court.


         Kloberdanz is an attorney who is a member of the State Bar of Arizona (“bar association”). He has practiced law in the firm of Berens, Kozub, Kloberdanz & Blonstein, PLC. An employee of that law firm, Valerie Lingenfelder (“Lingenfelder”), was involved in a traffic accident on the evening of June 15, 2012, in Cave Creek, Arizona. She called Kloberdanz and asked him for assistance at the accident scene. Kloberdanz reached the scene before anyone from the Maricopa County Sheriff’s Office (“MCSO”) arrived.

         According to Kloberdanz’s complaint, the following acts and events transpired that evening: After MCSO personnel arrived, Kloberdanz told a posseman who accompanied the responding deputy sheriffs that he was Lingenfelder’s attorney, but had not witnessed the accident. Deputy Sheriff Pellino then approached Lingenfelder and moved her away from Kloberdanz. He asked Lingenfelder a few questions and performed an eye test on her. He then placed her under arrest and handcuffed her. After Kloberdanz asked if he could stand near Lingenfelder to calm her and she had confirmed that Kloberdanz was her attorney, Pellino shoved Kloberdanz hard on his chest, knocking him down and causing Kloberdanz to hit his head on the ground. Kloberdanz stood up, and Pellino yelled at him about lawyers telling him how to do his job. He then tackled Kloberdanz and told him he was under arrest, all the while yelling anti-lawyer comments. Kloberdanz did not resist or provoke Pellino. Two other officers on the scene, Deputy Sheriff Carpenter and Posseman Burghart, assisted Pellino. They grabbed Kloberdanz, handcuffed him, and held him down while Pellino drove Kloberdanz’s head into the gravel. The officers finally pulled Kloberdanz off the ground, but with such force that they dislocated his shoulder. Kloberdanz was driven to a police substation and placed in a cell. Later that night Kloberdanz was transferred to the downtown Phoenix police station, but not released until the next day. Kloberdanz suffered multiple physical injuries from the assault and continues to suffer a variety of injuries and losses resulting from defendants’ conduct.

         As noted above, the preceding description of events and circumstances is based on allegations in Kloberdanz’s complaint. Defendants deny Kloberdanz’s account of what happened and the ensuing consequences. It is their position that defendants did nothing wrong in their contact with and handling of Kloberdanz.


         A. Motion at Docket 121

         Kloberdanz asks the court to foreclose evidence of his sexual and other relationships with Ronda McCulloch while she was employed at his law firm. He argues that the evidence would be offered to support the conjecture that he had a similar relationship with Lingenfelder. Defendants do not assert an unfettered right to introduce evidence of Kloberdanz’s relationship with McCulloch. Rather, their position is succinctly put in their briefing as follows:

One issue that was raised in this matter is the relationship between Mr. Kloberdanz and Valerie Lingenfelder. It is believed that Mr. Kloberdanz will testify that he did not have an intimate relationship with Ms. Lingenfelder. However, should he open the door during his testimony that he would never have any such relationship, questions about his relationship with Ms. McCulloch would be relevant and appropriate as it would go to the truthfulness of his testimony and would impeach his testimony.[1]

         The court agrees with Kloberdanz that testimony about his relationship with McCulloch is appropriately excluded under both Fed.R.Evid. 403 and 404(b)(1) in the abstract. That said, the court also agrees with defendants that if Kloberdanz were to testify at trial that he would not have an intimate relationship with an employee, then defendants would be entitled to challenge his credibility with evidence of his relationship with McCulloch.

         B. Motion at Docket 122

         One of Kloberdanz’s assertions, with respect to the injuries allegedly caused by defendant, is that the injuries impaired his ability to practice law. Obviously, evidence which tends to show that he was or was not so impaired is relevant. Although the parties do not make the point clearly, the court concludes that the impairment in dispute is a cognitive impairment, not a physical impairment. Against this background, Kloberdanz asks the court to exclude any evidence that he did not report his impaired condition to the bar association. His argument is that under Arizona law he had no obligation to do so, although he concedes that in some circumstances other lawyers would have an obligation to do so. Kloberdanz goes on to urge that even if applicable ethics rules might have required him to take some steps to make known his impairment, the probative value ...

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