Case 1:08-cv-00242-HTW-LRA Document 161 Filed 12/09/10 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

UNITED STATES FIDELITY AND

GUARANTY COMPANY and FIDELITY PLAINTIFFS
GUARANTY INSURANCE
UNDERWRITERS, INC.

v. No. 1:08cv0242-HTW-LRA

THE PEOPLES BANK, BILOXI,

MISSISSIPPI, PAUL S. MINOR, MINOR
AND ASSOCIATES, P.A., and WALTER DEFENDANTS
W. TEEL

MEMORANDUM IN SUPPORT OF
MOTION TO STRIKE

Because USF&G has attempted to improperly rely upon unsubstantiated hearsay, an

Exhibit to their Motion to Disqualify and a portion of their Memorandum in Support must be

struck.

Specifically, the Defendants seek to strike docket entry [138-3] based on hearsay. That

entry is the Exhibit “C” to USF&G’s Motion to Disqualify [138] Mr. Minor’s counsel, Oliver E.

Diaz, Jr. Further, the portion of the Memorandum in Support of the Motion to Disqualify [139]

that relies upon the Exhibit, namely page 3, should also be struck.

Exhibit “C” is pure hearsay, which “is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” FRE 801(c). Further, “[a] comment by a party made out of court and not under oath

is inadmissible hearsay.” Battle ex rel. Battle v. Memorial Hosp. at Gulfport, 228 F.3d 544,

555 (5th Cir. 2000).

USF&G carefully edits a component of Judge J.N. Randall’s testimony from the first

criminal trial of Paul Minor and Wes Teel to bolster their argument “that Judge Wes Teel

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somehow knew the substance of the unpublished Omnibank decision and that this motivated Teel

to assist Minor in the Peoples Bank case.” [139] at 3. They then quote Randall as saying the

following on direct examination:

Q. To the best of your memory -- it doesn't have

to be exact specific words -- what do you
remember?
A. Okay. I can't tell you the exact words. I can
tell you that Judge Teel said, this [Peoples
Bank v. USF&G] case had to be settled in a
hurry because the [Omnibank] decision would
be adverse.
Q. To who? Adverse to who?
A. Paul Minor.

[139] at 3. This is pure hearsay and should be excluded. Further, as the Fifth Circuit held in the

Battle case, even if this were not hearsay, Wes Teel is a party to this case, and an unsworn, out-

of-court statement made by a party is hearsay.

Nor does USF&G give the full picture about the “courthouse scuttlebutt” he related on

direct. During the criminal trial counsel for the defendants raised the strong presumption that

anything Randall related about the Omnibank case was hearsay. Because of this concern, the

Bench questioned Randall, who admitted that he knew nothing about Justice Diaz or what he had

or had not done. In reference to the hearsay relied upon by USF&G in filing its Motion to

Disqualify, the following colloquy took place:

THE COURT: All right. In your grand jury testimony, you mentioned some
scuttlebutt concerning Justice Diaz.
...

Now, the source of this information, do you recall who that was?

THE WITNESS: No. No, Your Honor. I don’t have—as far as Justice Diaz is
concerned, I don’t have any independent knowledge of anything dealing with
that one as far as he is concerned. That was just some scuttlebutt around the
courthouse. And I—really and truly, I didn’t put a whole lot of faith in it.

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[158-2], at 3474-75 (emphasis added). So under questioning from Judge Wingate, Randall

disclaimed any prior statement as a rumor which not even he believed.

The Court then admonished the witness that any second-hand rumors or scuttlebutt would

be hearsay, and therefore wholly inadmissible. At 3476. Randall then said if he had anything to

say about Justice Diaz, it would only be “good.” At 3476-77.

USF&G has not only ignored the fact that Randall disowned his grand jury testimony,

they ignored that it was already characterized as hearsay. They are simply attempting to elevate

this unsubstantiated rumor to prove the truth of the matter asserted.

Because Exhibit C is pure hearsay from J.N. Randall, it must be struck from the Record.

Further, to the extent any components of USF&G’s Motion or Memorandum rely upon such

hearsay, they must be struck as well.

Respectfully submitted, this the 9th day of December, 2010.

/s/ Oliver E. Diaz, Jr.

OLIVER E. DIAZ, JR., MSB #6064

OLIVER E. DIAZ, JR., MSB #6064

416 EAST AMITE STREET
JACKSON, MS 39201
Office: 601.944.1008
Fax: 866.236.7731
Oliver@msjustice.net

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 Case 1:08-cv-00242-HTW-LRA Document 161 Filed 12/09/10 Page 4 of 4

CERTIFICATE OF SERVICE

I, Oliver E. Diaz, Jr. do hereby certify that we have sent a true and correct copy of the above

and foregoing Memorandum in Support of the Motion to Strike to the following via electronic

filing:

MCCRANEY MONTAGNET & QUIN, PLLC

602 Steed Road, Suite 200
Ridgeland, MS 39157

Neil J. Dilloff
DLA Piper US, LLP
6225 Smith Avenue
Baltimore, Maryland 21209 -3600

THIS 9th day of December, 2010.

/s/ Oliver E. Diaz, Jr.

OLIVER E. DIAZ, JR., MSB #6064

OLIVER E. DIAZ, JR., MSB #6064

416 EAST AMITE STREET
JACKSON, MS 39201
Office: 601.944.1008
Fax: 866.236.7731

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