Free Motion to Strike - District Court of Arizona - Arizona

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SCHIAN WALKER, P.L.C.
3550 NORTH CENTRAL AVENUE, #1700 PHOENIX, ARIZONA 85012-2115 TELEPHONE: (602) 277-1501 FACSIMILE: (602) 297-9633 E-MAIL: [email protected]

MICHAEL R. WALKER, #003484 MARK C. HUDSON, #020500 Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA FIDELITY NATIONAL FINANCIAL, INC., et al, Plaintiffs, vs. COLIN H. FRIEDMAN, et al, Defendants. DATE: February 12, 2008 TIME: 9:00 a.m. LOCATION: 401 W. Washington Phoenix, AZ 85003 Courtroom 305 No. CV03-1222-PHX-RCB MOTION TO STRIKE FIDELITY'S "SURREPLY"

Defendants Friedmans1 respectfully request that the Court enter an order striking plaintiffs' Fidelity's Surreply in Response to New Issues Raised by Colin and Hedy Friedmans' Reply to Fidelity's Opposition to Friedmans' Motion to Vacate Fidelity's Certification of Registration of Judgment in Another District (Dated January 1, 2007) and Renewal of Judgment in the District of Arizona (the "Surreply"). As its sole basis for filing the Surreply, Fidelity asserts that the Friedmans "challenge for the first time in a reply brief the validity of the Arizona judgment in favor of Fidelity created by the Court's filing of Fidelity's 'Certificate of Registration of Judgment in Another District (Dated January 1, 2007) and Renewal of Judgment in the District of Arizona.'" This is incorrect. Assuming that the Surreply is based upon Fidelity's theory that the

Certification served to renew the Arizona Judgment, the Friedmans' Motion to Strike asserted exactly the challenge that Fidelity claims is missing, beginning on the first page:
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Terms that are capitalized and in bold have the same meaning as in the Motion to Strike.
Case 2:03-cv-01222-RCB Document 185 Filed 02/11/2008 Page 1 of 3

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Because Fidelity failed to renew the judgment pursuant to A.R.S. § 2-1612, the Arizona statute of limitations for enforcing the judgment has expired, and Fidelity is barred from enforcing the judgment entered by the United States District Court for the Central District of California in case CV00-6902-WJR (the "California Judgment") in Arizona. Motion to Strike at 1. [DE 171] The balance of the Motion to Strike set forth the legal basis for that conclusion. See Motion to Strike. Fidelity is not permitted to use a surreply to raise an argument that it forgot to raise in its Response to the Motion to Strike. If on the other hand, Fidelity's premise in the Surreply is instead based upon Fidelity's "alternative" theory that the 2007 Certification somehow created a second Arizona judgment, the Surreply is equally improper. Fidelity raised this issue in its Response and the Friedmans had every right to reply to that new issue ­ which was first raised by Fidelity, not the Friedmans. Regardless of which of Fidelity's inconsistent legal theories the Surreply may have been based, Fidelity's attempt to get a second bite at the apple using the Surreply was improper and the Surreply should be stricken. DATED this 11th day of February, 2008. SCHIAN WALKER, P.L.C.

By /s/ MARK C. HUDSON, #020500 Michael R. Walker Mark C. Hudson Attorneys for Defendants COPY of the foregoing handdelivered this 11th day of February, 2008, to: Honorable David K. Duncan Sandra Day O'Connor Courthouse 401 West Washington Phoenix, Arizona 85003-2158
Case 2:03-cv-01222-RCB -2Document 185 Filed 02/11/2008 Page 2 of 3

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and COPY e-mailed, faxed and mailed to: John J. Hennelly, Esq. Orlando F. Cabanday, Esq. Janice M. Kroll, Esq. Hennelly & Grossfeld, LLP 4640 Admiralty Way, #850 Marina del Rey, California 90292 Attorneys for Plaintiffs FAX: (310) 305-2116 [email protected] [email protected] [email protected] /s/ JULIE LANGSTRAAT
Friedman\Fidelity\MtnStrikeSurReply

Case 2:03-cv-01222-RCB

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Filed 02/11/2008

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