Free Motion for Reconsideration - District Court of Arizona - Arizona

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Wayne Gill, Esq. (Fla Bar. No. 114953) WALTON LANTAFF SCHROEDER & CARSON LLP 1700 Palm Beach Lakes Boulevard, 7th Floor West Palm Beach, Florida 33401 Telephone: (561) 689-6700 Facsimile: (561) 689-2647 Steven Plitt, Esq. (State Bar No. 007481) Daniel Maldonado, Esq. (State Bar No. 018483) BESS KUNZ, A Professional Corporation 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1092 Telephone: (602) 331-4600 Facsimile: (602) 331-8600 Attorneys for Defendant/Counter-Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA U-Haul International, Inc.; U-Haul Company Of Pennsylvania; U-Haul Company Of Florida; and Republic Western Insurance Company, Plaintiffs, vs. Lumbermens Mutual Casualty Company, Defendants. __________________________________ LUMBERMENS MUTUAL CASUALTY COMPANY, Defendant/Counter-Plaintiff, v. CASE NO.: CIV-04-0662-PHX-DGC (Maricopa County Superior Court Cause No. CV 2004-002438) DEFENDANT/COUNTERPLAINTIFF'S MOTION FOR RECONSIDERATION OF THE COURT'S AUGUST 25, 2006 ORDER

(Assigned to the Hon. David G. Campbell)

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REPUBLIC WESTERN INSURANCE CO.; U-HAUL INTERNATIONAL, INC.; U-HAUL COMPANY OF PENNSYLVANIA; U-HAUL COMPANY OF FLORIDA; AMERCO; AMERCO REAL ESTATE CO. D/B/A NOVI MANUFACTURING CO. AND WARRINGTON MANUFACTURING CO.; AMERCO REAL ESTATE SERVICES, INC.; AMERCO REAL ESTATE COMPANY OF TEXAS, INC. ; U-HAUL BUSINESS CONSULTANTS, INC.; U-HAUL COMPANY OF ARIZONA; U-HAUL COMPANY OF CALIFORNIA D/B/A PARAMOUNT MANUFACTURING CO.; U-HAUL CO. OF INDIANA, INC. D/B/A CHICAGO ASSEMBLY DIVISION; U-HAUL CO. OF MASSACHUSETTS, INC. D/B/A BOSTON TRAILER MANUFACTURING COMPANY, INC.; U-HAUL CO. OF MICHIGAN; AND UHAUL CO. OF TEXAS D/B/A DFW MFG. CO., INC.; Counter-Defendants.

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Defendant/Counter-Plaintiff Lumbermens Mutual Casualty Company ("LMC") pursuant to Fed.R.Civ.P. 54(b) and the Court's inherent common law authority files this, its motion for reconsideration of that part of the Court's August 25, 2006 order (Doc. #133) that denied LMC's Motion for Reconsideration. In support thereof,

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defendant/counter-plaintiff LMC states: ... ...

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Introduction The Court's August 25, 2006 Order on LMC's Motion for

Reconsideration/Clarification (Doc. #132) of the Court's June 12, 2006 Order on Cross
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Motions for Summary Judgment (Doc. #124) denied that part of LMC's motion that sought reconsideration of a portion of the Court's June 12, 2006 Order (Doc. #124). The stated basis for the Court's denial of LMC's Motion for Reconsideration was that the Motion for Reconsideration was not timely filed. LMC believes that its Motion for

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Reconsideration was timely filed pursuant to the Court's June 28, 2006 Order which extended the due date for the filing of any motions for reconsideration or clarification of the Court's June 12, 2006 Order. LMC therefore seeks reconsideration of that portion of the Court's August 25, 2006 Order that denied LMC's Motion for Reconsideration.

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Ground For Reconsideration 1. The Court, on June 12, 2006, issued its Order on Cross-Motions for

Summary Judgment (Doc. #148). That Order required the parties to jointly file a report to the Court within 30 days of the June 12, 2006 Order. 2. On July 28, 2006, the parties filed their Joint Stipulated Motion for

Extension of Due Date for Filing Any Motions for Reconsideration or Clarification of the Court's June 12, 2006 Order on Cross-Motions for Summary Judgment (Doc. #156). 3. The Court's Order of June 28, 2006 (Doc. #150) granted the parties'

aforesaid Joint Stipulated Motion for Extension of Due Date for the Filing of Motions for Reconsideration or Clarification. The Court's June 28, 2006 Order stated:

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IT IS HEREBY ORDERED extending the due date for the filing of any motions for reconsideration or clarification of the Court's June 12, 2006 Order on Cross-Motions for Summary Judgment, and extending the due date for the filing of any such motions for reconsideration or clarification to ten (10) days after the parties have filed their joint report in compliance with the Court's aforesaid June 12, 2006 Order. 4. The parties, on July 14, 2006 timely filed their joint status report (Doc.

#131) in compliance with the Court's June 12, 2006 order. 5. LMC's aforesaid motion for reconsideration was filed on July 28, 2006 as

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part of LMC's combined motion for Reconsideration/Clarification of part of the Court's aforesaid June 12, 2006 Order on Cross-Motions for Summary Judgment. Said motion was timely filed pursuant to the Court's aforesaid June 28, 2006 Order extending time for filing, because it was filed within ten days (excluding weekends) after the parties'

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joint status report was filed on July 14, 2006. LEGAL MEMORANDUM The Ninth Circuit has held that one of the four situations where a motion for reconsideration will be granted is where ". . . The movant makes a convincing showing that the Court failed to consider material facts that were presented to the Court before the Court's decision." Motorola, Inc. v. JB Rodgers Mechanical Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003). WHEREFORE, LMC respectfully requests that the Court reconsider that part of the Court's aforesaid August 25, 2006 Order that denied LMC's aforesaid Motion for Reconsideration, and issue an order on the merits of said Motion for Reconsideration.

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DATED this 28th day of August, 2006. WALTON LANTAFF SCHROEDER & CARSON LLP Wayne Gill, Esq. 1700 Palm Beach Lakes Boulevard, 7th Floor West Palm Beach, Florida 33401

KUNZ PLITT HYLAND DEMLONG & KLEIFIELD, P.C.

By:

s/Daniel Maldonado Steven Plitt Daniel Maldonado 3838 N. Central Avenue, Suite 1500 Phoenix, AZ 85012-1902 Attorneys for Defendant/CounterPlaintiff

ORIGINAL electronically filed with the USDC this 28th day August, 2006, and a Copy delivered to Judge Campbell; ... and a COPY of the foregoing electronically served/mailed this 28th day of August, 2006 to: Gerald Gaffaney, Esq. David J. Ouimette, Esq. MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. 2901 North Central, Suite 200 Phoenix, AZ 85012 Attorneys for Plaintiff

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Bruce Friedman, Esq. Mark S. Fragner, Esq. RUBIN, FIORELLA & FRIEDMAN, LLP 292 Madison Avenue, 11th Floor New York, NY 10017 Attorneys for Plaintiff

s/Adriana Garcia

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