Free Response to Motion - District Court of Arizona - Arizona

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FENNEMORE CRAIG Jordan Green (No. 001860) Charles Houston (No. 020844) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, No. CV2004-0621 PHX SRB

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v.
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AVNET' RESPONSE TO PLAINTIFF' S S MOTION TO STRIKE (Assigned to The Hon. Susan R. Bolton)

AVNET, INC., a foreign corporation, Roy Vallee and Jane Doe Vallee, husband and wife; and ALLEN MAAG and JANE DOE MAAG, husband and wife, Defendants.

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATIO N P HOENIX

Avnet respectfully requests that the Court deny Plaintiff' Motion to Strike Avnet' s s Notice of Service and Second Supplemental Disclosure Statement because: (1) plaintiff mistakenly asserts that Avnet' improper electronic signature was done "in bad faith"; and s (2) Avnet' improper electronic signature has not prejudiced plaintiff. Plaintiff' Motion s s to Strike Avnet' Notice and Second Supplemental Disclosure Statement based on his s hypertechnical application of the Court' new electronic filing rules is nothing more than s a waste of this Court' time. Nonetheless, if the Court opts to strike Avnet' Notice and s s Second Supplemental Disclosure Statement based on improper electronic signature, Avnet

Case 2:04-cv-00621-SRB

Document 88

Filed 09/13/2005

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

respectfully requests that the Court allow Avnet to re-submit both. LEGAL ANALYSIS I. Avnet' Improper Electronic Signature Was Not Done "In Bad Faith" s

Plaintiff' assertion that Avnet' improper signature was done "in bad faith" is s s mistaken. Plaintiff is asking the Court to strike the pleading because the signature line bore only "/s/" instead of "s/" followed by the typed name of the signatory. While plaintiff may be correct that the signature line was deficient, plaintiff cannot seriously contend that this was done "in bad faith" or "show[s] a disdain for [electronic filing] rules." Rather, the improper signature shows a lack of familiarity with these new

electronic signature rules. This lack of familiarity is not a result of disdain for the Court' s rules ­ indeed, both undersigned counsel and the secretary for undersigned counsel have attended workshops addressing the new electronic filing procedures, and both believed that the electronic signatures on the pleadings and notices referenced by plaintiff comported with the rules. Avnet regrets the error and hopes not to trouble the Court with any more Motions based on procedural technicalities. II. Plaintiff Has Not Suffered Any Prejudice

Plaintiff moves to have Avnet' Notice and Second Supplemental Disclosure s Statement stricken, but he has not shown ­ and cannot show ­ any prejudice resulting from Avnet' improper signature. Plaintiff received the Notices of Electronic Filing from s the Court, and he was aware that Avnet had filed its Notice and Second Supplemental Disclosure Statement. The fact that the pleading does not comport with the new

electronic filing requirements does not change the fact that plaintiff was on notice of Avnet' disclosure, nor can plaintiff show that he has suffered any harm as a result. s If the Court chooses to strike Avnet' Notice and Second Supplemental Disclosure, s Avnet respectfully requests that the Court allow Avnet to re-submit its Notice and Second Supplemental Disclosure.

Case 2:04-cv-00621-SRB

Document 88 2 Filed 09/13/2005

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

RESPECTFULLY SUBMITTED this 13th day of September, 2005. FENNEMORE CRAIG, P.C.

By s/Charles Houston Jordan Green Charles Houston Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

Case 2:04-cv-00621-SRB

Document 88 3 Filed 09/13/2005

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CERTIFICATE OF SERVICE I hereby certify that on September 13, 2005, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Meschkow, Esq. Meschkow & Gresham, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818

s/Charles Houston
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

1710364/12444.027

Case 2:04-cv-00621-SRB

Document 88 4 Filed 09/13/2005

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