Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. Jordan Green (No. 001860) Lawrence Palles (No. 020263) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Attorneys for Defendants Avnet, Inc., Vallee, and Maag UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN,

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No. CV2004-0621 PHX SRB Plaintiff, v. DEFENDANTS'MOTION TO JOIN PLAINTIFF' WIFE, ANGELA J. S SIMON, AS A NECESSARY PARTY

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AVNET, INC., et al.,
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Defendants.
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Defendants move, pursuant to Fed. R. Civ. P. 19(a), to add Plaintiff' wife, Angela s J. Simon ("Mrs. Simon"), as a necessary party plaintiff. Defendants Maag and Vallee are entitled to seek an award of their attorney's fees as prevailing parties on Plaintiff' s copyright and contract claims. However, Maag and Vallee will be unable to enforce any judgment against Plaintiff' community property unless Mrs. Simon is added as a party s plaintiff. Mrs. Simon is a necessary party because, in her absence, complete relief cannot be accorded to Defendants. See Fed. R. Civ. P. 19(a). I. BACKGROUND Plaintiff and his wife are Arizona residents. See Amended Complaint at ¶ 3, Trial Exhibit 397 (Plaintiff and Mrs. Simon' joint tax returns). Plaintiff sued Defendants s

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Document 285

Filed 09/06/2006

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Avnet, Al Maag, and Roy Vallee alleging copyright infringement and breach of contract. 1 See Amended Complaint. Plaintiff' wife was not a party in the lawsuit. s On July 21, 2006, the Court granted Maag and Vallee' Motions for Directed s Verdict on Plaintiffs' copyright and breach of contract claims. See July 21, 2006 Civil Trial Minutes, Day Four. II. ANALYSIS Fed. R. Civ. P. 19(a), provides, in pertinent part: A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person' absence complete relief cannot be s accorded among those already parties... The issue of the absence of necessary parties can be properly raised at any stage in the proceedings. See UOP v. United States, 99 F.3d 344, 347 (9th Cir. 1996) (considering necessary party issue on appeal although never raised or ruled on in trial court); Pit River Home & Agricultural Cooperative Ass' v. United States, 30 F.3d 1088, 1099 (9th Cir. n 1994) (considering indispensable party issue on appeal); CP National Corp. v. Bonneville Power Administration, 928 F.2d 905, 911-12 (9th Cir. 1999) (same); McCowen v. Jamieson, 724 F.2d 1421, 1424 (9th Cir. 1984) (considering necessary party issue after entry of summary judgment). 2 Plaintiff asserted federal copyright and state contract claims against Defendants. See Amended Complaint. Federal law authorizes an award of attorney' fees to the s prevailing party in a copyright claim. See 17 U.S.C. § 505. Similarly, Arizona law permits an attorney' fee award to the prevailing party in an action arising out of contract. s
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Plaintiff named Maag and Vallee' spouses as party defendants. s

Ms. Simon will suffer no unfair prejudice by her joinder as a party at this time. A spouse can independently incur bind the marital community and incur community debts. See A.R.S. §§ 25-214(C), 25-215(D); Keplinger v. Boyett, 6 Ariz. App. 514, 517, 433 P.2d 1006, 1009 (1967)("when acting as manager of the community in furtherance of community affairs, obligations incurred thereby are those of the community.").
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

See A.R.S. § 12-340.01. Under Arizona community property law, "a judgment against one spouse does not bind the community." Weimer v. Maricopa Co. Community College Dist., 184 F.R.D. 309, 310 (D. Ariz. 1998), quoting Spudnuts, Inc. v. Lane, 139 Ariz. 35, 676 P.2d 669, 670 (1984). "For a party to hold the martial community accountable for any obligation, it must sue both spouses jointly." Id. Ms. Simon must be joined as a party because Maag and Vallee cannot obtain complete relief pursuant to the Judgment in her absence. In Weimer, plaintiff sued his former employer for breach of contract, wrongful termination and violation of his constitutional rights under 42 U.S.C. § 1983. 184 F.R.D. at 309. Plaintiff was married and an Arizona resident. Id. at 309-10. Plaintiff' wife was s not a party to the lawsuit. Id. at 310. Defendants moved to join plaintiff' wife as a party s plaintiff, or in the alternative, to dismiss for failure to name an indispensable party. Id. at 309. The court granted the defendants' motion. Id. at 310. Federal and state law authorized an award of attorney' fees to the prevailing party on plaintiff' § 1983 and s s contract claims. Id. Since Arizona law required that both spouses be named in order for a judgment to be enforced against the marital community, the court held that plaintiff' wife s "must be joined as a plaintiff for the marital community to be bound under a judgment awarding attorneys' fees to Defendants." Id.3 This case is identical to Weimer. Plaintiff brought federal and state claims which both permit recovery of attorney' fees to the prevailing party. See 17 U.S.C. § 505, s A.R.S. § 12-341.01. Mrs. Simon is an Arizona resident and subject to the Court' s

jurisdiction, but not a party in this case. On July 21, 2006, the Court granted Maag and Vallee' Motions for Directed Verdict on Plaintiffs' copyright and breach of contract s The court also granted the motion because the wife had an interest in the lawsuit where part of the damages sought were plaintiff' lost earnings, which are community property. s Weimer, 184 F.R.D. at 310. Although there was no evidence that her interests were not being adequately represented by the plaintiff, the court found "that the preferable method of protecting her interests is to join her as a party plaintiff." Id.
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claims. See July 21, 2006 Civil Trial Minutes, Day Four. Therefore, Maag and Vallee are prevailing parties and entitled to seek recovery of their attorney' fees. See 17 U.S.C. s § 505, A.R.S. § 12-341.01. Since Arizona law required that both spouses be named in order for a judgment to be enforced against the marital community, Mrs. Simon "must be joined as a plaintiff for the marital community to be bound under a judgment awarding attorneys' fees to Defendants." Weiner, 184 F.R.D. at 311; see also Fed. R. Civ. P. 19(a). III. CONCLUSION The Court should grant Defendants' Motion and join Mrs. Simon as a necessary party plaintiff because she is subject to the Court' jurisdiction and, in her absence, s complete relief cannot be afforded to Maag and Vallee. Respectfully submitted this 6th day of September, 2006. FENNEMORE CRAIG, P.C.

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

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CERTIFICATE OF SERVICE I hereby certify that on September 6, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for filing and s 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 Nancy Giles, Esq. Giles Legal PLC 733 W. Willetta Street Phoenix, Arizona 85007

s/Jordan Green
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

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