Free Response - District Court of Arizona - Arizona

1 Terry E. Fenzl (#002485) C. Mark Kittredge (#013907) 2 PERKINS COIE BROWN & BAIN P.A. 3 2901 North Central Avenue Post Office Box 400 4 Phoenix, Arizona 85001-0400 (602) 351-8000 5 [email protected] 6 [email protected] 7 Attorneys for Defendants 8 9 10 11 12 Richard G. Krauth, an individual, and R.M. Wade & Co., an Oregon corporation, 13 Plaintiffs, 14 15 vs. No. CV 04-0544 PHX PGR UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

RESPONSE TO PLAINTIFFS' STATEMENT OF FACTS

16 Phelps Dodge Corporation, a New York 17 corporation, et al., 18 Defendants.

19 Phelps Dodge Corporation, a New York corporation, et al., 20 21 22 23 Counterclaim Plaintiffs, vs.

Richard G. Krauth, an individual, and R.M. 24 Wade & Co., an Oregon corporation, 25 26 27 28
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Counterclaim Defendants.

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Pursuant to Fed. R. Civ. P. 56 and LRCiv. 56.1, Defendants Phelps Dodge Corporation, Phelps Dodge Bagdad, Inc., Phelps Dodge Chino, Inc., Phelps Dodge Morenci, Inc., Phelps Dodge Sierrita, Inc., Phelps Dodge Tyrone, Inc., and Phelps Dodge Miami, Inc. (collectively, "Defendants") hereby respond to Plaintiffs' Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment that no Purported Settlement Agreement is Enforceable ("Plaintiffs' SOF") and any referenced paragraph in the ("Heuser Declaration" (Docket No. 67). Plaintiffs' SOF 1 On August 16, 2004, the Court stayed this action pending the result of a reexamination of the patents-in-suit, and plaintiffs filed the Request for Reexamination on September 30, 2004. ¶ 2]. [Declaration of Peter E. Heuser Regarding Settlement Negotiations in Support of Plaintiffs' Summary Judgment Briefing ("Heuser Decl.") at Defendants' Response to SOF 1

Declaration of Peter E. Heuser in Support of Plaintiffs' Summary Judgment Briefing

Declaration because the Paragraphs contradict Mr. Heuser's October 14, 2004 representation to Defendants that the Requests for Reexamination were filed on October 5, 2004. [Decl. of C. Mark Kittredge Dated May 3, 2006 ("Kittredge 5/3/06 Decl.") Ex. A (attached hereto at Tab 1)] Plaintiffs' SOF 2 In January 2005, the parties began to discuss settling the lawsuit, knowing that the claims of the patents-in-suit could be invalidated, narrowed, or affirmed by the PTO.

Defendants dispute Paragraph 1 of Plaintiffs' SOF and Paragraph 2 of the Heuser

[Heuser Decl. at ¶¶ 4, 5]. After the parties determined the basic value of a license to the patents-in-suit in mid-January 2005, they began to circulate drafts of the agreement. Heuser emailed a first draft agreement to Kittredge on January 19, 2005. [Id. at ¶ 8, Exh. D]. His email stated, "As I indicated to you, neither of my clients has seen this document, so this should not be considered an offer that is in condition to be accepted."
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[Id.]. Often several weeks or more passed between the time counsel for each party reviewed the draft and the time a revised draft was submitted to the other party. [Id. at ¶¶ 4-11]. Defendants' Response to SOF 2 Defendants dispute Paragraph 2 of Plaintiffs' SOF because the parties did not

merely "determine[] the basic value of a license to the patents-in-suit in mid-January 2005." Plaintiffs made an offer to settle the lawsuit on January 11, 2005. [Heuser Decl. Ex. B (Docket No. 67)] On January 12, 2005, Defendants unconditionally accepted Plaintiffs' offer thereby forming a binding oral contract to settle the lawsuit. [Tedesco Decl. Ex. B 3:16-19 (Docket No. 68)] Defendants dispute Paragraph 2 of Plaintiffs' SOF and Paragraph 8 of the Heuser Declaration to the extent that any statements contained in these Paragraphs are inconsistent with the text of the referenced document. [Heuser Decl. Ex. D (Docket No. 67)] that the settlement would be "regardless of what happens in the PTO" was clear and was Defendants dispute Paragraph 5 of the Heuser Declaration. Heuser's statement

reasonably interpreted by Defendants to mean that Plaintiffs' offer, if accepted by Defendants, would in no way be effected by a subsequent PTO decision. Plaintiffs' claim that this statement only referred to "how the Patent and Trademark Office would decide the reexamination after the settlement agreement was executed" is directly contradicted Ex. B (Docket No. 67)] Plaintiffs' counsel's hidden intent in making the statement expressed after the fact cannot change the clear meaning of the statement. Defendants dispute the claim in Paragraph 6 of the Heuser Declaration that Kittredge "said that the only possible issue was the confidentiality clause, but he thought we would be able to work that out." Kittredge accepted Plaintiffs' January 11, 2005 settlement offer unconditionally and in no way stated or implied that the proposed confidentiality clause was or might be objectionable to Defendants. [Tedesco Decl. Ex. B 3:16-19 (Docket No. 68)]
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by the clear language of the transcribed voicemail of Plaintiffs' offer. [Heuser Decl.

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Defendants dispute Paragraph 7 of the Heuser Declaration to the extent that any statements contained in the Paragraph are inconsistent with the text of the referenced document. [Heuser Decl. Ex. C (Docket No. 67)] Defendants dispute Paragraph 9 of the Heuser Declaration to the extent that any statements contained in the Paragraph are inconsistent with the text of the referenced document. [Heuser Decl. Ex. E (Docket No. 67)] Defendants dispute the claim in Paragraph 10 of the Heuser Declaration that "Kittredge agreed to find out from Phelps Dodge which emitters Phelps Dodge was currently using but told me he did not think the `548 patent would be a problem." During the referenced conversation, Heuser informed Kittredge that Plaintiff was sure that the emitters currently in use by Defendants did not infringe the new patent. [Tedesco Decl. Ex. A 5:22-6:4 (Docket No. 68), Defs.' Reply to Pls.' Resp. to Defs.' SOF Ex. B (Docket the conversation in Heuser's February 16, 2005 email to the extent the claims contradict No. 84)] Defendants dispute Heuser's claims about the conversation made two days after or add to the items listed in Kittredge's hand-written notes taken contemporaneously with the conversation. [Compare Heuser Decl. Ex. F (Docket No. 67) with Defs.' Reply to Pls.' Resp. to Defs.' SOF Ex. B (Docket No. 84)] Further, Defendants dispute Paragraph 10 of the Heuser Declaration to the extent that any statements contained in the Paragraph are inconsistent with the text of the referenced document. [Heuser Decl. Ex. F (Docket No. 67)] Defendants dispute Paragraph 11 of the Heuser Declaration to the extent that any statements contained in the Paragraph are inconsistent with the text of the referenced document. [Heuser Decl. Ex. G (Docket No. 67)] Plaintiffs' SOF 3 2005. [Heuser Decl. at ¶ 12)]. Kittredge asked Heuser if plaintiffs had heard anything from the PTO. [Id., Exh. I]. Heuser and Kittredge agreed that if the PTO rejected the claims of the patents-in-suit, it would not change the settlement they were working on.
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Counsel for Plaintiffs, Peter E. Heuser ("Heuser") called Kittredge on April 5,

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[Id.] Heuser stated, however, that if the PTO did not reject all of the claims of the patents-in-suit, the settlement negotiations would change directions entirely. [Id.] Defendants' Response to SOF 3 Defendants dispute Paragraph 3 of Plaintiffs' SOF and Paragraph 12 of the Heuser

Declaration regarding the April 5, 2005 telephone conversation. Kittredge's recollection of this conversation contradicts that of Heuser and he will so testify if called to do so. [Tedesco Decl. Ex. A 6:9-20, Ex. B 3:20-27 (Docket No. 68), Kittredge 5/3/06 Decl. Ex. B 39:24-43:25 (attached hereto at Tab 1)] Kittredge recalls that at some point between February 14, 2005 and April 5, 2005, Kittredge and Heuser had a telephone conversation during which Heuser told Kittredge that Plaintiffs had agreed that the settlement agreement would cover emitters used by Defendants to date with respect to the new patent, allowing the continued use of such emitters free from any claim of infringement, subject solely to Plaintiffs' review of such emitters to ensure that they do not infringe the new patent. [Id.] During that conversation, the parties agreed that (i) Defendants would identify the subject emitters; (ii) Plaintiffs would review that information with respect to the new patent; and (iii) all emitters that do not infringe the new patent would be expressly identified in and covered by the agreement. [Id.] According to this agreement, all approved emitters would be covered by all provisions of the agreement. [Id.] Defendants dispute that the Plaintiffs agreed only to "expressly warrant that those emitters did not infringe the `548 patent." Defendants dispute Paragraph 12 of the Heuser Declaration because the parties did not discuss the reexamination during this conversation. Heuser did not state that "if the PTO does not reject all of the claims of the patents-in-suit, the settlement negotiations would change directions entirely." [Kittredge 5/3/06 Decl. Ex. B 48:21-49:18 (attached hereto at Tab 1)] Defendants dispute Paragraph 3 of Plaintiffs' SOF and Paragraph 12 of the Heuser Declaration to the extent that any statements contained in these Paragraphs are inconsistent with the text of the referenced document. [Heuser Decl. Ex. I (Docket No. 67)] Specifically, the email cited by Plaintiffs as confirming the telephone
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conversation with Kittredge does not state that Heuser informed Mr. Kittredge that "if the PTO did not reject all of the claims of the patents-in-suit, the settlement negotiations would change directions entirely." Heuser is merely explaining future events to his clients as evidenced by a reading of the full paragraph: "He [Kittredge] asked if we heard anything from the PTO and I said we had not. We agreed that we were both certain that what we would get would be a first office action rejection of all of the claims. We also agreed that such a result would not change the settlement we were working on. Such an office action does not of course mean we lose; it is simply the next step in the process. We then would have an opportunity to respond. If, on the other hand, the PTO does not reject all of the claims, then that would totally change things to our benefit." (emphasis added) [Heuser Decl. Ex. I (Docket No. 67)]. Further, the representation in Paragraph 12 of the Heuser Declaration that Heuser made such a statement is contradicted by Plaintiffs' early representations of this conversation. [Defs.' Reply to Pls.' Resp. to Defs.' SOF, Ex. C not reject all claims, then that would totally change things to Wade's benefit.") (Docket No. 84)] Plaintiffs' SOF 4 Heuser then called Edward Newbegin, president of R.M. Wade & Co. ("Newbegin") to report this conversation with Kittredge. [Heuser Decl. at ¶ 13]. 4:13-15 ("Mr. Heuser may have also indicated that, on the other hand, if the PTO does

Newbegin told Heuser that Wade wished to sell product to Phelps Dodge and asked Heuser to be more positive with Kittredge about the progress of the negotiations. [Id.] As a result of this conversation, Heuser sent an email to Kittredge asking, to be encouraging, if it would be appropriate for Wade to contact Phelps about doing business in the future "now that we have been able to put the case to bed." [Id., Exh. H]. Defendants' Response to SOF 4 Defendants are without knowledge as to any unstated reasons regarding why Plaintiffs' counsel made the statement "now that we have been able to put the case to bed." However, Defendants reasonably understood the statement to mean that the parties had concluded the case by way of the settlement agreement.
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Defendants dispute

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Paragraph 4 of Plaintiffs' SOF and Paragraph 13 of the Heuser Declaration to the extent that any statements contained in these Paragraphs are inconsistent with the text of the referenced document or Defendants' reasonable understanding. [Heuser Decl. Ex. H (Docket No. 67)] Plaintiffs' SOF 5 Heuser emailed Kittredge on May 10, 2005 asking whether he was obtaining information about the emitters Phelps Dodge was using. [Heuser Decl. at ¶ 15, Exh. J]. Kittredge called Heuser soon after the email was sent. [Id.] The parties discussed the reexamination of the patents-in-suit, and Heuser told Kittredge the longer they waited the more likely it became that there would be a ruling by the PTO. [Id.] Heuser said that if the PTO does any other than reject all the claims before the agreement was signed, it "could entirely change the direction of the negotiation." [Id.] Kittredge said he felt the parties had a deal and Heuser said he did know that that was so clear. [Id.] The parties agreed that "a mess could be avoided" if Kittredge got back to Heuser quickly so they could finalize the agreement. Defendants' Response to SOF 5 [Id.] Right after speaking with Kittredge, Heuser

recounted the conversation in an email to Newbegin. [Id.] Defendants dispute Paragraph 5 of Plaintiffs' SOF and Paragraph 15 of the Heuser

Declaration. Kittredge does not recall discussing the reexamination during the May 10, 2005 telephone conversation. [Tedesco Ex. A 6:21-22 (Docket No. 68)] Kittredge recalls a conversation similar to what Plaintiffs describe in these paragraphs that occurred some point during the late summer of 2005. [Id. Ex. A 7:20-8:1] During that

conversation, Heuser and Kittredge discussed the reexamination, and Heuser told Kittredge that if the Patent Office issued a favorable Office Action before the written settlement agreement was signed, then he thought his clients' position would be that all bets would be off. [Id.] In response to that statement, Kittredge said that Defendants believed the parties already had a binding settlement agreement, regardless of any action by the Patent Office and that the parties were merely finalizing the documentation of that
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agreement. [Id.] This conversation was the first time that Plaintiffs indicated that they might assert that the settlement was contingent on an action by the Patent Office. [Id. Ex. B 3:1-4] Further, Defendants dispute Paragraph 5 of Plaintiffs' SOF and Paragraph 15 of the Heuser Declaration because the contents of Exhibit J of the Heuser Declaration does not reflect Kittredge's recollection of the conversation described. [Heuser Decl. Ex. J (Docket No. 67)] Plaintiffs' SOF 6 Kittredge remembers a single conversation "at no time prior to late summer 2005"

in which "Heuser told Kittredge that if the Patent Office issued a favorable Office Action before the written settlement agreement was signed, then he thought his clients' position would be that all bets would be off." [Declaration of Elizabeth A. Tedesco in Support of Plaintiffs' Summary Judgment Briefing ("Tedesco Decl."), Exh. A at 7; Exh. B at 3]. Phelps Dodge contend [sic] that Kittredge responded by stating that "defendants believed they already had a binding settlement agreement." [Id., Exh. A at 7]. Kittredge has no notes, emails or other memoranda to help him place the date. [Id., Exh. C at 88:8-90:18]. Defendants' Response to SOF 6 Defendants dispute Paragraph 6 of Plaintiffs' SOF to the extent that any

statements contained in the Paragraph are inconsistent with the text of the referenced document. [Tedesco Decl. Exs. A and C (Docket No. 68)] Plaintiffs' SOF 7 Phelps Dodge also describes "one subsequent telephone conversation" in which

"Heuser and Kittredge acknowledged they would like to finalize the settlement whether a binding settlement agreement already existed." [Tedesco Decl., Exh. A. at 8]. Defendants' Response to SOF 7 Defendants do not dispute Paragraph 7 of Plaintiffs' SOF.

documentation before the Patent Office issues an Office Action to avoid any dispute as to

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Plaintiffs' SOF 8 On June 17, 2005, Kittredge emailed Heuser revisions to the draft settlement agreement he received on March 24, 2005 [Heuser Decl. at ¶ 16, Exh. K]. Although the parties had not discussed any such provision, the draft also included a license to Phelps Dodge under the U.S. Patent No. 6,817,548 ("the `548 patent"), owned by Wade, as to the products identified in "Exhibit C." [Id.] Defendants' Response to SOF 8 and Heuser Declaration ¶ 16

Defendants dispute the allegation in Paragraph 8 of Plaintiffs' SOF and Paragraph

16 of the Heuser Declaration that the parties had not previously discussed a license for Defendants under the `548 patent with respect to the emitters reviewed and deemed noninfringing by Plaintiffs. [Tedesco Decl. Ex. A 6:9-22, Ex. B 3:20-27 (Docket No. 68)] Specifically, as discussed in response to Plaintiffs' SOF Paragraph 3, prior to Kittredge's June 17, 2005 email, the parties agreed that the `548 patent would be incorporated into

and covered by the provisions of the agreement only with reference to the emitters reviewed and deemed non-infringing by Plaintiffs. [Id.] Defendants dispute Paragraph 8 of Plaintiffs' SOF and Paragraph 16 of the Heuser Declaration to the extent that any statements contained in these Paragraphs are inconsistent with the text of the referenced document. [Heuser Decl. Ex. K (Docket No. 67)] Plaintiffs' SOF 9 The parties spent the next several months negotiating these provisions and a related exhibit directed to which models of emitters Phelps Dodge would be permitted to use in light of the `548 patent. [Heuser Decl. at ¶¶ 17-22]. Defendants' Response to SOF 9 Defendants dispute the allegations contained in Paragraph 9 of Plaintiffs' SOF and Paragraph 20 of the Heuser Declaration that during this time the parties negotiated the "related exhibit directed to which models of emitters Phelps Dodge would be permitted to use in light of the `548 patent." Prior to June 17, 2005, the parties agreed that, in light of
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the `548 patent, Defendants would be permitted to continue to use any and all emitters that they were then using provided that the Plaintiffs agreed that the emitters did not infringe the `548 patent. [Tedesco Decl. Ex. A 6:9-18, Ex. B 3:20-24 (Docket No. 68)] Following this agreement, the only remaining task was to compile the list of the emitters pursuant to the parties' agreement. This task required no negotiations because the parties had already agreed as to what would be included on the list. Defendants dispute Paragraph 17 of the Heuser Declaration to the extent that any statements contained in this Paragraph are inconsistent with the text of the referenced document. [Heuser Decl. Ex. L (Docket No. 67)] Defendants dispute that the document attached to the October 9, 2005 email was a "draft." In the email, Defendants accepted the Plaintiffs' final proposed changes to the Settlement Agreement as proposed. Therefore, at this time, the document was no longer a "draft," but rather the "Final Settlement Agreement" as indicated in the subject line of the email. [Heuser Decl. Ex. O (Docket No. 67)] Plaintiffs' SOF 10 In early September, plaintiffs momentarily thought the parties had reached agreement on contract language and signed a draft of the agreement. [Heuser Decl. at ¶ 20]. Before Heuser received the signed copies, he received a voicemail from Kittredge stating in pertinent part: "I wanted to chat with you briefly, and make sure we don't get ahead of ourselves, because it looks like you're already gathering signatures. There is going to be a review process that I need to go through here with my client to make sure we are comfortable with this, because Exhibit C looks a lot different than what we had before." [Id. at ¶ 21, Exh. N]. The document plaintiffs had signed was never transmitted to Phelps Dodge, and--prior to discovery in this case--Phelps Dodge was never told the draft had been signed. [Id. at ¶ 20]. Defendants' Response to SOF 10 Defendants do not dispute Paragraph 10 of Plaintiffs' SOF.

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Plaintiffs' SOF 11 October 9, 2005, Kittredge sent by email what would be a final draft of the proposed settlement agreement, and stating, "Now that we are finally here, I would really like to see what we can do to get the agreement executed this week." [Heuser Decl. at ¶ 22, Exh. O]. Defendants' Response to SOF 11 Defendants do not dispute that Kittredge sent an email to Heuser on October 9, 2005 attaching a version of the Settlement Agreement. Defendants dispute that the document attached to the October 9, 2005 email was a "draft." In the email, Defendants accepted the Plaintiffs' final proposed changes to the Settlement Agreement as proposed. Therefore, at this time, the document was no longer a "draft," but rather the "Final Settlement Agreement" as indicated in the subject line of the email. [Heuser Decl. Ex. O (Docket No. 67)] Plaintiffs' SOF 12 On October 19, 2005, Kittredge reported that Phelps Dodge had signed the final draft of the agreement. [Heuser Decl. at ¶ 23, Exh. P]. Plaintiffs had not and have not signed it. [Id.] Defendants' Response to SOF 12 Defendants dispute the characterization of this document as a "draft" rather than

the completed settlement agreement, particularly in light of the October 12, 2005 email from Plaintiffs' counsel to Phelps Dodge (i) assenting to all the terms, (ii) stating that have my clients . . . sign the agreement," and (iii) describing that writing as "the agreement." [Defs.' SOF in Supp. of Mot. For Summ. J. Enforcing Settlement Plaintiffs "agree[] with you, so please make the change and email it to me. I can then

Agreement Ex. 4 (Docket No. 39)] Defendants dispute the allegations contained in Paragraph 12 of Plaintiffs' SOF and Paragraph 23 of the Heuser Declaration to the extent that any statements contained in

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these Paragraphs are inconsistent with the text of the referenced document. [Heuser Decl. Ex. P (Docket No. 67)] Plaintiffs' SOF 13 On October 20, 2005, Heuser called Kittredge to inform him that plaintiffs had just received an Office Action from the PTO confirming the validity of both patents-insuit. [Heuser Decl. at ¶ 24, Exh. Q]. During the conversation, Kittredge acknowledged that Heuser had said the agreement needed to be executed before Wade received a favorable ruling from the PTO or the parties would be back to negotiating. [Id.] As the conversation concluded, Heuser and Kittredge agreed that they wanted to--as Phelps Dodge's discovery responses state--"resolve the issue of the disputed settlement" before proceeding with other aspects of the case. [Tedesco Decl., Exh. A at 8]. Defendants' Response to SOF 13 Defendants dispute the allegations contained in Paragraph 13 of Plaintiffs' SOF Defendants dispute Plaintiffs'

and Paragraph 24 of the Heuser Declaration.

characterization of the conversation that occurred on October 20, 2005. Defendants dispute the allegation that "Kittredge acknowledged that Heuser had said the agreement needed to be executed before Wade received a favorable ruling from the PTO or the parties would be back to negotiating." Indeed, this is a red herring as Plaintiffs have not alleged that they ever made such an unequivocal statement. Rather, Plaintiffs' actual this could entirely change the direction of the negotiations." [Defs.' Reply to Pls.' Resp. to Defs.' SOF, Ex. C 4:17-24 (Docket No. 84)] Kittredge remembers that conversation occurred in late summer of 2005 (rather than May 10, 2005) and recalls that Heuser said "that if the Patent Office issued a favorable Office Action before the written settlement agreement was signed, then he thought his clients position would be that all bets would be off." [Tedesco Decl. Ex. A 7:20-8:4 (Docket No. 68)] Regardless of when the conversation occurred, both parties agree that the statements made by Heuser were, at best, equivocal, indicating what "could" happen or what he "thought" his clients might
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allegation is that on May 10, 2005, "Heuser said that if [the PTO did not reject all claims]

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do. Plaintiffs have not alleged otherwise. During the conversation on October 20, 2005, Kittredge merely acknowledged that such an equivocal statement had been made. [Defs.' Reply to Pls.' Resp. to Defs.' SOF, Ex. A ¶ 4 (Docket No. 84)] Defendants dispute Paragraph 13 of Plaintiffs' SOF and Paragraphs 24 of the

Heuser Declaration to the extent that any statements contained in these Paragraphs are inconsistent with the text of the referenced document. [Heuser Decl. Ex. Q, Tedesco Decl. Ex. A (Docket No. 68)] Plaintiffs' SOF 14 Phelps Dodge contends that an oral contract was formed when plaintiffs "manifested assent to settle this Action through the voice mail message left by Heuser on the evening of January 11, 2005" and "Defendants manifested assent to be bound during the January 12, 2005 telephone conversation" between Heuser and Kittredge in which accepted by Phelps Dodge." [Tedesco Decl., Exh. B at 3]. Defendants' Response to SOF 14 Plaintiffs' SOF 15 "Kittredge told Heuser that the offer made by plaintiffs in that voicemail message was

Defendants do not dispute Paragraph 14 of Plaintiffs' SOF. Phelps Dodge contends that an oral "modification" to the purported January 12,

2005 oral agreement took place "sometime between February 14, 2005 and April 5, "modification" included the parties' agreement "that (i) defendants would identify the

2005" to "take into consideration the Plaintiff's newly issued `548 patent." [Id.] The

subject emitters; (ii) plaintiffs would review that information with respect to the new patents; and (iii) all emitters that do not infringe the new patent would be expressly identified in and covered by the agreement." [Tedesco Decl., Exh. A at 6]. Defendants' Response to SOF 15 Defendants do not dispute Paragraph 15 of Plaintiffs' SOF.

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Plaintiffs' SOF 16

In scheduling conference on December 12, 2005, the Court stated "Well, this is a

most unusual set of circumstances. The Court has been asked to evaluate a settlements before, but not when it's claimed that there are genuine issues of material fact based on caveats entered into with attorneys--I'm going to determine that there--I probably have reservations attached to the settlement agreement." [Tedesco Decl. at Exh. E at 6:4-17]. Defendants' Response to SOF 16 Defendants do not dispute that the Court made the alleged statements and do not dispute that a motion for summary judgment requires the Court to determine "whether there were reservations attached to the settlement agreement." However, Plaintiffs' to determine there's a genuine issue of material fact, which is whether or not there were

counsels' email to Defendants' counsel on October 12, 2006 contains no such reservations. [Defs.' SOF in Supp. of Summ. J. Enforcing Settlement Ex. 4 (Docket No. 39)] Dated: May 3, 2006. PERKINS COIE BROWN & BAIN P.A.

By s/ C. Mark Kittredge Terry E. Fenzl C. Mark Kittredge 2901 North Central Avenue Post Office Box 400 Phoenix, Arizona 85001-0400 Attorneys for Defendants and Counterclaim Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on May 3, 2006, I electronically transmitted the attached documents to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Daniel R. Malinski [email protected] BURCH & CRACCHIOLO, P.A. 702 East Osborn, Suite 200 Phoenix, Arizona 85014 Attorneys for Plaintiffs and Counterclaim Defendants Peter E. Heuser [email protected] Kolisch Hartwell, P.C. 200 Pacific Building 520 S.W. Yamhill Street Portland, Oregon 97204 Attorneys for Plaintiffs and Counterclaim Defendants I hereby certify that on May 3, 2006, I served the attached document by hand delivery to: The Honorable Paul G. Rosenblatt United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 621 401 West Washington Street, SPC 56 Phoenix, AZ 85003-2156 s/ Janet Roe

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