Free Other Notice - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PETER E. HEUSER, admitted pro hac vice ELIZABETH A. TEDESCO, admitted pro hac vice Kolisch Hartwell, P.C. 200 Pacific Building, 520 SW Yamhill Street Portland, OR 97204 Telephone: (503) 224-6655 Facsimile: (503) 295-6679 [email protected] [email protected] DANIEL R. MALINSKI (#005911) Burch & Cracchiolo, P.A. 702 East Osborn, Suite 200 Phoenix, Arizona 85014 Telephone: (602) 274-7611 Facsimile: (602) 234-0341 [email protected] Attorneys for Plaintiffs Richard G. Krauth and R.M. Wade & Co. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Richard G. Krauth, an individual, and R.M. No. CV 04-0544 PHX PGR Wade & Co., an Oregon corporation, Plaintiffs, vs. Phelps Dodge Corporation, a New York corporation, Phelps Dodge Bagdad, Inc., a Delaware corporation, Phelps Dodge Chino, Inc., a Delaware corporation, Phelps Dodge Morenci, Inc., a Delaware corporation, Phelps Dodge Sierrita, Inc., a Delaware corporation, Phelps Dodge Tyrone, Inc., a Delaware corporation, and Phelps Dodge Miami, Inc., a Delaware corporation, Defendants. NOTICE OF ERRATTA

Case 2:04-cv-00544-PGR

Document 118

Filed 07/12/2006

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiffs Richard G. Krauth and R.M. Wade & Co. submit this Notice of Errata to address a misstatement in plaintiffs' Reply in Support of Plaintiffs' Motion for Summary Judgment that No Purported Settlement Agreement is Enforceable, filed on May 18, 2006. On Page 4 of that brief, as part of its reply to defendants' argument that the Erie doctrine prevents the application of Arizona Rule of Civil Procedure Rule 80(d), plaintiffs stated that the District of Arizona applied Rule 80(d) to render a purported settlement agreement unenforceable in U.S. v. Mondragon, Docket No. 97-00700 (October 1998). As plaintiffs stated in footnote 2 on that page, at the time plaintiffs' reply brief was due, they had requested a copy of the Arizona district court's summary judgment order in U.S. v. Mondragon, but had not yet received it because the document was archived in California. Plaintiffs nonetheless believed, and so stated, that the district court had applied Rule 80(d) because the Ninth Circuit opinion affirming the district court decision contained an extensive discussion of the application of Rule 80(d). That Ninth Circuit opinion was, however, not published in any federal reporter. Because Ninth Circuit Rule 36-3(b) prohibits plaintiffs from citing to unpublished Ninth Circuit opinions, plaintiffs could not cite to the unpublished opinion applying Rule 80(d) and does not cite to it here. Plaintiffs merely mentioned that the district court decision in U.S. v. Mondragon had been affirmed in table format in the federal reporter. See U.S. v. Mondragon, 188 F.3d 516 (9th Cir. 1999). As plaintiffs noted in the footnote 2, they planned to submit the district court order discussing Rule 80(d) to the Court as soon as it was obtained from the archives. At length, and after several courier trips to the warehouse in California where the U.S. v. Mondragon documents were archived, plaintiffs have received and reviewed the Arizona district court's summary judgment order (attached as Exhibit A to this Notice) and find that Rule 80(d) was not referenced there. Plaintiffs' assertion to the contrary was thus incorrect. Plaintiffs apologize to the Court for this misstatement and wish to retract the portion of their reply brief stating that the District of Arizona has applied Rule 80(d). This retraction does not affect the Erie analysis contained in plaintiffs' reply brief, however, and does not change the
Page 2 ­ NOTICE OF ERRATA

Case 2:04-cv-00544-PGR

Document 118

Filed 07/12/2006

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

fact that Rule 80(d) may be applied by the Court to render any purported settlement agreement unenforceable. Dated: July 12, 2006. KOLISCH HARTWELL, P.C. By /s/ Peter E. Heuser Peter E. Heuser Elizabeth E. Tedesco 200 Pacific Building 520 S.W. Yamhill Street Portland, Oregon 97204 BURCH & CRACCHIOLO, P.A. Daniel R. Malinski 702 East Osborn, Suite 200 Phoenix, Arizona 85014 Attorneys for Plaintiffs and Counterclaim Defendants

Page 3 ­ NOTICE OF ERRATA

Case 2:04-cv-00544-PGR

Document 118

Filed 07/12/2006

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Page 4 ­ NOTICE OF ERRATA

CERTIFICATE OF SERVICE I hereby certify that on July 12, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Terry E. Fenzl [email protected] C. Mark Kittredge [email protected] I hereby certify that on July 12, 2006, I served the attached document by first class mail to: The Honorable Paul G. Rosenblatt United States District Court Sandra Day O'Connor U.S. Courthouse 401 W. Washington Street, SPC 56 Phoenix, AZ 85003-2156 /s/ Peter E. Heuser

Case 2:04-cv-00544-PGR

Document 118

Filed 07/12/2006

Page 4 of 4