Free Response - District Court of Arizona - Arizona

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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. Wade & Co., an Oregon corporation, Plaintiffs, v. 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.

No.04-544 PHX PGR

PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR SURREPLY

Case 2:04-cv-00544-PGR

Document 106

Filed 05/31/2006

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I.

INTRODUCTION Plaintiffs Richard G. Krauth and R.M. Wade & Co. oppose Defendants Phelps Dodge

Corporation, et al. ("Phelps Dodge")'s Motion to File Surreply and Surreply to Plaintiffs' Reply in Support of its Motion for Summary Judgment, filed May 26, 2006. Plaintiffs request that the Court reject the entire filing as unauthorized and improper. II. ARGUMENT In its two-sentence "Motion," Phelps Dodge states that filing a surreply is necessary because plaintiffs make a new legal argument in their Reply in Support of their Motion for Summary Judgment that No Purported Settlement Agreement is Enforceable. At the outset, the District Court for the District of Arizona does not authorize the filing of a surreply to any motion for any reason, nor even the request to file a surreply. To authorize its filing, Phelps Dodge cites "generally" to Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126 (9th Cir. 1999). There, the Ninth Circuit merely mentioned that because the lower court rules provided for a surreply, a defendant had not waived a statute of limitations argument made for the first time in its reply. Id. at 1129. That case was an appeal from the District Court for the Central District of California, where the local rules expressly provide that a party may file a response to a reply upon "prior written order of the Court." C.D. Cal. L.R. Civ. 7-10. The District of Arizona has no corresponding local rule. Indeed, Cedars-Sinai does not provide blanket authorization for the filing of a surreply whenever a party would like to respond further to a certain argument, regardless of what the local rules of court provide. Nonetheless, Phelps Dodge has not only filed a request to file a surreply, but has included the text of the surreply itself in the same document ostensibly requesting such permission from the Court. Accordingly, even if the local rules did provide for the filing of a surreply upon "prior written order the Court," Phelps Dodge has obtained no such order. In fact, the argument supporting the motion to file a surreply and the surreply itself are the same text in Phelps Dodge's filing. In other words, the Court cannot consider Phelps Dodge's request to file the surreply without simultaneously reading Phelps Dodge's surreply. Because

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this manipulative briefing strategy is wholly inappropriate, and lacking any legal authority, plaintiffs ask the Court to reject the entire filing. Second, although the Court need not reach the merits of Phelps Dodge's Motion, the argument at issue here relates to the Arizona statute of frauds. Plaintiffs argued that the statute of frauds prevents formation of any purported settlement agreements in the opening pages of its Motion for Summary Judgment filed March 31, 2006. In its opposition, Phelps Dodge argued for a certain reading of the statute of frauds and, in their Reply, plaintiffs simply replied to these arguments. Unlike Cedars-Sinai, plaintiffs did not move for summary

judgment on a brand new legal theory, such as the statute of limitations, in their Reply. Phelps Dodge has already had ample opportunity to address the issue of whether the statute of frauds governs patent license agreements containing covenants not to sue, a point also argued in the briefing of Phelps Dodge's Motion for Summary Judgment Enforcing Settlement Agreement. Finally, Phelps Dodge's contention that plaintiffs purposefully and misleadingly omitted a section of the Restatement (Second) of Contracts from their Reply has no merit. The passage from plaintiffs' Reply citing portions of the Restatement is a direct and complete quotation from an Arizona state court opinion on an issue of state law, Mullins v. Southern Pacific Transportation Co., 174 Ariz. 540, 851 P.2d 839 (App. 1992). Because the statement in Mullins is the common law of Arizona, it is in fact more appropriate for plaintiffs to cite to the Arizona case itself than to cite to the Restatement directly. Because Phelps Dodge's filing is without legal authority or merit, Plaintiffs respectfully request that the Court deny Defendants' Motion to File Surreply and refuse to consider the entire document. \\ \\ \\ \\

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Dated: May 31, 2006. By s/ Elizabeth A. Tedesco PETER E. HEUSER ELIZABETH A. TEDESCO Kolisch Hartwell, P.C. 520 SW Yamhill Street, Suite 200 Portland, Oregon 97204 Phone: 503-224-6655 Facsimile: 503-295-6679

DANIEL R. MALINSKI Burch & Cracchiolo, P.A. 702 East Osborn, Suite 200 Phoenix, Arizona 85014 Telephone: (602) 274-7611

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Certificate of Service I hereby certify that on May 31, 2006, I electronically transmitted the attached documents 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] PERKINS COIE BROWN & BAIN, P.A. 2901 North Central Avenue Post Office Box 400 Phoenix, Arizona 85001-0400 Attorneys for Defendants. I hereby certify that on May 31, 2006, I served the attached document via Federal Express Overnight 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, Arizona 85003-2156 /s Elizabeth A. Tedesco

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