Free Response to Motion - District Court of Arizona - Arizona

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Lori V. Berke (#015628) Jody C. Corbett (#019718) SHUGHART THOMSON & KILROY, P.C. SECURITY TITLE PLAZA 3636 N. CENTRAL AVE., SUITE 1200 PHOENIX, ARIZONA 85012 (602) 650-2000 [email protected] [email protected] Attorneys for Defendants City of Phoenix City of Phoenix Police Department and Timothy Ward IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA JEFFREY LUTZ, in his individual capacity, Plaintiff, vs. CITY OF PHOENIX, a city municipality; CITY OF PHOENIX POLICE DEPARTMENT, a subdivision of the City of Phoenix; TIMOTHY WARD, in his individual and marital capacity, Defendants Defendants, by and through counsel undersigned, hereby respond to Plaintiff's Motion for Relief from Judgment or Order Under Rule 60(b)(1) and (3) and request that the Court deny the motion for the reasons set forth below. Rule 60(b) of the Federal Rules of Civil Procedure provides that pursuant to motion by a party the Court may relieve that party from a final judgment for "(1) mistake, inadvertence,
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DOCS.1809782

NO. CIV 04-0482-PHX-MS DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT OR ORDER UNDER RULE 60(b)(1) AND (3)

Case 2:04-cv-00482-ECV

Document 55

Filed 11/04/2005

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surprise, or excusable neglect; . . . (3) fraud . . ., misrepresentation, or other misconduct of an adverse party." Under Rule 60(b)(1), mistake by a litigant or his attorney on the basis of ignorance or carelessness is not appropriate grounds for relief. Allmerica Financial Life Ins. and Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir. 1997). Likewise, to prevail on a motion under Rule 60(b)(3), a party "must prove by clear and convincing evidence that the verdict was obtained through fraud, misrepresentation, or other misconduct and the conduct complained of prevented the losing party from fully and fairly presenting [his case]." De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000). In fact, the Court cautioned Plaintiff in its Order, dated September 23, 2005 (Docket #50) that the judgment would only be reconsidered if he brought a proper motion pursuant to Rule 60. Plaintiff contends that he should be relieved from the final judgment because he made a mistake by hiring Scott Ambrose as his attorney and that Mr. Ambrose "misrepresented" Plaintiff when it was discovered that Mr. Ambrose knew the Moyas (the victims of the attempted armed robbery for which Plaintiff was arrested). Neither of these claims warrant relief under Rule 60(b). The United States Supreme Court has held that parties voluntarily choose the attorney that represents them in a particular action and that a party cannot seek relief from a judgment based on the alleged acts or omissions of a "freely selected agent." Link v. Wabash R. Co., 370 U.S. 626, 633-634 (1962). Plaintiff has cited no authority to support his contention that his "mistake" in hiring Mr. Ambrose is grounds for relief from the judgment. In addition, Plaintiff does not have clear and convincing evidence that Defendants obtained a judgment against him based on fraud, misrepresentation, or other misconduct.
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DOCS.1809782

Case 2:04-cv-00482-ECV

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Indeed, the only misrepresentation Plaintiff is complaining about is an alleged misrepresentation by his attorney. Therefore, Plaintiff's motion for relief from judgment pursuant to Rule 60(b) should be denied. DATED this 4rd day of November, 2005. SHUGHART THOMSON & KILROY, P.C.

By s/ Jody C. Corbett Lori V. Berke Jody C. Corbett Attorneys for Defendants City of Phoenix, City of Phoenix Police Department and Timothy Ward I hereby certify that on November 4, 2005, I electronically transmitted the foregoing document to the U.S. District Court Clerk's Office by using the CM/ECF System for filing. I further certify that on November 4, 2005, I caused a copy of the foregoing document and the notice of electronic filing to be mailed, postage prepaid, to the following: The Honorable Morton Sitver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 514 401 West Washington Street, SPC 13 Phoenix, AZ 85003-2151 Jeffrey Lutz Towers Jail Location Code T-2-B-13 3127 West Gibson Lane Phoenix, Arizona 85009 s/ Jody C. Corbett
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DOCS.1809782

Case 2:04-cv-00482-ECV

Document 55

Filed 11/04/2005

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