Free Motion for Leave to File - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Dan W. Goldfine (#018788) Richard G. Erickson (#019066) SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Street Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Facsimile: (602) 382-6070 [email protected] [email protected] Attorneys for Plaintiffs and Grant Woods, Esq. (#006106) GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, Arizona 85006 Telephone: (602) 258-2599 Facsimile: (602) 258-5070 [email protected] Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants

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Snell & Wilmer L.L.P.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Meritage Homes Corporation, et al., Case No. CV-04-0384-PHX-ROS Plaintiffs, NOTICE OF ERRATA v. AND Ricky Lee Hancock, et al., Defendants. AND RELATED COUNTERCLAIMS AND THIRD PARTY CLAIMS MOTION FOR LEAVE TO SUPPLEMENT STATEMENTS OF FACT IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

On May 23, 2007, the secretary for undersigned counsel inadvertently filed a Declaration executed by Ellen Elford. (Doc. 489 and Exhibit 1 hereto.) Ms. Elford's Declaration, together with the contemporaneous Declaration of Kelly Brassfield (Exhibit 2 hereto), was supposed to be filed with the following Motion for Leave to Supplement Statements of Fact in Opposition to Defendants' Motions for Summary Judgment. The premature filing of Ms. Elford's Declaration was in error.

Case 2:04-cv-00384-ROS

Document 491

Filed 05/24/2007

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Plaintiffs (collectively "Meritage") now seek leave of Court, under Rule 56, Federal Rules of Civil Procedure, to supplement the summary judgment record with the Declarations of Ms. Elford and Ms. Brassfield, who swore to compellingly relevant facts in regard to (1) the Court's minute entry of April 20, 2007; and (2) Defendant Greg Hancock's accusation that a Meritage attorney (by mere coincidence a lieutenant colonel in the Marine Corps Reserves) suborned perjury in fact witness Sgt. Mario Atkins to avoid summary judgment. Good cause for leave to amend, therefore, exists on two grounds: (1) Two Consumers Have Disassociated Greg Hancock with the Mark

Being Used by Rick Hancock Homes. On April 20, 2007, the Court ordered supplemental briefing on whether "consumers will believe Greg Hancock (the owner of the Hancock marks) is connected to the marks being used by Rick and Greg Hancock." (Order, at 2:3-4.) The Court suggested that "[t]he Hancocks' action could not result in actionable confusion as Greg Hancock is connected with the mark being used by the Hancocks." (Id. at 2:5-7.) In support, the Court cited MJ & Partners Restaurant Ltd. P'ship v. Zadikoff, 10 F.2d 922 (N.D. Ill. 1998) and Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., 277 F.3d 253 (2nd Cir. 2002). (Id. at 2:10.) Based on the representations of a sales representative employed by Rick Hancock Homes, Kelly Brassfield and Ellen Elford are consumers who were familiar with the home market in Buckeye, and neither witness associated Greg Hancock with Rick Hancock Homes. (Exhibit 1, at ¶¶ 1-4; Exhibit 2, at ¶¶ 1-4.) Defendants' conduct led Ms. Brassfield and Ms. Elford to be confused that Rick Hancock Homes was part of the Meritage development just across I-10 from Rick Hancock Homes. (Exhibit 1, at ¶ 3; Exhibit 2, at ¶ 3.) Ms. Brassfield actually relied upon Defendants' misrepresentations, purchased her home from Rick Hancock Homes and currently lives in that home. (Exhibit 1, at ¶ 1-8.) This compelling factual evidence nullifies any concern that a jury lacks sufficient factual disputes to deliberate and decide the unfair competition claim. At least two witnesses say they were specifically confused between Rick Hancock Homes and
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Snell & Wilmer L.L.P.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Meritage Homes' Hancock Communities and that their confusion had nothing to do with Greg Hancock. Especially because the Court invited supplemental briefs on this topic and Meritage in due course produced compelling facts that at least dispute Greg Hancock's role in two consumers' confusion, the Court should grant Meritage leave to add these Declarations to the summary judgment record currently before the Court. (2) Defendant Greg Hancock Has Falsely Accused Undersigned Counsel of

Suborning Perjury in a Witness Who Confused Meritage with Rick Hancock Homes. In his Updated Motion for Summary Judgment or Dismissal and Supporting Statements of Fact (at 14:21-25, ¶ 76(f)), Greg Hancock unbelievably made the following argument: (f) There is confusion in the marketplace between "Hancock Communities" and "Rick Hancock Homes" ­ no such evidence could be found except a declaration by a Marine who did not purchase a Rick Hancock home and who signed disclaimers negating his claim of confusion; the Marine is a subordinate of Meritage lawyer, Rick Erickson. Defendant Hancock made this argument on December 18, 2006, a year and a half after Sgt. Mario Atkins, an active duty Marine recruiter, swore a Declaration that he confused Rick Hancock Homes with Meritage when purchasing a home in Buckeye. Hancock did not depose Sgt. Atkins. He chose instead, in moving for summary judgment, to attack Sgt. Atkins' credibility by presuming that Sgt. Atkins would lie for undersigned counsel simply because undersigned counsel is an officer in the Marine Corps Reserves. A simple interview of Sgt. Atkins would have revealed that it was not undersigned counsel but Emma Harty, a former Meritage attorney, who received the Declaration of Sgt. Atkins. Shortly before Defendant Greg Hancock filed his updated summary judgment motion, undersigned counsel had deployed to Iraq and returned to work a year later on May 1, 2007. That same day Hancock argued that Sgt. Atkins was "an underling" of undersigned counsel and again insinuated that perjury had been suborned in Atkins'
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Snell & Wilmer L.L.P.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Declaration. (Defendant Greg Hancock's Response to Plaintiffs' Supplemental Brief Per The Court's Order of April 20, 2007, at 2:13-20.) Undersigned counsel, therefore, was forced to address this spurious accusation upon returning to work this month.1 CONCLUSION Meritage respectfully requests that the Court grant leave for Meritage to supplement its statements of fact in pending summary judgment briefs with the Declarations of Ellen Elford and Kelly Brassfield. DATED this 24th day of May, 2007. SNELL & WILMER L.L.P.

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Snell & Wilmer L.L.P.

By s/ Richard G. Erickson Dan W. Goldfine Richard G. Erickson One Arizona Center Phoenix, AZ 85004-2202 Attorneys for Plaintiffs

As offensive as it is for Hancock to baselessly accuse two American service people of perjury, the innuendo surrounding Sgt. Atkins' Declaration should be irrelevant for two reasons. First, witness credibility (especially of a witness who Defendants are wary to depose) is not pertinent to deciding summary judgment. Eastman Kodak Co. v. Image Technical Serv., Inc., 504 U.S. 451, 458, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) ("the nonmovant's version of any disputed issue of fact is presumed correct.") The following passage is compelling that Greg Hancock cannot simply call Marines liars and expect summary judgment: [A]t this stage of the litigation [summary judgment], the judge does not weigh disputed evidence with respect to a disputed material fact. Nor does the judge make credibility determinations with respect to statements made in affidavits, answers to interrogatories, admissions, or depositions. These determinations are within the province of the factfinder at trial. T.W. Elec. Serv., Inc. v. Pac. Elec, Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987) (citations omitted). Secondly, even if Defendant Greg Hancock can get away with maligning the professional and military character of Sgt. Atkins and undersigned counsel, there are at least two other witnesses besides Sgt. Atkins who confused Rick Hancock Homes with Meritage. Ellen Elford and Kelly Brassfield, indeed, are very specific about their confusion and ultimate disappointment in finding that Rick Hancock Homes was actually separate from Meritage. The fact that Sgt. Atkins is the "only evidence" of confusion (Hancock's Supplemental Brief, Id. at 2:14) is obviously disputed as is Hancock's argument that only one consumer was confused. (Id. at 6:12-14.) There are three consumers who were confused by advertising, marketing and sales pitches by Rick Hancock Homes. At least two of them were not affected by Defendants' trivial attempts at disclaiming Meritage. (Exhibit 1, at ¶¶ 3-4, 6; Exhibit 2, at ¶ 8.) Document 491- 4 - Filed 05/24/2007

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

CERTIFICATE OF SERVICE I hereby certify that on May 24, 2007, I electronically transmitted the foregoing 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: Ivan K. Mathew Mathew & Mathew, P.C. 3300 North Central Avenue, Suite 1730 Phoenix, Arizona 85012 Attorneys for Defendants Rick Hancock, Brenda Hancock, Rick Hancock Homes, L.L.C., and RLH Development, L.L.C. Robert M. Frisbee Frisbee & Bostock, PLC 1747 East Morton Avenue Suite 108 Phoenix AZ 85020 Attorneys for Defendant Greg Hancock Kenneth J. Sherk Timothy J. Burke Fennemore Craig, P.C. 3003 N. Central Ave. Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendant Snell & Wilmer, L.L.P. in State Court Action s/ V. Whipple
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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

Document 491- 5 - Filed 05/24/2007

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