Free Reply - District Court of Arizona - Arizona

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1 Case 2:04-cv-00384-ROS Document 472 Filed 04/18/2007 Page 1 of 4

MATHEW & ASSOCIATES IVAN K. MATHEW (SBN: 011610) 3300 N. Central Avenue, Suite 1730 Phoenix, Arizona 85012 Tel: (602) 254-8088 / Fax: (602) 254-2204 E-mail: [email protected] Attorneys for Defendants RICKY LEE HANCOCK, BRENDA HANCOCK, RICK HANCOCK HOMES, L.L.C. and RLH DEVELOPMENT, L.L.C. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Meritage Homes Corporation, a Maryland Corporation, formerly d/b/a Meritage Corporation, Hancock-MTH Builders, Inc., an Arizona corporation, Hancock-MTH Communities, Inc., an Arizona corporation, and currently d/b/a Meritage Homes Construction, Inc., an Arizona corporation, and Meritage Homes of Arizona, Inc., an Arizona corporation, Plaintiffs, v. Ricky Lee Hancock and Brenda Hancock, husband and wife; Gregory S. Hancock and Linda Hancock, husband and wife, Rick Hancock Homes L.L.C., an Arizona limited liability company; RLH Development, L.L.C., an Arizona limited liability company; and J2H2, L.L.C., an Arizona limited liability company, Defendants. _________________________________________ Rick and Brenda Hancock, Defendants, Counterclaimants and Third-Party Plaintiffs, v. CASE NO. CV-04-0384-PHX-ROS REPLY TO RESPONSE TO RICK HANCOCK'S REQUEST FOR LEAVE TO SUPPLEMENT THE RECORD

(Assigned to the Hon. Roslyn O. Silver)

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 Rule 56 explicitly allows for the record to be supplemented up until the time of the hearing. Rule 56(c) and (e). The request for leave was made to cure deficiencies complained of by Meritage - something Meritage suggested in its own pleading as appropriate. Even if there is a local rule stating that a moving parties statement of undisputed facts is deemed admitted and less controverted by opposing parties statement, it is error to disregard facts of record supporting an opposing parties' claims despite failure to comply with the local rule requiring a separate statement of material controverting fact. Euromodas, Inc. v. Zanella, Ltd. (1st Cir. 2004), 368 F.3d 11, 15; See also, LaSalle Bank Lakeview v. Seguban, 54 F.3d 387, 391-392 (7th Cir. 1995). Where the evidentiary matter in support of a Motion for Summary Judgment does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. Id. The district judge must find that construing all material facts in the movant's favor as a result of the nonmovant's defaulted filing, summary judgment is appropriate. Id. Meritage is estopped from arguing that the record should not be supplemented when they invited the supplement by suggesting that the proper course of action would be to supplement the record in a previous filing. Rick Hancock Defendants supplemented the
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Meritage Homes Corporation, a Maryland Corporation, formerly d/b/a Meritage Corporation, Hancock-MTH Builders, Inc., an Arizona corporation, Hancock-MTH Communities, Inc., an Arizona corporation, and currently d/b/a Meritage Homes Construction, Inc., an Arizona corporation, and Meritage Homes of Arizona, Inc., an Arizona corporation; Steven J. Hilton and Suzanne Hilton, husband and wife; John R. Landon and Debi Landon, husband and wife; Scott Keeffe and Vicky Keeffe, husband and wife; Roger Zetah and Jane Doe Zetah, husband and wife; and James Arneson and Zane Arneson, husband and wife, Third-Party Defendants.

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record because Meritage was critical that co-defendant, Greg Hancock, did not request leave to supplement the record dated March 19, 2007 nor did not attempt to correct any deficiencies. (Reply to Greg Hancock's Response re Motion to Strike, Document No. 458, p. 4, ll. 4-8.1) CONCLUSION The Motion to Supplement should be granted. RESPECTFULLY SUBMITTED this 18th day of April, 2007. MATHEW & ASSOCIATES

By: /s/Ivan K. Mathew Ivan K. Mathew, Attorneys for Ricky Lee Hancock, Brenda Hancock, Rick Hancock Homes, L.L.C. and RLH Development, L.L.C.

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"In light of Greg Hancock's complete failure to cure or even attempt to cure any of these fifteen discrete portions, Meritage will not burden the Court by repeating them or why they violate the Rules here. Also in light of Greg Hancock's complete failure to cure or even attempt to cure any of these fifteen discrete portions, Meritage respectfully asks the Court to enter the proposed Order, attached to this Reply." (Emphasis in original.)
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CERTIFICATE OF SERVICE Meritage v. Hancock, et al. Case No. CV 04 00384 ROS

I hereby certify that on April 18, 2007, 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: Dan W. Goldfine Richard G. Erickson Adam Lang Snell & Wilmer, LLP One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 e-mail: [email protected] Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants Steve Hilton and John Landon Timothy J. Burke Fennemore & Craig, P.C. 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012 e-mail: [email protected] Attorneys for Third Party Defendant, Snell & Wilmer, LLP Robert M. Frisbee Frisbee & Bostock 1747 E. Morten Avenue, Suite 108 Phoenix, AZ 85020 e-mail: [email protected] Attorneys for Defendant Gregory Hancock

Grant Woods Grant Woods, P.C. 1726 N. Seventh Street Phoenix, AZ 85006 e-mail: [email protected] Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants Steve Hilton and John Landon

s/Karen Gawel