Free Objection - District Court of Arizona - Arizona

Robert M. Frisbee #018779 FRISBEE & BOSTOCK, PLC 2 1747 East Morten Avenue, Suite 108 Phoenix, Arizona 85020 3 Phone: (602) 354-3689 Fax: (602) 266-7744 4 [email protected] Attorneys for Greg and Linda Hancock
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IN THE UNITED STATES DISTRICT COURT FOR THE 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 d/b/a/ Meritage Homes Construction, Inc.; and Meritage Homes of Arizona, Inc., an Arizona Corporation, Plaintiffs, vs. ) ) ) ) ) ) ) ) ) ) ) Ricky Lee Hancock and Brenda ) Hancock, husband and wife; Gregory ) S. Hancock and Linda Hancock, ) husband and wife; Rick Hancock Homes ) LLC, an Arizona limited liability ) company; RLH Development, LLC, an ) Arizona limited liability company; and ) J2H2, LLC, an Arizona limited ) liability company, ) Defendants, ) and ) ) Greg Hancock, an individual, ) ) Defendant, Counter) Claimant and Third) Party Plaintiff, ) vs. ) ) Steven J. Hilton, an individual; John R. ) Landon, in individual; Larry W. Seay, ) an individual; and Snell & Wilmer, LLP, ) an Arizona professional ) corporation, ) Third-Party Defendants. ) )
Document 471

Case No. CV-04-0384-PHX-ROS

GREG HANCOCK'S OBJECTION TO MERITAGE'S MOTION TO STRIKE RE HANCOCKS' RESPONSE AND STATEMENT OF FACTS, AND GREG HANCOCK'S REPLY TO PLAINTIFF'S RESPONSE TO GREG HANCOCK'S UPDATED MOTION FOR SUMMARY JUDGMENT OR DISMISSAL

Case 2:04-cv-00384-ROS

Filed 04/17/2007

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I. MERITAGE'S "MOTION TO STRIKE" Despite the Court's recent admonition to Meritage regarding proper practice, Meritage's new "Motion To Strike, etc." is once again improper in form and is not cognizable by the Court. As is said in Moore's Federal Practice (3d Ed.), § 12.37[2], p. 1294: Only material included in a "pleading" may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. Motions, briefs or memoranda, objections, or affidavits may not be attacked by the motion to strike. For example, in Hrubec v. National R.R. Passenger Corp., 829 F. Supp. 1502 (N.D.Ill. 1993), it was held that neither a motion to strike a motion or the responsive motion to strike were proper under Rule 12(f). See the other cases cited in Moore § 12.37[2]. Footnote 1 of The Sum of $66,839.59 v. IRS, 119 F. Supp. 2d 1358 (N.D.Ga. 2000) nicely explains the principle: With respect to the IRS' motion to strike, because a motion to strike is only appropriate with regard to a pleading and an affidavit is not a pleading (see Fed.R.Civ.P. 7), the motion to strike Calloway's affidavit is procedurally improper. Rather than filing a motion to strike as under Rule 12, the proper method for challenging the admissibility of evidence in an affidavit is to file a notice of objection to the challenged testimony. On a motion for summary judgment, the Court will evaluate the evidence presented in the affidavit and consider any objections raised to the testimony. * * * Meritage's improper motion to strike should be ignored as improper and in violation

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of the Court's recent admonition.
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II. REPLY TO PLAINTIFF'S RESPONSE TO UPDATED MOTIONS
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Greg Hancock believes that his Updated Motion For Summary Judgment Or
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Dismissal accurately and adequately stated both the law and the facts applicable to this case,
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and will not repeat what was said there. However, Greg Hancock believes that it must be
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said that Meritage's Response to Greg Hancock's Motions is just another example of
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Meritage's continued quest to draw inferences from facts that only a perfidious litigant could
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draw, and to invent claims that have no evidentiary support. As has been the case from the
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beginning, Meritage obviously believes that if untruths are repeated often enough, someone might believe them. Risking brief repetition of his prior submissions, Greg Hancock asserts that the following was the state of affairs when Meritage commenced this case in February, 2004, and that little has changed despite copious depositions and the exchange of thousands of pages of documents: " Meritage had already breached the License Agreement, or as Meritage has recently conceded, Greg Hancock cancelled it; in either event, the License Agreement cannot be the basis for Lanham Act jurisdiction. " Rick Hancock hadn't competed with Meritage, as he owned no land until December, 2004, and didn't break ground until after March, 2005. " Neither Rick nor Greg Hancock had ever engaged in interstate commerce. " Meritage had no damages, much less $88 million, as it had no competition from the Hancocks. " There is no evidence that Greg Hancock was assisting Rick Hancock in any way. " The case didn't belong in this Court then, and it doesn't belong here now. Now, after the passage of three years since the case was filed, the following is the state of affairs: " The License Agreement, whether or not breached or cancelled, will expire by its own terms on May 31, 2007, thereby mooting the controversy. " Except for its "Adult Community," consisting of homes entirely different than any built by Rick Hancock, Meritage has built out and sold out its Sundance development, and there is no evidence that its sales were delayed or inhibited in any way by the Hancocks. " Meritage has suffered no damages from anything done by Rick Hancock. " There is no evidence that Greg Hancock assisted Rick Hancock in any way. " There is no evidence that Greg Hancock harmed Meritage in any way, as the Riata
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West/Westwind "big lie" concocted by Meritage is still just that. " The case still doesn't belong in this Court. In summary, Hancock's updated motion for summary judgment or dismissal should be granted. Respectfully submitted this 17th day of April, 2007.

FRISBEE & BOSTOCK, PLC /s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg Hancock

The foregoing Objection to Motion to Strike and Reply to Response to Updated Motion for Summary Judgment 12 was electronically filed and served this 17th day of April, 2007, 13 and copy thereof mailed to the Honorable Judge Roslyn Silver.
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/s/ Robert M. Frisbee