Free Reply - District Court of Arizona - Arizona

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Dan W. Goldfine (#018788) Adam Lang (#022545) 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 Counterdefendants and Third Party Defendants and

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

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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 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, HancockMTH 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,
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Case No. CV-04-0384-PHX-ROS REPLY TO RICK HANCOCK'S RESPONSE1 RE MOTION TO STRIKE HANCOCKS' RESPONSE AND STATEMENTS OF FACTS TO (1) PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT, (2) COUNTERDEFENDANTS' AND THIRDPARTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON RICK AND BRENDA HANCOCKS' COUNTERCLAIMS AND THIRD-PARTY CLAIMS, AND (3) RICK HANCOCK'S REQUEST FOR LEAVE TO SUPPLEMENT THE RECORD

This reply is limited to Rick Hancock's Response to the omnibus Motion to Strike re Hancocks' Response and Statement of Facts, as described in the caption above. Meritage previously responded to Greg Hancock to comply with the time constraints imposed by the Federal Rules of Civil Procedure and the Local Rules.
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L.L.C., an Arizona limited liability company, Defendants. Rick and Brenda Hancock, Defendants, Counter-Claimants, and Third Party Plaintiffs, v. 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, 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. Plaintiffs, counterdefendants, and third-party defendants (collectively, "Meritage") reply to Rick Hancock's Response/opposition to "Meritage's Motion to Strike Response" ("Response to Motion to Strike"). The Rick Hancock Defendants ("Rick Hancock") are required to comply with the rules of this Court. In responding to Meritage's Motion for Summary Judgment they have not done so. Specifically, Rick Hancock has failed to comply with Rule 56(e), Federal Rules of Civil Procedure ("Rule") and this court's Local Rule 56.1(b). Thus, the Motion to Strike is not frivolous or abusive as suggested by Rick Hancock. Had Rick Hancock provided evidentiary support for 92 factual assertions as required by Rule 56(e) and Local Rule 56.1(b) then Meritage would not have needed 92 paragraphs to ask this Court to prevent Rick Hancock from responding "with mere allegation or denials." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Section 56 of MOORE'S FEDERAL PRACTICE explains that motions to strike are not
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only permitted but often required as part of summary judgment practice when a party opposing summary judgment references purported facts but fails to comply with Rule 56. MOORE'S FEDERAL PRACTICE § 56.14[4][a]; see also FEDERAL CIVIL RULES HANDBOOK at p. 926 (2006) (a party should move to strike references to evidence not supported in compliance Rule 56). The Ninth Circuit agrees and has expressly held that motions to strike are proper vehicles for challenging materials (1) offered by a party opposing a summary judgment in an effort to create a question of fact but (2) not in compliance with the Rules or the Rules of Evidence. See, e.g., Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1003 (9th Cir. 2002). This is what we have here. Rick Hancock has also asked this Court for leave to supplement the record. This request serves as an admission that Rick Hancock has not properly supported his statement of facts as required by Local Rule 56.1(b) ­ otherwise he would not need to supplement the record. Rick Hancock has had ample opportunity to properly comply with Rule 56(e) and Local Rule 56.1(b) and chose not to comply. Rick Hancock has not even identified any reasons or facts giving rise to good cause for why his default should be excused. Therefore, leave should be denied. Moreover, even should the Court grant leave, Rick Hancock's effort in his Response to Meritage's Motion to Strike fails to comply with the Rule 56(e) and Local Rule 56.1(b). This is amply explained below on a paragraph-by-paragraph basis. I. Meritage's Reply to Rick Hancock's Response and Controverting Statement of Facts. 1. Rick Hancock has still not provided support for the factual assertions found

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in his Response at 3:3-17. This section contains 10 sentences with 16 separate factual assertions covering a myriad of topics ­ none of which are supported as required by Rule 56(e) and Local Rule 56.1(b). Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b).
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2.

The first sentence of Rick Hancock's Response at 3:20-21 and CSOF at ¶ 17

make a legal argument containing a factual assertion. Then, Rick Hancock lists Steve Hilton's deposition as support without providing any citation to that deposition.2 Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 3. Diane Haas' Declaration is that Meritage stated that it intended to phase out

its use of the Hancock name not that there was an immediate name change. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 4. The cited evidentiary record does not support the fact as described by Rick

Hancock when in fact, they were not changed in 2004. Rick Hancock attempts to use this section of cited testimony from Missie Valliere for this assertion and seven other assertions to follow (see e.g., ¶¶ 7-12, 82). Thus, Meritage provides the cited testimony in its entirety for the ease of the court: A. Keeping the name out there. We wanted to keep the Hancock Communities' name out there. Why? So it couldn't be used. By who? By any of the Hancocks.

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Q. A. Q. A.

The cited testimony does not say that any subdivision names were changed. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 5. The cited evidentiary record does not support the fact (i.e., all media) as 2 To the extent that Rick Hancock also is relying on Ms. Sorget-Stanton's interpretation of Mr. Hilton's entire deposition for a single factual assertion, such is not proper support. Meritage also notes that Ms. Sorget-Stanton's Declaration does not support the assertion made as it relates to an email and not Mr. Hilton's deposition. Likewise, Ms. SorgetStanton's Declaration does not support the premise that a reduction in newspaper advertising equates with diminution of brand name value. Finally, Meritage reserves all rights with respect to Ms. Sorget-Stanton as discovery has not closed per this Court's Order on March 5, 2007.
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described by Rick Hancock. The Declaration of Barbara Sorget-Stanton at ¶ 12 does not even address the topic being asserted. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 6. The cited evidentiary record does not support the fact (i.e., diminution in

name recognition) as described by Rick Hancock. The Declaration of Barbara SorgetStanton at ¶ 12 does not even address the topic being asserted. Therefore, Rick Hancock

offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 7. Missie Valliere does not testify about the Hancock Communities name

being dropped and then resurrected in two neighborhoods. See ¶ 4, supra. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 8. The cited portions of Missie Valliere's deposition do not support the fact

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(i.e., corporate intent) as described by Rick Hancock. See ¶ 4, supra. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). It should be noted that this is testimony about what two low-level employees apparently told a mid-level employee. 9. Missie Valliere's testimony was that the purpose was to keep the Hancock

name in the marketplace. See ¶ 4, supra. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 10. Missie Valliere's cited testimony does not mention a national branding

campaign or marketing reasons for use of the name Hancock communities. See ¶ 4, supra. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 11. Missie Valliere's testimony was that the purpose was to keep the Hancock

name in the marketplace. See ¶ 4, supra. Therefore, Rick Hancock offers no evidentiary
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support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 12. Rick Hancock makes inappropriate legal arguments here. There is no

factual support offered for "ditching" the name. The cited evidence is to the contrary. See ¶ 4, supra. In addition, Rick Hancock's Response at 5:12-19 contains several facts which have not been supported. Therefore, Rick Hancock still offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 13. The cited portions of Missie Valliere's deposition do not support the fact

asserted in the Response at 5:21-22. Further, the cited portion of Missie Valliere's deposition was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). Also, Diane Haas' Declaration at ¶ 3 does not support the fact as described by Rick Hancock. See ¶ 3, supra. Therefore, Rick Hancock offers no

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evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 14. The cited testimony or any reasonable inference therefrom does not, in fact,

support the assertion in the Response at 5:23-24. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 15. The purported support for the factual assertion was not filed with Rick

Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 16. Rick Hancock's Response at ¶ 16 makes a legal argument and attempts to

offer the License Agreement as support for legal conclusion which misstates what the License Agreement provides. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b).
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17.

The purported support for the factual assertion was not filed with Rick

Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). Moreover, as explained in footnote 1, Ms. Sorget-Stanton's report is limited to frequency in the newspaper, which is insufficient to establish brand name diminution. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 18. 19. See ¶ 17, supra. Missie Valliere does not testify in the cited portion of her deposition that the

Hancock Communities name was deleted, the purported fact. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 20. For the first six sentences, Rick Hancock tries to insert new purportedly

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controverting facts without providing support as required by Rule 56(e) and Local Rule 56.1(b). Simply stated, the support cited for the seventh sentence is inapposite to the fact it purports to support. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 21. The cited testimony does not, in fact, support the assertion being made in

the Response. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 22. 23. See ¶ 21, supra. The cited testimony is to the contrary, and there is no evidence of any

agreements. Failed settlement negotiations do not make an agreement, by definition. Further, Defendant is attempting to use testimony that is inadmissible under Rule 408 of the Federal Rules of Evidence. 24. 25. See ¶ 23, supra. Rick Hancock asserts that Cole testified and/or opined that as of February

2004 Meritage owed Hancock earn-outs. Rick Hancock relies on the same cited material as in his Response which does not support this implication, and therefore, failed to comply
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with Rule 56(e) and Local Rule 56.1(b). (The testimony cited relates to earn-outs owed if Greg Hancock had not quit his job.) 26. Rick Hancock, instead of attempting to cure the lack of support, attempts to

shift the Court's focus to what Meritage has cited or not cited in its Motion. As a result, Rick Hancock has still not supported the assertion as required by Rule 56(e) and Local Rule 56.1(b). There is nothing about micromanaging, threats of lawsuits, firing by

facsimiles, runners, golfing, secret reports, and subordinate by-passing at Rick Hancock's CSOF at ¶¶ 27-28. Therefore, Rick Hancock offers no evidentiary support for the

proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 27. There is no language in the License Agreement that states that Meritage's

rights under the License Agreement were not assets of Meritage. Further, Rick Hancock attempts to change the support to something else too late and, therefore, does not comply with Local Rule 56.1(b). 28. noted defect. 29. First, Greg Hancock is not the sole licensor. See License Agreement, Rick Hancock did not change the support for the fact and does not cure the

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Exhibit "4" to Rick Hancock CSOF. Second, there is a difference between sole discretion to protect a mark and discretion to protect all rights of all parties under the License Agreement. Id. Therefore, Rick Hancock offers no evidentiary support for the

proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 30. 31. Rick Hancock offers factual support but that support is too late. To the extent that Rick Hancock implies that there are disclaimers on all

marketing materials, even more than a couple of marketing materials, or a few bits of information the cited evidentiary record does not support the facts as described by Rick Hancock. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 32. The cited evidentiary record does not support the fact as described by Rick

Hancock. Missie Valliere's cited testimony does not touch upon any of the purported
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assertions found in Rick Hancock's Response.

Therefore, Rick Hancock offers no

evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 33. The purported support for the factual assertion was not filed with Rick

Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 34. Citing to three websites (in addition to his direction to Google his name)

does not support the purported assertion as described by Rick Hancock. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 35. Rick Hancock fails to address the problem that his purported evidentiary

support has nothing to do with the Phoenix metropolitan area. 36. Rick Hancock still offers no evidentiary support for the proposition cited

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and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 37. The cited evidentiary record does not support the fact as described by Rick

Hancock. Therefore, Rick Hancock still offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 38. The purported support for the factual assertion was not filed with Rick

Hancock's Response and therefore is not in accordance with Local Rule 56.1. 39. Rick Hancock provides Greg Hancock's Expert Declaration as support for

the purported fact which does not, in fact, support the assertion. Further, Rick Hancock did not reference a "specific admissible portion of the record" as required by Local Rule 56.1(b) when he filed his Response. Finally, Greg Hancock is not a qualified expert in Mr. Keeffe's intent nor, if he was, was he properly disclosed as such. Similarly, Greg Hancock lacks personal knowledge about Scott Keeffe's intent and is precluded form testifying about the same by Fed. R. Evid. 602. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 40. As to the purported fact that is challenged, Rick Hancock still offers no
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evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 41. Rick Hancock's Response at 14:4-5 is not a statement of fact but rather a

conclusion of law, a problem not addressed by Rick Hancock. Further, even if the sentence was couched as a fact, the purported support for the assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 42. Rick Hancock continues to offer no evidentiary support for the proposition

cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 43. The cited evidentiary record still does not support the fact as described by

Rick Hancock. Further, the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 44. Exhibit 31 to Rick Hancock's CSOF is not Shari Mesko's deposition. Thus,

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Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 45. Rick Hancock's attempt to cure the lack of support is ineffectual because the

purported support does not, in fact, support the assertion in Rick Hancock's Response. With respect to Greg Hancock's expert or lay testimony about Mr. Keeffe's intent, see ¶ 39 supra. 46. This deals with an implied statement of fact regarding the use of "executed."

Rick Hancock ignores this and does not cure the lack of evidentiary support. Thus, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 47. Rick Hancock's attempt to cure the lack of support with testimony not filed

with his Response and therefore is not in accordance with Local Rule 56.1(b). 48. Rick Hancock still has not offered evidentiary support for the proposition

cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 49. Rick Hancock still has not offered evidentiary support for the proposition

cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b).
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50.

Rick Hancock still has not offered evidentiary support for the proposition

cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 51. Rick Hancock still has not offered evidentiary support for the proposition

cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). (It should be noted that Mr. Cole's calculation assumes that Greg Hancock stayed with Meritage for the full four years.) 52. Rick Hancock still has not offered evidentiary support for the proposition

cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). The right to terminate for a breach does not equate to giving Greg Hancock discretion to control Meritage's use of the mark. 53. Rick Hancock attempts to cure the lack of evidentiary support by citing to

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yet another "version" of Rick Hancock's testimony. The new purported support also does not, in fact, support the assertion. It stands for the opposite of what Rick Hancock is asserting. Further, the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 54. Rick Hancock attempts to cure by providing additional evidence. The

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purported support does not, in fact, support the controverting fact. Further, the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 55. Rick Hancock attempts to cure by providing additional evidence. Indeed, he

groups an unconnected question and answer together. The purported support does not, in fact, support the assertion. Further, the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 56. Rick Hancock does not cure the defects noted in the Motion to Strike. Rick

Hancock also simply makes a legal argument in violation of the same Rules. 57. Rick Hancock points to the same facts which are not responsive to the SOF

in a misleading manner and therefore continues to fail to comply with Rule 56(e) and
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Local Rule 56.1(b). Further, Rick Hancock attempts to cure by providing additional evidence. The new purported support does not, in fact, support the assertion. The purported support for the factual assertion was also not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 58. Rick Hancock continues to misstate the evidentiary record, which only

refers to one contrived phone call manufactured by his counsel during the deposition of Larry Seay for the purposes, apparently, based on its continued use, to mislead the Court. Indeed, counsel for Rick Hancock dialed the phone. Also, Rick Hancock provides no support for the assertion as required by Rule 56(e) and Local Rule 56.1(b). 59. Rick Hancock still has not offered evidentiary support for the proposition

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cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 60. CSOF at ¶ 16 ­ Rick Hancock still has not provided support for the assertion

in violation of Rule 56(e) and Local Rule 56.1(b). CSOF at ¶ 17 ­ The new purported support does not, in fact, support the assertion. Further, the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). CSOF at ¶ 18 ­ The purported support does not, in fact, support the assertion. Further, the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1. CSOF at ¶ 19 ­ The new purported support does not, in fact, support the assertion.3 CSOF at ¶ 25 ­ The new purported support does not, in fact, support the assertion. The purported support for the factual assertion was not filed with Rick

Hancock's Response and therefore is not in accordance with Local Rule 56.1. In what must be the most disingenuous argument undersigned counsel has encountered in his 20 years of practice, Rick Hancock takes an argument out of context knowing that the argument was made assuming the fact was true.
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61.

The new purported support does not, in fact, support the assertion. Further,

the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 62. Plaintiff maintains its position that Rick Hancock's CSOF at ¶ 21 makes

legal arguments and fails to cite to portions of the evidentiary record in violation of Rule 56(e) and Local Rule 56.1(b). 63. Plaintiff maintains its position that Rick Hancock's CSOF at ¶ 22 points to

facts not responsive to the SOF in a misleading manner (particularly with respect to timing) and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock adds new facts not supported by the evidentiary record. Rick Hancock also makes legal arguments and fails to cite to portions of the evidentiary record in violation of Rule 56(e) and Local Rule 56.1(b). 64. Plaintiff maintains its position that Rick Hancock's CSOF at ¶ 23 points to

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facts not responsive to the SOF in a misleading manner (particularly with respect to timing) and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). He now adds a new statement of fact for which the evidentiary record does not support. Rick Hancock also makes legal arguments and fails to cite to portions of the evidentiary record in violation of Rule 56(e) and Local Rule 56.1(b). 65. Rick Hancock's Response at ¶ 24 after the word "admitted" fails to provide

support for the purported facts in violation of Rule 56(e) and Local Rule 56.1(b). See also Footnote 3, supra. 66. Rick Hancock continues to make legal arguments and fails to cite to portion

of the evidentiary record in violation of Rule 56(e) and Local Rule 56.1(b). 67. The purported facts asserted in Rick Hancock's CSOF at ¶¶ 27 and 28 are

not supported by citation to the record in violation of Rule 56(e) and Local Rule 56.1(b). Rick Hancock's reliance on the Rules of Evidence is misplaced. The testimony is not only admissible as a statement of a party opponent, regardless of Rick Hancock's status, but also is admissible as impeachment. Fed. R. Evid. 801 and 803.
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68.

The License Agreement simply does not prevent the Licensor from

transferring it nor preventing Meritage from assigning its rights to wholly-owned subsidiaries. 69. Rick Hancock continues to confuse a letter purporting to terminate the

License Agreement with an ultimate legal conclusion in violation of Rule 56(e) and Local Rule 56.1(b). See also Footnote 3, supra. Further, as it pertains to Rick Hancock's CSOF at ¶ 45, the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 70. 71. Meritage stands by its objection. Missie Valliere's cited testimony does not support the assertion that

Meritage sought to confuse customers. Further, the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 72. Diane Haas' Declaration states that Meritage intended to phase out its use of Therefore, Rick Hancock offers no evidentiary support for the

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the Hancock name.

proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 73. To the extent that Rick Hancock implies that the use of the disclaimer was

more than isolated, the purported support in ¶¶ 56-58 still does not, in fact, support the purported fact asserted. Therefore, Rick Hancock failed to comply with Rule 56(e) and Local Rule 56.1(b). 74. Rick Hancock still offers no evidentiary support for the proposition cited

and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 75. The September 8, 2003 email, Exhibit 15 to Rick Hancock's CSOF, simply

does not state what Rick Hancock says it does. It does not state that Steve Hilton and John Landon had agreed to stop using the name. Rather, Steve Hilton writes in the email: John: You may want to begin considering how we are going to transition the "Hancock communities" name to "Meritage Homes." We have the rights to the name for 6 years. I think the name should be dark in the market for at least 1 year or maybe 2 prior to the expiration of our license so that we do not
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waste advertising dollars on a name that Greg may resurrect immediately following our license. Therefore we should consider a plan to phase out the name over the next 18 months. What do you think? 76. Rick Hancock's cited evidence does not support the purported fact.

Therefore, Rick Hancock failed to comply with Rule 56(e) and Local Rule 56.1(b). 77. Rick Hancock's cited evidence does not support the purported fact.

Therefore, Rick Hancock failed to comply with Rule 56(e) and Local Rule 56.1(b). 78. Rick Hancock's cited evidence does not support the purported fact.

Therefore, Rick Hancock failed to comply with Rule 56(e) and Local Rule 56.1(b). 79. Agreement. Rick Hancock continues to mischaracterize and misstate the License Further, Rick Hancock's cited evidence does not, in fact, support the

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purported fact. Therefore, Rick Hancock failed to comply with Rule 56(e) and Local Rule 56.1(b). 80. Rick Hancock's cited evidence does not support the purported fact. Less

Snell & Wilmer L.L.P.

visible does not equate to a diminution of public recognition Therefore, Rick Hancock failed to comply with Rule 56(e) and Local Rule 56.1(b). 81. CSOF at ¶ 107 ­ Rick Hancock concedes that this fact should be stricken. CSOF at ¶ 110 ­ Rick Hancock concedes that this fact should be striken. Further, the new purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). CSOF at ¶ 111 ­ Rick Hancock concedes that this fact should be stricken. Further, the new purported support does not, in fact, support the assertion. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). CSOF at ¶ 113 ­ The purported support does not, in fact, support the assertion. Further, the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). A single "representative disclaimer" does not mean that all or even a single purchaser actually
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signed a disclaimer. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). CSOF at ¶ 115 ­ Rick Hancock continues of confuse a letter purporting to terminate the License Agreement with an ultimate legal conclusion in violation of Rule 56(e) and Local Rule 56.1(b). See also Footnote 3, supra. 82. 83. See Footnote 3, supra. The new cited portion highlights the key problem. Any particular "buyer"

might know the difference after dealing with Rick Hancock for days or weeks, even if they are "idiots" as Rick Hancock describes them. This testimony, however, does not support the proposition that new customers, "idiots" or not, would know the difference. Moreover, it is the difference between Rick Hancock Homes and Hancock Communities or a Hancock Home by Meritage and not the difference between Rick Hancock Homes and Meritage that is salient. 84. Defendant still leaves nearly all of the purported facts in his Response at

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Snell & Wilmer L.L.P.

¶ 117 unsupported. Rick Hancock does try to support one fact but uses testimony that does not, in fact, support the assertion. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 85. This purported fact is misleading because Mr. Cole is opining to amounts

owed had Greg Hancock remained employed and not amounts owed in February 2004. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 86. Rick Hancock's cited evidence does not support the purported fact. See also

¶ 75, supra. Barbara Sorget-Stanton's Declaration at ¶ 13 simply lists what she reviewed before making her Declaration which does not support the purported fact. Also, Rick Hancock's CSOF at ¶ 52 remains not supported as required by Rule 56(e) and Local Rule 56.1(b). See ¶ 75, supra. Therefore, Rick Hancock has failed to comply with Rule 56(e) and Local Rule 56.1(b).
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87.

The cited evidentiary record does not support the fact as described to the

extent that it states that the agreement was formally executed because there was no delivery as required by law. Therefore, Rick Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 88. Rick Hancock's CSOF at ¶ 134 is not a statement of fact but rather a

conclusion of law, a problem that Rick Hancock does not cure. Further, even if the sentence was couched as a fact, the purported support for the assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 89. Even in the light most favorable to Rick Hancock, the newly cited evidence

does not support CSOF at ¶ 137. Further, the purported support for the factual assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 90. 91. Rick Hancock does not cure the defect noted. Rick Hancock does not cure the defect noted. Further, the purported new

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Snell & Wilmer L.L.P.

support for the assertion was not filed with Rick Hancock's Response and therefore is not in accordance with Local Rule 56.1(b). 92. Rick Hancock CSOF at ¶ 141 has not been cured by his Response to the

Motion to Strike. See ¶ 39 supra. DATED this 2nd day of April, 2007. SNELL & WILMER L.L.P.

By s/ Dan W. Goldfine Dan W. Goldfine Adam Lang One Arizona Center Phoenix, AZ 85004-2202 Attorneys for Plaintiffs and Third Party Defendants and

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By s/ Grant Woods Grant Woods GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, AZ 85006 Attorneys for Plaintiffs and Third Party Defendants CERTIFICATE OF SERVICE I hereby certify that on April 2, 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/ Becky Kinningham

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1973915

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