Free Reply to Response to Motion - 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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Snell & Wilmer L.L.P.

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, Case No. CV-04-0384-PHX-ROS Hancock-MTH Builders, Inc., an Arizona corporation, Hancock-MTH Communities, Inc., an REPLY TO GREG HANCOCK'S RESPONSE1 RE MOTION TO Arizona corporation, and currently d/b/a Meritage STRIKE RE HANCOCKS' Homes Construction, Inc., an Arizona corporation, and Meritage Homes of Arizona, Inc., an Arizona RESPONSE AND STATEMENTS OF FACTS TO (1) PLAINTIFFS' corporation, MOTION FOR PARTIAL SUMMARY JUDGMENT, AND Plaintiffs, (2) COUNTERDEFENDANTS' AND v. THIRD-PARTY DEFENDANTS' MOTION FOR SUMMARY Ricky Lee Hancock and Brenda Hancock, JUDGMENT ON RICK AND husband and wife; Gregory S. Hancock and BRENDA HANCOCKS' Linda Hancock, husband and wife, Rick COUNTER-CLAIMS AND THIRDHancock Homes L.L.C., an Arizona limited PARTY CLAIMS liability company; RLH Development, L.L.C., an Arizona limited liability company; and J2H2, Due to time constraints imposed by the Federal Rules of Civil Procedure and the Local Rules, this Reply is limited to Greg Hancock's Response to the omnibus Motion to Strike re Hancocks' Response and Statements of Facts, as described in the caption above. Meritage will file a separate Reply if Rick Hancock files a Response after the date of this Reply.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

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 Greg Hancock's response/opposition to "Meritage's Motion to Strike Response" ("Response to Motion to Strike"). Greg Hancock mischaracterizes the Motion to Strike as seeking to strike the entirety of Greg Hancock's Response to Meritage's Motion for Partial Summary Judgment. It does not do so. The Motion to Strike was expressly limited to striking "discrete portions of defendants, counterclaimants and third-party plaintiffs' separately-filed separate Responses (`Responses'), and controverting statements of facts (`CSOF' or `CSOFs') in support thereof, to the motion for summary judgment [] filed by" Meritage. Greg Hancock primarily argues that the Federal Rules of Civil Procedure ("Rules") bar motions to strike in the summary judgment context, citing MOORE'S FEDERAL PRACTICE at § 12.37[2] and non-Ninth Circuit cases dealing with Rule 12 cited therein. See Response to Motion to Strike at 2:3-16. Apparently but unfortunately, Greg (Assigned to the Honorable Roslyn O. Silver)

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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

Document 458- 2 - Filed 03/19/2007

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

Hancock's counsel's set of MOORE'S FEDERAL PRACTICE only goes to Section 12, addressing motions to strike pleadings. Had he had Section 56 of MOORE'S FEDERAL PRACTICE to review, Greg Hancock would have learned that it expressly states, however, that motions to strike are not only permitted but often required as part summary judgment practice when a party opposing summary judgment references purported but fails to comply with Rule 56 and the Court's local rules interpreting Rule 56 in doing so. It provides: [4]-- Motions to Strike Materials Submitted on Summary Judgment Motion [a]-- Motion to Strike Is Appropriate Remedy for Defects in Supporting Materials Materials submitted by a party in connection with a summary judgment motion may be challenged on grounds that would preclude consideration of the material for the purposes of the motion. The vehicle to make this type of contention is a motion to strike. In order for the court to consider a motion to strike, the moving party must be specific in its request, directing the court to the particular submission the party wants stricken and setting forth the reasons for the court to take such action. MOORE'S FEDERAL PRACTICE § 56.14[4][a] (footnotes omitted); 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). Notwithstanding Greg Hancock's assertion to the contrary, the Ninth Circuit 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).2 Accordingly, Greg Hancock's argument that the Rules bar motions to strike in the Rule 56 context is baseless.

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Snell & Wilmer L.L.P.

Greg Hancock ignores the Ninth Circuit precedent that is clearly contrary to his position, relying instead on two trial court decisions from Districts outside of the Circuit that expressly deal with motions to strike in the pleading context. Response to Motion to Strike at 2:7-16. Both cases are simply inapposite, and no response to them is necessary.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

In the Motion to Strike, on the basis of Rule 56(e) and Local Rule 56.1(b) as well as this Court's previous rulings in this matter, Meritage moved to strike fifteen discrete portions of Greg Hancock's Response to Meritage's Summary Judgment Motion and List of Controverted Facts. 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. One final observation is required. Greg Hancock argues in his Response to the Motion to Strike that he should win because the facts are as he (or his counsel) says they are. This is precisely the problem with Greg Hancock's Response to Meritage's Summary Judgment Motion and his List of Controverted Facts (as well as nearly every filing he has submitted to date). Despite the ferociousness of his tone and how indignant he appears, Greg Hancock once again fails to support his factual allegations with any reference to the evidentiary record in this case. See Response to Motion to Strike at 2:22 to 3:4. This is a pattern that has repeated itself many times over the last few years, and the reality is that the evidentiary record simply does not support his story. The fact that evidence is against him is why Greg Hancock blocked discovery in the beginning of this lawsuit, attempted two end-runs around this Court's authority and jurisdiction, intentionally failed to comply with the Court's Orders, repeatedly snubbed his nose at the Rules, and filed a precipitous and mean-spirited writ of mandamus.

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Snell & Wilmer L.L.P.

DATED this 19th day of March, 2007. SNELL & WILMER L.L.P.

By s/ Dan W. Goldfine Dan W. Goldfine Adam Lang One Arizona Center Phoenix, AZ 85004-2202
Case 2:04-cv-00384-ROS Document 458- 4 - Filed 03/19/2007 Page 4 of 5

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Attorneys for Plaintiffs 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

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 March 19th, 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. 3000 N. Central Avenue, Suite 1730 Phoenix, Arizona 85004 Attorneys for Defendant Rick Hancock 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

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Snell & Wilmer L.L.P.

s/ Dan W. Goldfine
29323.0078\GOLDFID\PHX\1966736

Case 2:04-cv-00384-ROS

Document 458- 5 - Filed 03/19/2007

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