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 454

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

GREG HANCOCK'S OBJECTION TO MERITAGE'S MOTION TO STRIKE RESPONSE

Case 2:04-cv-00384-ROS

Filed 03/09/2007

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Meritage cannot even confine itself to this Court's 17-page motion limitation when it files an impermissible motion. Meritage's 18 page Motion to Strike re Hancock's Response, etc., is not even cognizable by the Court. As is said in Moore's Federal Practice (3d Ed.), § 12.37[2], p. 12-94: 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 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 should be ignored. It must also be said, lest the

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unassailable merit of Greg Hancock's motions be lost in the verbiage and bluster of
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Meritage's continued quest to draw inferences from facts that noone other than a perfidious
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litigant and its lawyers would draw, invent claims that have no evidentiary support, and bend
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or ignore rules and orders - as exemplified by its improper motion to strike - that the
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following was the state of affairs when Meritage commenced this case in February, 2004:
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" Meritage had already breached the License Agreement, or as Meritage has recently conceded, Greg Hancock had cancelled it.

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"

Rick Hancock hadn't competed with Meritage, as he owned no land until

December, 2004, and didn't break ground until after March, 2005.
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" 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. " The case didn't belong in this Court then, and it doesn't belong here now. In summary, Meritage's most recent motion, being illegal, should be ignored and Hancock's motions should be granted. Respectfully submitted this 9th day of March, 2007.

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

The foregoing Objection to Motion to Strike was electronically filed and served this 9th day of March, 2007, 14 and copy thereof mailed to the Honorable Judge Roslyn Silver.
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/s/ Robert M. Frisbee