Free Response to Motion - District Court of Arizona - Arizona

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MATHEW & MATHEW, P.C. 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. Meritage Homes Corporation, a Maryland Corporation, formerly d/b/a Meritage Corporation, Hancock-MTH Builders, Inc., an Arizona
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CASE NO. CV-04-0384-PHX-ROS RESPONSE TO MOTION TO EXCEED PAGE LIMITS

(Assigned to the Hon. Roslyn O. Silver)

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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. In early January 2007, Meritage advised both opposing counsel that they wanted to preserve judicial resources by filing a joint Response to both Greg Hancock and Rick Hancock's Motions for Summary Judgment. (See e-mail from Dan Goldfine dated January 2, 2007 attached as Exhibit "1".) Taking this statement of counsel at face value, Greg Hancock and Rick Hancock agreed, provided that there would be no playing around with the page limitations. (See e-mail dated January 3, 2007 attached as Exhibit "2".) Dan Goldfine stated that he would try to confine his Response with the 17 page limit in mind. (See e-mail from Dan Goldfine dated January 3, 2007 attached as Exhibit "3".) On February 23, 2007, Rick Hancock did not receive one consolidated joint Response to the Motions for Summary Judgment, but rather two separate Responses to Motion for Summary Judgment. More surprisingly, both of the Responses exceeded the presumptive combined page limitations by over approximately 60% for a combined total of 52 pages. A review of the Meritage rationale, i.e., purported good cause, for this grossly excessive page amount ­ which exceeds and disobeys this Court's Local Rule 7.2(e) ­ was that Rick Hancock and Greg Hancock "forced" Meritage's "hands." However, at the time that the concept of a joint Response was proposed to Defendants by Meritage, Meritage already had in its possession the two Defendants' Motions for Summary Judgment that they would be filing responses to in Court, i.e., they knew about Defendants' position for well over 10 days. The "forced" "hands" argument appears to be a contrived rationale for not complying with this Court's order. Moreover, it is a sharp practice.
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Page Limits Will be Enforced The strategy of litigation by deforestation and filing pleadings in a diffuse manner fails to understand the dynamics of busy trial Judges or a parties ability to respond. There is a reason for a page limitation and it seems to be disregarded at every turn by the Plaintiffs in this case. See, State v. Atwood 171 Ariz. 576, 659, 832 P.2d 593, 676 (1992) (overruled on other grounds); State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717, (2001) (even in a death penalty case, there is a page limitation ­ which is enforced). Page limitations seem to mean nothing to Plaintiffs. This creates additional work for opposing counsel and more importantly this Honorable Court. The failure to limit themselves to 17 pages makes it difficult for a reply to be drafted, and makes it difficult for review by the Court. See, Hartz v. Friedman, 919 F.2d 419, 471 7th Cir. 1990. The Motion's length renders it laborious to comprehend and manage. Anserv v.

Albrecht, 192 Ariz. at 49, 960 P.2d 1159, 1160. An additional ten pages of pleading means an exponentially larger statement of facts and exhibits. The volume and form of the pleading make it difficult to sort out and for Defendants to respond to the document within these page limitations. Id. It puts a significant burden on a Defendant to respond to and on a Court to decipher. Id. As such, it is respectfully requested that the Motion for Partial Summary Judgment be disregarded and disallowed. The irony is that if a summary judgment then streamlines the process, one has to ask why the one pleading is 27 pages long when there is a rule that summary judgment pleadings filed in this Court should not exceed 17 pages. As such, it is respectfully requested that the Court deny the Motion to Exceed Page Limitations. See, Anserv v. Albrecht, 192 Ariz. 48, 960 P.2d 1159. One observance is that Plaintiffs use over lengthy pleadings to camouflage the lack of merit in their position. Plaintiffs should be able to successfully identify a material issue of fact or law in 17 pages or less. One of the purposes of a page limit is to cause lawyers to form their arguments and organize them in a coherent manner. See, State v. Atwood, supra. Plaintiffs should not be
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allowed to try to bury its weaknesses by appearing to give its arguments substance with additional pages. The words of Judge Kozinski come to mind: "[R]ely upon the length of your brief to telegraph that you haven't got much of a case. A. Kozinski, 1992 Brigham Young Law Review 325. CONCLUSION The Motion to Exceed Page Limitations should be denied. RESPECTFULLY SUBMITTED this 6th day of March, 2007. MATHEW & MATHEW, P.C

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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CERTIFICATE OF SERVICE Meritage v. Hancock, et al. Case No. CV 04 00384 ROS

I hereby certify that on March 6, 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