Free Motion to Strike - 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 MOTION TO STRIKE RE Arizona corporation, and currently d/b/a Meritage HANCOCKS' RESPONSE AND Homes Construction, Inc., an Arizona corporation, STATEMENT OF FACTS TO (1) and Meritage Homes of Arizona, Inc., an Arizona PLAINTIFFS' MOTION FOR corporation, PARTIAL SUMMARY JUDGMENT, AND Plaintiffs, (2) COUNTERDEFENDANTS' AND THIRD-PARTY DEFENDANTS' v. MOTION FOR SUMMARY JUDGMENT ON RICK AND Ricky Lee Hancock and Brenda Hancock, BRENDA HANCOCKS' husband and wife; Gregory S. Hancock and COUNTER-CLAIMS AND THIRDLinda Hancock, husband and wife, Rick PARTY CLAIMS Hancock Homes L.L.C., an Arizona limited liability company; RLH Development, L.L.C., (Assigned to the an Arizona limited liability company; and J2H2, Honorable Roslyn O. Silver) L.L.C., an Arizona limited liability company, Defendants. Rick and Brenda Hancock,

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Document 446

Filed 03/05/2007

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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. This is a combined motion to strike, in support of Meritage's Motion for Summary Judgment, 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 ("Motion") filed by plaintiffs, counterdefendants, and third-party defendants (collectively, "Meritage").1 Discrete portions of the Responses and CSOFs failed to comply with either Rule 56(e), Federal Rules of Civil Procedure ("Rule") or Local Rule 56.1(a). Rule 56(e) provides as follows: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. "[T]he non-moving party must show, by affidavit, deposition testimony, or otherwise, that a genuine issue of material fact remains for trial." FEDERAL CIVIL RULES HANDBOOK at The Rick and Brenda Hancock described all the defendants to their claims as Third-Party Defendants. It appears that Meritage Homes Corporation, Hancock-MTH Builders, Inc, Hancock-MTH Communities, Inc., Meritage Homes Construction, Inc., and Meritage Homes of Arizona, Inc. are counterdefendants.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

193 (2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)). "[T]he non-moving party cannot respond with mere allegations or denials." Id. Local Rule 56.1(a) provides: Any party opposing a motion for summary judgment shall file a statement, separate from that party's memorandum of law, setting forth: (1) for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed; and (2) any additional facts that establish a genuine issue of material fact or otherwise preclude judgment in favor of the moving party. Each additional fact shall be set forth in a separately numbered paragraph and shall refer to a specific admissible portion of the record where the fact finds support. Each numbered paragraph of the statement of facts set forth in the moving party's separate statement of facts shall, unless otherwise ordered, be deemed admitted for purposes of the motion for summary judgment if not specifically controverted by a correspondingly numbered paragraph in the opposing party's separate statement of facts. I. DEFENDANT/COUNTERCLAIMANT GREG HANCOCK'S RESPONSE AND STATEMENT OF FACTS2 The following portions of Defendant/Counterclaimant Greg Hancock's Response

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should be stricken for failure to comply with Rule 56(e) and Local Rule 56.1(b): 17 1. Greg Hancock's Response at 2:7-12: Hancock offers no evidentiary support 18 for the assertions of fact contained therein and therefore failed to comply 19 with Rule 56(e) and Local Rule 56.1(b). 20 2. Greg Hancock's Response at 2:15-16: re " . . . the testimony of Steve Hilton 21 that the name change made the Hancock name `less visible.'" The cited fact 22 does not support the fact as described in the Motion. Therefore, Hancock 23 offers no evidentiary support for the proposition cited and therefore failed to 24 comply with Rule 56(e) and Local Rule 56.1(b). 25 3. Greg Hancock's Response at 2:24-26: ". . . Meritage's concession that Greg 26 Hancock terminated the License Agreement. . . ." There is no concession. 27 28 It is presumed that Defendant Greg Hancock's Response and Statement of Facts were also on behalf of Defendant J2H2, L.L.C.
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The cited fact does not support the fact as described in the Motion. Therefore, 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. Greg Hancock's Response at 3:1: " . . . Meritage's failure to advise him about it . . . ." Hancock offers no evidentiary support for the assertions of fact contained therein and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). The following portions of Greg Hancock's List of Controverted Facts ("CSOF") should be stricken: 1. Greg Hancock's CSOF at ¶ 6: Greg Hancock makes a legal argument and fails to support any potential assertion of fact with reference to the evidentiary record. He therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 2. Greg Hancock's CSOF at ¶ 8: It is unclear what Greg Hancock is attempting to do other than make an argument in a Statement of Facts. He therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 3. Greg Hancock's CSOF at ¶ 9: Greg Hancock makes a legal argument and fails to support any potential assertion of fact with reference to the evidentiary record. He therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 4. Greg Hancock's CSOF at ¶ 10: Greg Hancock ignores the stated facts of actual confusion and makes an argument. He therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 5. Greg Hancock's CSOF at ¶ 11: Greg Hancock ignores the stated facts of actual confusion and makes an argument. He therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 6. Greg Hancock's CSOF at ¶ 14: Greg Hancock does not cite to the evidentiary record for his purported controverting fact, and therefore
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

failed to comply with Rule 56(e) and Local Rule 56.1(b). 7. Greg Hancock's CSOF at ¶ 15: Greg Hancock does not cite to the evidentiary record for his purported controverting fact, and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). This also is simply argument rather than controverting facts. 8. Greg Hancock's CSOF at ¶ 25: Greg Hancock does not cite to the evidentiary record for his purported controverting fact, and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). This also is simply argument rather than controverting facts. Meritage nevertheless notes that Greg Hancock misstates the case record because after the commencement of Rick Hancock Homes, but while this Court was on a leave of absence, Meritage filed, and Greg Hancock opposed, a renewed Motion for Temporary Restraining Order (Aug. 27, 2004) 9. Greg Hancock's CSOF at ¶ 26: This is nothing more than argument and and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 10. Greg Hancock's CSOF at ¶ 27: Greg Hancock does not cite to the evidentiary record for his purported controverting fact, and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). This also is simply argument rather than controverting facts. 11. Greg Hancock's CSOF at ¶ 28: Greg Hancock's Objection is baseless. Meritage asserted in its SOF at ¶ 28 that "Greg Hancock also testified that he quit because Meritage was not paying him enough. See [September 30, 2003 Deposition of Greg Hancock in Hancock v. Hancock, No. 2002-001002, Exhibit 17 [to the SOF] at 30:2-21. Greg Hancock objected that the SOF at ¶ 28 "states a conclusion not based on the testimony cited." This objection is baseless because the testimony cited provides: Q. Let's look at the second reason, which

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you claim was Meritage's unwillingness to adequately compensate you for managing the Meritage subdivisions, correct? A. Correct. II. RICK HANCOCKS' RESPONSE AND CONTROVERTING STATEMENT OF FACTS 1. Rick Hancock's Response at 3:3-17: Hancock offers no evidentiary support for the assertions of fact contained therein and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 2. Rick Hancock's Response at 3:20-21 and CSOF at ¶ 17: Hancock uses the cited facts to argue that there was a diminution in the recognition of the trademark by February 2003 when the facts cited establish that Meritage continued to use the mark into 2006. Therefore, 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. Rick Hancock's Response at 3:22-24 and CSOF at ¶ 52: Hancock miscites his own witness' declaration. Defendants seem incapable of quoting their own witness, Diane Haas, accurately. Ms. Haas did not testify that Meritage abandoned the Hancock name; rather, she testified as follows: "At this Party, it was announced by Mr. Arneson that the company intended to phase out its use of the `Hancock' name to adopt a national branding concept under the Meritage name." (March 2, 2004 Declaration of Diane Haas, attached as Exhibit 7 to RH SOF, at ¶ 3.) 4. Rick Hancock's Response at 3:26-27: The cited fact does not support the fact as described in the Motion. Therefore, 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. Rick Hancock's Response at 3:27-28: The cited fact refers to 2006 when the described fact is apparently referring to 2004. Therefore, Hancock

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offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 6. Rick Hancock's Response at 3:28 to 4:1: The cited fact does not support the fact as described in the Motion. Therefore, 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. Rick Hancock's Response at 4:1-2: The cited fact does not support the fact as described in the Motion. Therefore, 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. Rick Hancock's Response at 4:2-3: Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 9. Rick Hancock's Response at 4:4-6 and CSOF at ¶ 17: The cited fact does not support the fact as described in the Motion. This is particulary true because the cited fact refers to 2006, and the described fact refers to 2004. Therefore, 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. Rick Hancock's Response at 4:6-9: 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. Rick Hancock's Response at 5:3-4: Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 12. Rick Hancock's Response at 5:12-19: 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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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

13.

Rick Hancock's Response at 5:21-22: 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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Rick Hancock's Response at 5:23-24: The cited fact does not support the fact as described in the Motion. Therefore, 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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Rick Hancock's Response at 6:1-2: The cited fact does not support the fact as described in the Motion. Therefore, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). (Meritage notes that there are several contracts and common law duties that set forth the parties' rights and obligations.)

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Rick Hancock's Response at 6:4-5 and CSOF at ¶ 13: The cited fact misstates what the License Agreement provides. Therefore, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 6:5-6: The cited fact does not support the fact as described in the Motion. Therefore, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 6:7-8: The cited fact does not support the fact as described in the Motion. Therefore, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 6:8: The cited facts do not support the facts as described in the Motion. Therefore, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with

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Rule 56(e) and Local Rule 56.1(b). 20. Rick Hancock's Response at 6:9-10: The cited fact does not support the fact as described in the Motion. Therefore, 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. Rick Hancock's Response at 6:11: 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. Rick Hancock's Response at 6:11-12: The cited fact does not support the fact as described in the Motion. Therefore, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 23. Rick Hancock's Response at 6:14-17 and CSOF at ¶ 4: Hancock offers no evidentiary support for the proposition that the parties reached an "agreement" or a "deal," and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 24. Rick Hancock's Response at 6:19-21: Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 25. Rick Hancock's Response at 7:2-6 and CSOF at ¶ 5: Hancock implies that Cole testified and/or opined that as of February 2004 Meritage owed Hancock earn-outs. The cited evidence does not support this implication, and Hancock therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 26. Rick Hancock's Response at 7:12-21: The cited fact does not support the fact as described in the Motion. Therefore, 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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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

27.

Rick Hancock's Response at 8:4-5 to the extent that there is an inference that Meritage's rights under the License Agreement were not assets of Meritage. The cited fact does not support the fact as described in the Motion. Therefore, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b).

28.

Rick Hancock's Response at 8:7-8: The cited fact does not support the fact as described in the Motion. Therefore, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b).

29.

Rick Hancock's Response at 8:8-9: The cited fact does not support the fact as described in the Motion. Therefore, 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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Rick Hancock's Response at 9:6-9 and CSOF at ¶103: The cited facts do not support the facts, as described in the Motion. As to CSOF at ¶ 103, there is no citation to the evidentiary record. Therefore, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 9:9-10 to the extent that Hancock implies that there are disclaimers on all marketing materials or even more than a couple of the marketing materials or few bits of information. The cited facts do not support the facts as described in the Motion. Therefore, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 10:21-4: 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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33.

Rick Hancock's Response at 10:25: Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b).

34.

Rick Hancock's Response at 10:25-26: Hancock's method of generally instructing the Court to "see Google" is not in compliance with Rule 56(e) and Local Rule 56.1(b).

35.

Rick Hancock's Response at 11:14-15 to the extent that he implies that the scope of the fact also applies to home sellers in the Phoenix metropolitan area: The cited facts do not support the facts, as described in the Motion. Therefore, 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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Rick Hancock's Response at 11:17-19: Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 13:13: Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 13:16 re "It was disclosed in early 2006:" Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 13:21: Hancock failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 13:27 re "They did not:" Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 14:4-5 and CSOF at ¶ 134: This is not a statement of fact but rather a conclusion of law.

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42.

Rick Hancock's Response at 14:9 and CSOF at ¶ 137: Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b).

43.

Rick Hancock's Response at 14:11 and CSOF at ¶ 139 re "backdated:" Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b).

44.

Rick Hancock's Response at 14:16 and CSOF at ¶ 140 "a jury could find . . .:" What a jury might or might not find is not a proper statement of fact. 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 Response at 14:21-24: Hancock offers no evidentiary support for the propositions cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b).

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Rick Hancock's Response at 15:2 re that an agreement was "executed" within the meaning of Arizona law: This is a conclusion of law. Also, Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 16:21-24: Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's Response at 17:5-6: Hancock offers no evidentiary support for the proposition cited and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's CSOF at ¶ 3: Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Rick Hancock's CSOF at ¶ 4: Hancock points to facts not responsive to the SOF in a misleading manner, and the evidentiary support does not

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establish that there was an "agreement" regarding the use of Rick Hancock Homes. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 51. Rick Hancock's CSOF at ¶ 5 re before February 2004 or "during the period of time that Greg Hancock worked for the company:" Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 52. Rick Hancock's CSOF at ¶ 6 re "subjected Meritage's use of the Hancock name to Greg Hancock's discretion:" Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 53. Rick Hancock's CSOF at ¶ 7: Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Hancock is particularly deceiving in that he simply cites to a different portion of the testimony rather than the portion cited in the SOF on point. 54. Rick Hancock's CSOF at ¶ 8: Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 55. Rick Hancock's CSOF at ¶ 9: Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). Also, by failing to include a date in the first line, Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). In addition, purported facts asserted in the controverting statement are not supported by citation to the record in violation of the same Rules. 56. Rick Hancock's CSOF at ¶ 10: Hancock points to facts not responsive
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to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). He also simply makes a legal argument in violation of the same Rules. 57. Rick Hancock's CSOF at ¶12: Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). In addition, purported facts asserted in the controverting statement are not supported by citation to the record in violation of the same Rules. 58. Rick Hancock's CSOF at ¶13: Hancock misstates the evidentiary record, which only refers to one contrived phone call manufactured by counsel for the purposes, apparently from this CSOF, to mislead the Court. 59. Rick Hancock's CSOF at ¶ 15: Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 60. Rick Hancock's CSOF at ¶¶ 16-19, 25: Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). He also makes legal arguments in violation of the same Rules. In addition, purported facts asserted in the controverting statement are not supported by citation to the record in violation of the same Rules. 61. Rick Hancock's CSOF at ¶ 20: Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). 62. Rick Hancock's CSOF at ¶ 21: Hancock makes legal arguments and failed to cite to portions of the evidentiary record in violation of Rule 56(e) and Local Rule 56.1(b). 63. Rick Hancock's CSOF at ¶ 22: Hancock points to facts not responsive
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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 also makes legal arguments and failed to cite to portions of the evidentiary record in violation of Rule 56(e) and Local Rule 56.1(b). 64. Rick Hancock's CSOF at ¶ 23: Hancock points to facts not responsive to the SOF in a misleading manner and therefore failed to comply with Rule 56(e) and Local Rule 56.1(b). He also makes legal arguments and failed to cite to portions of the evidentiary record in violation of Rule 56(e) and Local Rule 56.1(b). 65. Rick Hancock's CSOF at ¶ 24 after the word "admitted:" Purported facts asserted in the controverting statement are not supported by citation to the record in violation of the same Rules. 66. Rick Hancock's CSOF at ¶ 26: Hancock makes legal arguments and failed to cite to portions of the evidentiary record in violation of Rule 56(e) and Local Rule 56.1(b). 67. Rick Hancock's CSOF at ¶¶ 27 and 28: Purported facts asserted in the controverting statement are not supported by citation to the record in violation of the same Rules. 68. Rick Hancock's CSOF at ¶ 39: Hancock misstates the terms of the License Agreement, his purported evidentiary record. 69. Rick Hancock's CSOF at ¶¶ 42, 45 and 106: Hancock confuses 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). 70. Rick Hancock's CSOF at ¶ 47: The cited evidence supports that the employment was terminated. 71. Rick Hancock's CSOF at ¶ 51: Hancock failed to cite evidence for certain purported facts. Even for the fact for which there is cited evidence, that evidence does not tend to prove the fact cited. Fed. R.
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Evid. 401. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 72. Rick Hancock's CSOF at ¶ 52: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 73. Rick Hancock's CSOF at ¶¶ 56-58 to the extent that Hancock implies that the use of the disclaimer was more than isolated: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 74. Rick Hancock's CSOF at ¶¶ 81, 82, 87-89 and 93: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 75. Rick Hancock's CSOF at ¶ 95 to the extent that Hancock states that there was an agreement and that that agreement was implemented on September 8, 2003: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 76. Rick Hancock's CSOF at ¶ 96: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 77. Rick Hancock's CSOF at ¶ 99: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 78. Rick Hancock's CSOF at ¶ 102: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 79. Rick Hancock's CSOF at ¶ 103: Hancock has not accurately characterized the License Agreement, and Hancock's cited evidence
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does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 80. Rick Hancock's CSOF at ¶ 105: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 81. Rick Hancock's CSOF at ¶¶ 107, 110-11, 113 and 115: Hancock does not cite any evidence in the record. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 82. Rick Hancock's CSOF at ¶ 112: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 83. Rick Hancock's CSOF at ¶ 114: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 84. Rick Hancock's CSOF at ¶ 117: As for nearly all the facts cited, Hancock does not cite any evidence in the record. As for the one remaining fact, Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 85. Rick Hancock's CSOF at ¶ 119: This purported fact is misleading because Mr. Cole is opining to amounts owed had Greg Hancock remained employed. 86. Rick Hancock's CSOF at ¶ 120: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b). 87. Rick Hancock's CSOF at ¶ 129 to the extent Hancock states that the agreement was formally executed: This amounts to legal argument. 88. Rick Hancock's CSOF at ¶ 134: This amounts to a legal argument.
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89.

Rick Hancock's CSOF at ¶ 137: Hancock failed to support this fact with citation to the record. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b).

90.

Rick Hanock's CSOF at ¶ 139: Hancock's cited evidence does not support the purported fact. Therefore, he failed to comply with Rule 56(e) and Local Rule 56.1(b).

91. 92.

Rick Hancock's CSOF at ¶ 140: This amounts to legal argument. Rick Hancock's CSOF at ¶141: Greg Hancock lacks personal knowledge about Scott Keeffe's intent. Fed. R. Evid. 602.

III.

CONCLUSION For the reasons set forth above, Meritage respectfully requests that the Court strike

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the abovementioned portions of the Defendants/Counterclaimants/Third Party Claimants' Responses and Controverting Statements of Facts. DATED this 5th day of March, 2007. SNELL & WILMER L.L.P.

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

By s/ Grant Woods Grant Woods GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, AZ 85006 Attorneys for Plaintiffs and Third Party Defendants

Case 2:04-cv-00384-ROS

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CERTIFICATE OF SERVICE I hereby certify that on March 5th, 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 17
29323.0078\GOLDFID\PHX\1938624

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