Free Motion for Leave to File - 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 341-2

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

GREG HANCOCK'S MOTION FOR RULE 54(b) JUDGMENT ON LESS THAN ALL CLAIMS

Case 2:04-cv-00384-ROS

Filed 09/05/2006

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Defendant Greg Hancock, by and through undersigned counsel, hereby moves this Court to enter a final judgments, pursuant to Rule 54(b), Fed.R.Civ.P., on less than all claims against less than all parties, in favor of Plaintiffs and Third-Party Defendants and against Defendant Greg Hancock's Counterclaims and Third-Party Claims, on the grounds and for the reason that there is no just reason for delay, and final judgments to that effect should be entered at this time. The grounds for this Motion are more fully set forth in the accompanying Memorandum in Support of Motion, which is incorporated herein by this reference. RESPECTFULLY SUBMITTED this day of , 2006.

/s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg Hancock

MEMORANDUM IN SUPPORT OF MOTION I. Introduction. On March 31, 2006, ordered that all but one of Greg Hancock's counterclaims and third-party claims be dismissed with prejudice. The claims dismissed included breach of various contracts and/or parts of contracts, breach of the covenant of good faith and fair dealing, wrongful interference with contractual advantage, unjust enrichment, conversion, abuse of process, and wrongful interference of civil proceedings (malicious prosecution).1 On August 26, 2006, the Court affirmed those dismissals by denying Greg Hancock's Motion to Stay Entry of Judgment, which the Court treated as a motion for reconsideration. Greg Hancock now requests that the Court find that there is no just reason to delay entry of final judgment on the dismissed claims, and that it enter judgment accordingly, all pursuant

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This claim was dismissed without prejudice as to Snell & Wilmer.

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to Rule 54(b), Fed.R.Civ.P. II. Rule 54(b) Judgments. Rule 54(b) states that whenever more than one claim for relief is presented in an action, no matter in what form presented, or when multiple parties are involved, "the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express determination that there is no just reason for delay * * * ." Arizona cases involving Arizona's Rule 54(b) express the principles nicely. Multiple claims are involved if the factual basis for recovery states different claims that could be separately enforced. Stated differently, multiple claims for relief are presented when the facts give rise to more than one legal right or cause of action. Continental Casualty v. Superior Court, 130 Ariz. 189, 191, 635 P.2d 174, 176 (1981). The determination rests on whether the different claims could be separately enforced. Salerno v. Atlantic Mutual Insurance Co., 198 Ariz. 54, 6 P.3d 758 (App. 2001). The district court enjoys discretion to order judgment on less than all claims pursuant to Rule 54(b). Once it has determined that the order is eligible for Rule 54(b) treatment because it finally disposes of a cognizable claim for relief, the court must then determine whether there is any just reason for delay in entering the order as a judgment. In making this determination: a district court must take into account judicial administrative interests as well as the equities involved. Consideration of the former is necessary to assure that application of the Rule effectively `preserves the historic federal policy against piecemeal appeals'. . . . It was therefore proper for the District Judge here to consider such factors as whether the claims under review were separate from others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals. Curtiss-Wright v. General Electric Co, 446 U.S. 1, 9, 100 S.Ct. 1460, 1465, 64 L. Ed. 2d 1 (1980). If the claims are distinct, entry of judgment may be granted if doing so would alleviate hardship or injustice, and the district court may look to all of the facts and
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Case 2:04-cv-00384-ROS

Document 341-2

Filed 09/05/2006

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circumstances of the case in determining whether to enter partial judgment. For example, in Continental Airlines v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1525 (9th Cir. 1987), it was held that summary judgment on negligence and strict liability claims were sufficiently separable from numerous other complex issues to justify Rule 54(b) certification. So, too, a rule 54(b) judgment may dispose of counterclaims even though the main claims remain pending. Entry of judgment is permissible even if the multiple claims arise from the same transaction or occurrence, because a claim and compulsory counterclaims are "multiple claims" within the meaning of the Rule. Therefore, the district court may enter final judgment on compulsory counterclaims even though the main claims remain pending. Curtiss-Wright v. General Electric Co., 446 U.S. 1, 9, 100 S.Ct. 1460, 1465, 64 L. Ed. 2d 1 (1980); Shinton America, Inc. v. Car Telephones, Inc., 45 F.3d 1107, 1110-1111 (7th Cir. 1995). III. There is No Just Reason To Delay Entry of Judgment. Meritage's claims against Greg Hancock, although intertwined with the sale of the Hancock companies to Meritage and his tenure as Hancock Homes' president of Meritage, are quite different than his claims against Meritage and its officers. By way of brief example, Meritage claims that Hancock breached his contract in the way he did his job, but Hancock claims he was forced from it and was not paid appropriately. Meritage claims that a valuable portion of its purchase was the right to use the Hancock name, but Hancock claims that Meritage purposefully traduced and depreciated the name. Hancock claims that in bad faith Meritage cheated him out of his earn-outs, his stock options, his Suns payment, his salary and his American Express bonus points. Hancock claims that this suit against him and his brother had no legitimate business purpose and was brought only to shield Meritage's own perfidy. The majority of the facts that substantiate Hancock's claims are different than the facts Meritage proffers for its claims. However, if the trial court erred in dismissing the
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Case 2:04-cv-00384-ROS

Document 341-2

Filed 09/05/2006

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Hancock claims, but that is not decided until an appeal undertaken after trial of the Meritage case, of necessity most of the same witnesses will be called, many of the same documents reviewed, etc. Such a result is the opposite of the efficient use of judicial resources and the convenience of the parties. If the counterclaims and third-party claims were improperly dismissed, then one jury should hear all of this case on one occasion instead of separate juries hearing much of the same evidence on two separate occasions. On the other hand, if the dismissals were proper, then a Court of Appeals affirmance would dictate only one trial, a substantially shorter one at that. It is also likely that the Court of Appeals can rather quickly determine whether the Court dismissed the counterclaims and third-party complaint for a proper reason, i.e. whether Meritage's Second Amended Complaint commenced the case anew, and/or whether there is any Federal jurisdiction at all. There would not seem to be any sound reasons to delay decision on those issues. IV. Conclusion. To Greg Hancock this situation appears to be one which Rule 54(b) was specifically designed to address. His motion seeks entry of judgment against less than all parties on less than all claims. There are no sound reasons for delay, and no sound reasons to defer decision of the issues. Accordingly, Greg Hancock respectfully requests that the Court order entry of judgment accordingly. RESPECTFULLY SUBMITTED this day of September, 2006.

/s/ Robert M. Frisbee Robert M. Frisbee Attorneys for Greg Hancock

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