Free Brief (Non Appeal) - District Court of Arizona - Arizona

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

Dan W. Goldfine (#018788) Richard G. Erickson (#019066) 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] [email protected] Attorneys for Plaintiff and Counter defendant Meritage Corporation and Third Party Defendants Steve Hilton, John Landon, and Larry Seay 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, 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. Greg Hancock, an individual, Defendant, Counter-Claimant, and Third Party Plaintiff, v. Steven J. Hilton, an individual; John R. Landon, an individual; Larry W. Seay, an individual; and Snell & Wilmer, L.L.P., an Arizona professional corporation, Third Party Defendants. Case No. CV-04-0384-PHX-ROS MERITAGE'S REPLY TO THE MOTION FOR AN ORDER TO SHOW CAUSE (Assigned to the Honorable Roslyn O. Silver)

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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

Document 286

Filed 03/14/2006

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

Plaintiffs/Counterdefendant/Third-Party Defendants (collectively "Meritage"1) hereby reply to Greg Hancock's ("Hancock") Response to Meritage's Motion for Order to Show Cause. Hancock concedes that he has not made any reasonable efforts to comply with this Court's January 18, 2006 Order. Instead of justifications for his contempt, he offers "red-herrings" and blames third-parties. In his Response, Hancock does not dispute that this Court's January 18, 2006 Order is valid, clear and enforceable. On January 18, 2006, this Court entered an Order requiring Hancock, Frisbee and Titus to "comply with their discovery obligations consistent with this Order [or] they will be required to show cause why sanctions should not be imposed." Order at 7, ll. 13-5 (Jan. 18, 2006). This Court further ordered that Hancock "and Mr. Frisbee shall serve a complete and accurate supplemental response to Plaintiff's Request for the Production of Documents consistent with this Order and within thirty days of issuance of this Order on February 19, 2006." Id. at 7, ll. 17-20. Likewise, in his Response, Hancock does not dispute that Hancock, Mr. Frisbee, and Titus have disregarded this Court's January 18, 2006 Order. In fact, it appears that Hancock is now arguing that he does not have to produce any documents in the possession of his attorneys because his partner in a business made a production per a subpoena.2 Response at 3:12-21. Not only is it without any support in the law and not only is it inapposite to the issue of compliance with this Court's Order, Hancock's argument is just another example of the "Three Card Monty" game that he and his lawyers have played with respect to document production throughout this litigation. Hancock's documents are in his control. The documents are also in the possession of his attorney (Titus, Brueckner & Berry), and Hancock still has not complied with his discovery obligations as well as two separate Court Orders (one of which is nearly a year old). In his Response, Hancock does not dispute that Meritage met its burden of 1 Third-party defendant Snell & Wilmer is excluded. 2 Putting aside the legal flaws in Hancock's argument that he is relieved from his duties under the Federal Rules of Civil Procedure and this Court's Orders, the fact of the matter is that Hancock's partner's production of documents was far from complete. Moreover, those documents are limited to Olympic. There are other documents in the possession of his attorneys that Hancock is obligated to produce and disclose.
Case 2:04-cv-00384-ROS Document 286- 2 - Filed 03/14/2006 Page 2 of 5

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Snell & Wilmer L.L.P.

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

providing clear and convincing evidence that a specific and definite order of the Court has been violated. Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir. 1989). In this light, the burden then shifts to Hancock, the party violating the order, to show that he "took every reasonable step to comply." Hook, 907 F. Supp. at 940, citing Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir. 1976) (upholding contempt order where it was apparent that there was "little real conscientious effort ... to comply"). In all events, Hancock may not disobey a court order and later argue that there were "exceptional circumstances" for doing so. Peterson v. Highland Music, Inc., 140 F.3d 1313, 1323 (9th Cir. 1998) (there is no "good faith" excuse for non-compliance); In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1365 (9th Cir. 1987). Not only did he not take "every reasonable step to comply," Hancock and his attorneys have not even taken a single "reasonable step" to comply with this Court's January 18, 2006 Order. The reality is that instead of searching his records at his attorneys' office and otherwise complying with the Order, Hancock continues to point to a series of red-herrings. It makes one wonder what he and his attorneys are going to such lengths to hide. As explained in the Motion, Hancock's disregard of this Court's Order is intentional. It is and remains essentially based on the thoroughly flawed idea that neither Titus nor the documents are before this Court and the idea that the Court has no authority in these areas. There is no authority to support such propositions, and Hancock cites none. Accordingly, Meritage requests that the Court enter the Order to Show Cause for why Hancock, Mr. Frisbee and Titus should not be held in contempt for failing to abide by this Court's January 18, 2006 Order, attached to the Motion.

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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

Document 286- 3 - Filed 03/14/2006

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

DATED this 14th day of March, 2006.

SNELL & WILMER L.L.P.

By s/ Dan W. Goldfine Dan W. Goldfine Richard G. Erickson Adam Lang One Arizona Center Phoenix, AZ 85004-2202 Attorneys for Plaintiff and Counter defendant Meritage Corporation and Third Party Defendants Steve Hilton, John Landon, and Larry Seay CERTIFICATE OF SERVICE I hereby certify that on March 14, 2006, 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. 1850 N. Central Avenue, Suite 1910 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 Mark I. Harrison Sarah Porter Osborn Maledon, P.A. 2929 North Central Avenue Suite 2100 Phoenix, Arizona 85012-2794 Attorneys for Defendant Greg and Linda Hancock and Counsel of Record Robert Frisbee

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Case 2:04-cv-00384-ROS Document 286- 4 - Filed 03/14/2006 Page 4 of 5

Snell & Wilmer L.L.P.

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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 A Copy of the foregoing served via facsimile to Kurt M. Zitzer Meagher & Geer, P.L.L.P. 8800 North Gainey Center Drive Suite 261 Scottsdale, Arizona 85258 Attorneys for Titus, Brueckner & Berry

s/ Dan W. Goldfine 11
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

GOLDFID\PHX\1804115

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Snell & Wilmer L.L.P.