Free Motion for Order to Show Cause - 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) Emma Harty (#022490) 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 Attorneys for Plaintiff and Counterdefendant 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.

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

Snell & Wilmer L.L.P.

RENEWED MOTION FOR ORDER TO SHOW CAUSE

(Assigned to the Honorable Roslyn O. Silver)

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Case 2:04-cv-00384-ROS

Document 200

Filed 08/12/2005

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Greg Hancock, an individual, Defendant, CounterClaimant, 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.

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

On April 26, 2005, this Court entered an Order requiring Defendant, Counterclaimant and Cross-Claimant Greg Hancock ("Hancock") to dismiss his complaint in Arizona Superior Court ("the State Court action") within ten days of the Court's Order. (Order at 9:12-17 (April 26, 2005).) On May 10, 2005, Hancock petitioned the Ninth Circuit for a Writ of Prohibition and Mandamus, which was denied on August 5, 2005. (Exhibit 1 hereto.) Before and after filing his brief with the Ninth Circuit, Hancock defied both Rule 8(a)(1), Federal Rules of Appellate Procedure, and this Court's April 26, 2005 Order. He failed to request a stay, provide a supersedeas bond or seek an order from this Court. Pending the Ninth Circuit's decision, there was no stay allowed, yet Hancock ignored and continues to ignore this Court's Order, even as modified by the Court, by refusing to dismiss his State Court Action. Hancock is and has been in contempt of this Court's Order. Accordingly, Meritage requests that the Court enter the attached Order to Show Cause for why Greg Hancock should not be held in contempt for failing to abide by this Court's April 26, 2005 Order. MEMORANDUM OF POINTS AND AUTHORITIES It is well established that federal courts have the inherent power to enforce their orders through civil contempt. See Spallone v. United States, 493 U.S. 265, 276, 110 S. Ct. 625, 632, 107 L.Ed.2d 644 (1990); Hook v. State of Ariz., 907 F. Supp 1326, 1339 (D.

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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

Az. 1995).

See also 18 U.S.C. § 410(3).1

The district court has wide latitude in

determining whether such contempt has occurred in violation of the court's order. Id. citing Stone v. City of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992). The rule in the Ninth Circuit "regarding contempt `has long been whether defendants have performed `all reasonable steps within their power to insure compliance' with the court's orders." Id., quoting Stone, 968 F.2d at 856. The court's civil contempt power is properly exercised both to coerce a defendant into compliance with the court's order, and to compensate the complainant for losses sustained by violations of that order. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992) (holding defendant in contempt for violating order that defendant not sell product infringing plaintiff's protected trade dress). In assessing whether exercise of contempt powers are appropriate, the moving party has the initial burden of 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). The burden then shifts to the party violating the order to show that the party "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, a party 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). There is no disputing that Greg Hancock originally defied the Court's Order, as
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1711942

Snell & Wilmer L.L.P.

18 U.S.C. 410(3) provides, in pertinent part: A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as-- (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) Misbehavior of any of its officers in their official transactions; (3) Disobedience or resistance to lawful writ, process, order, rule, decree, or command.

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

well as the modified Order. To date, he refused to dismiss the state court action as ordered, even acting in State Court to prevent dismissal of that action without prejudice. He clearly and convincingly failed to comply with the Order. During a period of over three months, Hancock showed no conscientious effort whatsoever to comply with the Court's Order. Meritage, accordingly, renews its Motion for an entry of an Order to Show Cause why Defendant Greg Hancock should not be held in Civil Contempt of Court for his failure, as required by the Court Order on April 26, 2005, to dismiss his state court action. A proposed form of Order setting a hearing is provided with this Motion. DATED this 12th day of August, 2005. SNELL & WILMER L.L.P.

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1711942

Snell & Wilmer L.L.P.

By /s/ Dan W. Goldfine Dan W. Goldfine Richard G. Erickson Adam Lang Emma Harty One Arizona Center 400 East Van Buren Street Phoenix, Arizona 85004-2202 Attorneys for Plaintiffs/Counterdefendant

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