Free Motion for Leave to File - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Dan W. Goldfine (#018788) Richard G. Erickson (#019066) Emma Harty (#022490) 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 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, and Greg Hancock, an individual, Defendant, Counter-Claimant, and Third Party Plaintiff, v. Case No. CV-04-0384-PHX-ROS MERITAGE'S OPPOSITION TO DEFENDANTS GREG AND LINDA HANCOCK'S MOTION FOR LEAVE TO FILE THEIR RENEWED MOTION FOR SUMMARY JUDGMENT (Assigned to the Honorable Roslyn O. Silver)

Snell & Wilmer L.L.P.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

1709516

Case 2:04-cv-00384-ROS

Document 199

Filed 08/12/2005

Page 1 of 4

1 2 3 4 5 6 7 8 9 10
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

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.

Plaintiffs (collectively, "Meritage") oppose Defendants Greg and Linda Hancock's Motion for Leave to File Their Renewed Motion for Summary Judgment ("Motion"). Defendants Greg and Linda Hancock's ("Defendant Greg Hancock") Motion is precipitous,1 for Meritage is still undergoing discovery and has not received any certifications as required by this Court from either Defendant Greg Hancock or Rick Hancock regarding their discovery responses. The Court should not consider resolving Hancock's Motion until Meritage has had an opportunity to complete discovery on the issues raised by Defendant Greg Hancock's Motion. Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (summary judgment should be denied "or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery."), quoting Rule 56(f).2 The Hancocks' document production is not complete, Regarding Third Party Defendants John Landon, Steven Hilton and Larry Seay ("Third Party Defendants"), the Motion to Dismiss the counterclaims against the Third Party Defendants is still pending. Accordingly, the Third Party Defendants have deferred discovery until the Motion to Dismiss is decided. Nonetheless, a large amount of Third Party Defendants' discovery is expected to overlap with Meritage's discovery and counsel for the Third Party Defendants will ask the appropriate questions during the forthcoming depositions so as not to cause duplicative efforts. 2 The U.S. Supreme Court admonishes that summary judgment is feasible only after the nonmoving party has had an "adequate time for discovery." Celotex, 477 U.S. at 322, 106 S. Ct. at 2552. Rule 56(f) provides a mechanism whereby a party opposing a motion for summary judgment may, by declaration, state valid reasons why they are temporarily unable to present "facts essential to justify the party's opposition" to such motion. "Rule 56(f) thus protects parties from a premature grant of summary judgment." Weinberg v. Whatcom County, 241 F.3d 746, 751 (9th Cir. 2001). Because the consequences of summary judgment are so severe, a court should avoid premature termination of the claims. See, e.g., Murrell v. Bennett, 615 F.2d 306 (5th Cir. 1980).
1

Snell & Wilmer L.L.P.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

1709516

Case 2:04-cv-00384-ROS

Document 199- 2 - Filed 08/12/2005

Page 2 of 4

1 2 3 4 5 6 7 8 9 10
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

and will not be complete absent the certifications. But even if the production was complete, there has been no time to review the documents and take the depositions set forth in Meritage's Rule 56(f) motions, which are incorporated herein by reference. On June 24, 2005, Defendant Greg Hancock filed a Motion for Leave to File Their Renewed Motion for Summary Judgment. On July 5, 2005, counsel for co-defendant Rick Hancock advised Defendant Greg Hancock to withdraw the Motion. (See July 5, 2005 letter, attached as Exhibit A). Defendant Rick Hancock's counsel specified the following reasons for withdrawing the Motion: 1) Meritage's counsel was still in the process of reviewing Rick Hancock's documents pursuant to Meritage's discovery request; 2) 3) Defendant Rick Hancock had not yet produced all documents; and The Court had previously indicated that it would prefer all discovery to take place before ruling on the motions for summary judgment. (July 5, 2005 letter.) Subsequent to the July 5, 2005 letter, Defendant Greg Hancock withdrew the Motion. (See July 11, 2005 Withdrawal of Motion for Leave to File, attached as Exhibit B). However, Defendant Greg Hancock quickly refiled the Motion on July 26, 2005, six days before Defendant Rick Hancock delivered the last set of documents to Meritage.3 Further still, Meritage has not received certifications from Defendant Greg or Rick Hancock certifying compliance with Meritage's discovery requests, pursuant to this Court's March 25, 2005 ruling during. (Hearing Transcript at 26:23-25 and 27:1-5 (March 25, 2005)). Nor has Meritage received a privilege log from either Defendant Rick or Greg Hancock regarding their discovery responses. Defendant Rick Hancock produced eight boxes of documents between July 22, 2005 and August 1, 2005 on a protracted basis. Because Defendant Rick Hancock only produced originals to Meritage during this time, Meritage had to take the originals to a copy vendor to have copies made of all the documents.
3

Snell & Wilmer L.L.P.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

1709516

Case 2:04-cv-00384-ROS

Document 199- 3 - Filed 08/12/2005

Page 3 of 4

1 2 3 4 5 6 7 8 9 10
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

In the last month alone, Meritage has received eight boxes of documents from Defendant Rick Hancock pursuant to Meritage's discovery requests. This latest

document production totaled approximately 11,000 pages. As previously noted, Meritage has filed two Rule 56(f) affidavits regarding additional discovery that is needed. This additional discovery includes the depositions of Greg Hancock, Desiree Coats, Ken Krouse, Tamara McDonald, Jeff Luke, Jon Titus, Bobbie Johnson, Shari Mesicko, Donald Kieffer and David Weiss. (See Rule 56(f) Declaration of Dan Goldfine, 6:157:21 and Second Rule 56(f) Declaration of Dan Goldfine, 4:10-5:11, both of which are incorporated herein in their entirety). Due to the voluminous nature of the documents recently produced by Defendant Rick Hancock, Meritage is still completing its review of the documents. However, once the review is completed, Meritage will notice these depositions and complete the remaining discovery in a timely manner. discovery is complete, the time for summary judgment motions may be ripe. Accordingly, Meritage respectfully requests that this Court deny Defendant Greg Hancock's Motion for Leave to File his Renewed Motion to Dismiss. DATED this 12th day of August, 2005. SNELL & WILMER L.L.P. When that

Snell & Wilmer L.L.P.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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

1709516

Case 2:04-cv-00384-ROS

Document 199- 4 - Filed 08/12/2005

Page 4 of 4