Free Response in Opposition to Motion - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C.
P H O E N IX

FENNEMORE CRAIG, P.C. Kenneth J. Sherk (No. 001371) Timothy J. Burke (No. 002568) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Attorneys for Third-Party Defendant Snell & Wilmer, L.L.P.

UNITED STATES DISTRICT COURT 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, Plaintiff, v. 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, L.L.C., an Arizona limited liability company, and J2H2, L.L.C., an Arizona limited liability company, Defendants.

NO. CV-04-0384-PHX-ROS DEFENDANT SNELL & WILMER, LLP'S RESPONSE TO DEFENDANTS GREG AND LINDA HANCOCK'S MOTION FOR LEAVE TO FILE THEIR RENEWED MOTION FOR SUMMARY JUDGMENT

Case 2:04-cv-00384-ROS

Document 198

Filed 08/12/2005

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FENNEMORE CRAIG, P.C.
P H O E N IX

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.

Third Party Defendant Snell & Wilmer L.L.P. joins in Plaintiffs' (collectively, Meritage's) Opposition to Defendant Greg and Linda Hancock's ("Hancock") Motion for Leave to File Their Renewed Motion for Summary Judgment (the "Motion"). As stated in Meritage's Opposition, the Motion should be denied because, among other reasons: (1) discovery is still ongoing; (2) the issues raised in Mr. Goldfine's Rule 56(f) Affidavit remain unresolved; and (3) defendants failed to certify their discovery as complete. Standing alone, these reasons justify denying the Motion. In addition, Snell & Wilmer has independent interests unique to it that further support the Motion's denial. Snell & Wilmer's interest in defending Third Party Plaintiff Hancock's abuse of process and malicious claims against it is coextensive with the Meritage defendants' interest in opposing Hancock's motion for summary judgment. For example, Hancock's abuse of process and malicious prosecution claims at minimum will require Hancock's success on the merits of the underlying Meritage litigation (even such success, of course, does not mean Hancock will be entitled to judgment in his favor on the abuse of process and malicious prosecution claims; but the contrary, Meritage's success on its claims--or even prevailing on Hancock's motion for summary judgment--will vitiate these claims). Snell & Wilmer therefore has an independent interest in opposing
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FENNEMORE CRAIG, P.C.
P H O E N IX

Hancock's motion for summary judgment against the Meritage defendants. Furthermore, Snell & Wilmer--even more than the Meritage defendants--cannot presently defend against Hancock's summary judgment motion. It was only just served in mid-May of this year, and presently has pending a motion to dismiss pursuant to Rule 12(b)(6). Accordingly, Snell & Wilmer has engaged in no discovery, and it will not be required to undertake discovery should it prevail on its motion to dismiss, which has not yet been set for hearing. The Motion should be denied until Snell & Wilmer's motion to dismiss is set for hearing and ruled upon and Snell & Wilmer has had the opportunity to undertake appropriate discovery. In sum, there are numerous reasons for denying the Motion at this time: · Hancock only recently served Snell & Wilmer; · Discovery is ongoing and includes the need for the depositions of numerous individuals and time to review the voluminous documents produced by Hancock; · the issues raised in Meritage's Rule 56(f) papers remain unresolved; and · Snell & Wilmer presently has pending a motion to dismiss Hancock's claims, which would obviate Snell & Wilmer's need to conduct discovery at all. The Motion for Leave to File is simply premature and should be denied. DATED this 12th day of August, 2005. FENNEMORE CRAIG, P.C.

By /s/ Timothy Burke Attorneys for Third-Party Defendant Snell & Wilmer, L.L.P., an Arizona professional corporation, ORIGINAL and ONE COPY of the foregoing filed and COPY of the foregoing mailed this 12th day of August, 2005 to:
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FENNEMORE CRAIG, P.C.
P H O E N IX

Ivan K. Mathew, Esq. MATHEW & MATHEW 1850 N. Central Avenue, Ste. 1910 Phoenix, AZ 85004 Attorney for Rick Hancock Robert M. Frisbee FRISBEE & BOSTOCK, PLC 5611 N. 16th Street Phoenix, AZ 85016 Attorneys for Defendant Greg Hancock and Linda Hancock Dan W. Goldfine, Esq. SNELL & WILMER, LLP One Arizona Center Phoenix, AZ 85004-2202 Attorneys for Plaintiff

Barbara Marinoff
1698325

Case 2:04-cv-00384-ROS

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