Free Reply - District Court of Arizona - Arizona

1 Stephen Paul Forrest (SBN 006341) HOLLOWAY ODEGARD FORREST 2 KELLY & KASPAREK, P.C. 3 3101 North Central Avenue, Suite 1200 Phoenix, Arizona 85012-3099 4 Telephone: (602) 240-6670 5 Facsimile: (602) 240-6677 6 Dennis E. O'Connell BRYAN CAVE LLP 7 211 N. Broadway, Suite 3600 8 St. Louis, Missouri 63102 Telephone: (314) 259-2000 9 Facsimile: (314) 259-2020 10
Bryan Cave LLP Two North Central Avenue, Suite 2200 Phoenix, Arizona 85004-4406 (602) 364-7000

Margaret B. LaBianca (No. 019169) 11 BRYAN CAVE LLP (No. 00145700) Two North Central Avenue, Suite 2200 12 Phoenix, Arizona 85004-4406 13 Telephone: (602) 364-7000 14 Attorneys for Defendants 15 Correctional Medical Services, Inc., Lorraine Lopez-Moreno, Trina Carrasco, 16 and Jacqueline Cornwell 17 18 19 20 21 22 23 24 25 26 27 28
534697/0181280

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Northland Insurance Company, Plaintiff, vs. Correctional Medical Services, et al., Defendants. Case No. CV-04-347-PHX-FJM DEFENDANTS CORRECTIONAL MEDICAL SERVICES, INC., LORRAINE LOPEZ-MORENO, TRINA CARRASCO AND JACQUELINE CORNWELL REPLY IN SUPPORT OF MOTION TO STRIKE PLAINTIFF'S CROSSMOTION FOR SUMMARY JUDGMENT; ALTERNATIVELY, DEFENDANTS' OPPOSITION TO PLAINTIFF'S SURREPLY

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Defendants Correctional Medical Services, Inc., Lorraine Lopez-Moreno, Trina

2 Carrasco and Jacqueline Cornwell ("Defendants") reply to Plaintiff Northland Insurance 3 Company's ("Northland") opposition to Defendants' motion to strike Northland's cross4 motion for summary judgment as follows. 5 6 I. Northland's untimely motion should be struck.

Northland makes two points to justify its untimely motion for partial summary

7 judgment: (1) a federal court has the inherent power to grant summary judgment in favor of 8 a non-moving party; and (2) the judgment Northland seeks is based on the same issues raised 9 by Defendants in their motion for summary judgment. Defendants dispute neither of these 10 points. But neither point gives Northland leave to file an untimely motion for summary
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11 judgment and -- more importantly with respect to fairness -- a reply in support of that 12 untimely motion. In effect, Northland contends that merely because the Court has the power 13 to enter judgment sua sponte and because Northland's motion raised no new issues, that 14 Northland should get "the last word." Such a ruling would encourage litigants to file such 15 duplicative motions, without regard for dispositive motion deadlines. 16 17 II. Northland's filing is not a legitimate surreply.

Northland's alternative contention that its improper reply is a surreply is equally

18 incredible. If the surreply is "needed" and "necessitated by new arguments made by CMS 19 for the first time in its Reply," as Northland contends, why is this the secondary justification 20 for the rogue filing? Moreover, as is readily apparent from the papers properly filed

21 concerning Defendants' motion for summary judgment, the arguments in Defendants' reply 22 are responsive to Northland's opposition. That this may result in Defendants' responsive 23 arguments going unanswered in the briefs is not extraordinary; such is the nature of the 24 motion/response/reply process required by the Federal Rules of Civil Procedure. 25 26 III. Substantively, Northland fails to refute Defendants' motion.

In any event, Northland's filing fails to provide any law or disputed fact to refute

27 Defendants' right to judgment as a matter of law. Northland asks the Court to read into the 28 Arizona Guaranty Acts an unexpressed intent to limit the bar on subrogation claims and the
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1 protection the statute provides to the insureds of insolvent carriers for the benefit of 2 Northland, a solvent carrier, who collected premiums to insure the risks at issue. 3 Fundamentally, this argument suggests the Arizona legislature was not capable of expressing 4 the simple limitation Northland insists must have been intended. The legislated requirement 5 that Northland's subrogation claim be waived in these circumstances is in accordance with 6 the purpose of the statute, and Northland's contorted reading is not supported by the law, 7 legislative history or common sense. 8 9 IV. Conclusion

For the foregoing reasons, Defendants urge the Court to disregard Northland's

10 improper reply/surreply. Defendants have not moved to strike the filing out of a concern
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11 that this wasteful briefing may never end. Whether or not the filing is considered, based 12 upon the undisputed facts and law, Defendants are entitled to summary judgment. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 By s/ Margaret B. LaBianca Margaret B. LaBianca Two North Central Avenue, Suite 2200 Phoenix, Arizona 85004-4406 Attorneys for Defendants BRYAN CAVE LLP BRYAN CAVE LLP Dennis E. O'Connell 211 N. Broadway, Suite 3600 St. Louis, Missouri 63102 DATED January 20, 2006. HOLLOWAY ODEGARD FORREST KELLY & KASPAREK, P.C. Stephen Paul Forrest (SBN 006341) 3101 North Central Avenue, Suite 1200 Phoenix, Arizona 85012-3099

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The foregoing is transmitted electronically to the Clerk's Office on January 20, 2006, for filing 2 and for transmittal to the following counsel of record: 3 1 4 Karl Michael Tilleman, Esq. Janice Kay Crawford, Esq. 5 STEPTOE & JOHNSON LLP Collier Center 6 201 East Washington, Street, Suite 1600 7 Phoenix, Arizona 85004-2382 Attorneys for Plaintiff 8 9 Keith R. Ricker, Esq. RICKER & BUSTAMANTE, LLP 10 4530 East Shea Blvd., Suite 150 Phoenix, Arizona 85028 11 Attorneys for Defendants 12 Dimaano and Figueroa 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 s/ Claudia Kiesell

Bryan Cave LLP Two North Central Avenue, Suite 2200 Phoenix, Arizona 85004-4406 (602) 364-7000

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