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

1 STEPTOE & JOHNSON LLP
Collier Center
2 201 East Washington Street
3 Suite 1600
Phoenix, Arizona 85004-2382
4 Telephone: (602) 257-5200
5 Facsimile: (602) 257-5299
6 Karl M. Tilleman (013435)
P. Bruce Converse (005868)
7 Attorneys for Plaintiff
8
9 UNITED STATES DISTRICT COURT
10 Drsrmcr or AR1zoNA
11 Northland Insurance Company, a
12 Minnesota corporation, No. CV 04-347 PHX-FJ M
13 Plaintiff, PLAINTIFF’S RESPONSE TO
S DEFENDANTS’ MOTION TO STRIKE
14 V ' PLAINTIFF’S CROSS MOTION FOR
Correctional Medical Services, Inc., a SUMMARY JUDGMENT
15 Missouri corporation, Dr. Antonio
DiMaano, Dr. Reynaldo Figueroa, Nurse
16 Lorraine Lopez—Moreno, Nurse Trina
Carrasco, Nurse Jacqueline Cornwell, and
17 ABC Insurance Company,
18 Defendants.
19
20 The Court should deny defendants’ motion to strike Northland’s cross-motion for
21 summary judgment. The Court has the inherent power to grant summary judgment in
22 Northland’s favor on any issue, and CMS, having itself asserted that the issue is proper for
23 summary disposition, is not and cannot be prejudiced by Northland’s request that the
24 Court rule in its favor on the very issue raised by CMS in its motion.
25 In the alternative, Northland requests that the Court treat its Reply on the Cross-
26 Motion (filed herewith) as a Surreply on the CMS motion, needed because CMS raised
new issues for the first time in its Reply.
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1 Argument
2 THE MOTION TO STRIKE SHOULD BE DENIED BECAUSE THE COURT HAS
3 INHERENT POWER TO GRANT SUMMARY JUDGMENT IN NORTHLAND’S
FAVOR, WHETHER OR NOT NORTHLAND FORlVIALLY FILED A MOTION.
2 Federal courts have the inherent power to grant summary judgment in favor of the
6 non—moving party, without the need for any motion by that party. In re Marvin Properties,
7 Inc., 76 B.R. 150, 152 (9th Cir. 1987) ("A federal court, on one party’s motion for
8 summary judgment, may sua sponte grant summary judgment for the non moving party
9 where from the record there is no genuine dispute regarding material facts and the
10 nonmoving party is entitled to judgment as a matter of law."); Portsmouth Square, Inc. v.
11 Shareholders Protective Committee, 770 P.2d 866, 869 (9th Cir. 1985) ("[A] district court
12 may issue summary judgment on its own motion.").
13 Northland seeks partial summary judgment in its favor on precisely the same issue
14 raised by CMS in its motion for summary judgment. Both parties agree that the issue is
15 proper for determination as a matter of law. The relief Northland has requested is exactly
16 the flip side of the relief that CMS has requested: CMS asserts that Northland’s claims are
17 barred by one or more statutes; Northland asserts that its claims are uq barred by those
18 very same statutes. Northland did not cross move for partial summary judgment on any
19 other grounds.
20 Indeed, the only actual conseq_uence of making a formal cross-motion instead of
21 invoking the Court’s inherent power was the authorization of Northland’s reply on its
22 cross—motion, filed herewith. Accordingly, in the event that Court grants the motion to
23 strike, Northland (a) urges the Court to exercise its inherent power and grant partial
24 summary judgment in favor of Northland on the guaranty act issues, and (b) grant leave to
25 treat its Reply on the cross-motion as a Surreply on the motion, necessitated by new
26 arguments made by CMS for the first time in its Reply. A surreply is proper when the
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1 moving party raises new arguments in its reply brief. E. g., Fedrick v. Mercedes-Benz,
2 USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005).
3 In its Reply, CMS argues for the first time that: 1) both the Missouri and the
4 Arizona Guaranty Acts should apply to this dispute, where the Arizona Guaranty Act does
5 not provide as much protection to insureds as does Missouri’s Guaranty Act, 2) other
6 courts interpreting their states guaranty acts "have consistently rejected the construction
7 Northland seeks here," and 3) CSC’s Assignment Agreement is ineffective because it is
3 dated December 5, 2005. (CMS Reply at 5-11) There are compelling reasons why each of
9 these new arguments fails. A surreply would advance the interests of justice by ensuring
10 that these issues are fully and properly briefed for the Court’s consideration. Northland
11 should be permitted to counter these new arguments and explain to the Court the why
12 these new arguments fail, which is exactly what its reply/surreply attempts to accomplish.
13 Conclusion
14 For the foregoing reasons, the Court should deny CMS’s Motion to Strike. In the
15 alternative, the Court should grant leave to treat Northland’s Reply in Support of Its Cross
16 Motion for Partial Summary Judgment on the Effect of the Guaranty Acts as its Surreply
17 to CMS’s Reply in Support of Its Motion for Summary Judgment.
18 DATED this 9th day of January 2006.
19
20 STEPTOE & JOHNSON LLP
21
By: S/S
22 Karl M. Tilleman
23 0 §0l1cEaSf)l71\lIal:sl§i)ngton, Suite 1600
Phoenix, Arizona 85004
24 Attorneys for Defendant
25 Northland Insurance Company
26
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1 CERTIFICATE OF SERVICE
2
I hereby certify that on the 9th day of January 2006, I caused the attached document
3
to be electronically transmitted to the Clerk’s Office using the CM/ECP System for filing
4
and transmittal of a Notice of Electronic Filing to the Following CM/ECF Registrants:
5
Dennis E. O’Connell Stefihen Paul Forrest, Esquire
6 Bryan Cave LLP Ho loway Odegard Forrest Kelly & Kasparek
211 North Broadway, Suite 3600 3101 North Central Avenue, Suite 1200
7 St. Louis, Missouri 63102-2750 Phoenix, Arizona 85012
Attorneys for Correctional Medical Attorneys for Defendants
8 Services, Inc. Correctional Medical Services, Inc.,
Lorraine Lopez-Moreno, Trina Carrasco, and
9 Jacqueline Cornwell
10
11 With a COPY of the foregoing mailed / hand—delivered on January 9, 2006, to:
Honorable Frederick J. Martone
12 United States District Court
Sandra Day O’Connor U.S. Courthouse
13 Suite 526
401 West Washington Street, SPC 62
14 Phoenix, AZ 85003-2158
15
16 STEPTOE & JOHNSON LLP
By: S/L
17 Karl M. Tilleman
P. Bruce Converse
18 201 East Washington, Suite 1600
Phoenix, Arizona 85004
19 Attorneys for Defendant
20 Northland Insurance Company
21
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