Free Request - District Court of Arizona - Arizona

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R. Buck McKinney Texas Bar #: 00784572 LAW OFFICE OF BUCK MCKINNEY PO Box 6231 Austin, Texas 78762-6231 Telephone: (512) 236-0150 Facsimile: (512) 444-1879 ATTORNEY FOR PLAINTIFF UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA PHOENIX DIVISION JOHAN DE MEIJ, d/b/a AMSTEL MUSIC, BV Case No.: No. CIV 04-0341 PHX RCB PLAINTIFF, vs. TEMPE UNION HIGH SCHOOL DISTRICT, CORONA DEL SOL BAND BOOSTERS, GREAT VIDEO PRODUCTIONS, ARIZONA MUSIC EDUCATORS ASSOC., ARIZONA ACADEMY FOR THE PERFORMING ARTS, INC., MARK D. RICHARDSON, WILLIAM J. RICHARDSON AND CHRIS EVANS DEFENDANTS PLAINTIFF'S REQUEST TO MAINTAIN DEFENDANT ARIZONA ACADEMY FOR THE PERFORMING ARTS' APPLICATION FOR SECURITY FOR COSTS ON THE DOCKET FOR HEARING ON OCTOBER 17, 2005

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On August 22, 2005, the Court set Defendant Arizona Academy for the Performing
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Arts' Application for Security for Costs for hearing on October 17, 2005. On September 16, 2005, the AAPA "informed" the Court that "oral argument is not necessary" on its Application because Plaintiff has not filed a motion for sanctions in connection therewith. (AAPA's Reply in Support of Application for Security for Costs, p. 2, Docket # 156). Plaintiff disagrees.

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Plaintiff notes that the Court did not condition oral argument on the filing of a motion for sanctions. In any event, the fact that Plaintiff has not yet filed a motion for sanctions

Case 2:04-cv-00341-RCB Document 159 Filed 09/22/2005 PLAINTIFF'S RESPONSE TO DISTRICT'S CROSS-MOTON FOR SUMMARY Page 1 of -4 JUDGMENT 1

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doesn't mean that he won't. More importantly, Plaintiff's decision to postpone and/or forego the filing of a motion for sanctions doesn't change Plaintiff's position that the AAPA's Application has been filed in bad faith, and is without any reasonable basis in law or fact.

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For these reasons, Plaintiff strenuously encourages the Court to maintain the AAPA's Application on the docket (or at least to allow Plaintiff to argue his Response) so that all issues may be fully vetted. Indeed, this is all the more important since the AAPA has abused the pleadings process by loading its Reply brief with various mischaracterizations of Plaintiff's claims and positions; by exploring entirely new issues which were neither raised in its

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Application nor Plaintiff's Response;1 and by mischaracterizing legal authority in support of its Application. Dated this 22nd day of September, 2005.

s/ R. Buck McKinney________________ R. Buck McKinney, Esq. LAW OFFICE OF BUCK McKINNEY Texas Bar No. 00784572 P.O. Box 6231 Austin, Texas 78762-6231 Telephone (512) 236-0150 Facsimile (512) 444-1879 ATTORNEY FOR PLAINTIFF

As a general rule, a party may not raise issues in a reply brief that were not asserted in its original motion. See, e.g., Lacher v. West, 147 F.Supp.2d 538, 540 & n. 2 (N.D.Tex. 2001).

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Case 2:04-cv-00341-RCB Document 159 Filed 09/22/2005 PLAINTIFF'S RESPONSE TO DISTRICT'S CROSS-MOTON FOR SUMMARY Page 2 of -4 JUDGMENT 2

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CERTIFICATE OF SERVICE I certify that on September 22, 2005, a copy of the attached document was electronically transmitted using the CM/ECF System for electronic filing and transmittal of a notice of electronic filing to the following CM/ECF registrants: Garrick L. Gallagher [email protected] Debora L. Verdier [email protected] Sanders and Parks, PC 3030 N. Third Street, Suite 1300 Phoenix, AZ 85012-3099 Francis G. Fanning [email protected] Law Offices of Francis G. Fanning 500 E. Southern Ave., Suite B Tempe, AZ 85282-5211 Martin P. Clare [email protected]; [email protected]; [email protected] Campbell, Yost, Clare, & Norell, P.C. 101 North First Avenue, Suite 2500 Phoenix, AZ 85003 C. Mark Kittredge [email protected]; [email protected]; [email protected] Scott S. Minder [email protected]; [email protected] Perkins Coie Brown & Bain, P.A. 2901 North Central Avenue Post Office Box 400 Phoenix, AZ 85001-0400 Thomas K. Irvine [email protected] Irvine Law Firm, PA 1419 N. Third St, Ste. 100 Phoenix, AZ 85004

Case 2:04-cv-00341-RCB Document 159 Filed 09/22/2005 PLAINTIFF'S RESPONSE TO DISTRICT'S CROSS-MOTON FOR SUMMARY Page 3 of -4 JUDGMENT 3

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I certify that on September 22, 2005 a copy of the attached document was served on the following parties via U.S. mail: J. Gregory Osborne Tolman & Osborne, P.C. 1920 E. Southern Ave., Ste.104 Tempe, AZ 85282

s/ R. Buck McKinney________________
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Case 2:04-cv-00341-RCB Document 159 Filed 09/22/2005 PLAINTIFF'S RESPONSE TO DISTRICT'S CROSS-MOTON FOR SUMMARY Page 4 of -4 JUDGMENT 4