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

Ronald W. Carmichael, State Bar No. 1760 Darrell S. Husband, State Bar No. 022192 2 CARMICHAEL & POWELL, P.C. 7301 North 16th Street, Ste. 103 3 Phoenix, Arizona 85020-5297 Phone: (602) 861-0777
1 4 5 6 7 8

Attorneys for Defendants Charlie B. Fletcher and Edie Fletcher

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA RODNEY ALLEN KELLEY, No. CV04-103-PHX-SRB(MS) OPPOSITION TO PLAINTIFF S MOTION FOR DEFAULT JUDGMENT (The Honorable Morton Sitver)

9

Plaintiff,
10

v.
11

CARMICHAEL & POWELL

PROFESSIONAL CORPORATION ATTORNEYS AT LAW 7301 NORTH 16TH STREET, SUITE 103 PHOENIX, ARIZONA 85020-5297 (602) 861-0777

12 13

GLENN F. KELLEY, CHARLIE B. FLETCHER, EDIE FLETCHER AND OTHER UNKNOWN DEFENDANTS, Defendants.

14 15 16 17 18 19 20 21 22 23 24 25 26 27

Defendants Charlie B. Fletcher and Edie Fletcher (collectively, Fletcher ), by and through undersigned counsel, oppose Plaintiff s Motion for Default Judgment and urge this Court to deny same, because this case involves multiple Defendants with common facts, arguments and defenses that remain to be adjudicated. It is well-settled law that when there are multiple Defendants in a case which are alleged to be jointly liable and one of them defaults, a default judgment should not be entered against the defaulting defendant until the matter has been adjudicated with regard to all defendants. See First T.D. & Investment, Inc. v. Chang, 253 F.3d 520, 532 (9th Cir. 2001); Frow v. De La Vega, 82 U.S. 552 (1872). This policy avoids the possible absurdity of the Court sustaining a charge against a defaulting party but later dismissing that charge as unfounded. See

Case 2:04-cv-00103-SRB-ECV

Document 41

Filed 12/21/2005

Page 1 of 3

1 2 3 4 5 6 7 8 9 10

Harrison v. Bornn, Bornn & Handy, 200 F.R.D. 509, 515 (Dist. V. I. 2001); Farzetta v. Turner & Newall, Ltd., 797 F.2d 151, 153 (3 D. Cir. 1986). In this case, Fletcher timely Answered and opposed Plaintiff s Complaint, which makes allegations that Fletcher conspired with Defendant Glenn F. Kelly to breach a fiduciary duty, and that Defendants are jointly liable for all alleged damages. It would be inappropriate to enter a Default Judgment for an unsubstantiated amount of unliquidated damages against Defendant Glenn F. Kelley, when Fletcher has not had the opportunity to adjudicate the merit of Plaintiff s claims, which very likely could lead to an incongruous result. See First T.D. & Investment, Inc. (supra). WHEREFORE, Fletcher respectfully urges this Court to deny Plaintiff s Motion for Default Judgment and withhold the entry of Judgment in this action until Fletcher has had the opportunity to adjudicate the merits of Plaintiff s Complaint. Respectfully submitted this ________ day of December, 2005. CARMICHAEL & POWELL, P.C.

CARMICHAEL & POWELL

PROFESSIONAL CORPORATION ATTORNEYS AT LAW 7301 NORTH 16TH STREET, SUITE 103 PHOENIX, ARIZONA 85020-5297 (602) 861-0777

11 12 13 14 15 16 17 18 19 20 21

By
Ronald W. Carmichael Darrell S. Husband Attorneys for Defendants Charlie B. Fletcher and Edie Fletcher

Copy of the foregoing was delivered on this _____ day of 23 December, 2005, to the following:
22 24

Honorable Morton Sitver 25 United States District Court 401 W. Washington Street, SPC 13 26 Suite 514 Phoenix, Arizona 85003-2153
27

-2Case 2:04-cv-00103-SRB-ECV Document 41 Filed 12/21/2005 Page 2 of 3

1

Copy of the foregoing was mailed on this 2 _______ day of December, 2005, to the following:
3 4

Rodney Allen Kelley No. 889477 5 899 FM 632 Kenedy, Texas 78119 6 Glenn F. Kelley 17431 East Caliente Drive 8 Fountain Hills, Arizona 85268
7 9 10

CARMICHAEL & POWELL

PROFESSIONAL CORPORATION ATTORNEYS AT LAW 7301 NORTH 16TH STREET, SUITE 103 PHOENIX, ARIZONA 85020-5297 (602) 861-0777

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

By

-3Case 2:04-cv-00103-SRB-ECV Document 41 Filed 12/21/2005 Page 3 of 3