2 4445 E. norms Ava., surra ms
MEsA, AZ sszns
3 (480) 854-3500
[email protected]
4 Richard J. I·Iarris - #013859
5 Attorney for Plaintiff
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8 Matthew Shaffer, CV03 2344 PHX FJM
9 Plaintif`fQ REPLY ON MOTION TO
STRIKE PORTIONS OF
10 V. DEFENDANT’S REPLY on
TO FILE SURREPLY
H State of Arizona Citizens Clean Election
Commission; Colleen Connor and Chad
12 Jacobs; husband and wife; and Jessica
_ Funkhouser and Lindy Funkouser, husband
13 and wife; John Does I-X; Jane Does I—X
I4 Defendants.
15 Plaintiff Matthew Shaffer hereby submits his reply brief on his motion to strike
16 portions of Defendants’ reply or alternatively to permit his filing of a surreply. This reply
17 is supported by the following Memorandum of Points and Authorities and the court’s record.
13 MEMORANDUM OF POINTS AND AUTHORITIES
19 I. INTRODUCTION
20 Defendants fail to address the both the legal authorities cited by Plaintiff and the
21 specific examples of their violations of Rule 56. Instead Defendants errantly rely on a timing
22 rule applicable only to pleadings (not motions) and Defendants attempt to justify the use of
23 new facts and arguments as merely responsive to issues raised by Plaintiffs response.
24 However, the motions were based upon a set of supposedly undisputed facts and a set of legal
25 arguments. Plaintiffs response to these does not justify adding new factual or legal bases
26 for summary judgment (particularly so long after the deadline for dispositive motions).
ase 2:O3—cv-O2344—FJI\/I Document 73 Filed 08/O2/2005 Page 1 of 3
1 II. SHAFFER’S MOTION TO STRIKE IS TIMELY
2 Defendants’ argument that Shaffer’s motion is untimely is unfounded in law or fact.
3 The law on which Defendants base this outrageous claim applies to motions to dismiss
4 pleadings. Apparently Defendants confuse pleadings with other moving papers. The motion,
5 response and reply on summary judgment are not "pleadings†as defined in Rule I2.
6 "Pleadings" refers to complaints, answers, counterclaims, etc. It does not refer to motions.
7 Defendants’ ignored the case law allowing motions to strike new evidence and arguments
8 in summary judgment in favor of misapplication of Rule 12. Defendants’ argument would
9 be laughable if it were not so costly to Mr. Shaffer to brief this opposition to the same.
10 HI. SHAFFER’S MOTION TO STRIKE IS WARRANTED BY DEFENDANTS’
RELIANCE ON NEW FACTS AND ARGUMENT
11
Defendants do not dispute that their reply included several dozens of pages of new
12
evidence and dozens of new factual allegations. Moreover, Defendants apparently admit that
13
they did not raise the issue of internal reporting (i.e. Shaffer reporting the CCEC’s illegal
I4
conduct to Cormor) in their original motion} In his response, Shaffer expressly pointed out
15
that Defendant made no such argument (and therefore no response was necessary). For
I6
Defendants to raise the argument for the first time in their reply and then to attempt to
17
preclude Shaffer from making a surreply is not only without legal basis, it is without
18
conscience-; Defendants’ very opposition to Shaffer’s request for a surreply belies the merit
19
of Defendants’ new claims. If Defendants’ new claims had merit, Defendants would
20
welcome a surreply. However, they lack merit, are untimely and instead should be stricken.
21
I / /
22
23 ""
l". . . it was actually plaintiff who first raised this concept in his Response .... â€
24 Response p. 4:2-3.
25 2It is particularly ironic that Defendants would attempt to raise a new basis for summary
judgment so long after the deadline for dispositive motions and then argue that Shaffer is
26 untimely in moving to strike the sarne.
R1cHAm;>J.PL¤.r
ase 2:O3—cv-O2344—FJI\/I Document 73 Filed 08/O2/2005 Page 2 of 3
1 IV. CONCLUSION
2 For the foregoing reasons, Shaffer urges the court to either strike Defendants’ belated
3 arguments, evidence and factual allegations or permit him to respond to the same via
4 surreply.
5 SUBMITTED this 2. day of /A4/·¢.¢/5 F` 2005.
6 RICHARD J . HARRIS Lxw Orrrcns, 1>.c.
7
8
By:
9 Richar J. Harris
4445 E. Holmes Ave., Suite 106
10 Mesa, AZ 85206
11 ORIGINAL AND ONE COPY
of the foregoing hand—delivered
12 this g day of/PV:. . , 2005 to:
13 Richard J. Weare, C1erkfDCE
United States District Court
14 District of Arizona
230 North First Avenue
15 Room 1400
Phoenix, AZ 85025-0093
16
COPY ofthe foregoing mailed
17 this ’2_ day of @Q ., 2005 to:
18 Jay Zweig
Gallagher & Kennedy
19 2575 E. Camelback Rd.
Phoenix, AZ 85016-9225
20 Attorney for Defendants
21
22 " . A
23
24
Shaffer\p[eadings\Rcply on Motion to Strike New Arguments Or Permit Surreply 00]
25
26
Ricmtao J. Hmuus
LAw OFFICES, i>.c. 3
ase 2:O3—cv-O2344—FJI\/I Document 73 Filed 08/O2/2005 Page 3 of 3
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