Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CIV-03-2300-PHX-ROS Martha Slaughter-Payne, v. Plaintiff, DEFENDANT'S RESPONSE TO MOTION TO STRIKE DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS FOR DESTRUCTION OF EVIDENCE AND DEFENDANT'S EXHIBIT IN SUPPORT OF HIS RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS Secretary, Department of Veterans Affairs,

Anthony Principi, Secretary, Department of Veterans Affairs, Defendant.

The defendant, R. James Nicholson,

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by and through undersigned counsel respectfully submits his Response to plaintiff's Motion to Strike defendants's Response and the supporting exhibits which were filed on January 23, 2006. (Docket Entry #73). The defendant respectfully requests the Court to deny the Motion to Strike and requests any further relief that the Court may deem warranted. The defendant's Response is supported by the attached Memorandum of Points and Authorities and other matters of record. Respectfully submitted this 9th day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney

On January 1, 2005 R. James Nicholson replaced Anthony Principi as the Secretary of the Department of Veterans Affairs. See, Rule 25(d)(1), F.R.Civ.P. 1

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff's Motion to Strike (Docket Entry # 75 ) at pages 2 through 4 contains the same arguments set forth in her pending October 7, 2005 Motion to Strike (Docket Entry # 39, at pages 2-3,4 ). As both motions lack merit they must be denied. At the hearing on October 14, 2005, the Court expressed concern that the defendant's exhibits ( in support of the defendant's 10/03/05 Discovery Dispute Memorandum, Docket Entry # 36. See also, Court's Order Docket Entry # 34) not adequately explained: More importantly, I do not believe that I have a synoptic statement of all the exhibits that have been filed. That is troublesome to me, because the one-and-a-half inch number of exhibits is rather lengthy. In the memorandum, I do not see that there is really explanation for each and every one of those 24 exhibits. Transcript at page 5 lines 1-7. In an effort to address the Court's request for a synopsis of subsequently filed exhibits, the defendant provided an eight (8) page synopsis, essentially a statement of facts, to explain most of the exhibits or other matters discussed in his seventeen (17) page Response. (Docket Entry # 73). This statement of facts did not contain "argument" as alleged by the plaintiff, nor should this synopsis be included in the page limitations for memorandum as suggested by the plaintiff. See, Gaule v. Meade, 2005 WL 2708815 (D. Alaska)(Specifically rejecting opposing counsel's argument that such statements subvert page limitations.). Local Rule 7.2 (e) expressly exempts attachments to Motions, Responses and Replies from the page limitations. Further, the plaintiff has not chosen to contest the facts set forth in the synopsis and has merely filed another Motion to Strike. The plaintiff did not file her Position Statement with the Clerk of Court. The plaintiff did not serve her October 3, 2005 position statement on the defendant until it was received by fax on October 12, 2005.
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There is a more fundamental reason to deny these related Motions to Strike. Plaintiff counsel's December 6, 2005 Motion for Sanctions For Destruction of Evidence(Docket Entry # 67) was nineteen (19) pages long..
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Therefore, according to

plaintiff counsel's interpretation of Local Rule 7.2 (e), he violated his own interpretation of the same rules that he has accused the defendant of violating. His motions are frivolous, vexatious and must be denied. CONCLUSION For the foregoing reasons, plaintiff's Motion to Strike must be denied. Further, the defendant requests any further relief that the Court may deem appropriate. Respectfully submitted this 9th day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s\ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney

CERTIFICATE OF SERVICE
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Plaintiff's Motion to Strike (Docket Entry # 67) is 18 pages long plus the certification of filing. Defendant's Response (Docket Entry # 73) is 17 pages long, plus the certification of filing.
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I hereby certify that on February 9, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Rosval A. Patterson Attorney at Law Patterson & Associates, P.C. 777 East Thomas Road # 210 Phoenix, Arizona 85014 Attorney for plaintiff Dana Heck, Attorney Office of Regional Counsel Department of Veterans Affairs 650 East Indian School Road, Building 24 Phoenix, Arizona 85012-1839 3225 North Central Avenue, Room 305 Phoenix, Arizona 85012 s\ John R. Mayfield Office of the U.S. Attorney

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