Free Reply to Response to Motion - District Court of Arizona - Arizona

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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Charles L. Chester ­ 002571 [email protected] John M. Fry - 020455 [email protected] Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE K. HUTTON, as an individual and as representative of a class consisting of others similarly situated, Plaintiff, v. BANK OF AMERICA, N.A., Defendant. No. CV2003-2262-PHX-ROS REPLY IN SUPPORT OF REQUEST FOR EXPEDITED DETERMINATION ON AND MOTION TO STRIKE PLAINTIFF'S JUNE 13, 2006 "MOTION FOR A FINAL FINDING OF WILLFULNESS UNDER THE FAIR LABOR STANDARDS ACT" (Assigned to the Honorable Roslyn O. Silver) On June 13, 2006, Plaintiff filed a "Motion for a Final Finding of Willfulness Under the Fair Labor Standards Act" ("Plaintiff's Willfulness Motion"). On June 21, 2006, Defendant filed a motion to strike Plaintiff's Willfulness Motion on the grounds that it exceeded the 17-page limit established by Local Rule 7.2(e), and even though artfully titled a "Motion for a Final Finding," it is really a dispositive motion for partial summary judgment that must be accompanied by a separate statement of facts pursuant to Local Rule 56.1.

Case 2:03-cv-02262-ROS 6/29/2006

713468.1

Document 285

Filed 06/29/2006

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With Plaintiff's Response to Defendant's Motion to Strike, Plaintiff submitted (1) a re-formatted Willfulness Motion that purports to comply with the 17-page limit,1 and (2) a separate statement of facts in support of Plaintiff's Willfulness Motion. Despite submitting a separate statement of facts, Plaintiff argues she is not required to do so because Defendant has not previously argued, or cited authority for the proposition, that the Fair Labor Standards Act requires a separate statement of facts. Plaintiff misses the point. The FLSA does not govern motion practice; the Federal Rules of Civil Procedure, this Court's Local Rules, and this Court's prior order in this specific case do. On November 9, 2005, this Court stated: This being a collective action, then I would allow those individuals for whom there is sufficient evidence to get to a the jury--meaning that there is a genuine issue of material fact to go to the jury on willfulness, and that's something that is really a dispositive issue. I will conditionally allow the issue of willfulness to go forward, but for Arizona only. Of course in the nature of dispositive motion, that matter will be brought to the attention of this Court, to determine whether or not there are genuine issues of material fact to go to the jury on each of the individuals. Exhibit A hereto, at pg. 21, lns. 6-17 (emphasis added).2 Local Rule 56.1(a) requires: Any party filing a motion for summary judgment shall set forth separately from the memorandum of law, and in full, the specific facts on which that party relies in support of the motion. The specific facts shall be set forth in serial fashion and not in narrative form.

Plaintiff fits the re-formatted Willfulness Motion into 17 pages by making the seventeenth page single-spaced, with 36 lines of text. This is still a violation of the length requirements of Rule 7.1(b)(1), Local Rules of Civil Procedure. 2 The Court next stated "[n]ow I can't decide that today, without getting into detail, because--and I think as both parties know, that has not been adequately briefed to the Court." Id. at lns. 18-20. This statement directly contradicts Plaintiff's argument that "[a]s an initial matter, the Court has already made a conditional ruling that the Bank acted willfully and the only issue before this Court is whether that ruling may, given the additional evidence presented, now be made final." [Plaintiff's Response To Defendant's Motion To Strike, pg. 2, lns. 10-12]
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Plaintiff's "Motion for a Final Finding of Willfulness Under the Fair Labor Standards Act" (emphasis added) is a motion for partial summary judgment on the issue of willfulness. It is no less so because of Plaintiff's artful title--what is a motion for a "final finding" by the Court on an issue other than a dispositive motion for summary judgment on that issue? Relief Requested In light of Plaintiff's submission of a re-formatted Willfulness Motion that fits within seventeen pages (albeit significantly single-spaced), and submission of a separate statement of facts, Defendant requests that Plaintiff's Willfulness Motion be treated as a motion for partial summary judgment filed in substantial compliance with Local Rule 56.1 on June 26, 2006, with Defendant's Response to Plaintiff's Willfulness Motion due thirty days thereafter. RESPECTFULLY SUBMITTED this 29th day of June, 2006. RYLEY CARLOCK & APPLEWHITE By /s/ Charles L. Chester Charles L. Chester John M. Fry One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Bank of America, N.A.

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CERTIFICATE OF MAILING I hereby certify that on June 21, 2006, I electronically transmitted the Bank's Request for Expedited Determination on and Motion to Strike Plaintiff's June 13, 2006 "Motion for a Final Finding of Willfulness Under the Fair Labor Standards Act" 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: Ms. Lydia A. Jones ROGERS & THEOBALD, LLP 2425 East Camelback Road Phoenix, Arizona 85016 Attorneys for Plaintiff Michael O'Connor Jennings, Strouss & Salmon, P.L.C. The Collier Center, 11th Floor 201 E. Washington Street Phoenix, AZ 85004 By: /s/Bree Bellefeuille

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