Free Response to Motion - District Court of Arizona - Arizona

Lydia A. Jones - 017178 ROGERS & THEOBALD LLP 2 The Camelback Esplanade, Suite 850 2425 East Camelback Road 3 Phoenix, Arizona 85016
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

1

Telephone: (602) 852-5582 [email protected]

Attorneys for Plaintiffs UNITED STATES DISTRICT COURT ARIZONA DISTRICT KAYE HUTTON, as an individual and representative of a class consisting of others similarly situated, Plaintiff, vs. BANK OF AMERICA, N.A., Defendant. No. CV2003-2262-PHX-ROS Plaintiff's Response to Defendant's Motion to Strike

Plaintiff, Kaye Hutton, on behalf of herself and the collective opt-ins, hereby responds to Defendant's Motion to Strike. The Defendant Bank of America argues that the plaintiff's Motion for a Final Finding of Willfulness filed on June 13, 2006 be stricken because it exceeds the seventeen page limit of Rule 7.2(e) and because it should be formatted with a separate statement of facts under Rule 56.1. For the following reasons, plaintiff respectfully requests that the motion be denied. Page Limits: Lines 1-4 Appearing on Page 18 As the Defendant is aware, it is standard practice to exclude the signature line and certificate of service when calculating the lines of text under rule Rule 7.2(e). As such, Defendant appears to be objecting to lines 1-4 of text, which appeared at the top of page 18 and above the signature line through a formatting error. To cure this apparent objection, Plaintiff submits as Exhibit 1 a reformatted (and otherwise
Case 2:03-cv-02262-ROS Document 284 Filed 06/26/2006 Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

unchanged) motion in which lines 1-4 from the top of page 18 have been moved to the bottom on page 17 and respectfully requests that the Court accept the reformatted motion under Exhibit 1 and deny Defendant's motion to strike. Separate Statement of Facts under the FLSA is Neither Proper nor Required. The Defendant Bank has also moved this Court to strike plaintiff's motion for a final finding of willfulness on the ground that it was not accompanied by a separate statement of facts. For the following reasons, this argument has no merit and should be rejected by the Court. As 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. Whether statements of fact are contained in a separate pleading is not relevant to the Court's analysis in making its final ruling. In addition, at no time during the briefing of or the oral argument on plaintiff's motion for the conditional ruling (or after the ruling for that matter) did the Defendant Bank ever raise or argue that a separate statement of facts was somehow applicable or required under the FLSA. Accordingly, they are estopped from doing so at this late stage. Finally, the Defendant Bank cites no legal authority in its instant motion that a separate statement of facts is somehow proper, let alone required under the FLSA. Indeed, there is none and this Court may properly make a final finding that the Bank acted willfully by ruling on plaintiff's motion without a separate statement of facts. Nonetheless, without waiving any argument or rights, plaintiff attaches as Exhibit 2 a statement of facts pleading, setting forth the same content as the motion and with references to the same exhibit attachments to the motion as well.

Case 2:03-cv-02262-ROS

Document 284 2 Filed 06/26/2006

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendant's Motion to Strike.

DATED this 26th day of June, 2006. ROGERS & THEOBALD, LLP
By /s/ Lydia A. Jones

Lydia A. Jones The Camelback Esplanade, Suite 850 2425 East Camelback Road Phoenix, Arizona 85016 Telephone: (602) 852-5582 Attorneys for Plaintiffs JENNINGS, STROUSS & SALMON, PLC Michael J. O'Connor The Collier Center, 11th Floor 201 E. Washington Street Phoenix, AZ 85004 Telephone: (602) 262-5889 Attorneys for Plaintiffs

I hereby certify that on this 26th day of June, 2006, I electronically transmitted to the clerk's office using the CM/ECF system for filing and transmittal of a notice of 17 electronic filing to the following CM/ECF registrants:
18 19

Charles L. Chester Ryley Carlock & Applewhite One North Central Avenue, Suite 1200 20 Phoenix, AZ 85004-4417 21 Attorneys for Defendant Bank of America, N.A.
22 23 24 25 26

By: /s/ Lydia A. Jones

Case 2:03-cv-02262-ROS

Document 284 3 Filed 06/26/2006

Page 3 of 3