Firm iate Ear N0. 20443100
2 Two Niarifhsézpuggl Alien ue
Phoenix,AZ 85004-2391
3 TELEPHONE 602.229.52OO
4 Attomeys for Plaintiffs and
Counterclaim Defendants
5
Jon E. Pettibone (#04600) (igettibone@ uarles.com)
6 Richard K. Walker (#00415 )(rwalker&)quarles.com)
Eric B. Johnson (#020512) ([email protected])
7
g IN THE UNITED STATES DISTRICT COURT
9 FOR THE DISTRICT OF ARIZONA
10 Plumbing and Air Conditioning Contractors NO. CV—03-1684-PHX-F.IlVI
of Central and Northem Arizona, et al.,
11 Plaintiffs, MOTION FOR RECONSIDERATION
12 VS OF ORDER DEN YIN G PLAINTIF FS'
‘ MOTION FOR ORDER PURSUANT
13 Plumbing and Air Conditioning Contractors TO FRCP 58(c)(2)
of Arizona, Tucson Area, et al.,
14 Defendants.
15 Norm Record, Sr., Nancly Record, Norm
Record, Jr., George Mic els and Michael
16 L. Collins,
17 Counterclaim Plaintiffs,
vs.
18 Steven Baker and William Crowe,
19 Counterclaim Defendants.
20
Come now the Plaintiffs, Steven Baker, William Crowe and the Plumbing and Air
21
Conditioning Contractors of Central and Northern Arizona and respectfully pray for
22
reconsideration by this Court of its Order of July 25, 2005 ("Order"), denying Plaintiffs’
23
Motion For Order Pursuant to F RCP 58(c)(2) ("Motion"). In denying the Plaintiffs’
24
Motion, which was unopposed, the Court explained its decision in the following terms:
25
Under Rule 5 8(c)(2), our authority to order that a motion for
26 attomey’s fees have the same effect under Rule 4(a)(4), Fed. R.
Atpp. P., as a timely motion under Rule 59 exists "before a notice
27 o appeal has been filed and become effective." While we would
28
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QBPHX\750238.00002\1946041.l
I
V
1 V have been happy to have granted plaintiffs motion, it now
2 _ appears that p aintiff s notice of appeal has divested us of
V jurisdiction to do so.
3
4 Order at 18-22.
5 Plaintiffs are com elled to bring to the Court’s attention, with all respect, that the
P
6 V premise upon which the Court based its denial of Plaintiffs’ Motion incorporates a clearly
7 V mistaken interpretation of the language of Rule 58(c)(2) of the Federal Rules of Civil
8 V Procedure. That portion of Rule 58 must be read in conjunction with Rule 4(b)(i) of the
9 V Federal Rules of Appellate Procedure, which provides as follows:
10 V (B)(i) If a party files a notice of appeal after the court
11 V announces or enters a jud ent--but before it disposes of any
motion listed in Rule 4(a)(%giA) [including motions filed under
12 V Rule 58]--the notice becomes effective to appeal a judgment or
order, in whole or in part, when the order disposing o the last
13 V such remaining motion is entered.
14 V Fed. R. App. P. 4(B)(i). This language makes it clear that the District Courts are not
15 deprived of jurisdiction to grant motions filed pursuant to Rule 5 8(c)(2) by the filing of a
16 notice of appeal before the court rules on the motion, as this Court supposed in its Order,
17 V
18 because the fact that there is a Rule 58 motion pending means that the notice of appeal
19 does not become effective until the entry of "the order disposing of the last such
20 l remaining motion." Accordingly, Plamtiffs request that the Court reverse its decision in
21 V the Order and grant Plaintiffs’ Motion in order to avoid the necessity of wasteful
22 V
23 piecemeal appeals in this action.
24
25
27 1
28
Case 2:03-cv—O1684-FJIVI Document 182 - 2FJIed O8/O1/2005 Page 2 of 3
oB1>r1>
I
1 RESPECTFULLY SUBMITTED this lst day of August, 2005.
2 QUARLES & BRADY STREICH LANG LLP
Renaissance One
3 Two North Central Avenue
1 Phoenix, AZ 85004-2391
4 l
5 By s/Eric B. Johnson
6 Jon E. Pettibone
Richard K. Walker
7 Eric B. Johnson
8 ' Attorneys for Plaintiffs and Counterclaim Defendants
9 1 COPIES of the foregoing sent via electronic
l notice this lst day of August, 2005 to:
10 Michael J. Farrell ([email protected]
H i Helen Grimwold (hpg@gg`mwoodlaw.com
12 Newton Grimwood ([email protected])
13 David J. Ouimette (david.ouimette@mwmfcom)
14 y Keith F. Overholt ([email protected])
I
15 1 COPIES of the foregoing sent via facsimile and
16 1 U.S. mail this lst day of ugust, 2005 to:
17 Tom J. Hagen
V Attorney at Law
18 1 E.Camelback Road, #550
. Phoenix, AZ 85012
19 Charles W. Gilligan, Esquire
20 1 J olm M. Mclntire, Esquire
1 O’Donoghue & O’Donoghue, LLP
21 1 4748 Wisconsin Avenue, NW
° Washington, DC 20016
22
23
24 I s/ Sharon Adams
25 {
26 i
27 i
28
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