Free Order on Motion for Partial Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 The court has before it defendants' amended motion for partial summary judgment 15 (doc. 125), defendants' amended separate statement of facts, plaintiff's response, plaintiff's 16 statement of disputed facts, defendants' reply, and defendants' opposition to plaintiff's 17 statement of additional facts. Also before the court are defendants' motion to strike affidavit 18 of Dominique Silvas (doc. 151), plaintiff's response, and defendants' reply, defendants' 19 motion to strike Exhibit K (doc. 152), plaintiff's response, and defendants' reply, defendants' 20 motion to strike paragraphs 2-13, etc., (doc. 153), plaintiff's response, and defendants' reply, 21 and plaintiff's motion for sanctions (doc. 160), defendants' response, and plaintiff's reply. 22 Motions for summary judgment serve a very valuable purpose. It is, after all, a shame 23 to have to go to trial if there is no real evidence to support a claim. On the other hand, 24 motions for summary judgment are not supposed to be trial by affidavit. This court is of the 25 view that the fact intensive nature of the motion for summary judgment here, along with the 26 various motions to strike, would involve the court in a level of factual detail that is 27 inappropriate. Defendants do not dispute that there are at least some triable issues of fact and 28
Case 2:03-cv-01573-FJM Document 174 Filed 07/26/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) Plaintiff, ) vs. ) ) SELECT PORTFOLIO SERVICING, Inc.) ) et al., ) Defendants. ) ) NANCY KIM SILVAS, No. CV-03-1573-PHX-FJM ORDER

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thus there will be a trial in the case, unless settled. Thus, the granting of a motion in this case will not avoid a trial but might simply cause us regret if, at the trial, the facts turn out to be different from what we thought they were. None of the defendants' motions to strike have merit. Accordingly, IT IS ORDERED DENYING defendants' motion to strike the affidavit of Dominique Silvas (doc. 151), DENYING defendants' motion to strike Exhibit K (doc. 152), and DENYING defendants' motion to strike paragraphs 2-13, etc., (doc. 153). We also conclude that, based upon defendants' response to plaintiff's motion for sanctions, the forbearance agreements have been produced, albeit tardily. Accordingly, IT IS ORDERED DENYING plaintiff's motion for sanctions ( doc.160). Because there are too many factual disputes to grant summary judgment in this case, IT IS ORDERED DENYING defendants' amended motion for partial summary judgment (doc. 125). This, of course, is without prejudice to the right of any party to seek to narrow the issues and claims at trial. The pretrial order in this case is due on August 26, 2005. The parties are instructed to carefully lay out the claim and party structure, taking into account the many orders entered in this case. DATED this 25th day of July, 2005.

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