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

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Christopher R. Kaup, Esq. State Bar No. 014820 Andrew M. Ellis, Esq. State Bar No. 018326
Third Floor Camelback Esplanade II 2525 East Camelback Road PHOENIX, ARIZONA 85016B4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Counsel for Biltmore Associates, Trustee of the Visitalk.com Creditors' Trust IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA In re: Case No. 2:02-cv-02405-HRH BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, vs. PETER THIMMESCH, et al., REPLY TO RESPONSE TO PLAINTIFF'S MOTION IN LIMINE REGARDING LATE DISCLOSURE OF UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT DEFENSE (Assigned to the Honorable H. Russel Holland)

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Plaintiff, Biltmore Associates, as the Trustee of the Visitalk Creditors Trust, hereby replies to the Response filed by Defendant Snell & Wilmer, LLP to the Plaintiff's Motion in Limine regarding the late disclosure of the Uniform Contribution Among Tortfeasors Act ("UCATA") defense. This Reply is supported by the attached Memorandum of Points and

Authorities. RESPECTFULLY SUBMITTED on January 23, 2008.
TIFFANY & BOSCO, P.A. By: /s/ AME 018326 Christopher R. Kaup Andrew M. Ellis Counsel for Biltmore Associates, Trustee of the Visitalk.com Creditors' Trust
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MEMORANDUM OF POINTS AND AUTHORITIES I. PROCEDURAL BACKGROUND On November 27, 2002, the plaintiff filed a Complaint in this action. 1 On March 10, 2003, defendant Snell & Wilmer filed an Answer to the Complaint. 2 On March 14, 2003, defendant MP3.COM filed an Answer to the Complaint. 3 On June 5, 2003, the plaintiff filed an amended Complaint. 4 On September 8, 2003, defendants Michael Cardwell and Margaret Mahoney filed an Answer to the amended Complaint. 5 Those defendants never filed an Answer to the Complaint. On October 6, 2003, defendants Michael Cardwell and Margaret Mahoney filed a Notice of Non-Parties at Fault, listing Jeffrey Hirschberg and Alan Kaplan as non-parties at fault. 6 On November 20, 2003, defendant Snell & Wilmer filed a Joinder in Notice of Nonparties at Fault wherein no non-parties were specifically listed. 7 On December 2, 2003, defendants Michael Cardwell and Margaret Mahoney filed a second Notice of Non-Parties at Fault, listing Stephen Best, Stephen A. Best, P.C., Michael Cooney and Giles Somerville as non-parties at fault. 8 On December 3, 2003, defendant MP3.com filed a Notice of Non-parties at Fault, also listing Stephen Best, Stephen A. Best, P.C., Michael Cooney and Giles Somerville as non-parties at fault. 9 II. LEGAL ANALYSIS A. The Comparative Fault Defense Does Not Apply to Non-parties at Fault.

Court docket no. 1. Court docket no. 37. 3 Court docket no. 42. 4 Court docket no. 98. 5 Court docket no. 150. 6 Court docket no. 153. 7 Court docket no. 160. 8 Court docket no. 167.
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Defendant Snell & Wilmer asserted comparative fault as a defense. Comparative fault is a doctrine in torts in which the fault attributable to each party is compared and any award to the plaintiff is reduced in proportion to the plaintiff's share of the fault. 10 Comparative fault is also termed comparative negligence, 11 which is a defense that can reduce a plaintiff's recovery: The defense of contributory negligence ... is in all cases a question of fact and shall at all times be left to the jury. If the jury applies [the contributory negligence] defense, the claimant's action is not barred, but the full damages shall be reduced in proportion to the relative degree of the claimant's fault which is a proximate cause of the injury or death, if any.

A.R.S. § 12-2505(A) (emphasis added). Claiming comparative fault or comparative negligence as a defense did not put the Plaintiff on notice that Defendant Snell & Wilmer claimed that nonparty defendants should be apportioned a percentage of fault pursuant to UCATA. B. Defendant Snell & Wilmer's Joinder in Notice of Non-parties at Fault Was

Filed Untimely and Must be Struck. Any party who alleges, pursuant to A.R.S. § 12-2506(b) (as amended), that a person or entity not a party to the action was wholly or partially at fault in causing any personal injury, property damage or wrongful death for which damages are sought in the action shall provide the identity, location, and the facts supporting the claimed liability of such nonparty within one hundred fifty (150) days after the filing of that party's answer, whichever is earlier. Rule 26(b)(5), Ariz.R.Civ.P. This 150-day notice is inextricably intertwined with UCATA's substantive rules governing the allocation of liability among named and un-named parties. This is so not only because A.R.S. § 12-2506(B) and Ariz. R. Civ. P. 26(b)(5) explicitly refer to each other, but also because Arizona state court cases discussing the statute and rule construe them

Court docket no. 165. Dictionary.com. Merriam-Webster's Dictionary of Law. Merriam-Webster, Inc. http://dictionary.reference.com/browse/comparative fault (accessed: January 22, 2008). 11 Black's Law Dictionary, 276 (7th ed. 1999).
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together and hold that they are designed to protect the substantive rights of tort plaintiffs. Consequently, the 150-day requirement also applies in Arizona federal court actions based upon state law claim(s). Wester v. Crown Controls Corp., 974 F.Supp. 1284 (D.Ariz. 1996). On March 10, 2003, Defendant Snell & Wilmer filed an Answer to the Complaint. Therefore, the deadline for Snell & Wilmer to file a Notice of Non-Party at Fault in accordance with Rule 26(b)(5) was August 7, 2003. Negligence or fault of a nonparty may be considered if the defending party gives notice before trial, in accordance with requirements established by Rule 26(b)(5), that a nonparty was wholly or partially at fault. A.R.S. § 2506(B). Defendant Snell & Wilmer's Joinder in Notice of Non-parties at Fault was not in accordance with Rule 26(b)(5) because it was untimely. Therefore, in assessing percentages of fault under UCATA, the trier of fact must not consider the negligence or fault of a nonparty. C. The Three Notices of Non-parties at Fault Substantially Derogated from Rule

26(b)(5) So As to Render Them Useless for Their Intended Purpose. "The purpose of [A.R.S. § 12-2506(B)] and [Rule 26(b)(5)] is to identify for the plaintiff any unknown persons or entities who may have caused the injury in time to allow the plaintiff to bring them into the action before the statute of limitations expires..." LyphoMed, Inc. v. Superior Court, 172 Ariz. 423, 428, 837 P.2d 1158, 1163 (Ariz.App. 1992). As outlined in the procedural background above, two defendants filed three Notices of Non-Parties at Fault. The problem is that the Notices of Non-parties at Fault were bare-bones; they simply listed the names of potential non-parties at fault. The three Notices failed to provide the location of the non-parties or the facts supporting the claimed liability of each non-party as required under Rule 26(b)(5). In fact, the Notices seemed to have been filed only to preserve the defendants' rights to file such notices, rather than to maintain the balance between the defendants' right to liability commensurate with fault and the plaintiff's right to full recovery. Wester v. Crown Controls
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Corporation, 974 Supp. at 1287. Given the number of defendants and claims in this case, it was essential that the defendants fully disclose all information they had with regard to any nonparties at fault. Because the three (3) Notices of Non-Party at Fault insufficiently complied with Rule 26(b)(5), the trier of fact must not be permitted to allocate or apportion any percentage of fault to any non-party. Ariz.R.Civ.P. Rule 26(b)(5). Cf. Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 937 P.2d 353 (Ariz.App. 1996) (in action arising out of assault at nightclub, trial court did not abuse its discretion in allowing jury to apportion fault of nonparty assailants, although nightclub did not provide names or addresses of assailants, where nightclub had gone to great lengths to identify and locate assailants and had timely provided all information it had obtained about assailants). D. Defendant Snell & Wilmer's Cannot Piggyback on Other Defendants' Notices

of Non-parties at Fault. Defendant Snell & Wilmer's "Joinder in Notice of Non-parties at Fault" 12 wasn't helpful either. It stated: Defendant Snell & Wilmer, LLP hereby joins in the designation of the non-parties at fault submitted by any other party hereto and further designates (as) a non-party at fault any person ever named as a defendant herein and dismissed prior to trial. Essentially Defendant Snell & Wilmer attempted to join in the three (3) designations of the nonparties at fault. However, "each defendant who claims that other persons or entities who have not been joined in the action are responsible for the plaintiff's injury must file a notice of nonparty at fault pursuant to Rule 26(b)(5), Arizona Rules of Civil Procedure. A defendant is not relieved of the need to file such a notice simply because another defendant in the case has done so." LyphoMed, Inc. v. Superior Court, 172 Ariz. at 424 (emphasis in original). Defendant Snell & Wilmer had a duty to comply with Rule 26(b)(5) even though other defendants named all of the

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nonparties at fault it would name. Id. Because Defendant Snell & Wilmer's "Joinder in Notice of Non-parties at Fault" failed to comply with Rule 26(b)(5), the trier of fact must not consider the negligence or fault of any nonparty in assessing percentages of fault under UCATA. III. CONCLUSION Defendant Snell & Wilmer incorrectly expanded the scope of the comparative fault defense. It failed to timely file a Notice of Non-Parties at Fault. When it realized its mistake, it wrongfully tried to piggyback onto another defendant's timely filed albeit incomplete Notice of Non-parties at Fault. Simply put, Snell & Wilmer did not follow the rules, specifically Rule 26(b)(5), Ariz.R.Civ.P. Fortunately, in this case, the consequences for not following the rules are clearly spelled out in A.R.S. § 12-2506(B): a nonparty shall not be considered wholly or partially at fault. WHEREFORE, based upon the foregoing, the plaintiff requests the Court grant its Motion in Limine and order that the trier of fact, in assessing percentages of fault under UCATA, not consider the negligence or fault of any nonparty.

RESPECTFULLY SUBMITTED on January 23, 2008.
TIFFANY & BOSCO, P.A.

By: /s/ AME 018326 Christopher R. Kaup Andrew M. Ellis Counsel for Biltmore Associates, Trustee of the Visitalk.com Creditors' Trust

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Filed electronically on January 23, 2008 in compliance with the Rules of Practice of the United States District Court for the District of Arizona and the Electronic Case Filing Administrative Policies and Procedures Manual for the District of Arizona, and a copy sent via first class mail on January 24, 2008 to: Hon. H. Russel Holland United States District Court 222 W 7TH AVE STOP 54 ANCHORAGE AK 99513-7504 Peter Thimmesch 11329 STONEHOUSE PL STERLING VA 20165-5123

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/s/ Sara A. Lovato

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