Free Response in Opposition to Motion - District Court of Arizona - Arizona

1 LAW OFFICE
STUART ]. REILLY, P.C.
2 PO Box 80410
Phoenix, Arizona 85060-0410
3 Telephone: 602/912-9200
4 E-mail: [email protected]
Stuart]. Reilly, #005275
5 Attorney for Plaintiff
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8 UNITED STATES DISTRICT COURT
9 DISTRICT OF ARIZONA
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Stuart J. Reilly, )
11 ) Case No. CIV 02-2218 PHX BTM
Plaintiff, )
12 ) PLAINTIFF’S RESPONSE TO
vs. ) DEFENDANTS’ MOTION TO
13 ) STRIKE PORTIONS OF
14 Charles M. Brewer, Ltd. Profit Sharing Plan ) PLAINTIFF’S REPLY TO
and Trust, a retirement plan, Charles M. ) DEFENDANTS’ PROPOSED
15 Brewer, Ltd. Restated Pension Plan, a ) FINDINGS OF FACT
retirement plan, and Charles M. Brewer, )
16 ) - OR IN THE ALTERNATIVE -
Defendants. )
17 ) PLAINTIFF’S MOTION TO STRIKE
) PORTIONS OF DEFENDANTS’
18 ) PROPOSED FINDINGS OF FACT
19 )
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Plaintiff submits his Response to Defendants’ Motion to Strike Portions of Pla1nt1ff"s
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Reply to Defendants’ Proposed Findings of Fact, or 1n the alternative, Pla1nt1ff"s Motion to
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Strike Portions of Defendants’ Proposed Findings of Fact.
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PLA1NT1EE’s RESPONSE TO DEEENDANTs MOTION TO STRIKE PoRT1oNs OF PLA1NT1EE’s REPLY TO
DEFENDANTS’ PROPOSED FINDINGS OF FACT - OR IN THE ALTERNATIVE - PLA1NT1EE’s MOTION TO STRIKE
PoRT1oNs OF DEEENDANTs’ FINDINGS OF FACT
REILLY v. CMB, LTD. PROFIT SHARING PLAN AND TRUST, ET AL
Ca 2:02—cv—02218—BT|VI—LSP Document 297 Fnled 05/26/2006 Page 1 of 4

1 I. Violation of Court’s Page Limitation was Inadvertent
Defendants have brought to Plaintiff’ s attention the Court’s instruction regarding
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limiting replies to Conclusions of Law and 10 pages.] It was not Plaintiff’ s intent to disregard
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the Court’s instruction. But then, the Court could not have anticipated that Stipulated Facts
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would be misstated. Defendants’ versions of the Stipulated Facts reinserted self-serving
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language and disputed issues that Plaintiff had expressly rejected and which were, therefore,
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not parts of the Stipulated Facts as filed with the Court. In regard to exceeding the 10-page
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limitation, a substantial portion of Plaintiff’s reply addressed Defendants’ altered versions of
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the Stipulated Facts. Plaintiff’ s reply to Defendants’ conclusions of law was addressed in less
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than 8 pages.
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Plaintiff has no objection to allowing Defendants the opportunity to respond to
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Plaintiff’ s "Facts That Were Proven by a Preponderance of the Evidence" paragraphs 56
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through 71. However, Defendants have no reason to respond to paragraphs 1 through 54 of
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Plaintiff’ s Findings of Fact which quote Stipulated Facts as found in the Pretrial Order word for
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word without alterationz or paragraph 55, which were offered up in trial for stipulation by
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defense counsel and to which Plaintiff agreed. (Trial transcript, April 19, 2006, pp. 155-156)
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17 II. Alternatively, Defendants; Proposed Findings of Fact Which Misstate Stipulated
Facts Should be Struck
18 Alternatively, Plaintiff requests that the Court strike Defendants’ Findings of Fact
19 paragraphs numbered; 2, 3, 4, 6, 7, 11, 12, 14, 15, 16, 18, 23, 24, 28, 32, 39, 49, 54, 57, 58, 59,
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21 1 Plaintiff did not intentionally file his reply contrary to the Court’s instruction. At the end of the day,
22 Plaintiff was focused on the due dates being discussed and appears to have suffered a momentary lapse in
concentration. (Exhibit A, Declaration of Stuart J. Reilly) A similar lapse in concentration caused
23 Defendants to file a 35-page memorandum on Alternative IID when the Court had specified only 5-pages.
2 Although the Stipulated Facts to Plaintiff’ s Findings of Fact were left in order, the specific cites were
24 inadvertently omitted. For both the Court’s and Defendants’ benefit, Plaintiff has attached as Exhibit B,
paragraphs 1-55 to his Findings of Fact in which he has inserted the number of each Stipulated Fact as
25 filed in the Pretrial Trial Order.
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1>LArNrrrr-s RESPONSE ro DEFENDANTS Morrorv ro srizrxiz PORTIONS or 1>LArNrrrr-s REPLY ro
DEFENDANTS- 1>Ro1>osED rrrvnrrvos or mor - ora IN rrriz ALrERNArrvE - 1>LArNrrrr-s Morrorv ro srizrxiz
roizrrous or DEFENDANTS’ rrrvnrrvos or mor
Rizrrrr v. 0MB, LTD. PROFIT srrARrNo PLAN AND rizusr, ET AL
Ca 2:02—cv—02218—BT|VI—LSP Document 297 Fnled 05/26/2006 Page 2 of 4

1 60, 6l, 62, 63, and 74, which purportedly quote Stipulated Facts by cite, but are actually
2 liberally paraphrased or altered versions that were not stipulated to by Plaintiff and do not
3 accurately represent Stipulated Facts in the Pretrial Order.
4 CONCLUSION
5 This is a relatively minor procedural matter the resolution of which should not unduly
6 delay the Court’s determination of facts and law. If Defendants’ feel that they have been
7 disadvantaged by Plaintiff exceeding the page limitation, they can be given the opportunity
8 reply to that portion of Plaintiff’ s proposed findings of fact that were not stipulated to.
9 Alternatively, Plaintiff requests that the Court strike those paragraphs identified in Defendants
10 Findings of Fact that do not accurately cite Stipulated Facts in the Pretrial Order.
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l2 RESPECTFULLY SUBMITTED this 26th day of May 2006.
l3 STUART I. REILLY, P.C.
l4
15 s/ Stuart J Reilly
Stuart J. Reilly
16 Attorney for Plaintiff
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PLAINTIFF’S RESPONSE TO DEFENDANTS MOTION TO STRIKE PORTIONs OF PLAINTIFF’S REPLY TO
DEFENDANTS’ PROPOSED FINDINGS OF FACT - OR IN THE ALTERNATIVE - PLAINTIFF’S MOTION TO STRIKE
PORTIONs OF DEFENDANTS’ FINDINGS OF FACT
REILLY v. CMB, LTD. PROFIT SHARING PLAN AND TRUST, ET AL
Ca 2:02—cv—02218—BT|VI—LSP Document 297 Filed 05/26/2006 Page 3 of 4

1 CERTIFICATE OF SERVICE
2 I hereby certify that on May 26th 2006, I electronically transmitted the attached document to the
3 Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic
Filing to be electronically mailed to:
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Ed Hendricks, Esq.
5 Michael K. Dana, Esq.
MEYER HENDRICKS PLLC
6 3003 North Central Avenue, Suite 1200
Phoenix, AZ 85012
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8 Michael Vanic, Esq.
C. Frederick Reish, Esq.
9 REISH LUFTMAN REICHER & COHEN
11755 Wilshire Blvd., 10th Floor
1Q Los Angeles, CA 90025-1539
11 Courtesy copy of the attached document mailed this 26th day of May 2006 to;
12 Hon. Barry Ted Moskowitz
13 United States District Court
5160 Courthouse
14 940 Front Street
San Diego, CA 92101
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s/ Marisa J Reilly
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1>rArNrr1¤r-s REs1>oNsE ro DEFENDANrs Morrorv ro STRIKE Porzrrous or 1>rArNrrrr¤-s REPLY ro
DEFENDANrs- PROPOSED Frrvnrrvos or mer - on nv rms ArrERNArrvE - PLAINTIFF’S Morrorv ro STRIKE
Ponrrorvs or DEFENDANrs- Frrvnrrvos or mer
Risrrrv v. civns, LTD. Przorrr snARrNo PLAN AND rrzusr, ET AL
Ca 2:02—cv—02218—BT|VI—LSP Document 297 Filed 05/26/2006 Page 4 of 4

Case 2:02-cv-02218-BTM-LSP

Document 297

Filed 05/26/2006

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Case 2:02-cv-02218-BTM-LSP

Document 297

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Case 2:02-cv-02218-BTM-LSP

Document 297

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Case 2:02-cv-02218-BTM-LSP

Document 297

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