Free Objection - District Court of Arizona - Arizona

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Ed Hendricks (Arizona Bar No. 002359) Michael K. Dana (Arizona Bar No. 019047) MEYER, HENDRICKS & BIVENS, P.A. 3003 North Central Avenue, Suite 1200 Phoenix, Arizona 85012-2915 Telephone Number: (602) 604-2200 C. Frederick Reish (Arizona Bar No.: 002408) Michael A. Vanic (California Bar No.: 073486) (pro hac vice) REISH LUFTMAN REICHER & COHEN 11755 Wilshire Boulevard, 10th Floor Los Angeles, CA 90025-1539 Telephone Number: (310) 478-5656 Attorneys for Defendants Charles M. Brewer, Charles M. Brewer, Ltd. Profit Sharing Plan and Trust, Charles M. Brewer, Ltd. Restated Pension Plan UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Stuart J. Reilly, Plaintiff,

CASE NO.: CIV 02 2218 PHX BTM

BREWER DEFENDANTS' OBJECTION TO PLAINTIFF'S REPLY TO HIS SUPPLEMENTAL AUTHORITY RE: Charles M. Brewer, Ltd., Profit Sharing Plan PLAINTIFF'S RESPONSE IN and Trust, a retirement plan; Charles M. OPPOSITION TO DEFENDANTS' Brewer, Ltd. Restated Pension Plan, a MOTION FOR PARTIAL SUMMARY retirement plan; Ross Gordon and Associates, JUDGMENT ON COUNT ONE Inc., a corporation; and Charles M. Brewer, vs. Defendants. Defendants Charles M. Brewer, Charles M. Brewer, Ltd. Profit Sharing Plan and Trust, and Charles M. Brewer, Ltd. Restated Pension Plan (collectively, the "Brewer Defendants") submit the following Objection to Plaintiff's so-called "Reply" to His Supplemental Authority Re: Plaintiff's Response In Opposition To Defendants' Motion For Partial Summary Judgment On Count One. For the same reasons that Plaintiff's Supplemental Authority should be stricken ­ it was filed more than five months late and did not add any newly discovered authority ­ the Court should also disregard Plaintiff's Reply in support of his Supplemental Authority. In
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addition, because Plaintiff intends that his Supplemental Authority supplements Plaintiff's Response in Opposition to Defendants' Motion for Partial Summary Judgment, Plaintiff has no right to file a "Reply," even if his Supplemental Authority were accepted by the Court. Defendants initiated the briefing with their Motion for Partial Summary Judgment, Plaintiff had a right to respond, and Defendants were permitted to reply in support of the Motion. Defendants' Response to Plaintiff's Supplemental Authority therefore constitutes a supplement to Defendants' Reply in support of its Motion for Partial Summary Judgment, and no other briefing is permitted by the rules. Moreover, Plaintiff's Reply to his Supplemental Authority virtually ignores the law discussed in Brewer Defendants' Response to Plaintiff's Supplemental Authority demonstrating that the Hickerson case, and the ERISA section interpreted by that case, do not govern the Charles M. Brewer, Ltd. Restated Pension Plan. Because the Pension Plan is exempt from Title IV of ERISA, that Plan was not terminated during its conversion into the Profit Sharing Plan. Inapposite dicta from the Hickerson case has no bearing on this analysis. DATED this 14th day of October, 2005. MEYER, HENDRICKS & BIVENS, P.A.

By:

s/ Ed Hendricks Ed Hendricks Michael K. Dana 3030 North Central Avenue, Suite 1200 Phoenix, Arizona 85012-2915 -and-

REISH LUFTMAN REICHER & COHEN C. Frederick Reish Michael A. Vanic 11755 Wilshire Boulevard, Tenth Floor Los Angeles, California 90025-1539 Attorneys for Defendants Charles M. Brewer, Ltd. and Charles M. Brewer

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

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Courtesy copy of the foregoing sent via Federal Express this 14th day of October, 2005, to: Hon. Barry Ted Moskowitz United States District Court 5160 Courthouse 940 Front Street San Diego, California 92101 s/Michael K. Dana

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Case 2:02-cv-02218-BTM-LSP
439765

CERTIFICATE OF SERVICE I hereby certify that on October 14th , 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Stuart J. Reilly Law Offices of Stuart J. Reilly, P.C. Attorneys for Plaintiff

I hereby certify that on ________________, I served the attached document by (insert service method: mail, courier service, in-person delivery, e-mail) on the following, who are not registered participants of the CM/ECF System:

s/ Michael K. Dana

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