Free Motion to Strike - District Court of Arizona - Arizona

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Ernest Calderón (#007677) Faith C. Klepper (#018444) CALDERÓN LAW OFFICES 2020 N. Central Ave., Suite 1100 Phoenix, AZ 85004 (602) 265-0004

Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JOYCE A. CORRALES, Plaintiff, vs. CHASE BANKCARD SERVICES, INC., a Delaware corporation, d/b/a Chase Manhattan Bank, N.A., Defendant. DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND REQUEST FOR SUMMARY DISPOSITION (Honorable Susan R. Bolton) Expedited Ruling Requested No. CIV 02-2157-PHX-SRB

Pursuant to Federal Rule of Civil Procedure 56(e) and this Court's June 30, 2006 Order, Defendant Chase BankCard Services, Inc. ("Chase"), by and through undersigned counsel, hereby moves this Court for its Order striking Plaintiff Joyce A. Corrales' ("Corrales") Response

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to Defendant's Motion for Summary Judgment. This motion is supported by the accompanying
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Memorandum of Points and Authorities, which is incorporated herein by this reference. RESPECTFULLY SUBMITTED this 12th day of July, 2006. CALDERÓN LAW OFFICES ___s/Faith C. Klepper__________________ Ernest Calderón Faith C. Klepper Attorneys for Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES I. Factual Background At the July 11, 2005 Rule 16 scheduling conference, this Court ordered that any dispositive motion be filed no later than May 1, 2006. On May 1, 2006, Chase filed its Motion for Summary Judgment and Separate Statement of Facts1. On June 1, Corrales requested an extension of time to file her response due to the schedule of her counsel. Chase did not oppose

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the motion and this Court granted an extension to June 26. On June 26, Corrales requested an additional extension of four days to file the Response, which Chase did not oppose. The Court granted the motion and reset the deadline to June 30, 2006. Corrales did not file the Response to Chase's Motion for Summary Judgment and

Separate Statement of Facts until July 7, 2006, the same day her attorney filed a motion to withdraw that informs the court of his suspicion that paralegal Roger McKee forged Ms. Corrales' signature on the declaration filed as Exhibit 1 to the Plaintiff's Separate Statement of

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Facts ("SSOF"). The motion notes that Corrales' attorney received the questioned signature on
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July 1. This is confirmed by the facsimile stamp at the top of both motions, which shows that Corrales' attorney received the documents early on the morning after the Response was due. II. Argument Although Corrales had been given two extensions of time to file the Response, it was filed a week late without explanation. Additionally, the accompanying SSOF was filed with the declaration of Joyce Corrales that has the allegedly forged signature. Accordingly, no argument can be made that the delay was due to an attempt to redo the questionable evidence before it was

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This Court's June 30 Order incorrectly states that the date of the Scheduling Conference was July 25, 2005 and that Motion for Summary Judgment was filed on May 6, 2006. See Docket Nos. 37, 49 and 50.
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filed. (Compare Exhibit A to Second Amended Motion to Withdraw and Exhibit 1 to Response to DSOF.) Moreover, it is clear from the Motion to Withdraw and the facsimile stamps on the Response and SSOF that the motions response papers were not completed and ready to be filed

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until the day after the deadline and then were only filed one week after the deadline. Therefore, even if there had been no question about the veracity of the evidence provided to Corrales' attorney, the Response and SSOF would still have been untimely filed. Corrales provides this Court with no reason why the Response and SSOF were untimely filed. Therefore, this Court

should strike the Response and SSOF from the record as untimely and grant Chase's Motion for Summary Judgment pursuant to Rule 56(e). III. Conclusion Corrales failed to timely file a response to Chase's Motion for Summary Judgment and Separate Statement of Facts. Additionally, the declaration of the plaintiff has been called into

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question by her own attorney. Accordingly, this Court should strike both the Response and the Separate Statement of Fact and grant summary judgment for Chase. Chase further requests an expedited decision on this motion as it would affect whether a Reply to the Plaintiff's Response to Defendant's Motion for Summary Judgment and the Plaintiff's Response to Defendant's Motion for Sanctions will need to be filed. RESPECTFULLY SUBMITTED this 12th day of July, 2006. CALDERÓN LAW OFFICES

______s/Faith C. Klepper__________ Ernest Calderón Faith C. Klepper Attorneys for Defendant
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ORIGINAL of the foregoing electronically filed this 12th day of July, 2006, with: Clerk of the Court United States District Court District of Arizona COPY of the foregoing hand-delivered this 12th day of July, 2006, to: The Honorable Susan R. Bolton United States District Court COPY of the foregoing mailed this 12th day of July, 2006, to: Mark Brinton 1745 South Alma School Road, Suite 100 Mesa, Arizona 85210-3010 Attorney for Plaintiff

s/Faith C. Klepper

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