Free Motion for Leave to File - District Court of Arizona - Arizona

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BEUS GILBERT PLLC
ATTORNEYS AT LAW

4800 NORTH SCOTTSDALE ROAD SUITE 6000 SCOTTSDALE, ARIZONA 85251 TELEPHONE (480) 429-3000

Leo R. Beus/ [email protected]/002687 Richard H. Herold/ [email protected] /018396 Linnette R. Flanigan/ [email protected]/019771 Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA BROWN & BAIN, P.A., an Arizona professional association, Plaintiff, vs. JOHN M. O'QUINN, an individual, JOHN M. O'QUINN & ASSOCIATES L.L.P., a Texas limited liability partnership; JOHN M. O'QUINN, P.C. a Texas professional corporation; JOHN M. O'QUINN LAW FIRM, PLLC, a Texas limited liability company; O'QUINN, KERENSKY & McANINCH; and JANE DOE O'QUINN, Defendants. JOHN M. O'QUINN, an individual, JOHN M. O'QUINN & ASSOCIATES L.L.P., a Texas limited liability partnership; JOHN M. O'QUINN, P.C. a Texas professional corporation; JOHN M. O'QUINN LAW FIRM, PLLC, a Texas limited liability company; O'QUINN, KERENSKY & McANINCH. Counterclaimants, vs. BROWN & BAIN, P.A., an Arizona professional association, Counterdefendants.
Case No. CIV-03-0923-PHX-ROS

SURREPLY BY DEFENDANT O'QUINN IN RESPONSE TO BROWN & BAIN'S REPLY IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT, INCLUDING ITS MOTION TO STRIKE THE AFFIDAVIT OF CARL SHAW

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1 2 3 4 5 6 into between Brown & Bain and O'Quinn, which is the subject of this litigation. In its 7 8 9 10 11 12 13 14 15 16 affidavit is self-serving bears only on its credibility and not its cognizability for establishing 17 18 19 20 21 22 23 24 25
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Plaintiffs filed a Motion for Summary Judgment in this matter which was responded to by Defendants O'Quinn. As part of O'Quinn's Response and Statement of Facts, an Affidavit was prepared and signed under oath by Carl Shaw. Carl Shaw, as set forth in his Affidavit, was involved in the negotiations relating to the Engagement Agreement entered

Reply, Brown & Bain requests this court to strike the Affidavit of Carl Shaw ("Shaw Affidavit"). This Response is being filed for the sole purpose of clarifying O'Quinn's position on the request to strike the Shaw Affidavit. Plaintiff wants Mr. Shaw's Affidavit to be stricken because it does not comport with their theory of the case. However, plaintiff's position does not comport with case law. When a respondent to a Motion for Summary Judgment submits an affidavit by a person with personal knowledge and other probative evidence, the Court must treat that fact as genuinely at issue. U.S. v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999). Even if an

a genuine issue of fact. Id. Statements in an affidavit, if admissible, must be taken as true when determining whether a genuine issue of fact exists. Id. Rule 56(e), Federal Rules of Civil Procedure, provides that a summary judgment affidavit "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." However, a court may infer personal knowledge and competency from the affidavit itself. Barthelemy v. Air Lines Pilots Assoc., 897 F.2d 999 (9th Cir. 1990)

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(affiants' personal knowledge and competence to testify are reasonably inferred from their positions and the nature of their participation); Ondis v. Barrows, 538 F.2d 904 (1st Cir. 1976)(appellant's objection that affiant's statements that stock was unregistered were beyond his knowledge was properly rejected where affiant averred that he was the office manager and became personally familiar with the events); Daily Herald Co. v. Munro, 758 F.2d 350 (9th Cir. 1985)(personal knowledge may be inferred to one in a responsible, supervisory position). The facts set forth in the Shaw Affidavit are admissible into evidence. Any disputes as to the accuracy of the statements made in the Affidavits are issues for the trier of fact. Carl Shaw was actively involved in the negotiations with Brown & Bain. In fact, Carl Shaw was the primary attorney from O'Quinn that was involved in the negotiations.1 He was the contact person at the O'Quinn firm who was responsible for administrating the case. Mr. Shaw has personal knowledge of the negotiations that culminated in the signing of the engagement letter and is competent to testify to those facts. Plaintiff's reliance on Brooklyn Bagel Boys, Inc. v. Earthgrains Refrigerated Dough

17 18 19 20 21 22 23 24 25 Robert Hinton, Esq. was also involved in the negotiations, but he: (1) was not an employee of the O'Quinn firm (in 1993, or ever); and (2) he is now deceased.
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Products, Inc., 212 F.3d 373 (7th Cir. 2000) is misplaced. In Bagel Boys, the court struck the certification because it conflicted with the witness' deposition testimony wherein he stated that he was not involved in the day-to-day contract negotiations, was only being updated as the negotiations went along and did not form an understanding of the contract independent of others. Id. In the instant case, there is no conflict of testimony. Unlike the affiant in Bagel

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Boys, Carl Shaw was involved and present for the contract negotiations. Carl Shaw formed his understanding of the contract clearly independent of others and based upon his own experience and personal knowledge. There is no basis to strike Carl Shaw's Affidavit. DATED this 10th day of February 2006. BEUS GILBERT PLLC

By

s / Linnette R. Flanigan Leo R. Beus Richard H. Herold Linnette R. Flanigan 4800 North Scottsdale Road Suite 6000 Scottsdale, AZ 85251 Attorneys for Defendants

Original filed via ECF with the Clerk of the Court and via hand-delivery this 10th day of February 2006 to: The Honorable Roslyn O. Silver United States District Court 401 West Washington Phoenix, AZ 85003 Copy sent via e-mail and U.S. Mail this 10th day of February 2006 to: Peter D. Baird Richard A. Halloran Cory A. Talbot LEWIS AND ROCA LLP 40 North Central Avenue Phoenix, Arizona 85004-4429 Attorneys for Plaintiff Brown & Bain, P.A.

s / Linnette R. Flanigan
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