Free Motion for Summary Judgment - District Court of Arizona - Arizona


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Date: December 31, 1969
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State: Arizona
Category: District Court of Arizona
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I Kendall D. Steele, Esq. (#012367)
2 John E. Drazkowski, Esq. (#018319)
JARDINE, BAKER, HICKMAN & HOUSTON, P.L.L.C
3 3300 N. Central Avenue, Suite 2600
Phoenix, Arizona 85012
4 PH: (602) 776-3024
5 .
Attorneys for Pestube Systems, Inc.
6
7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE DISTRICT OF ARIZONA
9
HomeTeam Pest Defense, LLC, No. CV04 0608 PHX JAT
10
ll DEFENDANT'S STATEMENT OF
12 U Plaintiff, FACTS IN SUPPORT OF MOTION
13 vs. FOR PARTIAL SUMMARY
JUDGMENT REGARDING COUNT
14 FOUR: INTENTIONAL
15 Pestube Systems, Inc. INTERFERENCE WITH
CONTRACT
16 Defendants
17 V
18
19 Defendant Pestube Systems, Inc., respectfully submits this Statement of Facts in Support
20 of its Motion for Partial Summary Judgment Regarding Count Four: Intentional Interference
21 With Contract.
22
1. Plaintiffs Tubes in the Wall home pest control system consists of tubing,
23
24 connectors, and a service port. (Exhibit 1, Deposition of Steven Fisher at pp 46-47)
25 2. HomeTeam's promotional materials state that the Tubes in the Wall system is
26
Case 2:04-cv-00608-JAT Document 81 Filed 10/19/2005 Page 1 of 4

1 patented and can only be serviced by HomeTeam technicians. (Exhibit 2, Montalbano Homes
2 bates 00024 -- FILED UNDER SEAL).
3
4 3. When a house containing a Tubes in the Wall system is conveyed to the
5 homeowner, no deed restriction or other document retains ownership of any component of the
6 Tubes in the Wall system including the service port in HomeTeam. (Exhibit 1, at pp. 121-122,
7
125).
8
9 4. HomeTeam advises the home purchaser that if any other company services the
10 Tubes in the Wall system other than HomeTeam, the Tubes in the Wall warranty is void.
ll
(Exhibit 1 at p. 133, Exhibit 3, Montalbano Homes bates 00017 FILED UNDER SEAL, Exhibit
12
13 4, Plaintiffs Response to Defendant’s First Set of Request to Admit, No. 17).
14 5. The HomeTeam Tubes in the Wall system warranty states that the warranty is
15 void if serviced by an other other than HomeTeam. (Exhibit 5, Standard Pacitic Homes
Y P
16
17 Bates 00003 — FILED UNDER SEAL).
18 6. The HomeTeam Tubes in the Wall service agreements states in pertinent as
19 follows:
20
E]The Tubes in the Wall pest control system has been installed in the
21 property. Customer acknowledges that all Tubes in the Wall system
22 service ports and blank plates installed on the exterior of the property will
remain the property of the Company at all times. Upon termination or .
23 expiration of this Agreement, Customer grants the Company access to the
property for the purpose of replacing each Tubes in the Wall system
24 service port with a blank plate. Customer acknowledges that servicing by
25 any person or entity other than the Company could damage the Tubes in
the Wall system, and that the warranty on the Tubes in the Wall system
26
Case 2:04-cv-00608-JAT Document 8i Filed 10/19/2005 Page 2 of 4

1 does not cover such damage. Customer agrees to provide written notice to
2 any subsequent owner of the property of the provisions of this Section.
3
4 (Exhibit 6, Montalbano Homes bates 00021-00022 — FILED UNDER SEAL).
5 7. At the time Defendant advertised its Do-It-Yourself Tubes in the Wall home kit
6 in door hangers and on its website, it had no knowledge of specific HomeTeam service
7
agreements or expectations regarding such service agreements. (Exhibit 7, Affidavit of Harold
8
9 Aesch).
10 8. The HomeTeam Tubes in the Wall service agreement includes a three day right of
ll cancellation without payment of a cancellation fee and the right to cancel during the first year
l2
13 provided that a one time cancellation fee is paid. (Exhibit 6 — FILED UNDER SEAL)
l4 Dated this 19th day of October, 2005.
15 JARDINE, BAKER, HICKMAN & HOUSTON, P.L.L.C
16
17
18
By s/Kendall D. Steele
19 Kendall D. Steele
20 John E. Drazkowski
3300 N. Central Avenue, Suite 2600
21 Phoenix, Arizona 85012
22 Attomeys for Defendant
23
24
25
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Case 2:04-cv-00608-JAT Document 813 Filed 10/19/2005 Page 3 of 4

1 CERTIFICATE OF SERVICE
2 I hereby certify that on October 19, 2005, I electronically transmitted the attached
3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice
4 of Electronic Filing to the following CM/ECF registrants. In addition to a copy of this
document was hand-delivered to:
5
6 Charles_F. Hauff, Jr. (#014465)
7 Andrew F. Halaby (#017251)
Melissa M. Krueger (#021176)
8 SNELL & WILMER, LLP.
9 One Arizona Center
400 E. Van Buren
10 Phoenix, Arizona 85004
ll Attomeys for Plaintiff
12
13 s/Kendall D. Steele
14
15
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25 '
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