Free Reply - District Court of Arizona - Arizona

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ROBERT M. YOUNG, Jr. (CA Bar #063297) WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 1055 West Seventh Street, Suite 2700 Los Angeles, California 90017-2503 Telephone: (213) 624-3044 Facsimile: (213) 624-8060 Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA Tom Crowe (AZ Bar #002180) CROWE & SCOTT, P.A. 1100 E. Washington Street, Suite 200 Phoenix, AZ 85034-1090 Telephone: (602) 252-2570 Facsimile: (602) 252-1939 Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RONALD HERBERT PERRIN and the) ESTATE OF LUCY MILDRED PERRIN) through RONALD HERBERT PERRIN,) Personal Representative, ) ) ) Plaintiffs, ) v. ) THE OFFICE OF SERVICEMEMBERS) GROUP LIFE INSURANCE, a subsidiary of) the PRUDENTIAL INSURANCE COMPANY) ) OF AMERICA, a corporation, ) ) Defendant. ) ) _____________________________________) No. CV04-0571-PHX-RGS
REPLY IN SUPPORT OF MOTION TO ALTER OR AMEND JUDGMENT

Defendant, The Prudential Insurance Company of America ("Prudential"), submits this reply in support of its motion to alter or amend judgment. At the conclusion of the hearing on Plaintiffs' motion for summary judgment on November 1, 2005, the Court stated its findings of fact and conclusions of law on the record. The Court did not reference any findings or conclusions pertaining to prejudgment or post-

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judgment interest; namely, (a) whether prejudgment interest would apply, (b) if prejudgment interest did apply, the rate of such interest, or (c) if prejudgment interest applied, the date on which such interest would commence to run. Instead, after setting forth its findings and conclusions, the Court stated as follows: Accordingly, it is ordered granting Plaintiffs' motion for summary judgment, the same to be in accordance with a formal written judgment to be prepared and filed herein by Plaintiff and approved as to form by counsel for the Defendant. (Reporter's Transcript; Hearing on Plaintiffs' Motion for Summary Judgment; November 1, 2005.) On November 7, 2005, Plaintiffs' counsel served Defendant with a proposed form of judgment which provided, in part, for the award of "prejudgment interest in the amount of $______ for a total judgment of $_____with interest thereon at the rate of _____percent as provided by law, and their costs of action." On November 21, 2005, the Court entered judgment in a somewhat different form which, in pertinent part, provided for the award of the principal sum, "plus interest applied thereon from December 8, 2001, until judgment is paid at such rate or rates as may lawfully apply." Prudential and Plaintiffs agree that the November 21, 2005 judgment should be altered and/or amended in accordance with Fed. R. Civ. P. 59. Specifically, the parties agree that the judgment should be altered and/or amended to state a designated rate of interest which will apply to and determine the amount of prejudgment interest awarded by the Court. The parties differ as to what rate of interest should be so specified. The parties also differ with respect to the date on which any prejudgment interest should commence to run. Plaintiffs argue, correctly, that Prudential's response to Plaintiffs' motion was filed on December 23, 2005 instead of on December 22, 2005. The calendaring error is acknowledged. It is respectfully submitted that no prejudice has resulted to any party or that

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the proceedings have been delayed or adversely affected as a result thereof. The Court has the position of both parties regarding the applicable prejudgment interest rate and the issue will not be addressed further here. With respect to the cross-motion, Prudential's purpose was simply to ensure that the two interrelated issues­the amount of prejudgment interest and the date on which said interest would commence to run­would both be definitively resolved. In response to Plaintiff's contentions, it should be noted that there is authority to the effect that a motion to alter or amend judgment may be in the form of a motion for reconsideration. See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350 (5th Cir. 1993). However, Prudential does not seek to re-litigate or to have this Court revisit any issue which the Court has previously intended to determine. As stated above, the intended purpose of this briefing exercise is to ensure that the two issues related to prejudgment interest are resolved and incorporated in the form of the "altered or amended" judgment. Rather than waiting until the entry of the "altered or amended judgment," which the parties agree is appropriate, and then filing additional motions which may be appropriate at that time in accordance with Rule 59(e), Prudential, in the interest of judicial economy, seeks to have both issues resolved now and addressed in the new form of judgment to be entered herein. In addition to the applicable prejudgment interest rate, the Court also has the position of both parties regarding the date on which they believe prejudgment interest should commence to run. The Court is requested to address both issues as it deems appropriate in

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the altered and amended judgment.
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DATED this 28th day of December, 2005. CROWE & SCOTT, P.A.

By s/ Tom Crowe Tom Crowe 1100 East Washington, Suite 200 Phoenix, Arizona 85034 Attorneys for Defendant Submitted by ECF on this 28th day of December, 2005. Courtesy copy of the foregoing mailed this 28th day of December, 2005 to: Honorable Roger G. Strand U.S. District Court Judge Sandra Day O'Connor U.S. Courthouse Ste 622 401 W Washington St SPC 57 Phoenix AZ 85003-2156 By s/ Cindy Malyuk

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