Free Reply in Support of Motion - District Court of Arizona - Arizona

1 FENNEMORE CRAIG, P.C. Janet Weinstein (No. 011910) 2 Kevin J. Bonner (No. 017944) Sherida Colvin (No. 022392) 3 3003 North Central Avenue Suite 2600 4 Phoenix, Arizona 85012-2913 (602) 916-5000 5 Attorneys for Plaintiff 6 7 8 9 Century 21 Real Estate Corporation, 10 11 v. CENTURY 21' REPLY IN SUPPORT S OF RENEWED MOTION FOR SUMMARY JUDGMENT AND MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIMS Plaintiff, No. CIV 03 2353-PHX-DGC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

12 Daryush B. Motlagh and Jane Doe Motlagh, husband and wife; Integrity 13 Assurance, Inc. an Arizona corporation, 14 15 Daryush B. Motlagh and Jennifer 16 Motlagh, husband and wife; Integrity Assurance, Inc., an Arizona 17 corporation, 18 19 v. Counterclaimants, Defendants.

(Assigned to the Hon. David G. Campbell)

20 Century 21 Real Estate Corporation, a Delaware corporation doing business in 21 the State of Arizona, Does(s) 1 through 100, 22 Counterdefendants. 23 24 25 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

Case 2:03-cv-02353-DGC

Document 83

Filed 08/25/2006

Page 1 of 13

1

Defendants do not offer admissible evidence to create a genuine issue of material

2 fact. Instead they offer argument and conclusions which are either irrelevant or not 3 supported by any admissible evidence. The crux of Defendants' response is that CREC s 4 failed to support Motlagh' franchise starting in 1999 and that this somehow gives rise to 5 the counterclaims and excuses Defendants' refusal to pay franchise fees after they filed 6 for bankruptcy in December 2001. The Court must reject these arguments. Despite the s 7 claims of CREC' failure to support, Defendants continued to operate as a CREC office s 8 for almost two years after filing their bankruptcy petitions, opposing CREC' efforts to 9 terminate and even admitting that the franchise benefited them. If Defendants post hoc 10 story had any shred of truth, Defendants would have voluntarily left the CREC brand 11 years ago instead of fighting to remain a CREC office. 12 Moreover, there is no contemporaneous record to suggest that Defendants ever

s 13 complained about CREC' support until after CREC started proceedings in the 14 Bankruptcy Court to terminate the Agreement. And despite having more than two years 15 to conduct discovery, Defendants have not identified a single witness who will support 16 their claims and defenses with admissible evidence and have not identified a single dollar s 17 of damages. The counterclaims are a reactionary and fictional response to CREC' claims 18 that are not only unsupportable, but are contradicted by the undisputed record, which s 19 refutes Defendants after the fact complaints and, instead, demonstrates CREC' efforts of 20 several years to help Defendants. 21
1 22 facts :

Importantly, Defendants do dispute, and, therefore, admit the following critical

23 24 1 L.R. Civ. 56.1 required Defendants to identify which facts set forth in the Separate Statement of Facts they disputed with citation to admissible evidence. Defendants only 25 disputed a handful of facts and even then, did not cite admissible evidence to support their purported disputes. 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

-1Document 83 Filed 08/25/2006 Page 2 of 13

Case 2:03-cv-02353-DGC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

? ? ? ? ? ? ? ?

Defendants have no evidence to state a prima facie case that CREC breached Section 6 of the Agreement as alleged by the counterclaim. (SOF ¶¶ 71-78.) Motlagh was in default of the franchise fee promissory note and Agreement as of April 1998, well before Defendants claim CREC stopped providing "support" in mid-1999. (SOF ¶¶ 8-11.) Defendants repeatedly failed to pay CREC franchise fees, entered into numerous payment plans and defaulted on all of them. (SOF ¶¶ 9 ­ 24.) Defendants lost their brokers and substantial revenue because of their dispute with Suncor, not because of anything CREC did or failed to do. (SOF ¶¶ 30 ­ 41.) While operating as a CREC franchisee, Defendants blamed their payment delinquencies on Suncor, not because of anything CREC did or failed to do. (SOF ¶¶ 44-45.) The advertising that Defendants complain about being excluded from was directed by the Broker' Council, not CREC. (SOF ¶¶ 46s 51.) Defendants have no evidence of any conspiracy to harm Defendants between CREC and Charles McLean, an independent CREC franchisee, or anyone else. (SOF ¶¶ 86-94.) Defendants have not disclosed any evidence of damages or of any causal connection between CREC and any alleged damages. (SOF ¶¶ 95-99.)

The only facts that Defendants disputed were SOF ¶¶ 2, 58, 60 ­ 64 and 69.2 Even

18 as to these facts, Defendants have not proffered any admissible evidence. Defendants do 19 not dispute any other facts, implicitly conceding that the Response has no merit and that
3 s 20 the Court should grant CREC' motion.

21 22 23 24 25 26
2

See Response at 5-6. CREC addresses Defendants' failure to provide evidence in support of their factual disputes in its Response to Defendants' Statement of Facts and Objection to Declarations. 3 Defendants argument that the Integrity bankruptcy trustee is a necessary party is without merit. The Bankruptcy Court lifted the bankruptcy stay to specifically allow CREC to pursue these claims. When CREC obtains a judgment against Integrity, it will make a claim in the bankruptcy proceeding, at which time the Trustee can address the impact of the judgment. In any event, CREC has provided notice of the motion to the Trustee in (footnote continued on next page) -2Document 83 Filed 08/25/2006 Page 3 of 13

F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

Case 2:03-cv-02353-DGC

1 I. 2 3

Defendants Do Not Offer Any Evidence To Contest That They Are In Breach of Contract. Defendants attack the adequacy of consideration for the Agreement and make

4 vague arguments that imply CREC did not comply with the Agreement itself. 5 Defendants, however, offer no evidence to support these arguments. To the contrary, 6 Defendants used the valuable and well-recognized CREC registered trade name in 7 offering their real state brokerage services. In fact, the grant of the franchise was so s 8 valuable that Defendants opposed CREC' efforts to lift the bankruptcy stay to terminate 9 the Agreement, violated a Bankruptcy Court order and kept operating as a CREC office 10 until this Court issued a TRO. In the bankruptcy proceedings, Motlagh indicated that he 11 "believes that it is in [his] best interests to continue operating under the Century 21 12 umbrella." Response to Motion For Termination of Automatic Stay, attached hereto as 13 Exhibit 1 at page 6, lines 23-24. This is an admission that the Agreement is supported by 14 consideration. 15 16 A. The Franchise Agreement is Supported by Consideration.

Failure of consideration is an affirmative defense which must be pled in a Fed. R. Civ. P. 8 (c). Defendants' Answer does not preserve

s 17 defendant' answer.

18 adequacy of consideration as a defense nor did they raise the defense in any disclosure.
4 19 Therefore, they are barred from raising the issue now. Dobbs v. Vornado, 576 F. Supp.

20 1072, 1081 (E.D.N.Y. 1983)(defendant waived defense of failure of consideration because 21 it did not affirmatively plead the defense); Carroll v. Acme-Cleveland Corp., 955 F.2d 22 23 24 (footnote continued from pre vious page) light of Defendants' argument. See Exhibit 1 hereto. 4 CREC identified Defendants' failure to properly assert this defense in its reply in support its prior motion for summary judgment and yet Defendants did not seek to amend 25 the Counterclaim to add this defenses or supplement any disclosures concerning the defense. 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

-3Document 83 Filed 08/25/2006 Page 4 of 13

Case 2:03-cv-02353-DGC

1 1107, 1115 (7th Cir. 1992). CREC made this same argument in its reply in support its 2 prior motion for summary judgment and yet Defendants made no effort to amend the 3 Counterclaim to add this defenses. Defendants should be precluded from raising this new 4 defense after discovery has closed. 5 Defendants have not created an issue of fact regarding consideration even if they

6 have not waived the defense. Under New Jersey law, which applies to this dispute, courts 7 "do not inquire into the adequacy of consideration in determining whether to enforce a
5 8 contract." Seaview Orthopaedics v. National Healthcare Resources, Inc., 841 A.2d 917,

9 921 (Sup. Ct. N.J. 2004)(citing American Handkerchief Corp. v. Frannat Realty Co., 109 10 A.2d 793, 396 (N.J. 1954)). "Any inquiry into the presence of consideration does not things' exchanged. Tumarkin v. Goldstein, 33 11 depend upon the comparative value of the ` 12 N.J. Super. 46, 50, 109 A.2d 435, 437 (App. Div. 1954). Instead when we speak of the 13 need for an exchange of valuable consideration what is meant is that the consideration must merely be bargained for in fact.' Id. (quoting Borberly v. Nationwide Mut. Ins. " 14 ` 15 Co., 547 F. Supp. 959, 980 (D. N.J. 1981)). 16 Even if the Court could inquire into the adequacy of consideration, Defendants

17 have offered no evidence to support their argument that consideration was inadequate 18 because the Agreement is "so weighted in favor of Century 21 Corporation that there is 19 scarcely an articulated obligation on its part." Response at p. 7, lines 6-7. This argument 20 is refuted by a cursory review of the Agreement. Section 1 of the Franchise Agreement 21 granted Motlagh a CREC franchise and the "non-exclusive right to use the CENTURY 21 s 22 System and certain CENTURY 21 Marks." Exhibit 1 to CREC' SOF at p. 1. This s 23 consideration was so valuable to Defendants that they vigorously fought CREC' efforts 24 25 26
5

Section 25(A) of the Franchise Agreement that it "shall be construed according to the laws of the State of New Jersey." See Exhibit 1 to Century 21' SOF at p. 43. s

F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

-4Document 83 Filed 08/25/2006 Page 5 of 13

Case 2:03-cv-02353-DGC

1 to terminate the Agreement and then refused to stop operating as a CREC office until this 2 Court issued a TRO. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

B.

Defendants Do Not Offer Any Evidence That CREC Breached, Abandoned or Repudiated the Franchise Agreement.

Defendants make conclusory statements that, starting in 1999, CREC withdrew any support or help to the franchise, which was an abandonment or repudiation of the Agreement. Defendants, however, do not identify (1) any provision of the Agreement that requires CREC to provide the support they claim was withheld; or (2) any admissible evidence that CREC actually withdrew any such support. Conclusory statements and legal argument do not create questions of material fact. A party must oppose summary

judgment with "evidence." Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 F.3d 1099, 1107 (9th Cir. 2000). Defendants argue at page 3 of the Response, without citation to any evidence, that CREC abandoned the franchise. Although there are various similar statements in the attached declarations, the statements are either (1) without any foundation and thus inadmissible; and/or (2) do not support the claim of abandonment; and/or or (3) are immaterial: ? Defendants claim CREC denied their customers' home warranties provided by a separate company, AON. There is no foundation that CREC provides home warranties, much less that it removed information about Defendants from AON. There is no foundation for the statements that CREC removed information about Defendants from an 800 system or scrambled and removed franchise information from directories. There is no support for the statement that CREC failed to notify Defendants of any promotional opportunities such as baseball tickets. There is no support for the statement that CREC removed Defendants' franchise information from its supply ordering system. Although CREC did mail some letters to Defendants at an old address, there is no evidence that this had any significance whatsoever. Indeed, Defendants did not deny receiving the misaddressed letters and even -5Document 83 Filed 08/25/2006 Page 6 of 13

? ? ? ?

Case 2:03-cv-02353-DGC

1 2 3

admitted receiving at least one of them, notwithstanding the incorrect address.6 These unsupported and frankly, irrelevant, complaints are an attempt to distract the

4 Court from the fact that Defendants have no evidence to support their claims or defenses. 5 Defendants have complained many times about CREC' February 2002 notice of s

6 termination and blocking Motlagh from the system by which franchisees make electronic 7 payments. CREC has acknowledged that the notice had no effect whatsoever because the 8 automatic stay created by the Bankruptcy Code precludes termination without seeking 9 relief from the Bankruptcy Court. Defendants have not provided any evidence that CREC 10 actually terminated or abandoned the Franchise Agreement in February 2002. Indeed, it is 11 undisputed that Defendants continued to operate as a CREC office and take full benefit of 12 the CREC name until December 19, 2003. Defendants are essentially seeking sanctions 13 against CREC for an alleged violation of the stay, which is improper here. See, e.g., 14 Halas v. Platek, 239 B.R. 784, 792 (N.D. Ill. 1999)(a request for sanctions for violation of 15 the automatic stay "is within the exclusive jurisdiction of the bankruptcy court under § 16 1334(a)."). 17 II. 18 19 Integrity Has Not Created A Material Issue of Fact On the Unjust Enrichment Claim. It is undisputed that Integrity held itself out as a CREC real estate office, sold real

20 estate using the CREC name and by doing so earned more than $700,000 in revenue post21 petition through November 30, 2003. Those undisputed facts support entry of judgment 22 against Integrity. 23
6

Although Defendants claim Integrity received no benefit from

Motlagh did not dispute receiving the misaddressed letters, carefully saying in his 24 declaration that he has no recollection of letters that do not bear his signature. Motlagh Declaration at ¶ 18. The Response also claims Motlagh received CREC' February 2002 s 25 notice of termination letter, a letter which contains an old address. That some letters contained an old address is immaterial. 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

-6Document 83 Filed 08/25/2006 Page 7 of 13

Case 2:03-cv-02353-DGC

s 1 displaying CREC' logos and trademarks, they do not cite to any evidence of this and the 2 point is immaterial. Integrity did in fact operate as a CREC office and did so even after 3 the Bankruptcy Court ruled that Integrity had no rights under the Agreement and after 4 CREC formally terminated the Agreement. CREC is entitled to be compensated for s 5 Integrity' operation as a CREC office. The Agreement provides an adequate basis for the s 6 value Integrity' operation as a CREC office as 8% of gross revenue. 7 III. 8 Defendants Have Not Offered Any Evidence to Dispute CREC' Damages. s Defendants argue that CREC' calculation of the past-due post-petition franchise s

s 9 fees is inappropriate because it was calculated by using Integrity' Operating Reports filed 10 in its bankruptcy proceeding. It is not enough to simply "dispute" the correctness of the s 11 calculation of the franchise' gross revenue or franchise fees due. In order to defeat 12 summary judgment, Defendants must offer evidence to create a genuine issue of fact on 13 this issue, which they have wholly failed to do. Motlagh, himself, admitted that

s 14 Integrity' Gross Revenue for the relevant time was $723,114.46, contradicting the 15 argument made in the Response. See Motlagh Deposition at 12:8-12, attached as Exhibit s 16 2 to CREC' SOF. 17 Although Defendants correctly note that computing damages is a factual issue, CREC has not

s 18 there is no genuine issue of disputed fact about CREC' damages. s 19 proffered any evidence to dispute CREC' damages. 20 IV. 21 22

Defendants Do Not Offer Any Evidence to Support the Counterclaim. A. Breach of Contract

Defendants do not even address the breach of contract counterclaim in the

23 Response. Although Defendants make vague arguments about CREC not "supporting" 24 them beginning in mid-1999, Defendants have not identified a single contractual 25 obligation CREC failed to comply with. To the contrary, Defendants contend that "there s] 26 is scarcely an articulated obligation on [CREC' part" in the Agreement. Response at p.
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

-7Document 83 Filed 08/25/2006 Page 8 of 13

Case 2:03-cv-02353-DGC

1 7, lines 6-7. Defendants have apparently conceded this claim, which the Court should 2 dismiss. 3 4 B. Tortious Interference with Prospective Advantage

Defendants attempt to effectively amend this claim in the Response by claiming

5 now, for the first time, that the contracts CREC interfered with were the contracts between 6 Motlagh and Defendants' agents and not the Agreement. This is improper. If the claim is 7 really about relationships with agents, Motlagh should have sought leave to amend. 8 Discovery is now closed and the Court should not permit this back-door effort to amend. 9 The claim, as pled, unambiguously refers to the Agreement and indicates that

10 CREC interfered with Defendants' "ability to grow his business and meet his goals and 11 obligations under the Agreement" and committing other acts causing Defendants "to 12 become in breach of contract, so that the Franchise Agreement could be terminated . . . ." s 13 Counterclaims at ¶ 77. There is nothing in the claim that refers to Motlagh' relationships s 14 with his agents that anyone interfered with or what Motlagh' alleged relationship with 15 these unnamed brokers was. 16 Nor does the Response cite to any evidence (much less admissible evidence) for

17 the claims that agents verbally agreed to work for Motlagh but reneged and went to work 18 for Metro Alliance or the "conclusion" that Dale Omer passed information to Metro 19 Alliance about these purported new agents. Response at pp. 10-11. The Response makes 20 wide ranging claims about a scheme to deprive Defendants of real estate agents and to s 21 steal them away to another franchise that are not even supported by Motlagh' 22 Declaration. If the claim, as argued in the Response, had even a scintilla of merit, 23 Defendants would have identified the names of the agents, the nature of their relationship 24 with them and proffered evidence that CREC interfered with that relationship. 25 Response is devoid of any factual support for this claim, even as newly argued. 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

The

Finally, even if evidence existed to support Defendants' fictional story, the claim -8Document 83 Filed 08/25/2006 Page 9 of 13

Case 2:03-cv-02353-DGC

1 would fail because, under New Jersey law, parties to a contract cannot maintain a tortious 2 interference claim against each other, even claims relating to interference with third party 3 relationships that are related to the parties' contractual relationship. For example, in 4 Mandel v. UBS/PaineWebber, Inc., 860 A.2d 945, 959 (N.J. Super. A.D. 2004), the court 5 affirmed the dismissal of a tortious interference claim by a plaintiff securities broker s 6 against his employer and its employees for soliciting plaintiff' clients because the parties 7 were all part of the same corporate, and therefore contractual, relationship. The court s 8 noted that "`[o]ne cannot interfere with one' own economic relationship, since in such an " 9 instance the matter is governed by principles of contract law.' Id. at 960 (quoting Van 10 Natta Mec. Corp. v. Di Staulo, 649 A.2d 399, 403 (N.J. Super. A.D. 1994)). There is
7 11 simply no factual or legal support for this claim, which the Court should dismiss.

12 13

C.

Breach of the Covenant of Good Faith and Fair Dealing

Defendants do not provide evidence of any expectation or benefit of the Agreement

14 that CREC denied to Defendants. Defendants claim that their expectation under the 15 Agreement was that it would "result in broker-to-broker and consumer direct inquiry 16 referral from the CREC system that will provide sufficient business opportunities to allow 17 the business to grow and prosper." Response at p. 15, lines 10-13. Defendants provide no 18 evidence to support this claim. Although the Agreement indicates that CREC will provide 19 franchisees with referral forms and will establish procedures for referrals, there is nothing 20 that remotely suggests that a reasonable expectation of the Agreement implies that the 21 "CREC system," whatever that is, would result in referrals. Nor does the Response 22 The Response also implicitly concedes Motlagh has no claim when it asserts that 23 CREC' alleged conduct deprived "Century 21 Assurance Realty of the agents necessary s to grow its business . . . ." Response at p. 11. Century 21 Assurance Realty is a dba for 24 Integrity and the Court has already dismissed Integrity' counterclaims. See Order dated s November 28, 2005. Motlagh personally did not operate the real estate business ­ 25 Integrity did. (SOF ¶ 2.) Motlagh has no claim for alleged interference with Integrity' s business expectation. 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

7

-9Document 83 Filed 08/25/2006 Page 10 of 13

Case 2:03-cv-02353-DGC

1 provide any evidence that CREC did anything to interfere with Defendants' efforts to 2 obtain referrals. Although Defendants' office was inadvertently omitted from a single 3 Uniform Franchise Offering Circular, Defendants provide no evidence how this is related 4 to any expectation for referrals. 5 As a practical matter, referrals are the result of developing relationships with others

6 and developing a good reputation in the industry. The undisputed evidence suggests that 7 Defendants utterly failed in these respects. For example, within months of opening their 8 office, Defendants financial partner had left, they were locked out and evicted from their 9 office and their financial problems were common knowledge in the industry. (SOF ¶¶ 2510 45.) Defendants also failed to pay their dues to the local Brokers' Council, which

t 11 certainly didn' endear them to other brokers in the community. (SOF ¶¶ 46-51.) Simply 12 put, there is no evidence that Defendants alleged lack of referrals had anything to do with
8 13 CREC; it likely had everything to do with Defendants' business failures.

14 15

D.

Unjust Enrichment

Defendants claim that they expended "substantial sums of money for advertising

16 materials that eventually benefited only other franchisees and CREC" and that Motlagh 17 was impoverished and CREC "enriched by the royalty fees collected from franchisees s 18 who obtained business opportunities derived from Motlagh' advertising materials . . . ." 19 Response at p. 16, lines 21-24. 20 Again, Defendants offer no evidentiary support for this claim. Where is the

21 evidence of Defendants' advertising? Where are the receipts for the advertising or other 22 23 Defendants also make unsupported arguments that CREC refused to explain its accounting process, insisted on drawing blood from Defendants, denied them the 24 opportunity to buy baseball tickets or participate in the home warranty program of AON and denied the franchise affiliation to clients and potential clients. Notwithstanding the 25 lack of any support for these claims, Defendants do not explain how these items are related to Defendants' expectation that they would get referrals. 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

8

- 10 Document 83 Filed 08/25/2006 Page 11 of 13

Case 2:03-cv-02353-DGC

1 evidence that Defendants incurred "substantial sums?" This is evidence wholly within 2 Defendants control and would be easy to proffer if it in fact existed. Nor is there any 3 evidence that other franchisees obtained business because of Defendants' advertising or 4 that CREC was enriched in any way at the expense of Motlagh. Defendants had two and 5 half years to marshal any such evidence and the failure to do so results in but a single 6 conclusion ­ there is no merit to the claim.. 7 8 E. Defendants Have No Damages

In addition to a complete lack of evidence on the merits of the counterclaims,

9 Defendants have likewise offered no evidence of any damages. This is in stark contrast to 10 the detailed damage disclosure Defendants provided in their dispute with Suncor, where 11 Defendants identified to the dollar what their lost profits and startup cost damages were. 12 (SOF ¶¶ 37-41.) Although the Response vaguely suggests Motlagh would seek the same 13 type of damages here, he has not identified them as required. The only damage disclosure s 14 indicates they may seek offsets from CREC' claim, but they have not even identified 15 what those offsets are. (SOF ¶¶ 95-99.) 16 The Response also assumes that Motlagh can recover for alleged damages

s 17 sustained by Integrity. Any alleged damage from CREC' alleged bad conduct would 18 have resulted in lost revenue to Integrity, not Motlagh. There is no basis for Motlagh to 19 recover any alleged damages sustained by Integrity. 20 VI. 21 Conclusion. CREC respectfully requests that the Court grant CREC' motion for summary s

22 judgment. 23 24 25 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

///

/// - 11 Document 83 Filed 08/25/2006 Page 12 of 13

Case 2:03-cv-02353-DGC

1 2 3 4 5 6 7

Respectfully submitted this 25th day of August, 2006.

FENNEMORE CRAIG, P.C.

By /s/Kevin J. Bonner Janet Weinstein Kevin J. Bonner Sherida Colvin Attorneys for Plaintiff

ORIGINAL of the foregoing th 9 Filed electronically this 25 day of August, 2006, with: 10 United States District Court 11 District of Arizona 401 West Washington Street 12 Phoenix, AZ 85003 13 COPY OF THE FOREGOING th 14 mailed this 25 day of August, 2006 to: 15 Don P. Williams Law Office of Don P. Williams 16 P.O. Box 5308 Goodyear, AZ 85338 17 Attorney for Defendants 18 19 /s/Amberlyn S. Murray 20 21 22 23 24 25 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

8

1825388.9/20474.039

- 12 Document 83 Filed 08/25/2006 Page 13 of 13

Case 2:03-cv-02353-DGC