Free Reply to Response to Motion - District Court of Arizona - Arizona

1 Jay A. Zweig (011153) Mark A. Fuller (012149) 2 GALLAGHER & KENNEDY, P.A. 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 3 (602) 530-8407 4 Attorneys for Defendants 5 6 7 8
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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, vs. DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO CORRECT THE OCTOBER 6, 2005 JUDGMENT No. CIV-03-2344-PHX-FJM

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State of Arizona Citizens Clean Elections 11 Commission; Colleen Connor and Chad Jacobs, husband and wife; and Jessica 12 Funkhouser and Lindy Funkhouser, husband and wife; John Does I-X; 13 Jane Does I-X, 14 15 16 17 18 19 20 21 22
Case 2:03-cv-02344-FJM Document 151

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Defendants.

With all due respect, Shaffer's refusal to acknowledge a blatant clerical error in the judgment is an insult to this Court. Because Shaffer lumped all of his damage claims together, the Court explicitly instructed the jury ­ without objection from Shaffer ­ that Shaffer could recover only the highest amount on any single verdict form to "avoid the prospect of double, triple, quadruple, quintuple recovery." Trial Transcript at 1297. The Clerk mistakenly failed to take this instruction into account when entering the judgment.
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1 But instead of simply acknowledging this, and stipulating to correct the judgment to 2 conform to the Court's stated intent, Shaffer shamelessly tries to take advantage of the 3 mistake, and even goes so far as to suggest that the judgment is "correct." The argument 4 is as offensive as it is wrong. 5 For the reasons explained in a separate motion, defendants believe that the jury

6 verdict cannot stand in any event. But if the Court disagrees for any reason, the existing 7 judgment would still have to be corrected. The simple fact of the matter is that the Clerk 8 entered the October 6 Judgment from the verdict forms, without benefit of this Court's 9 instructions as to how those verdict forms would translate into a judgment. The result is 10 not what this Court intended, and Rule 60(a) is the procedural method for correcting the 11 error. See Blanton v. Anzalone, 813 F.2d 1574, 1577 (9th Cir. 1987) (where district court 12 had not intended to award prejudgment interest on a redemption award, it properly 13 amended the judgment to correct the mistake; "A judge may invoke Rule 60(a) in order 14 to make a judgment reflect the actual intentions of the Court, plus necessary 15 implications.") (citing Jones & Guerrero, 650 F.2d. 1072, 1074 (9th Cir. 1981)). 16 The amount, if any, stated in the final judgment to be entered in this case will

17 obviously be determined by the Court's decision on defendants' other pending motions. 18 But for Shaffer to suggest, even for a moment, that the Clerk's error in entering the 19 October 6, 2005 Judgment was a "correct" processing of this Court's stated intentions is 20 simply untrue. Defendants' motion should be granted. 21 22
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RESPECTFULLY SUBMITTED this 10th day of November, 2005. GALLAGHER & KENNEDY, P.A. By s/Jay A. Zweig Jay A. Zweig Mark A. Fuller 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 Attorneys for Defendants

7 COPY of the foregoing electronically transmitted via the U.S. District Court 8 Electronic Case Filing system this 10th day of November, 2005 to: 9 Richard J. Harris, Esq. 10 Richard J. Harris Law Offices, P.C. 4445 E. Holmes Avenue, Suite 106 11 Mesa, Arizona 85206-3398 Co-Counsel for Plaintiff 12 David C. Larkin, Esq. 13 David C. Larkin, P.C. 4645 S. Lakeshore Drive, Suite 6 14 Tempe, Arizona 85282-3747 Co-Counsel for Plaintiff 15 s/Dawn Sylvester 568-0140/1311927 16 17 18 19 20 21 22
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