GABRUY, RoLLMAN & Bossa, P.C.
2 3507 N. Campbell Avenue, Ste. lll
Tucson, Arizona 85719
3 520/320-1300 .
4 Garry B. Bryant, S.B. #004773
LAW OFFICES OF GARRY B. BRYANT
5 3507 N.-Campbell Avenue, Ste. 101
Tucson, Arizona 85719
5 520/322-9000
7 Attorneys for Plaintiff
8 IN THE UNITED STATES DISTRICT COURT
_ 9 FOR THE DISTRICT OF ARIZONA
U :
Q jg JOHN KILLINGSWORTH, a married man, No. CIV-03-1950-PHX-N V W
"' E ¤» . .
E § LE, 11 P1¤1¤¤f£ PLAINTIFF’S REQUEST FOR
¤ ¤¤ E 2 8 VS LEAVE TO ARGUE THAT
E °†3 5 aj 12 ' SUMMARY JUDGMENT IS
E E E 1 STATE FARM MUTUAL AUTOMOBILE INAPPROPRIATE
'6 5 E 5 3 3 INSURANCE COMPANY, etal., AS T0 COUNT IV
3 .1 ( ZE
I 2 Q § 1-4 Defendants.
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Q Q l` 15 Plaintiff hereby requests leave of Court to argue at the hearing on Defendants’
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5 °° 16 Motion for Summary Judgment on Remaining Claims that summary judgment is
17 . . . . . . . I
mappropriate on Count IV, his claim of breach of the implied covenant of good farth and
18
19 fair dealing, because genuine issues of material fact exist on that claim. This Request is
20 supported by the accompanying Memorandum of Points and Authorities, and all matters of
21 record, which are incorporated herein by reference.
22 MEMORANDUM OF POINTS AND AUTHORITIES
23 In their Reply in support of their Motion for Summary Judgment on Remaining
24 Claims, Defendants argue that Plaintiff failed to respond to their summary judgment
25 challenge to Count IV and therefore they are entitled to summary judgment on the breach of
26 the implied covenant claim. While Plaintiff did not devote a separate section in response to
Cas?eL2¤1334cw+tBft·§5£·3vPr¢\Pt4tt· Document 274 Filed O9/14/2005 Page 1 of 4
1 Defendants’ argument regarding Count IV due to space constraints, he did in fact respond to
g the substance of Defendants’ argument in his discussion of his breach of contract claim and
4 of his allegation that he was constructively discharged. Plaintiff files this Request out of an
5 excess of caution to seek the Courts permission to make those points at the hearing on
6 Defendants’ upcoming summary judgment motion.
y In their pending Motion for Summary Judgment, Defendants offered a very simple
8 argument regarding Plaintiffs breach of covenant of good faith and fair dealing claim:
O _ 9 "Plaintiff quit and admittedly was paid all sums due him" and therefore he cannot
ga E 10 demonstrate a triable issue on Count IV. See Defs.’ Mot. for Summ. J. at 4. Thus, if
is 3 § S 11 Plaintiff could overcome Defendants’ constructive discharge argument or show that
§ g g § 12 Defendants- denied him a contractual benefit by breaching their promise to return him to a I
L; § g gg State Farm agency, then this argument fails.
J § i 5 i5 Long before Defendants filed the pending summary judgment motion, it was clear
E Kg 16 that Plaintiffs breach of the implied covenant claim arose from Defendants’ promise to
0 17 retum him to an agency. In its October I5, 2004 Order granting in part and denying in part
18 Defendants’ Motion for Partial Summary Judgment, the Court noted that, with respect to
jg Plaintiff’ s claim for breach of implied covenant of good faith and fair dealing, he "relies for
gg p_urposes of this claim on an implied promise arising out of Defendants’ culture and
21 policy—a ‘consistent pattem’ of State Farm awarding agency to management employees
22 who wanted to return to personal production." See October I5, 2004 Order, at 8.
23 In his separate statement of material facts, Plaintiff detailed the factual evidence
24 regarding State Farrn’s policy and practice of transitioning management into agencies, and
25 the promises made to Plaintiff in that regard. See Pl.’s Separate Statement of Material Facts
26 (" ") 1]}] 207-209; 213-216; 259. Further, in the portion of his memorandum in
Oaee=12tU3¤e>0¢Q34®5@¤P#t
1
opposition to Defendants’ summary judgment motion, Plaintiff argued that Defendants’
2
3 promises to return him to an agency were enforceable. See Pl.’s Opp’n at 3-6.
4 In his statement of facts, Plaintiff also set forth the factual evidence showing that he
5 was constructively discharged. See PSOF 11] 32l-333. Plaintiff also argued the issue of
6 constructive discharge in his Opposition. See Pl.’s Opp’n at 15-17.
7 Undersigned counsel did not, however, expressly assert in his Opposition that his
8 breach of contract and constructive discharge arguments were meant to serve as his -
tj __ 9 response to Defendants’ attack on Count IV. But, as noted above, those arguments
—: g Q 10 responded to the substance of Defendants’ argument regarding whether they breached the
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E § 5 g O 11 implied covenant of good faith and fair dealing.
:·.:·¤ “‘ E 12
g Z E Ei; C; CONCLUSION
u
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J 5 E § Plaintiffs separate statement of facts and opposition, to argue that he has demonstrated
O O I··
E § 16 genuine issues of material fact requiring a trial on his claim for breach of the implied
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17 covenant of good faith and fair dealing. In this regard, Plaintiff does not seek to assert any
18 facts or argument other than as already contained in his Opposition.
19 RESPECTFULLY submitted this day of September 2005.
zo _ GABROY, ROLLMAN & Bossa, P.C. .
n 21
22 Byi
John Gabroy
23 Richard A. Brown
24 . LAW Omcas or GARRY B. BRYANT
25 U
By: G B B t
26 any - Tyan §
Attorneys for Plaintiff
asceimmawrwwwwmwa/tig Document 274 3 Filed O9/14/2005 Page 3 of 4
I COPY of the foregoin axed and sent
2 electronically this ay of September 2005, to:
Charles L. Chester
3 Matthew T. Clarke
4 RYLEY CARLoc1<; & APPLEWHITE, P.A.
One North Central Avenue, Suite 1200
5 Phoenix, Arizona 85004-4417
Attomeys for D ndants _,
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awu2¤1®¤32m040¢¤%MMMVg Document 274 4 Filed O9/14/2005 Page 4 of 4
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