Free Trial Brief - District Court of Arizona - Arizona

1 SHOCKMAN LAW OFFICE, P.C.
Rosemary J. Shockman, #006452
2 8170 North 86"‘ Place, Suite 102
3 Scottsdale, Arizona 85258
(480) 596-1986
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5 MORLEY AND TRAGER
Leslie Trager, Esq.
6 230 Park Avenue, l0"‘ Floor
New York, New York 10169
7 (212) 684-2210
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Attorneys for Defendants/Counterelaimants
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10 UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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13 TASER INTERNATIONAL INC., an ) Case No. 00-0945 PHX ROS
I4 Arizona corporation, )
15 - · )
Plaintiff! Counterdefendant, )
16 ) AFFIRMATION IN OPPOSITION
vs. ) TO PLAINTIFF’S MOTION TO
17 ) LIMIT REPLY BRIEF
18 GERTRUDE HENNIGAN, as Administratrix )
ofthe Estate ot` Thomas Hennigan, )
19 1
Defendant/Counterelaimant. _)
20 )
21 _ _
LESLIE TRAGER, an attorney admitted to the practice of law, affirms under penalty of perjury:
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23 l. This aftirmation is submitted in opposition to plaintifl"s motion to strike pages 12 through 27 of
24 defendant’s Reply Memorandum in Opposition to Plaintiff` s Motion to Dismiss the Counterclaim on the
25 ground that it violates Local Rule of Civil Procedure 7.2(c) in that it exceeds l I pages.
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2. Local Rule 7.2(e`) appears to have no applicability. Subdivision (a) of Local Rule 7.2 appears to
27
28 limit this Rule to motions other than those made at trial. Thus subdivision (a) provides:
All motions, unless made during a hearing or trial, shall be in writing
and shall be made sufficiently in advance of trial to comply with the
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1 time periods set forth in this local Rule .... (emphasis supplied)
2 Since the motion involved was made at trial, it would appear that by its terms Local Rule 7.2 does not apply.
3 3. The circumstances of the motion papers involved in this case further show the Rule’s
5 inapplicability. Plaintiff, at the end of defendant’s case on the counterclaims, made an oral motion to dismiss.
6 (Page 475 of record). The Court asked for an oral response and full argument was held on September 6, 2005.
7 (The transcript goes from page 501 to 583). At the conclusion of this argument, the Court asked for briefing
3 on the issues raised and requested that defendant tile the first brief with the answering briefand reply to follow
IO on the schedule set by the Court. Defendant’s initial brief, dealing with the issues raised during the argument,
ll was 27 pages, consisting of 19 pages of legal argument and the balance schedules. Defendant’s initial brief
12 was clearly not "a motion including its supporting mernorandum" (Rule 7.2(c)). Indeed, defendant did not
ii make any motion but was putting in writing the arguments that had been raised by plaintiff` s oral motion
I 5 during over eighty pages of oral argument as reflected in the transcript. Moreover, if plaintiff truly felt that
16 Local Rule 7.2(e) applied, it should have made a motion to strike with respect to the initial brief since that was
17 over the 17 pages allowed under Rule 7.2(e). Apparently, plaintiff did not believe this rule applied with
1; respect to the initial brief.
20 4. Plaintiffs claim that it "worked diligently to submit its response motion in accordance with the
21 page limits ofLocal Rule 7.2(e)..." is highly unlikely. Taser’s responding memorandum runs only 15 pages,
22 even though it was allowed under the Local Rule, which it claims to have followed, 17 pages. lf Taser
ii worked so "diligently" to keep within the alleged limit, it is unlikely that it would have not used most ofthe
25 17 pages allotted to it. lf plaintiff really wished to say more than it did, it could have used the additional 2
26 pages, or it could have asked defendant for consent to a request for additional pages, something which
27 defendant could hardly refuse since defendant had already exceeded the alleged page limit. Thus, there is no
28 evidence that plaintiff really wanted to say more and plaintiffhas not suffered any prejudice. Rather it appears
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Case 2:00—cv—00945—FlOS Document 178 Filed 12/08/2005 Page 2 of 3

I that plaintiff is simply looking for a sharp tactic to cause the Court not to consider some of defendant’s
2
arguments.
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4 5. Given the apparent inapplicability of Local Rule 7.2(e), the Court should deny plaintiffs motion
5 to strike the pages of defendant’s brief. But if the Court should rind that Local Rule 7.2(e) is applicable, it
6 should grant the request, now made in the alternative, to allow defendant to submit its brief even though it
7 exceeds the page limits of this Rule. In granting this request, this Court should consider the good faith of
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9 counsel in interpreting the Local Rule 7.2 as being inapplicable to the present situation and the preference of
10 courts generally to consider arguments on the merits after full briefing by counsel.
I l Respectfully submitted,
12 sf
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14 Leslie Trager (lt8995)
l5 Dated: December 7. 2005
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'7 cearrricare or ritiisio
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19 . . .
I hereby certify that on December 7, 2005, I electronically transmitted the attached document
20 to the Clerl<`s Office via the CM/ECP tiling system for filing and transmittal of a Notice of
21 Electronic Filing to the following Cl\/I/ ECF registrants:
22 David B. Goldstein, Esq
23 l—lymson & Goldstein, P.C.
`l4646 North Kierland Blvd. Suite 255
24 Scottsdale, Arizona 85254
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26 s/ Rosemary Shockman
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28
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