Free Response to Motion - District Court of Arizona - Arizona

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Katherine E. Baker (010146) Diane L. Bornscheuer (016858) GREEN & BAKER 7373 N. Scottsdale Rd., Suite C-226 Scottsdale, AZ 85253 Telephone: (480) 991-3335 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Ronald Dible and Megan Dible, husband and wife, Plaintiffs, vs. City of Chandler, et al., Defendants.

Case No. CV-03-0249-PHX-JAT DEFENDANTS' RESPONSE TO MOTION TO STRIKE DEFENDANTS' MOTION FOR CORRECTION OF RECORD (Assigned to the Hon. Judge Teilborg) (Oral Argument Requested)

Defendants oppose Plaintiff's Motion to Strike their Motion to Correct the Record. The Court of Appeals issued a memorandum opinion on September 14, 2007, affirming the District Court's award of fees to Defendants' for Plaintiff's frivolous contract claim. The Court reversed as to the imposition of $10,904.22 in Rule 11 sanctions given that the district court's findings related to Mr. Knowlton, the Dible's attorney, but the judgment stated the sanctions were to be imposed against the Dibles. (See 9/14/07 Memorandum Decision, attached as Exhibit A). Defendants moved for correction of the record under Rule 60 given that this Court's original award clearly stated the sanctions were against Mr. Knowlton. The entry of judgment against the client was plainly inadvertent, and no more than a typographical error. Cuevas v. Miranda, ___ F.3d ___, 2007 WL 128781 (D. Ariz. 2007), cited by

Case 2:03-cv-00249-JAT

Document 177

Filed 09/24/2007

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Plaintiff, held that the district court lacks jurisdiction to correct the record until the Ninth Circuit has issued a formal mandate. However, in Cuevas, the district court indicated it would withhold correcting the record until the mandate was issued. Therefore, there is no need to strike Defendants' motion. The Court may simply delay ruling until the mandate is issued. The mandate should be forthcoming given that the appeal is complete.1 RESPECTFULLY SUBMITTED this 24th day of September, 2007. GREEN & BAKER /s/ Katherine E. Baker Katherine E. Baker Diane L. Bornscheuer 7373 North Scottsdale Road, Suite C-226 Scottsdale, Arizona 85253 Attorneys for Defendants ORIGINAL of the foregoing e-filed and COPIES sent electronically or via U.S. Mail this 24th day of September, 2007, to: Honorable James A. Teilborg Sandra Day O'Connor United States Courthouse Suite 523 401 West Washington, SPC 51 Phoenix, AZ 85003

Defendants will attempt to have the issue resolved in the Court of Appeals before the mandate is issued by filing a motion to correct the record there, also. In the event that motion is considered before the mandate issues and is granted, this motion will then be moot and will be withdrawn.
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Keith M. Knowlton KEITH M. KNOWLTON, LLC 1630 South Stapley Drive, Suite 231 Mesa, Arizona 85204 Attorneys for Plaintiffs /s/ Kendra D. Wheat
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