Free Reply - District Court of Arizona - Arizona

1 d.|. hall, attorney, pllc
I4555 North Scottsdale Road, Suite I60
2 Scottsdale, Arizona 85254
Telephone: 480.5%.4045
3 Facsimile: 480.5%.7976
Dennis L. Hall, # 0|3547
4
james M. McGee, Esq.
5 P.O. Box 460
Cottonwood, Arizona 86326
6 Telephone: 928.639.4747
Facsimile: 928.639.2I90
i' james M. McGee, #011931
8 Attorneys for Defendants Carl Brown and Molly Brown
9
10 United States District Court
11 For the District of Arizona
12
Cathleen Channel,
13 Theresa Wharry,
Stacie Hanson, Monique Nichols, Case No. ClV-2003—0|00 PHX-ROS
14
Plaintiffs
15 DEFENDANTS CARL AND MOLLY
vs. BROWNS’ SUR-REPLY TO PORTIONS
16 OF PL.AlNT|FFS’ REPLY RE: PETITION
Home Mortgage, Inc., an Arizona FOR ATTORNEYS' FEES
17 Corporation conducting business in
Arizona, Carl Brown, Molly Brown, (The Honorable Roslyn O. Silver)
13
Defendants.
19
20 Plaintitis, in their Reply, argue that thc Court has the inherent power to award
21 attorney’s fees to sanction bad faith conduct based on C/mmbers v. NASCO, Inc., 50] U.S.
22
32 (199l). This argument should be ignored as a new matter not to be raised in a reply and,
23
24 because it requires a iinding of subjective bad faith, being in violation of Defendants’
25 procedural rights.
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1 The local rules provide that a motion for f`ees shall specify the statutory or
2 contractual authority entitling the party to the award of fees. LRCiv 54.2(b)(l). Plaintiffs
3 did so, citing A.R.S. §12-349, the Arizona statute providing assessment of attorneys’ fees in
1; a court of record in Arizona for bringing a case °‘without substantial justification;" °‘solely
6 or primarily for delay or harassment;" ‘“[u]nreasonably expands or delays the proceeding; or
7 “[e]ngages in abuse of discove1y." Vi/"hen Defendants pointed out that ARS. §12-349 has
3 no relevancy in the Federal District Courts, Plaintiffs raised their new argument, claiming
9 that the Court has inherent authority to sanction bad faith.
10 This new argument, asking the Court to apply sanctions, goes beyond the original
11 motion. "A Court may, of course, decline to consider arguments raised for the first time in a
Z; reply brief." Coronet v. Paul, 316 F.Supp.2d 868, 873, fn.7 (D.Ariz. 2004). The issue o
14 sanctions is raised for the first time in the reply brief`.
15 The Ninth Circuit has ruled that there must be a finding of subjective bad faith to
16 issue of sanctions pursuant to the inherent authority to sanction a litigant’s bad. In re
17 Keegan Management Co., Securities Litigation, 78 F.3d 431, 436 (9th Cir.,l996). (‘“'l`o
18 insure that restraint is properly exercised, we have routinely insisted upon a finding of bad
19 faith before sanctions may be imposed under the court's inherent power.") Plaintiffs should
if not be allowed cavalierly to urge sanctions within a fee petition. Loc/cary v. Kayfetz, 974
22 F.2d 1166, 1170 (9m Cir.,1992)("A court must, of course, exercise caution in invoking its
23 inherent power, and it must comply with the mandates of due process, both in determining
24 that the requisite had faith exists and in assessing fees .... Furthermore, when there is bad-
25 faith conduct in the course of litigation that could be adequately sanctioned under the rules,
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1 the court ordinarily should rely on the rules rather than the inherent power.")
2 The local rules require that objections to written evidence must be presented in the
3
response to a motion. LRCiv 7.2(m)(2). The inflammatory material contained in PIaintiffs’
4
Memorandum in Support of Motion for Award of Attorneys’ Fees and Taxable Costs,
5
6 Section B, pages 4-S, is entirely unsupported with evidence. It is, instead, lawyer argument.
7 It should be stricken from the record and ignored by this Court.
3 Because A.R.S. §l2-349 does not apply in Federal Courts, there was no need to
9 object to this inflammatory material submitted without foundation. But, no to allow its use
10 in support of a new argument raised first in a reply brief fails procedural process required by
11
Keegan.
12
This Court should ignore, or, at its discretion, strike those portions of the Plaintiffs’
13
14 Reply Memorandum and Memorandum referring to or requesting sanctions.
15 Dated November 14, 2007.
16 D.L. Hall, Attomey, pllc
17 /is/ Dennis L. HGH
18 Dennis L. Hall
Attorney for Defendants Carl and Molly Brown
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20 I I I
21 I I I
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1 CERTIFICATE OF SERVICE
2
3 Pursuant to Fed.R.Civ.P. 5(b), I certify that on the 14th day of November, 2007, I
4 personally caused to be sewed electronically, a true and correct copy of the foregoing
; document.
Y
3 James Burr Shields II
Blake Simms
9 Law Office of James Burr Shields
382 East Palm Lane
*0 Phaentx, AZ SS004
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12 /S/Lc1urczKe/Yer
Laura Keller
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