Free Motion for Leave to File - District Court of Arizona - Arizona

1 d.l. hall, attorney, pllc

14555 North Scottsdale Road, Suite 160 2 Scottsdale, Arizona 85254 Telephone: 480.596.4045 3 Facsimile: 480.596.7976 Dennis L. Hall, # 013547
4 5 P.O. Box 460

James M. McGee, Esq.

Cottonwood, Arizona 86326 6 Telephone: 928.639.4747 Facsimile: 928.639.2190 7 James M. McGee, #011931
8 Attorneys for Defendants Carl Brown and Molly Brown 9 10 11 12

United States District Court For the District of Arizona
Cathleen Channel, Stacie Hanson, Monique Nichols, Plaintiffs vs. Home Mortgage, Inc., an Arizona Case No. CIV-2003-0100 PHX-ROS DEFENDANTS CARL AND MOLLY BROWNS' SUR-REPLY TO PORTIONS OF PLAINTIFFS' REPLY RE: PETITION FOR ATTORNEYS' FEES (The Honorable Roslyn O. Silver)

13 Theresa Wharry, 14 15 16

17 Corporation conducting business in

Arizona, Carl Brown, Molly Brown, Defendants.

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Plaintiffs, in their Reply, argue that the Court has the inherent power to award attorney' fees to sanction bad faith conduct based on Chambers v. NASCO, Inc., 501 U.S. s 32 (1991). This argument should be ignored as a new matter not to be raised in a reply and,

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because it requires a finding of subjective bad faith, being in violation of Defendants'

25 procedural rights.

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The local rules provide that a motion for fees shall specify the statutory or contractual authority entitling the party to the award of fees. LRCiv 54.2(b)(1). Plaintiffs did so, citing A.R.S. §12-349, the Arizona statute providing assessment of attorneys' in fees a court of record in Arizona for bringing a case " without substantial justification;" solely " or primarily for delay or harassment;" [u]nreasonably expands or delays the proceeding; or " " [e]ngages in abuse of discovery." When Defendants pointed out that A.R.S. §12-349 has no relevancy in the Federal District Courts, Plaintiffs raised their new argument, claiming that the Court has inherent authority to sanction bad faith. This new argument, asking the Court to apply sanctions, goes beyond the original motion. " Court may, of course, decline to consider arguments raised for the first time in a A reply brief." Coronel v. Paul, 316 F.Supp.2d 868, 873, fn.7 (D.Ariz. 2004). The issue of sanctions is raised for the first time in the reply brief. The Ninth Circuit has ruled that there must be a finding of subjective bad faith to issue of sanctions pursuant to the inherent authority to sanction a litigant' bad. In re s Keegan Management Co., Securities Litigation, 78 F.3d 431, 436 (9th Cir.,1996). (" To insure that restraint is properly exercised, we have routinely insisted upon a finding of bad faith before sanctions may be imposed under the court's inherent power." Plaintiffs should ) not be allowed cavalierly to urge sanctions within a fee petition. Lockary v. Kayfetz, 974 F.2d 1166, 1170 (9th Cir.,1992)(" court must, of course, exercise caution in invoking its A inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.... Furthermore, when there is badfaith conduct in the course of litigation that could be adequately sanctioned under the rules,
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the court ordinarily should rely on the rules rather than the inherent power." ) The local rules require that objections to written evidence must be presented in the response to a motion. LRCiv 7.2(m)(2). The inflammatory material contained in Plaintiffs' Memorandum in Support of Motion for Award of Attorneys'Fees and Taxable Costs,

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Section B, pages 4-8, is entirely unsupported with evidence. It is, instead, lawyer argument. It should be stricken from the record and ignored by this Court. Because A.R.S. §12-349 does not apply in Federal Courts, there was no need to object to this inflammatory material submitted without foundation. But, no to allow its use in support of a new argument raised first in a reply brief fails procedural process required by Keegan. This Court should ignore, or, at its discretion, strike those portions of the Plaintiffs' Reply Memorandum and Memorandum referring to or requesting sanctions. Dated November 13, 2007. D.L. Hall, Attorney, pllc /s/ Dennis L. Hall Dennis L. Hall Attorney for Defendants Carl and Molly Brown /// /// ///

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CERTIFICATE OF SERVICE

Pursuant to Fed.R.Civ.P. 5(b), I certify that on the 13th day of November, 2007, I personally caused to be served electronically, a true and correct copy of the foregoing

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document.

James Burr Shields II Blake Simms Law Office of James Burr Shields 382 East Palm Lane Phoenix, AZ 85004 /s/Laura Keller Laura Keller

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