Free Reply to Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

HINSHAW & CULBERTSON LLP
Suite 1600 3800 North Central Avenue Phoenix, Arizona 85012-1946 (602) 631-4400 (602) 631-4404 (fax)

Law Offices

Brian Holohan (009124) [email protected] Darrell S. Dudzik (016465) [email protected] Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) Plaintiff, ) ) vs. ) ) Thomas G. Watkins, III, an ) individual; Skyline ) Manufacturing, Inc., an Arizona ) corporation, ) ) Defendants. ) Ronald Craig Fish, a law corporation, a California corporation,

No. CIV-03-67-PHX-SMM REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

The Due Process Clause protects an individual s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties or relations. Burger King Corp. v Rudzewicz, 471 U.S.

462 at 472, 473; 105 S.Ct. 2127 at 2181,2182 (1985) citing International Shoe Co. v Washington, 326 U.S. at 319, 66 S.Ct. at 160.(1945).

Case 2:03-cv-00067-SMM

Document 132

Filed 05/16/2006

Page 1 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

The question presented by Defendants

motion for summary

judgment is not dissimilar to one encountered by a first year law student on the very first Civil Procedure quiz: Court have the ability to make substantive Does a with

rulings

respect to a defendant over which it has determined it does not have personal jurisdiction? If the answer is no , that absent personal jurisdiction

a Court cannot impose a binding judgment on a defendant, then Defendants in this matter prevail in that Plaintiff will be incapable of proving a crucial element of his cause of action. If the answer is yes, as Plaintiff appears to contend contrary to the Constitutional protection provided by the Due Process Clause, then the motion for summary judgment fails. Judge Murguia s Order Defendants believe that Judge Murguia s order is clear and unambiguous. In the Order Judge Murguia clearly stated

whose motion she was ruling upon and entered judgment naming the party and the relief such party received. Judge Murguia s order is inconsistent with Nothing in

Constitutional

precepts.

The order unequivocally states that Plaintiff was

dismissed for lack of personal jurisdiction and that all other motions were denied. Plaintiff s rambling response to the motion for summary judgment entirely mischaracterizes the Defendants in an attempt to avoid addressing the simple arguments question

presented above. 2
Case 2:03-cv-00067-SMM Document 132 Filed 05/16/2006 Page 2 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Motion for Summary Judgement Plaintiff s first attempt to avoid the motion for summary judgement is to declare that it is not a motion for summary judgement. motion a Plaintiff wants motion for the Court of to a call prior is Defendants motion to

reconsideration a motion to

dismiss.

However,

dismiss

entirely A and

procedurally different from a motion for summary judgment. motion to dismiss is based on the pleadings alone

generally made prior to discovery.

See FED. R. CIV. P. 12(c).

A motion for summary judgment is based on all the evidence and usually degree. made after discovery has been completed to some

See FED. R. CIV. P. 56.

Even should the two address

similar deficiencies in a Plaintiff s case or use the same information in forming arguments, they operate on separate logical and procedural grounds. Here, with a motion for

summary judgement, the Court must look beyond the pleadings and examine Judge Murguia s Memorandum Order upon which the summary judgment motion is founded. If the Court concludes

based on the plain wording of the Order that Plaintiff only favorable relief was the dismissal for lack of personal

jurisdiction and that no other favorable relief was granted, then the Court must likewise conclude that the Court had no binding authority over the Plaintiff in the underlying action to render substantive rulings. Contrary specifically do to not Plaintiff s request the 3
Case 2:03-cv-00067-SMM Document 132 Filed 05/16/2006 Page 3 of 9

assertions, Court to

Defendants the

reconsider

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

pleadings,

but

rather

to

consider

Murguia s

order

and

the

underlying Constitutional precepts which apply. Motion for Reconsideration Case Law In attempting to avoid the summary judgement analysis of the law, Plaintiff cites (incorrectly) case law that discusses the times it may be appropriate for a court to hear a motion for reconsideration. The case Bhatnagar v. Surrendra Overseas, Ltd., 52 F.3d 1220 (3rd Cir. 1995)1 explains at page 1231 that a motion for reconsideration is not to be used to simply re-present the same argument under a different theory but utilizing facts and evidence that were available but not presented originally. his own contention Plaintiff, however, cites this case for that a motion for summary judgment

presenting a similar argument as a motion to dismiss should not be allowed to go forward. Since the case plainly does not

stand for such a principle, this case is simply inapplicable to the summary judgment motion presented to this Court. In fact, the whole purpose of a summary judgment motion would be to present evidence and issues developed through discovery, not just a review of the sufficiency of the pleadings. Plaintiff next cites Hopkins v. Andaya, 958 F.2d 881, 887, fn. 5 (9th Cir. 1992) where a footnote states that defeated litigant cannot set aside a judgment because [a] he

failed to present on a motion for summary judgment all the
1

Plaintiff incorrectly cited this case as located at 1220.

552 F.3d

4
Case 2:03-cv-00067-SMM Document 132 Filed 05/16/2006 Page 4 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

facts known to him that might have been useful in court. While that may very well be true, that is an issue to be considered after the Court rules on the motion for summary judgment, not before. Plaintiff s judgment is a argument motion to that this in motion for is summary simply

reconsider

disguise

without merit and is merely an attempt to avoid having the Court address the issue presented by the motion for summary judgment. Rewriting Judge Murguia s Order The Plaintiff s next attempt to avoid the issue is to twist the Defendants argument into some kind of objection

to Judge Murguia s rulings, an objection which Plaintiff then claims the Defendants have waived. case. This is simply not the

The motion for summary judgment does not ask for any

change in Judge Murguia s rulings nor is it an attempt at appealing them. Defendants do not suggest that her rulings

were in any way erroneous, in fact, Defendants rely upon the plain language of the order to support their the motion Court for to

summary

judgment

Defendants

motion

urges

examine the language of Judge Murguia s rulings in a manner that would render them consistent with procedural and

Constitutional principles. No changes in the Courts language or assumptions concerning interpretation are requested. Judge unfair Murguia granted claim So-Lite s in the 5
Case 2:03-cv-00067-SMM Document 132 Filed 05/16/2006 Page 5 of 9

motion

to

dismiss

the

competition

underlying

action

without

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

reference to Fish.

That is a fact.

Though Fish did indeed

join in that motion, Judge Murguia specifically stated that she was granting Defendant So-Lite s Motion to Dismiss as to That is a fact.

Count 1 and 3 of Plaintiff s Complaint.

Judge Murguia did not mention Fish in any manner with respect to that ruling. Fish s That is a to fact. Dismiss Judge for Murguia lack of granted personal

Defendant

Motion

jurisdiction.

That is a fact. Judge Murguia did not grant

that motion as to only specific counts but, rather, dismissed Fish from the case entirely, finding that the Court had no jurisdiction over him whatsoever. That is a fact. Thus, the Defendants all. are not objecting to Judge Murguia s ruling at

Rather, they ask in this Motion that her ruling be read

properly rather than seeking to twist or rewrite the order as Plaintiff urges this Court to do. Plaintiff contends that Judge Murguia clearly intended to include him in the substantive dismissal. However, under no

reading of that Memorandum Order can it be said that Her Honor intended motion. conclude to include Fish when it considered the So-Lite

To come to such a belief a reader would have to that the Court made a mistake or committed an

oversight

when it failed to include Plaintiff in addressing One must further assume that the ruling only, was somehow incomplete, in that it

the So-Lite motions. in favor of So-lite

failed to include Fish in rendering its ruling, and that the Court further compounded the error by stating that all other 6
Case 2:03-cv-00067-SMM Document 132 Filed 05/16/2006 Page 6 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

pending motions were denied as

moot .

A plain reading of the language would be consistent with the Constitutional and procedural precepts. The Court granted

Plaintiff s motion for dismissal for lack of jurisdiction. Then, having determined that the Court had no binding power over Plaintiff, dismissed the remaining motions as moot in

that the Court did not have the jurisdictional basis to rule on them. Such a reading does not require the Court to make

any assumptions, strained interpretations or leaps of logic. As a final stab at cajoling this Court into believing that Judge Murguia really granting of intended to Plaintiff include him in the makes much of the

So-Lite s motion,

order in which Judge Murguia addressed the various motions before her in her Memorandum Order. Apparently Plaintiff

assumes that while Judge Murguia addressed So-Lite s Motion in the pages immediately preceding her analysis of his motion to dismiss for lack of personal jurisdiction, that somehow her ruling specifically to include addressing him, but So-Lite just failed motions to say were so.

intended

Plaintiff further argues that the Court must have ruled in his favor by finding substantive jurisdiction, but again, just failed to say so. Stated another way, Plaintiff contends that

the Court ruled in favor of So-Lite by name but erroneously excluded rulings. naming Fish in its asks order this with Court respect to to those Judge

Plaintiff

now

rewrite

Murguia s Order to read what Plaintiff 7
Case 2:03-cv-00067-SMM Document 132

assumes

the Order

Filed 05/16/2006

Page 7 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

really

meant

ignoring

what

it

plainly

says

so

that

Defendants

motion for summary judgment can be denied.

The truth of the matter is that the Order ruled on both motions simultaneously. The Order was issued on one date and There are no principles

addressed all the matters together.

of interpretation or law that support Plaintiff s illogical assumption that since Judge Murguia discussed So-Lite s motion at an earlier page number than his, she intended to include him in the So-Lite ruling. motions were rendered Despite Plaintiff s rambling only real moot . and quibble often with irrelevant the motion arguments, for summary It also fails to explain what

judgment appears to be Plaintiff s strained interpretation of Judge Murguia s Order. If Plaintiff s argument is to be

accepted, the Court must assume the order, as written, is in error and that rulings were made by Judge Murguia which were never written in the Memorandum Order. Court to assume they are there. only that this Court apply a Plaintiff asks this

As such, the Defendants ask logical reading of Judge

Murguia s Order.

Does it make sense that Judge Murguia would

rule on a substantive matter regarding Fish although she had determined that she did not have personal jurisdiction over him? Or does it make more sense that Judge Muruia ruled on

the So-Lite motion only as it pertained to So-Lite since she also decided that she had no authority to bind Fish with respect to any ruling? Defendants 8
Case 2:03-cv-00067-SMM Document 132 Filed 05/16/2006 Page 8 of 9

here urge that the latter

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

is the case and, therefore, that the Court should grant their motion for summary judgment. DATED this 16th day of May, 2006. HINSHAW & CULBERTSON LLP

By /s/Darrell S Dudzik Brian Holohan Darrell S. Dudzik Attorneys for Defendants CERTIFICATE OF SERVICE I certify that on the 16th day of transmitted the attached document the CM/ECF System for filing and Electronic Filing to the following Robert Hardy Falk, Esq. [email protected] Attorney for Plaintiff Michael G. Ackerman, Esq. [email protected] Co-counsel for Plaintiff By
/s/ Darrell S. Dudzik

May, 2006, I electronically to the Clerk s Office using transmittal of a Notice of CM/ECF registrants:

9
Case 2:03-cv-00067-SMM Document 132 Filed 05/16/2006 Page 9 of 9