Free Motion for Attorney Fees - District Court of Arizona - Arizona

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FENNEMORE CRAIG , P.C.
P HOENIX

FENNEMORE CRAIG Ronald J. Stolkin (No. 002552) Michele L. Tyler (No. 019344) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Attorneys for Defendant Phelps Dodge Corporation

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA STUART MARCUS, an individual, Plaintiff, v. PHELPS DODGE CORPORATION, a New York Corporation, Defendant. DEFENDANT PHELPS DODGE CORPORATION'S RENEWED MOTION FOR ATTORNEYS' FEES/NOTICE OF SCRIVENER'S ERROR No. CIV 02 00913 PHX SMM

Defendant Phelps Dodge Corporation ("PD") renews its motion for attorneys' fees, previously filed on April 19, 2005, and corrects a scrivener's error in the amount of attorneys' fees requested. This Court entered summary judgment in favor of PD on all seven of plaintiff's claims, including plaintiff's breach of contract claim, on March 29, 2005. On April 19, 2005, PD filed a motion for attorneys' fees, pursuant to A.R.S. § 12-341.01(A), which provides for an award of attorneys' fees to the successful party in an action arising out of contract. Plaintiff thereafter appealed the Court's Order granting summary judgment. In light of the appeal, this Court concluded that "it would be imprudent to resolve the pending Motion for attorneys' fees at [the] time" and denied the motion without prejudice and with leave to re-file upon the Ninth Circuit's resolution of the appeal. (See Order, dated April 29, 2005, attached as Exhibit A.)

Case 2:02-cv-00913-SMM

Document 115

Filed 10/02/2007

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FENNEMORE CRAIG , P.C.
P HOENIX

On September 10, 2007, the Ninth Circuit affirmed the Court's award of summary judgment to PD on all claims. (See Memorandum Decision, attached as Exhibit B.) The time for plaintiff to file a petition for rehearing expired on September 24 and no such petition was filed. Accordingly, PD renews its Motion for Attorneys' Fees and

Memorandum of Points and Authorities in Support of Attorneys' Fees, both originally filed on April 19, 2005. PD incorporates by reference the facts, arguments and legal citations of the Motion and Memorandum into this renewed motion as if fully set forth herein. PD makes, however, the following correction: the amount of requested

reasonable attorneys' fees should be $25,822.51, rather than $180,757.60. Although the Motion and its Memorandum in Support sought only the portion of the reasonable attorneys' fees related to the contract claim (one-seventh of the total), the full amount was inadvertently requested, rather than the fraction attributed to the contract claim. PD, therefore, requests that the Court award PD its reasonable attorneys' fees in the amount of $25,822.51. DATED this 2nd day of October, 2007. FENNEMORE CRAIG

By

s/ Michele Tyler Ronald J. Stolkin Michele L. Tyler Attorneys for Defendant Phelps Dodge Corporation

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1976703.1

Case 2:02-cv-00913-SMM

Document 115 2 - Filed 10/02/2007

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FENNEMORE CRAIG , P.C.
P HOENIX

CERTIFICATE OF SERVICE I hereby certify that on October 2, 2007, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Loretta Jacobs-Schwartz 8687 E. Via de Ventura, Suite 306 Scottsdale, AZ 85258 Eileen Dennis GilBride Jones, Skelton & Hochuli 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorney for Plaintiff

s/ Barbara J. Dewell

1976703.1

Case 2:02-cv-00913-SMM

Document 115 3 - Filed 10/02/2007

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