MDY Industries, LLC v. Blizzard Entertainment, Inc. et al

Filing 159

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MDY Industries, LLC v. Blizzard Entertainment, Inc. et al Doc. 15 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 FENNEMORE CRAIG, P.C. P HOENIX FENNEMORE CRAIG, P.C. Graeme Hancock (No. 007190) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: Attorneys for Defendant The Goodyear Tire & Rubber Company UNITED STATES DISTRICT COURT DISTRICT COURT OF ARIZONA LEROY and DONNA HAEGER, husband and wife; BARRY and SUZANNE HAEGER, husband and wife; FARMERS INSURANCE COMPANY OF ARIZONA, an Arizona corporation, Plaintiffs, v. GOODYEAR TIRE AND RUBBER COMPANY, an Ohio corporation; SPARTAN MOTORS INC., a Michigan corporation; Defendants. No. CV05-2046-PHX-ROS RESPONSE TO DONNA HAEGER'S MOTION FOR SUBSTITUTION Docket 640] Defendants Goodyear and Spartan ("Defendants") respond to Plaintiff Donna Haeger's Motion for Substitution as the Personal Representative of the Estate of LeRoy Haeger [Docket 640], stating that they have no objections to the proposed substitution of parties following Mr. Haeger's otherwise unrelated death. Defendants object, however, to the bulk of Plaintiffs' brief, which argues issues concerning the appropriate choice of law. In addition to being substantively in error, Plaintiffs' choice of law briefing ignores the existing Order expressly deferring choice of law issues until after the Court's ruling on the 2132664 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 FENNEMORE CRAIG, P.C. P HOENIX pending dispositive motions. See Order, February 28, 2008 [Docket 472] ("Therefore, the Court will defer resolution of the choice-of-law issue until after resolution of the summary judgment motions."). As the Court will recall, Plaintiffs asked to suspend briefing on the pending dispositive motions for new briefing on the choice of law issues, arguing that choice of law decisions were prerequisite to deciding the pending motions for summary judgment. See Docket 424, 426. Defendants' opposition argued that those motions were not dependent on any choice of law issue and that the Court should defer such issues until the Court could rule on the pending dispositive motions. See Docket 428. After receiving briefs on the Plaintiffs' choice of law issues, the Court followed the Defendants' proposal, noting that Plaintiffs' choice-of-law issues were not relevant to the dispositive motions and that it would defer resolution of Plaintiffs' questions until a later date. Order, Dated 2/28/08 [Docket 472] ("The court agreed to suspend briefing on the motions for summary judgment to resolve the choice-of law issue because it assumed that this issue related to the substance of the summary judgment motions. Upon reviewing the briefs, this does not appear to be the case."); see Docket 453, 454, 461, 462. The Court has not issued any order asking for additional briefing on choice of law issues or reversing its decision to defer consideration on these issues until after its rulings on the pending motions for summary judgment. In short, Plaintiffs appear to be briefing matters that are not part of, or needed for, the pending motions for summary judgment or Plaintiffs' motion to substitute the executor of Mr. Haeger's estate for Mr. Haeger.1 The parties have several other important issues to raise, depending on the outcome Plaintiffs' motion implies some difference in the substantive law of New Mexico and Arizona that somehow affects or justifies raising choice of law in their motion. However, the substitution of Mr. Haeger's estate would be appropriate in this Court, regardless of any subsequent ruling on any choice of law issue. Rule 25, Fed. R. Civ. Pro.; See e.g., Arizona Rules of Civil Procedure Rules 17(a), 25 (Arizona law permits substitution of personal representatives); ARS 14-3110 (Arizona's survival statute). 1 2132664 -2- 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 FENNEMORE CRAIG, P.C. P HOENIX of the pending motions for summary judgment.2 While the Court can grant the motion to substitute parties, without objection, Plaintiffs' extended briefing on choice of law is both unwarranted and unnecessary at this stage. Defendants ask that the Court allow Defendants the opportunity to respond to Plaintiffs' additional briefing on these new choice of law arguments when, and if, that becomes appropriate. Dated this 20th day of November 2008. FENNEMORE CRAIG By s/ Graeme Hancock Graeme Hancock Attorneys for Defendant The Goodyear Tire & Rubber Company LISA G. LEWALLEN, PLLC By s/ Lisa G. Lewallen, with permission Lisa G. Lewallen Attorney for Defendant Spartan Motors There are, for example, motions regarding Plaintiffs' spoliation of the accident scene the accident vehicle and the vehicle's data recorder. Docket 392, 410; See Docket 436 (denying motions without prejudice and with leave to be renewed at appropriate time). 2 2132664 -3- 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 FENNEMORE CRAIG, P.C. P HOENIX CERTIFICATE OF SERVICE I hereby certify that on 11/ 20 /08, 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: David L. Kurtz THE KURTZ LAW FIRM 7420 East Pinnacle Peak Road Building D, Suite 128 Scottsdale, Arizona 85255 James M. Abernethy ABERNETHY & GREEN, P.L.C. 3838 Central Avenue, Suite 1750 Phoenix, AZ 85012 Michael J. O'Connor Jennings, Strouss & Salmon, PLC 201 East Washington Street, 11th Floor Phoenix, AZ 85004-2385 Blanca Quintero COZEN O'CONNOR 501 West Broadway, Suite 1610 San Diego, CA 92101 Lisa G. Lewallen Lisa G. Lewallen, PLLC P.O. Box 33430 Phoenix, AZ 85067 s/ Nancy Rimsek 2132664 -4-

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