You're viewing Docket Item 80 from the case Securities and Exchange Commission v. Jenkins. View the full docket and case details.

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Case 2:09-cv-01510-GMS Document 80 Filed 11/15/10 Page 1 of 6





JOHN W. SPIEGEL (Pro Hac Vice)
[email protected]
GREGORY J. WEINGART (Pro Hac Vice)
[email protected]
MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
Thirty-Fifth Floor
Los Angeles, CA 90071-1560
Telephone:
(213) 683-9100
Facsimile:
(213) 687-3702
Attorneys for Defendant
Maynard L. Jenkins

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

SECURITIES AND EXCHANGE
COMMISSION,

Plaintiff,

v.

MAYNARD L. JENKINS,
Defendant.






12305490.1



CASE NO. CV-09-01510-PHX-GMS
NOTICE OF MOTION AND MOTION BY
DEFENDANT MAYNARD L. JENKINS TO
STRIKE PLAINTIFF’S (1)
“SUPPLEMENTAL SEPARATE
STATEMENT OF MATERIAL FACTS,” (2)
NEW EVIDENCE SUBMITTED WITH
PLAINTIFF’S REPLY AND (3)
OBJECTIONS TO DEFENDANT’S
RESPONDING SEPARATE STATEMENT
OF MATERIAL FACTS

MEMORANDUM OF POINTS AND
AUTHORITIES

Date: December 10, 2010
Time: 9:00 A.M.
Place Courtroom 602
(Hon. G. Murray Snow)




DEFENDANT’S NOTICE OF
MOTION & MOTION TO STRIKE

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Case 2:09-cv-01510-GMS Document 80 Filed 11/15/10 Page 2 of 6



PLEASE TAKE NOTICE that on December 10, 2010, at 9:00 a.m. in Courtroom

602 of the United States District Court for the District of Arizona, located at 401 W.
Washington Street, Phoenix, Arizona, or as soon thereafter as counsel may be heard,
Defendant Maynard L. Jenkins will, and hereby does, move, pursuant to Rule 7.2(m)(1) of
the Local Rules of Civil Procedure of this Court to strike the following documents filed by
Plaintiff with its Reply in support of Plaintiff’s Motion for Partial Summary Judgment on
the ground that Plaintiff’s filing of these documents is prohibited and not authorized by
statute, rule or court order:

1.
2.

Plaintiff’s Supplemental Separate Statement Of Material Facts;
Exhibit 29 to the Supplemental Searles Declaration submitted with

Plaintiff’s Reply; and

3.

Plaintiff’s Objections To Defendant’s Responding Separate Statement Of

Material Facts.

This Motion to Strike is based upon this Notice of Motion and Motion, the attached

Memorandum of Points and Authorities, the pleadings and records on file in this action,
and such further argument as may be offered in any Reply or at the time of the hearing on
this Motion.

DATED: November 15, 2010



Munger, Tolles & Olson LLP

By: /s/ Gregory J. Weingart
Gregory J. Weingart

Attorneys for Defendant
Maynard L. Jenkins



12305490.1



2

DEFENDANT’S NOTICE OF
MOTION & MOTION TO STRIKE

Case 2:09-cv-01510-GMS Document 80 Filed 11/15/10 Page 3 of 6



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MEMORANDUM OF POINTS AND AUTHORITIES

Rule 7.2(m)(1) of the Local Rules of Civil Procedure of this Court states, in

pertinent part, as follows:

Unless made at trial, a motion to strike may be filed only . . . if it
seeks to strike any part of a filing or submission on the ground that it
is prohibited (or not authorized) by a statute, rule, or court order.

Defendant Maynard L. Jenkins brings this Motion because with its Reply in support of its
Motion for Partial Summary Judgment Plaintiff has filed the following documents that are
prohibited and not authorized by statute, rule or court order:

1.
2.

Plaintiff’s Supplemental Separate Statement Of Material Facts;
Exhibit 29 to the Supplemental Searles Declaration, consisting of what

Plaintiff’s counsel describes as “FBI 302 reports” “ summarizing the disclosures made by
CSK’s outside counsel to the U.S. Department of Justice, the F.B.I, the I.R.S., and the
U.S. Postal Inspection Service, regarding the results of CSK’s internal investigation;” and

3.

Plaintiff’s Objections To Defendant’s Responding Separate Statement Of

Material Facts

1. Plaintiff’s Supplemental Separate Statement Of Material Facts

Should Be Stricken.

LRCiv 56.1(a) provides that “[a]ny party filing a motion for summary judgment
shall file a statement, separate from the motion and memorandum of law, setting forth
each material fact on which the party relies in support of the motion.” Plaintiff filed such
a Separate Statement with its Motion. Neither the Local Rules of this Court, nor the
Federal Rules of Civil Procedure1, authorize Plaintiff to file an additional “Supplemental
Separate Statement” with its reply. Allstate Ins. Co. v. Ford Motor Co., 2010 WL
1654145, at *11 (D. Ariz., Apr. 21, 2010) (Wake, D.J.) (“LRCiv 56.1 does not permit
moving parties to file additional statements of fact along with their replies.”)
Accordingly, Plaintiff’s Supplemental Separate Statement should be stricken. Moreover,
this is particularly true, since Plaintiff’s Supplemental Statement seeks to rely on new

1 See Federal Rules of Civil Procedure, Rule 56(c)(1)(C): “movant may file a reply . . . .”

DEFENDANT’S NOTICE OF
12305490.1
MOTION & MOTION TO STRIKE





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Case 2:09-cv-01510-GMS Document 80 Filed 11/15/10 Page 4 of 6



“evidence” which, as shown in the next section, Plaintiff is prohibited from doing.

2. Exhibit 29 To The Supplemental Searles Declaration Should Be

Stricken.

In filing its Motion, Plaintiff sought to rely on CSK’s Second Restatement and

supposed “admissions” by Messrs. O'Brien , Opper and Jenkins that there was accounting
“misconduct” at CSK. Now. to try to prove “misconduct,” with its Reply Plaintiff seeks
to submit as new, additional “evidence” Exhibit 29 to the Supplemental Searles
Declaration, which Plaintiff’s counsel describes (id., ¶11) as “FBI 302 reports”
“summarizing the disclosures made by CSK’s outside counsel to the U.S. Department of
Justice, the F.B.I, the I.R.S., and the U.S. Postal Inspection Service, regarding the results
of CSK’s internal investigation.” Exhibit 29 should be stricken.

The law is settled in the Ninth Circuit “that raising of new issues and submission of

new facts in [a] reply brief is improper.” Schwartz v. Upper Deck Co., 183 F.R.D. 672,
682 (S.D. Cal. 1999), citing Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996)
(“[w]here new evidence is presented in a reply to a motion for summary judgment, the
district court should not consider the new evidence without giving the [non-]movant an
opportunity to respond.” [internal quotes omitted]). “The remedy for dealing with new
evidence first appearing in a reply is that we will not consider issues or evidence raised for
the first time in defendant's reply.” American Traffic Solutions, Inc. v. Redflex Traffic
Systems, Inc., 2009 WL 775104, at *1 (D. Ariz. Mar. 20, 2009) (Martone, D.J.), citing
Gadda v. State Bar of Cal., 511 F.3d 933, 937 n. 2 (9th Cir. 2007). Moreover, Exhibit 29
should be stricken because it is inadmissible triple hearsay. It consists of written “reports”
prepared by the FBI “summarizing” statements purportedly made to the FBI “by CSK’s
outside counsel” of what the lawyers learned from statements of CSK employees and
from reviewing CSK documents. The SEC does not attempt to explain why such triple
hearsay should be admissible.2

2 Because Plaintiff submitted these Reports for the first time with its Reply, Defendant, of
course, could not assert its evidentiary objection to the Reports in its Responding
Memorandum of Points and Authorities, as provided in LRCiv 7.2(m)(2).

12305490.1



DEFENDANT’S NOTICE OF
MOTION & MOTION TO STRIKE

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Case 2:09-cv-01510-GMS Document 80 Filed 11/15/10 Page 5 of 6



3. Plaintiff’s Objections To Defendant’s Responding Separate

Statement Of Material Facts Should Be Stricken.

Rule 7.2(m)(2) of the Local Rules of Civil Procedure states unequivocally:

An objection to the admission of evidence offered in support of or
opposition to a motion must be presented in the objecting party’s
responsive or reply memorandum (or, if the underlying motion is a
motion for summary judgment, in the party’s response to another
party’s separate statement of material facts) and not in a separate
motion to strike or other separate filing. Any response to the
objection must be included in the responding party’s reply
memorandum for the underlying motion and may not be presented in
a separate responsive memorandum.

Plaintiff has violated this straightforward rule by submitting a separate document of
“Objections” arguing that the Court should not consider the evidence submitted by
Defendant in support of his “Statement of Additional Facts That Establish Genuine Issues
Of Material Fact.” These “Objections” should be stricken because they violate LRCiv
7.2(m)(2) and consist of five pages of additional argument that should have been included
in Plaintiff’s already 11-page Reply memorandum. See LRCiv 7.2(3) (reply
memorandum limited to 11 pages).

DATED: November 15, 2010



Munger, Tolles & Olson LLP

By: /s/ Gregory J. Weingart
Gregory J. Weingart

Attorneys for Defendant
Maynard L. Jenkins

3

DEFENDANT’S NOTICE OF
MOTION & MOTION TO STRIKE




12305490.1



Case 2:09-cv-01510-GMS Document 80 Filed 11/15/10 Page 6 of 6



CERTIFICATE OF SERVICE

I hereby certify that on November 15, 2010, I electronically filed the foregoing with the

Clerk of Court using the CM/ECF system and I served a copy of the foregoing pleading on all

counsel for all parties, via the CM/ECF system and/or mailing same by United States Mail,

properly addressed, and first class postage prepaid, to all counsel of record in this matter.













/s/ Gregory Weingart
Gregory Weingart



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12305490.1





DEFENDANT’S NOTICE OF
MOTION & MOTION TO STRIKE