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Deborah J. Wynn, pro se P. O. Box 45537 Phoenix, AZ 85064 (480) 231-3799

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) Plaintiff, ) ) vs. ) ) CALLAN APPRAISAL, INC. and JOHN ) ) CALLAN, ) Defendants. ) ) ) ) ) ) DEBORAH J. WYNN, Case No.: 2:09-cv-01587-RCJ PLAINTIFFS RESPONSE TO DEFENDANT CALLANS MOTION TO STRIKE PLAINTIFFS NOTICE OF FILING CROSS MOTION FOR SUMMARY JUDGMENT AND FAILURE OF DEFENDANT TO RESPOND AND MOTION TO STRIKE PLAINTIFFS CROSS MOTION FOR SUMMARY JUDGMENT (Assigned to Hon. Robert Clive Jones)

Plaintiff, Deborah J. Wynn, (Plaintiff) appearing pro se, pursuant to Fed. R. Civ. Proc. Rules 56 and 6(b)(2), hereby files her Response to Defendant Callans Motion to Strike Plaintiffs Notice of Filing Cross Motion for Summary Judgment and Failure of Defendant to Respond and Motion to Strike Cross Motion for Summary Judgment; and FURTHER, Plaintiff moves this Court to deny Defendants Motion to Strike Plaintiffs Notice of Filing Plaintiffs Cross Motion for Summary Judgment and Motion to Strike Plaintiffs Cross Motion for Summary Judgment (hereinafter Notice/Cross-Motion) for all the reasons as

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set forth in the Memorandum of Law included herewith, and pursuant to Fed. R. Civ. Proc. Rule 56 grant summary judgment in favor of Plaintiff. MEMORANDUM OF LAW I. INTRODUCTION. Plaintiff files this Response to Defendants Motion to Strike Notice/Cross-Motion to show the Court the reasons why Plaintiffs Cross Motion for Summary Judgment should not be stricken. On January 29, 2012, Plaintiff filed her Notice/Cross Motion [Docket #166] in direct response to Defendants filing his Motion for Reconsideration two (2) days prior [Docket #165]. Plaintiffs intent in filing the Notice was to put on record with the Court the fact Plaintiff had filed her Cross Motion for Summary Judgment inclusive with her Response to Defendants Motion for Summary Judgment, which had not been ruled on by the Court. Plaintiff points out to the Court that it could easily be construed by the filing of Defendants eight (8) page Motion for Reconsideration that was his response/argument to Plaintiffs Cross Motion for Summary Judgment. Further, it shows to Plaintiff, and assuming the same to the Court, any additional formal response to Plaintiffs Cross Motion for Summary Judgment would be redundant. Plaintiff showed through her legal argument in her Response/Cross to Defendants Motion for Summary Judgment that Defendant failed to show that there is no genuine issue of material fact to dispute entitling him to summary judgment. The Courts Order entered on

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January 10, 2012 is the proof. Those issues are the very same issues Plaintiff argues in her Cross Motion showing genuine issues giving her right to summary judgment in her favor. Defendant now comes before this Court with his Motion to Strike Plaintiffs Cross Motion for Summary Judgment as yet another tactic to cloud the real issues to be decided by this

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Court that of the continued and ongoing negligent misrepresentations made by Defendant to the detriment of Plaintiff. Based on the facts Plaintiff objects to Defendants Motion to Strike the Notice/Cross Motion and asks the Court to deny Defendant additional time to file a Response and grant summary judgment in favor of Plaintiff.

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II.

ARGUMENT Plaintiff does not argue the point in Defendants Motion to Strike regarding the

dispositive motion deadline as it relates to the two (2) Orders issued by the Court. At the same time, Plaintiff must remind the Court there were two (2) motions pending before this Court. These two (2) motions being the Motion to Extend the Discovery Deadline and Order Directing Defendants Disclosure of Expert Report and subsequent Motion to Compel Plaintiff to Answer Questions filed by Defendant. The ruling by this Court on the discovery extension was critical as to whether or not Plaintiff would be given additional time to depose Defendant Callan as their appointed expert. Further, the decision by the Court on both motions would have been instrumental in Plaintiffs determination of filing a Motion for Summary Judgment. In addition, Plaintiff reminds the Court that Defendant waited until the actual dispositive motion deadline to file his Motion for Summary Judgment, affording Plaintiff no time, or recourse, to file a timely Cross Motion for Summary Judgment. The Order on both Motions was issued by the Court on February 2, 2012. [Docket #168].

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The issue raised and objected to by Defendant in his Motion to Strike regarding Plaintiff filing her Cross-Motion relating to the same issues with her Response to Defendants timely Motion for Summary Judgment, is a matter that has been discussed and ruled on by other Courts. See, Conklin v. Triborough Bridge and Tunnel Authority, 49 AD 3d 320 - NY: Appellate Div.,

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1st Dept. 2008 (holding that plaintiff's untimely cross motion was not improperly considered since it sought relief on the same issues as were raised in defendants' timely motion). The Courts Order entered on January 10, 2012 denying Defendant summary judgment shows the Court considered both the Response/Cross Motion in determining its ruling. Those same issues and facts addressed in Defendants Motion for Summary Judgment are identical to those addressed in Plaintiffs Response/Cross Motion as to negligent misrepresentation by Defendant. See, Exxon Corp. v. St. Paul Fire & Marine Ins. Co., 129 F. 3d 781 - Court of Appeals, 5th Circuit 1997 (holding that in deciding on St. Paul's motion for summary judgment, the Court essentially treated Exxon's opposition of St. Paul's motion as a cross-motion for summary judgment and entered judgment in favor of Exxon). Plaintiffs argument on the issue her Cross-Motion for Summary Judgment was filed after the dispositive motion deadline is not absolute reason for it to be denied by the Court. See, Ellison v. C.I.R., 385 B.R. 158 (2008) (although defendant IRS disregarded the Courts scheduling guidelines it was found within the Courts discretion to consider an untimely motion when the moving party has failed to demonstrate any prejudice caused by the IRSs untimely filing). The only prejudice shown here is in the Courts Order denying Defendant summary judgment based on Plaintiffs Response and Cross Motion for Summary Judgment. Further, its a longstanding fact that Courts have the authority to award summary judgment in favor of a non-moving party, or a party to which has not asked for such relief. See,

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In re Caravan Refrigerated Cargo, Inc., 864 F.2d 388, 393 (5th Cir. 1989) quoting: Federal Rule of Civil Procedure 56 provides the requirements for submission of a motion for, and subsequent grant of summary judgment. The Advisory Committee Notes to the rules indicate that the policy goal that animates Rule 56 is the prompt disposition of cases when there is no genuine issue of any material fact for the court to consider. In order to achieve this goal, the rule thus requires a court,

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under the proper conditions, to grant the relief to which a party is entitled even if the party has not demanded such relief. The Court went on to quote "a district court may grant summary judgment for the non-movant

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sua sponte." Id.; and Gerber v. Long Boat Harbour, 757 F Supp. 1339 (M.D. Fla. 1991). Defendants major argument made in his Motion to Strike relates to the actual date that Plaintiff filed her Response/Cross Motion. Regardless of the fact that the Response/Cross Motion was filed separately from the Memorandum and Statement of Facts, all were filed in accordance with the rule of thirty (30) days, plus additional three (3) days allowed under Fed. R. Civ. Proc. Rule 6(e).1 Plaintiff has researched this issue on electronic filing, as well as the Fed. R. Civ. Proc. or LRCiv rules and found no rule to the contrary. Furthermore, although Defendant points out this fact as part of his argument to strike Plaintiffs Cross Motion for Summary Judgment, he failed to cite any rule or legal authority to back this argument in his Motion to Strike. Plaintiff points out to the Court that Defendant did not cite one single legal authority to substantiate his claim to be entitled to prevail on his Motion to Strike, and for that reason alone, the Court should deny. III. CONCLUSION Based on these facts shown by Plaintiff, she moves the Court to deny the Defendants Motion to Strike for the following reasons: (1) Plaintiffs cross-motion is limited to issues raised in Defendants motion; (2) each of the issues presented in Plaintiffs cross-motion are legal issues to be resolved by the Court; (3) Defendant has had opportunity to present his legal and factual arguments with respect to those issues; and (4) Defendant has presented no authority for

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its argument that Plaintiffs cross motion is improper.

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Note: Defendant incorrectly cited Fed. R. Civ. Proc. Rule 6(d) in the Motion to Strike on the three (3) day additional rule.

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Plaintiff adds to the foregoing the fact that this litigation has been ongoing for three (3) years, to which she has found no relief to which she is entitled. Additionally, Plaintiff was denied the settlement conference she requested, as well as her right to depose Defendant which is crucial if this matter goes to trial. Therefore, for all the reasons shown herein, along with the ongoing negligent misrepresentations made by Defendant, the Court should grant summary judgment in Plaintiffs favor pursuant to Fed. R. Civ. Proc. Rule 56. WHEREFORE, Plaintiff requests the Court to deny Defendants Motion to Strike Plaintiffs Notice of Failure to Respond and Plaintiffs Cross-Motion for Summary Judgment, deny Defendant any additional time to file a Response to Plaintiffs Cross Motion, and grant summary judgment in favor of Plaintiff. DATED this 5th day of February, 2012.

/s/ Deborah J. Wynn DEBORAH J. WYNN, Pro Se

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CERTIFICATE OF SERVICE I hereby certify that on the 5th day of February, 2012, pursuant to F.R.C.P. Rule 5(b), I served via CM/ECF a true and correct copy of Plaintiffs Response to Motion to Strike Plaintiffs Notice of Failure to Respond to Plaintiffs Cross-Motion for Summary Judgment and Motion to Strike the Cross Motion for Summary Judgment to:

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Barbara Berrett C. Ryan Christensen Berrett & Taylor, L.C. 2355 E. Camelback Road, Suite 618 Phoenix, AZ 85016 Attorneys for Defendants Callan

/s/ Deborah J. Wynn DEBORAH J. WYNN, Pro Se