Free Motion to Strike - District Court of Arizona - Arizona

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Timothy A. Shimko (PRO HAC VICE) (OSBN 0006736) David A. Welling (PRO HAC VICE) (OSBN 0075934) TIMOTHY A. SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) Case No. CV-04-78-FJM Judge Frederick J. Martone PLAINTIFF'S MOTION TO STRIKE DEFENDANT WOODCOCKS' AMENDED MOTION TO DISMISS CLAIMS AND MOTION FOR SUMMARY JUDGMENT AND MOTION FOR SANCTIONS

TIMOTHY A. SHIMKO, Plaintiff, v. DAVID GOLDFARB and RICHARD ROSS, et al., Defendants.

NOW COMES the Plaintiff, Timothy A. Shimko, and hereby submits his motion to strike: 1) the Defendant Woodcocks' amended motion to dismiss claims and motion for summary judgment and motion for sanctions (Document No. 198), and 2) the Defendant Woodcocks' amended statement of facts (Document No. 199). The basis for this motion to strike the Woodcock Defendants' amended motion for summary judgment is because this Court previously established the dispositive motion cutoff date in its Rule 16 Scheduling Order (Document No. 163). In this Court's Rule 16 Scheduling Order this Court set the dispositive motion deadline as March 31, 2008. (See Paragraph No. 10 of the Scheduling Order.) This Court further stated on the first page of the Rule 16 Scheduling Order that there will be "no extensions to the dispositive motion cutoff date."

Case 2:04-cv-00078-FJM

Document 200

Filed 04/21/2008

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The Woodcock Defendants' amended motion for summary judgment should be stricken from the record because it was filed late on April 18, 2008, which was eighteen (18) days late! The Woodcock Defendants disregarded this Court's Rule 16 Scheduling Order in filing their amended motion. The Woodcocks have not followed this Court's Rule 16 Scheduling Order and their

untimely motion should be stricken from the record. Notably, the Woodcocks had previously filed a motion for summary judgment on March 31, That motion was timely filed and should stand as the Woodcocks' operative motion.

Plaintiff's counsel has been diligently preparing a response to the Woodcocks' original motion for summary judgment, and it is unfair to now permit the Woodcocks to file another motion for summary judgment, which is late, and which will require the Plaintiff to begin anew in preparing a response brief and contradicting statement of facts. As part of the Woodcocks' reasoning for filing

13 14 15 16 17 18 19 20 Wherefore, the Plaintiff requests that the Court strike the Woodcocks' amended motion for 21 22 23 24 25 26 summary judgment and the accompanying amended statement of facts that was filed in support. Documents Nos. 198 and 199 should be stricken from the record. their motion late, they argue that Shimko's deposition wasn't completed until March 24, 2008. This, however, is no basis for their late motion. The Woodcocks were not diligent in attempting to secure Shimko's deposition sooner. Further, the Woodcocks' amended motion would only serve to further delay these proceedings because the Plaintiff would then need 30 days to respond to the amended motion, which would put the Plaintiff's response date out 18 days past this Court's Rule 16 opposition brief deadline (which is currently set for April 30, 2008).

Case 2:04-cv-00078-FJM

Document 200

Filed 04/21/2008

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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 /s/ Mildred Pacheco Roger L. Cohen, Esq. Jaburg & Wilk, P.C. 3200 North Central Avenue, Ste. 2000 Phoenix, Arizona 85012 [email protected] Counsel for Defendant Ross Richard J. McDaniel, Esq. 11811 N. Tatum Blvd., Ste. 1051 Phoenix, Arizona 84208 Counsel for Defendants Woodcock Mr. and Mrs. David Goldfarb 11437 N. 53rd Place Phoenix, Arizona 85254 Defendants Milton and Kathi Guenther 3642 E. Rockwood Phoenix, Arizona 84032 Defendants in pro per COPY of the foregoing electronically filed and served this 21st day of April, 2008 upon: By: /s/ Timothy A. Shimko Timothy A. Shimko (OSBN 0006736) David A. Welling (OSBN 0075934) 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiff RESPECTFULLY SUBMITTED on this 21st day of April, 2008. TIMOTHY A. SHIMKO & ASSOCIATES

Case 2:04-cv-00078-FJM

Document 200

Filed 04/21/2008

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