Free Motion for Leave - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 357

Filed 02/23/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:03-cv-02485-MSK-PAC Camille Melonakis-Kurz, individually and on behalf of other similarly situation employees, and other individuals who have consented to join this action, Plaintiff, v. Heartland Home Finance, Inc., Defendant. ______________________________________________________________________________ MOTION FOR LEAVE TO TAKE THE DEPOSITION OF RON GUNDEL ______________________________________________________________________________ Comes now Defendant Heartland Home Finance, Inc. ("Heartland" or "Defendant"), by counsel, and hereby requests that the Court grant Defendant leave to take the deposition of Ron Gundel ("Gundel"), and for costs and attorney fees for the preparation of this motion. In support of this motion, Defendant states as follows: 1. Defendant properly coordinated prior attempts to depose Gundel. (For details, see

Defendant's Motion for Sanctions Against Ron Gundel filed simultaneously with this Court.) 2. Counsel for Defendant conferred in good faith with Plaintiffs' counsel to schedule

mutually agreeable dates of depositions. 3. Despite repeated attempts to find a mutually agreeable date for his deposition and

even reaching agreement, on three separate occasions, Gundel failed to appear each time.

Case 1:03-cv-02485-MSK-PAC

Document 357

Filed 02/23/2006

Page 2 of 4

4.

Defendant's counsel continued its efforts to reschedule Gundel's deposition during

the months of January and February 2006. On February 15, 2006, Plaintiffs' counsel informed Defendant's counsel that Gundel would be available on February 17, 2006. Despite the

incredibly short notice, Defendant's representative and counsel agreed to travel to Cleveland to take Gundel's deposition on that date. 5. On February 16, 2006, Defendant's counsel faxed Plaintiffs' counsel written

notice of Gundel's deposition. 6. On February 17, 2006, Defendant's representatives and counsel traveled to

Cleveland to depose Gundel. 7. On February 17, 2006, Plaintiffs' counsel notified Defendant's counsel, one hour

prior to the scheduled start time of the deposition, that Gundel would not appear. That same day, Gundel gave notice of withdrawal from this action. 8. deposition. 9. The deadline for discovery in this matter is February 23, 2006. Due to Gundel's repeated failure to appear for his deposition and due to no fault of Defendant, Heartland will be unable to depose Gundel before the deadline. 10. Gundel's testimony remains important to Defendant's defense. As the discovery deadline in this case is February 23, 2006 and Defendant has made every reasonable effort to take the deposition of Gundel prior to the deadline, Defendant requests leave to depose Gundel at a time of reasonable mutual convenience to counsel for the parties. Heartland, in good faith, conferred with Plaintiffs' counsel to arrange Gundel's

-2-

Case 1:03-cv-02485-MSK-PAC

Document 357

Filed 02/23/2006

Page 3 of 4

Respectfully submitted, ICE MILLER LLP s/ David J. Carr David J. Carr, IN Attorney No. 4241-49 Steven F. Pockrass, IN Attorney No. 18836-49 Margaret Wielenberg, IN Attorney No. 23858-49A Beth Hatfield, IN Attorney No. 24932-49 Elizabeth T. Raymond, IN Attorney No. 24637-49 Eileen P. Huff, IN Attorney No. 25957-49 ICE MILLER LLP One American Square, Suite 3100 Indianapolis, IN 46282-0200 (317) 236-2100 (317) 236-2219 Fax [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Sean R. Gallagher HOGAN & HARTSON LLP 1200 Seventeenth St., Suite 1500 Denver, CO 80202 [email protected] Attorneys for Defendant, Heartland Home Finance, Inc.

-3-

Case 1:03-cv-02485-MSK-PAC

Document 357

Filed 02/23/2006

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on February 23, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Donald H. Nichols [email protected] Paul J. Lukas [email protected] Michele R. Fisher [email protected] Sarah M. Fleegel [email protected] Jill M. Novak [email protected] Rachhana T. Srey [email protected] NICHOLS, KASTER & ANDERSON and I hereby certify that I have mailed or served the forgoing document to the following non CM/ECF participant by Certified Mail, Return-Receipt Requested, to: Ron Gundel 5177 Fenn Road Medina, Ohio 44256

s/ David J. Carr David J. Carr Attorney for Defendant, Heartland Home Finance, Inc. ICE MILLER LLP One American Square, Suite 3100 Indianapolis, IN 46282-0200 (317) 236-2100 (317) 236-2219 Fax [email protected]

-4INDY 1694032v1