Free Response to Motion - District Court of Colorado - Colorado

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

Document 345-55

Filed 02/16/2006

Page 1 of 3

EXHIBIT R

Case 1:03-cv-02485-MSK-PAC
",ii,

Document 345-55

Filed 02/16/2006

Page 2 of 3

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Sandy McElroy, III 12/14/2005 Camile Melonakis-Kurz, et aL. v. Heartland Home Finance, Inc.
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IN THE UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLORADO
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GEORGIA:
FULTON COUNTY: I hereby certify that I did appear at the above-referenced location on the above-referenced date and time for the taking of the deposition of SANDY McELROY, III; David J. Carr, Scott D. Matthews, and Jill M. Novak, Attomeys at Law, were present at the deposition; That I remained in attendance and ready to
take the above-referenced deposition until

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CAMILLE MELONAKIS-KURZ. individually and on behalf of other similarly

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situated employees.
Plaintiffs.
CIViL. ACTION

vs.

FILE NO. 0~MK-2485

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HEARTLAND HOME FINANCE, INC.,

Defendant.

9:57 a.m.;

CERTIFICATE OF NONAPPEARANCE FOR THE DEPOSITION OF SANDY McELROY, III December 14, 2005

8:58 a.m.
Tiffany Alley & Associates 400 Perimeter Center T efface

Atlanta. Gergia

Karen F. Gifford. RPR. CCR-B-1887

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The following statement was put on the

record: MR. CARR: We are now on the record for the
deposition of Sandy McElroy, ILL, and Mr. McElroy is a no-show. His deposition was noticed for 8:30 a.m., and we're all in agreement that that was the appointed time for his deposition. Mr. McElroy is a no-show and consequently we are making this record to reflect that

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fact. The defendant reserves all rights to seek
attorney's fees and costs and damages for Mr. McElroy's failure to appear, as well as his dismissal from the case with prejudice.

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APPEARANCES OF COUNSEL: On behalf of the Plaintiffs: JILL M. NOVAK, ESQ. Nicholas Kaster & Anderson, PLLP 4600 IDS Center 80 South Eighth Street Minneapolis, Minnesota 55402
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As I have said before when we've had
deponents not show up, i don't, by stating this,
Pàge 4 ,.

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intend to impugn-the-integrityofopposingcounsel;" who I believe has made appropriate and dilgent efforts to get her client to the deposition this morning, but those efforts have proved fruitless. And
deposition.

consequently, we will look to move forward to the next

(612) 256-3200
On behalf of the Defendant:

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DAVIDJ. CARR, ESQ.
SCOTT D. MATTHEWS, ESQ.
Ice Miler

One American Square Box 82001

Indianapolis, Indiana 46282'
(317) 236-5840
Also Present: Mr. Thomas E. Beck,

Heartand Home Finance

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MS. NOVAK: I'd like to put something on the record really quick. i did speak with Mr. McElroy yesterday for a couple of minutes, who told me he would be showing up for his deposition this morning. I also spoke with him this moming and he told me that he was having trouble finding the place. I tried to give him directions as best I could; I'm not familiar with the Atlanta area. He said that he was intending to show up, and I just haven't been able to get a hold of him to find out what exactly happened. MR. CARR: Nothing further. MS. NOVAK: Nothing further.
(Thereupon, a recess ensued at 9:00 a.m. and the proceedings subsequently resumed at approximately 9:55 a.m. with all parties
approximately

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present. )

MR. CARR: It's now approximately 9:55 a.m.,
Eastern Standard Time, and Mr. McElroy has checked in,

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Paradigm Reporting & Captioning Inc. 612-339-0545

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

Document 345-55

Filed 02/16/2006

Page 3 of 3

Sandy McElroy, II 12/14/2005

Camile Melonakis-Kurz, et aL. v. Heartland Home Finance, Inc.

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apparently, and has indicated, though, that he had trouble finding the location and now is not intending to appear today for his deposition. He has offered to reschedule his deposition, but this deposition was noticed and scheduled for

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MS. NOVAK: I can't recall the name, but it was in Cleveland.

MR. CARR: We did wait an extraordinarily
long period of time for Mr. Sanford to show.

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today, at 8:30, and he did not show. He claims to
have made an effort to find this location, but those efforts were unsuccessful, and it is not incumbent

MS. NOVAK: It wasn't Mr. Sanford, though. MR. CARR: It was not Mr. Sanford? MS, NOVAK: No. i can't recall the name at
this time. All I want to get on the record is that we are trying to get him in here. i understand that there's a time constraint because you are leaving to go back home, so I'm trying to do everyhing i can at this time.

upon us to reschedule to fi his convenience, when we
attempted to fit his convenience by being here in Atlanta at the agreed upon time and location, Consequently, we continue to reserve all rights to seek sanctions, up to and including dismissal of Mr. McElroy from this case for his failure to appear this moming. MS. NOVAK: i just want to make a note on the

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record.
When I spoke to Mr. McElroy this morning, he said he didn't know, he thought he probably needed to reschedule because he didn't know if he could get out

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MR. CARR: And, again, i continue to cast no
aspersions on opposing counseL. I don't view them as being at fault for this. i do view Mr. McElroy as
being at fault, and if he shows up

here, as far as I'm

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of work. I told him that he did need to show up
left him a message on his work phone. Michele Fisher, another attorney that works at Nichols Kaster and Anderson, also left messages for him, and we are trying to get him in here today. So i just
today. I

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concerned, at any time after right now, we are not going to do his deposition because he failed to show at the appointed time and we have waited as long for him as we waited for other deponents who did show up. And so I just want to make clear what my position is on that and we shall go forth accordingly. MS. NOVAK: Okay. That at 9:57 a.m. the deposition was

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wanted to put that on the record. MR. CARR: And the only thing, as I shared

adjoumed.
i further certify that I am not a relative or

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with Miss Novak off the record, my flght is leaving today, because i was only intending to take the first deposition, and so coming in some time today won't get

employee or attomey or counsel of any of the parties,
nor am I a relative or employee of such attomey or counsel, nor am I financially interested in the action.

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m.

m_

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the job done. He needs to be here at the appointed
time for his deposition, and he has not shown up at that time, and, therefore, this deposition is not going to take place today because of his failure to ...n""__.'__"_'____'__ _.__ __n_____________________

This the 21st day of December, 2005.

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-m appear.
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to
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Karen F.Gifford, RPR,mCCR-I3~1881

MS. NOVAK: And I just want to put something on the record. I recall that we waited for a deposition for approximately three hours that you wanted to take as welL. So I'm going to make every effort that I can to get him in here before Mr. Carr actually has to leave on his flight today.

MR. CARR: And if he gets here just before I
have to leave for my flight, that won't work. I am not aware of a deposition we waited three hours for. Mr. Sanford, I believe, we waited for an hour. And that's why, actually, I was watching

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my clock, to make sure that we waited every bit as long for Mr. McElroy this moming as we waited for Mr. Sanford in Cleveland. So there may be another one that I'm not familar with.

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Paradigm Reporting & Captioning Inc. 612-339-0545

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