Free Uncategorized - District Court of Arizona - Arizona

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 27 28

Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) [email protected] Dawn C. Valdivia (#020715) [email protected]

Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-EHC REPLY IN SUPPORT OF MOTION FOR LEAVE AND TO COMPEL DEPOSITION OF CHERI MELLE AND FOR SANCTIONS

Plaintiff Marcela Johnson ("Johnson") replies in support of her Motion for Leave and to Compel Deposition of Cheri Melle ("Melle") and for Sanctions. Plaintiff's Motion should be granted because Plaintiff has shown good cause for her request to take Melle's deposition after the discovery deadline. The Court's Order dated February 28, 2005, provides that "[a] deposition may be taken after her close of discovery only by leave of court obtained upon a showing of good cause..." [Dkt. No. 9]. "Good cause" should be liberally construed. Export-Import

Bank of the United States v. Asia Pulp & Paper Co., LTD, 233 F.R.D. 228, 342 (S.D.N.Y. 2005) (citing Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1522.1 (1990). To demonstrate good cause, the moving party must show that the relevant deadline could not reasonably be met despite that party's diligence. Fed. R. Civ. P. 16 advisory committee's notes (1983 amendment); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Johnson has demonstrated good cause because she diligently tried to schedule Melle's deposition prior to the discovery deadline. Contrary to Schwab's assertions, Johnson first asked for dates to take Melle's deposition on December 1, 2005. See letter
Case 2:04-cv-00790-EHC Document 161 Filed 06/19/2006 Page 1 of 3

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 27 28

to Michelle Ganz attached as Exhibit A. Schwab ignored this request. Johnson subsequently, on several occasions, asked Schwab's counsel for dates to take Melle's deposition. Schwab responded that Melle and her husband were suffering from serious health issues, but that dates would be provided. Johnson's counsel told Schwab's counsel that it was her understanding Schwab would not object to taking Melle's deposition outside of the discovery deadline and specifically said "If this is an issue, we can raise it with the judge next week." Exhibit E to Motion for Leave and to Compel Deposition of Cheri Melle at Dkt. No. 154. Ms. Gillen responded "We contacted Cheri Melle upon her return. She reported that her husband was facing serious medical issues. I will follow up with her again today." Id. Schwab now contends that Johnson should not have relied on Ms. Gillen's statements, but should have instead unilaterally noticed Melle's deposition despite her representations regarding Melle and her husband's health issues. Schwab's argument flies in the face of common sense and professional courtesy. The only reason that Johnson did not unilaterally notice Melle's deposition and seek leave from this Court was because Schwab indicated that Melle and her husband were suffering from serious medical conditions. See Export-Import Bank of the U.S., 233 F.R.D. at 343 (good cause shown where moving party relied on assurances about witness by special non-party). Johnson would have appeared callous to the serious nature Melle's health issues if she had unilaterally issued her a subpoena. Plaintiff should not be penalized for relying on statements made by Schwab's counsel. For the foregoing reasons, Johnson respectfully requests this Court to grant Johnson leave to take Melle's deposition beyond the discovery cut-off and to compel Melle to appear for her deposition. Johnson also respectfully requests that she be awarded the costs of filing this Motion for Schwab's dilatory tactics regarding this matter. RESPECTFULLY SUBMITTED this 19th day of June, 2006.

Case 2:04-cv-00790-EHC

Document 161 -2- Filed 06/19/2006

Page 2 of 3

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 27 28
Case 2:04-cv-00790-EHC

QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson

I hereby certify that on June 19, 2006, I electronically transmitted the attached document to the Clerk's office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the following CM/ECF registrants: Joseph T. Clees Karen Gillen Nonnie Shivers Ogletree, Deakins, Nash, Smoak & Stewart, P.C. A copy of this document was provided to The Honorable Earl H. Carroll s/Dawn C. Valdivia
QBPHX\115637.00002\2020421.1

Document 161 -3- Filed 06/19/2006

Page 3 of 3