Free Response to Motion - District Court of Arizona - Arizona

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FENNEMORE CRAIG Jordan Green (No. 001860) Charles Houston (No. 020844) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, No. CV2004-0621 PHX SRB

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AVNET' RESPONSE TO PLAINTIFF' S S MOTION FOR SANCTIONS1 (Assigned to The Hon. Susan R. Bolton) (ORAL ARGUMENT REQUESTED)

AVNET, INC., a foreign corporation, Roy Vallee and Jane Doe Vallee, husband and wife; and ALLEN MAAG and JANE DOE MAAG, husband and wife, Defendants.

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Defendants respectfully request that plaintiff' motion for sanctions be denied s because: (1) plaintiff' motion fails to state a claim under which sanctions would be s appropriate; and (2) plaintiff' motion is moot because this Court has already denied the s underlying motion and because Avnet has already answered all of plaintiff' outstanding s discovery requests.
Because the Court has already denied Avnet' motion for status conference, Avnet is reluctant to trouble the Court s with another pleading arising out of the underlying motion. Nonetheless, because plaintiff has made a motion for sanctions arising out of Avnet' motion, Avnet submits this response only out of an abundance of caution and only in s response to plaintiff' motion for sanctions. s
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Case 2:04-cv-00621-SRB

Document 77

Filed 08/10/2005

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

LEGAL ANALYSIS I. Plaintiff Fails to State a Claim for Sanctions2 Plaintiff' request for sanctions is limited to "[an] amount sufficient to cover s drafting [plaintiff' response [to Avnet' motion for status conference]." See Plaintiff' s] s s Motion at 1. Plaintiff' contention that sanctions are appropriate because Avnet failed to s "meet and confer" is without merit. On June 23, 2005, plaintiff' counsel sent a letter s indicating that he considered that letter to fulfill the parties' "meet and confer" obligation. See June 23, 2005 Letter from J. Meschkow to C. Houston, attached as Exhibit 1. On July 1, 2005, undersigned counsel responded that he would agree to consider plaintiff' June 23, 2005 letter as fulfilling the parties' "meet and confer" s obligation. See July 1, 2005 Letter from C. Houston to J. Meschkow, attached as Exhibit 2. Plaintiff' attempt to obtain sanctions against Avnet because the parties did not "meet s and confer" ­ after sending a letter specifically stating that he considered that letter to satisfy the parties' "meet and confer" obligation ­ is mere posturing and should be summarily denied by this Court. II. Plaintiff' Motion is Moot s Plaintiff' motion for sanctions must fail for several additional reasons. First, the s motion seeking sanctions arising out of Avnet' motion for status conference is moot s because the Court has already denied Avnet' motion for status conference. 3 Second, s Avnet recently served plaintiff with responses to all of plaintiff' outstanding discovery s requests. Third, plaintiff ignores his own well-documented failure to produce the basic disclosures required by Rule 26(a)(1). Plaintiff consistently maintained that he would not provide damage calculations or business records supporting those calculations until Avnet
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Plaintiff' motion fails to cite either Fed. R. Civ. P. 11 or 37 as support for his claim, but based on plaintiff's s request for damages in an amount sufficient to cover the cost of responding to a motion deemed improper by plaintiff, plaintiff' request must arise out of Rule 11. Accordingly, Avnet will not address plaintiff' implied Rule s s 37 argument other than to say that it has responded to all of plaintiff' outstanding discovery requests. s 3 The Court' Order was electronically transmitted on the same day plaintiff filed his response seeking sanctions. s
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

had supplemented its discovery responses to plaintiff' satisfaction. s

See Plaintiff' s

Responses to Avnet' First Request for Production of Documents at 6, attached as Exhibit s 3; see also April 28, 2005 Letter from J. Meschkow to C. Houston at 2, attached as Exhibit 4; see also April 4, 2005 Letter from J. Meschkow to C. Houston at 2, attached as Exhibit 5; see also March 11, 2005 Letter from C. Houston to J. Meschkow, attached as Exhibit 6; see also January 20, 2005 Letter from J. Meschkow to J. Green, attached as Exhibit 7. Plaintiff' claim that Avnet' motion for status conference should give rise to s s sanctions is further belied by the fact that plaintiff produced the records previously requested by Avnet two days after Avnet filed its motion for status conference. Clearly Avnet' motion served a useful purpose and is undeserving of sanctions. s Avnet

anticipates that plaintiff may reply that Avnet should be sanctioned for its alleged failure to adequately respond to plaintiff' 332 Requests for Admission (including a set of RFA' s s seeking personal admissions from counsel for Avnet), at least 36 Interrogatories, and 31 Requests for Production, but plaintiff's motion for sanctions is not a Rule 37 motion seeking sanctions for discovery abuse. Instead, it is a Rule 11 motion seeking sanctions to cover the cost of responding to an allegedly improper motion filed by Avnet. In any event, Avnet has already responded to all of plaintiff' outstanding discovery requests. s III. Conclusion Sanctions against Avnet are neither necessary nor appropriate because: (1) plaintiff' "meet and confer" argument is wrong; (2) Avnet' motion for status conference s s resulted in the production of the documents at issue; and (3) Avnet has responded to all of plaintiff' outstanding discovery requests. s

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

RESPECTFULLY SUBMITTED this ______ day of August, 2005. FENNEMORE CRAIG By /s/_____________________________ Jordan Green Charles Houston Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Certificate of Service I hereby certify that on August 3rd, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Meschkow, Esq. Meschkow & Gresham, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 /s/_____________________________ Michelle Helterbran

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