Free Reply to Response to Motion - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. Jordan Green (No. 001860) Lawrence Palles (No. 020263) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 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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v.
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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.

DEFENDANTS'REPLY IN SUPPORT OF THEIR MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT AFTER DISPOSITIVE MOTION DEADLINE

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FENNEMORE CRAIG, P.C.
P HOENIX

The Court should grant Defendants' Motion for Leave to File Their Motion for Summary Judgment on Plaintiff' Claim for Recovery of Avnet' Profits after the s s dispositive motion deadline because it will permit disposition of the issue on the merits, streamline the remaining issues for trial, and Plaintiff has not shown that any unfair prejudice will result. Plaintiff' lengthy discussion regarding alleged discovery violations s is irrelevant and is intended to divert the Court' attention from the issue of whether an s extension of the dispositive motion deadline is appropriate in light of the Court' s extension of the deadline for Defendants to depose Plaintiff and his experts. Plaintiff incorrectly argues that Defendants' Motion for Leave to file their Motion for Summary Judgment on Plaintiff' Claim for Recovery of Avnet' Profits after the s s dispositive motion deadline constitutes a delay tactic. See Plaintiff' Response at p. 4. s
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Case 2:04-cv-00621-SRB

Document 201

Filed 05/08/2006

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FENNEMORE CRAIG, P.C.
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Defendants did not seek delay. Rather they sought leave of Court to file a motion for a determination on the substance of Plaintiff' claims for recovery of Avnet' profit in s s advance of trial.1 A determination on the merits of this issue will help expedite the resolution of this case by narrowing the issues for trial. See Community Dental Services v. Tani, 282 F.3d 1164 (9th Cir. 2002) (cases should be decided on their merits whenever possible); TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001) (same). Plaintiff ignores the merits of Defendants' Motion: whether the filing of their Motion for Summary Judgment should be permitted after the dispositive motion deadline in light of the extension of the deadline to depose Plaintiff and his experts. Instead, Plaintiff focuses on the merits of Defendant' Motion for Summary Judgment, arguing s that Defendants "too eagerly filed this Motion and their suggested Motion for Summary Judgment using the unsigned, uncorrected transcript from Mr. Weisgrau' deposition, s whose opinions go straight to causal link, among other issues." See Response at pp. 4-5. Mr. Weisgrau' corrections to his deposition transcript and their impact on Plaintiff' s s claim for Avnet' profits are not relevant to whether the Court should permit the filing of s Defendants' Motion for Summary Judgment. Plaintiff can argue the merits of Mr.

Weisgrau' corrections in his response to the Motion for Summary Judgment. s Plaintiff' argument that he will suffer undue prejudice by the filing of Defendants' s Motion because he "is [a] sole-practitioner photographer who has suffered through major expense to litigate this case" is similarly without merit. See Response at p. 5. See, e.g., TCI, 244 F.3d at 701 (to be considered prejudicial, a delay must result "in tangible harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion"). Plaintiff has not alleged that the filing of Defendants' motion for
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On February 13, 2006, the Court granted a 30-day extension of the discovery deadline to permit Defendants to depose Plaintiff and his experts. See February 13, 2006 Order. Defendants deposed Plaintiff on March 6, 2006, and his expert, Richard Weisgrau, on March 8, 2006. Defendants received the transcript from Mr. Weisgrau' deposition on March 27, 2006. Defendants could not prepare and file their s Motion for Summary Judgment on Plaintiff' Claim for Recovery of Avnet' Profits until they deposed s s Mr. Weisgrau and received the transcript. See Defendants' previously filed Motion and Statement of Facts.
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FENNEMORE CRAIG, P.C.
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Summary Judgment after the dispositive motion deadline will result in the loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion. See Plaintiff' Response. The mere cost and hardship of litigating his case does not s constitute undue prejudice. As the 9th Circuit explained in analyzing the prejudice

resulting from lifting a default judgment: It should be obvious why merely being forced to litigate on the merits cannot be considered prejudicial for purposes of lifting a default judgment. For had there been no default, the plaintiff would of course have had to litigate the merits of the case, incurring the costs of doing so. A default judgment gives the plaintiff something of a windfall by sparing her from litigating the merits of her claim because of her opponent's failure to respond; vacating the default judgment merely restores the parties to an even footing in the litigation. TCI, 244 F.3d at 701. Since the Court granted an extension of discovery for Defendants to depose Plaintiff and his experts, Defendants could not prepare and file their Motion until after completing discovery and Plaintiff will not be prejudiced by the filing of the Motion at this time, the Court should permit Defendants to file their Motion for Summary Judgment after the dispositive motion deadline. DATED this 8th day of May, 2006. FENNEMORE CRAIG, P.C.

By s/ Jordan Green Jordan Green Lawrence Palles Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

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FENNEMORE CRAIG, P.C.
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CERTIFICATE OF SERVICE I hereby certify that on May 8, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s 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 Nancy Giles, Esq. Giles Legal PLC 733 W. Willetta Street Phoenix, Arizona 85007

s/Jordan Green

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