Free Motion for Leave to File - 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.

AVNET'S MOTION FOR LEAVE TO FILE MOTION TO PRECLUDE TESTIMONY OF PLAINTIFF'S EXPERT JEFF SEDLIK

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Pursuant to this Court's September 30, 2004 Rule 16 Scheduling Order, Defendants move for leave of Court to file a Motion to Preclude the Testimony of Plaintiff's Expert Jeff Sedlik. Despite good faith efforts to meet and confer with Plaintiff, Defendants have been unable to resolve the issue. The deadline for Plaintiff to make his expert disclosure was June 24, 2005. See March 21, 2005 Order. Plaintiff disclosed the Preliminary Expert Report and Disclosure of Jeff Sedlik on June 24, 2005. See Exhibit A. 1 Rule 26(a)(2) requires that experts
All Exhibits referenced in this pleading are included in a separate document entitled "Defendants' Exhibits in Support of Motions" filed concurrently herewith.
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FENNEMORE CRAIG P ROFESSIONAL C ORPORATION PHOENIX

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submit a report and that "[t]he report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore." Fed. R. Civ. P. 26(a)(2)(B). Mr. Sedlik' Preliminary Report offered no opinions on the subject of damages, the only issue remaining in this case to be tried. See Exhibit A at p. 15. On February 13, 2005, the Court held a telephonic hearing regarding a discovery dispute, and authorized a 30-day extension of the discovery deadline for the sole purpose of permitting Defendants to depose Plaintiff, Mr. Sedlik and Mr. Weisgrau. See February 13, 2006 Order. The Court's Order specifically stated, "No further extension of discovery is permitted with the exception of taking the above depositions." Id. Mr. Weisgrau was deposed on March 8, 2006. See Exhibit E. Defendants did not depose Mr. Sedlik because he had not offered any opinion regarding the amounts of Plaintiff's actual damages or Avnet's profits. The Court's September 30, 2004 Order prohibited the taking of expert depositions until the mandated expert disclosures had been made. See September 30, 2004 Order; Exhibits G, H and J. Despite the absence of disclosed opinions, Plaintiff stated that he intended to call Mr. Sedlik at trial. See Exhibits I, K and M. Defendants requested that the parties meet and confer in an attempt to resolve the issue. See Exhibit L. Plaintiff refused, stating, "under the Federal Rule and case law, such [a meet and confer] is unnecessary and unwarranted." See Exhibit M. On March 24, 2006, more than nine months after Plaintiff's expert disclosure deadline, and 11 days after the extended deadline for Defendants to depose Plaintiff's experts, Plaintiff submitted the Confidential Supplementary Expert Witness Report of Jeff Sedlik. See Exhibit D. The Supplementary Report contains Mr. Sedlik's opinions

regarding the amount of Plaintiff's alleged actual damages, but is silent regarding the amount of Avnet's profits earned because of the infringement. See Exhibit D. Discovery is closed. Plaintiff has refused to withdraw Mr. Sedlik as a witness or to
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meet and confer in an attempt to resolve this issue. Therefore, the Court should grant Defendants leave to file a Motion to Strike the Testimony of Mr. Sedlik so that the issue can be fully briefed and determined by the Court. DATED this 10th day of April, 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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CERTIFICATE OF SERVICE I hereby certify that on April 10, 2006, 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 Se venth Street Suite 409 Phoenix, Arizona 85014-5818

s/Jordan Green
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