Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorney for the Plaintiff UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA
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Alexander Jung,
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Plaintiff,
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vs. John E. Potter, Postmaster General , Defendant.

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Case No.: CIV 04-429 PHX MHM

PLAINTIFF'S OPPOSOTION TO DEFENDANTS MOTION FOR A CONTINUANCE.

Plaintiff asks the court to deny Defendant's Motion to Continue Trial (Second Request) because Defendant has not shown sufficient cause for a continuance. This motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith. DATED this 4th day of June, 2007 Patterson & Associates, P.L.L.C. s/ Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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P:\Clients\Jung, Alexander\04-0015\Pleadings\060407 Resp def req to cont trial.doc

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MEMORANDUM OF POINTS AND AUTHORTIES

This case is set for trial on July 31, 2007. Defendant filed a motion for continuance requesting additional time because witness Mark Camper is going on vacation during the trial. Argument

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Although the court has the discretion to grant a motion for continuance as part of its inherent power to control its own docket to ensure that cases proceed before it in a timely and orderly manner, this is not a case in which the court should do so. U.S. v. Waldman, 579 F.2d 649, 653 (1st Cir. 1978). This case was to go to trial on May 8, 2007, however the parties stipulated to a settlement conference. When the settlement conference was not successful, the trial was then continued until July. There has already been a delay. The court should deny Defendant's motion for continuance because it has not demonstrated diligence in attempting to secure the testimony of Mark Camper. Specifically, Defendant did not attach an affidavit to prove diligence. Additionally the court should deny Defendants' motion for continuance because Mark Camper resides within 100 miles of the place of trial, and Defendant has the right to subpoena him for trial. Furthermore, the court should deny Defendants' motion for continuance because Mark Camper resides within 100 miles of the place of trial, and Defendant could have

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anticipated Mark Camper would not be able to attend the trial. Mark Camper had to place his vacation request through the Postal Service prior to its acceptance. The Postal Service was clearly aware that Mark Camper testimony was necessary for their defense. However, they are willing to forgo subpoenaing him so he can go on his vacation. Finally, the court should deny Defendants' motion for continuance because Plaintiff,

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who has been anxiously awaiting resolution of his case, has already arranged to take time
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off work for the trial and does not want to change the date with his employer, as his shift
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has been covered and his time off has been cleared. Additionally, due to work schedules,
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there will be a hardship for several witnesses if they must take off work after the summer
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months.
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Conclusion For these reasons stated above, Plaintiff asks the court to deny Defendant's motion

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for continuance.
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Dated this 4th day of June, 2007.

s/Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on the 4th of June, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and

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transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected] A copy of this document was provided by mailed to:

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The Honorable Judge Mary H. Murguia United States District Court 401 West Washington Courtroom 525 Phoenix, AZ 85003

By:

s/Stephanie Coulter Stephanie Coulter

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P:\Clients\Jung, Alexander\04-0015\Pleadings\060407 Resp def req to cont trial.doc

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