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

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Christopher D. Lonn, Esq., AZ State Bar No. 015166 Michelle J. Perkins, Esq., AZ State Bar No. 015960 OWENS & PERKINS, P.C. 7322 E. Thomas Road Scottsdale, Arizona 85251 (480) 994-8824 / Fax (480) 941-2215 [email protected] [email protected] Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA KENT A. DYER and SUSAN DYER, husband and wife, Plaintiffs, v. JASON NAPIER and DANIELLE NAPIER, husband and wife; NAPIER SCULPTURE GALLERY, INC., a Washington corporation, Defendants. Plaintiffs, by and through undersigned counsel, hereby oppose Defendants' Motion for Extension of Time to File all Remaining Motions for Summary Judgment ("Defendants' Motion"). Plaintiffs' position is set forth below. This is the second time in this case that the Defendants have sought relief from this Court's Scheduling Orders. The first such motion involved Defendants' Motion for Extension of Time to Disclose Expert Opinions. Plaintiffs opposed that motion because Defendants' stated "excusable neglect" in missing that deadline appeared to be the product of delay versus actual neglect. Notwithstanding Plaintiffs' opposition thereto, the Court granted Defendants' requested extension of time to disclose their expert's opinion.

Case No.: CV04-0408 PHX SMM PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR EXTENSION OF TIME TO FILE ALL REMAINING MOTIONS FOR SUMMARY JUDGMENT

Case 2:04-cv-00408-SMM

Document 54

Filed 09/29/2005

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Now, several months later, the Defendants again come to this Court seeking further relief from this Court's modified Scheduling Order dated August 5, 2005. The Court has already twice extended the dispositive motion cut-off date. This time, Defendants claim they cannot file yet another motion for partial summary judgment because the deposition of Troy Hyde was not transcribed far enough in advance of the September 23, 2005 dispositive motion cut-off date. As a result, Defendants request an extension of time up to and including October 7, 2005 to file "all motions for summary judgment." Plaintiffs oppose Defendants' second such motion for relief from this Court's Scheduling Orders because Defendants' excuse for not being able to comply with the Court's September 23, 2005 deadline makes no sense. Over the last three months, the parties have conducted at least eight depositions in this case and have mutually disclosed relevant documents. Counsel and the parties to this action have worked diligently together to coordinate the taking of depositions and to efficiently facilitate the production of documents. Defendants' failure to depose Troy Hyde until September 1, 2005 was a decision Defendants and their counsel made. Undersigned counsel scheduled the deposition of Mr. Hyde as requested by Defendants and their counsel. Defendants were well aware of the stipulated September 23, 2005 dispositive motion cut-off date. Defendants assumed the risk of deposing Mr. Hyde on September 1, 2005 knowing it was only 22 days before the dispositive motion cut-off deadline. Notwithstanding these facts, Defendants still come to this Court and yet again seek relief from this Court's Scheduling Order based on Defendants' own decision-making to depose Mr. Hyde so late in the game. Defendants also claim that the filing of another motion for partial summary judgment will help narrow the trial issues in this case. Plaintiffs and undersigned counsel are aware of the issues that will be raised in the motion for partial summary judgment that Defendants wish to file. Without delving into the copyright issues to be raised by Defendants, undersigned counsel is confident that the substantial record in this

Case 2:04-cv-00408-SMM

Document 54

Filed 09/29/2005

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case ­ and especially the deposition testimony of the expert witnesses and Kent Dyer ­ will amply demonstrate there are genuine issues of material fact that must be tried to this Court. Consequently, even if this Court were to seriously entertain Defendants' request for an additional extension of time to comply with this Court's August 5th modified Scheduling Order, it will only cause Plaintiffs to incur more in attorney's fees and costs to litigate another motion for partial summary judgment that will ultimately be denied by this Court. Defendants have already filed one motion for partial summary judgment that is fully briefed. In light of the foregoing, Plaintiffs respectfully request that the Court deny Defendants' Motion for Extension of Time to File All Remaining Motions for Summary Judgment filed with this Court on September 23, 2005. RESPECTFULLY SUBMITTED this 29th day of September, 2005. OWENS & PERKINS, P.C. By: /s Christopher D. Lonn Christopher D. Lonn, Esq. 7322 E. Thomas Road Scottsdale, Arizona 85251 (480) 994-8824 Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on September 29, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System of filing, and transmitted a Notice of Electronic Filing and copy of this document to the following CM/ECF registrant: Laura Zeman, Snell & Wilmer, 400 E. Van Buren, Phoenix, AZ 85004-2202 A courtesy copy of this document was delivered this date to the Honorable Stephen M. McNamee, Chief Judge, U. S. District Court. /Christopher D. Lonn

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