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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs hereby oppose Defendant Greg Hancock's Motion to Continue Dates for Final Pretrial Conference and Trial (# 556). This litigation has been ongoing for four-anda-half years and already subjected to two continuances of firm trial dates,1 continuing the trial date more than one year. As with any plaintiff, Plaintiffs have been and continue to be prejudiced as a result. In this instance, a further delay will result in a particularly unique and extremely severe prejudice: the potential loss of lead trial counsel. Greg Hancock, et al., Defendants. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Meritage Homes Corporation, et al., Case No. CV-04-0384-PHX-ROS Plaintiffs, v. PLAINTIFFS' OPPOSITION TO DEFENDANT GREG HANCOCK'S MOTION TO CONTINUE DATES FOR FINAL PRETRIAL CONFERENCE AND TRIAL

Furthermore, as explained below, Defendant Hancock has not met his burden of showing "justice requires" a continuance. Local R. Civ. 40.2(b); see Martel v. County of Los Angeles, 56 F.3d 993, 995 (9th Cir. Cal. 1995) (a party seeking continuance has the burden of "showing of actual and substantial prejudice in the context of denials of The Federal Judicial Center's MANUAL FOR COMPLEX LITIGATION at § 11.61 teaches attorneys and litigants that trial dates are generally firm and continuances of trial dates, at the request of the parties, are rare.
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continuances"). I. LEGAL STANDARD Parties seeking continuances in the District of Arizona have a high standard to meet. Local Rule Civ. 40.2(b) provides: "(b) No Continuance. After a case is set for pretrial or trial, it shall not be continued except as justice requires." (Emphasis in

original.) Its title, in bold, is telling: "No Continuance." The Ninth Circuit places the burden of proof that "justice requires" a continuance on the moving party ­ in this instance, Defendant Hancock. See, e.g., Martel, 56 F.3d at 995. The Ninth Circuit further explained that the moving party's proof of prejudice must be "actual and substantial." See, e.g., id. A motion for continuance typically requires a supporting declaration or affidavit, which is noticeably absent here. See, e.g., MOORE'S FEDERAL PRACTICE at § 40.02[5][a]. "Unless the movant shows that denial of the motion had a prejudicial impact, the trial court's decision will be affirmed." Id. at § 40.02[5][b][i]. Inconvenience and prejudice to the non-moving party and the Court are factors that the Court can consider in denying a motion to continue. See, e.g., United States v. 2.61 Acres of Land, 791 F.2d 666, 671 (9th Cir. 1988). Also the Court can consider the fact that Defendant Hancock has been dilatory in this case, including but not limited to broad, complete and repeated failures to produce discovery requiring intervention by this Court. See, e.g., Real v. Hogan, 828 F.2d 58, 63-4 (1st Cir. 1987) (motion for continuance denied when moving party avoided discovery early in case). II. MR. FRISBEE'S PURPORTED CONFLICT As an initial matter, there is no evidence that Mr. Frisbee's purported conflict exists. No declaration nor affidavit. No order from the court in Riverside County, California. Curious about the moving party's failure to provide supporting evidence despite clear law requiring such evidence, the undersigned counsel did a computer search on the docket number Mr. Frisbee provided. That search revealed no such case, as shown by the computer entries for the docket number Mr. Frisbee provided. See Declaration of Dan Goldfine, attached hereto as Exhibit 1 at ¶¶ 1-4.
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Assuming a case exists in Riverside County, Mr. Frisbee's assertion of a scheduling conflict merely creates a series of hypothetical questions not addressed by the Motion: Does that case actually create a scheduling conflict? Is Mr. Frisbee lead counsel in that case? Will the Riverside case settle? The answers to these questions are of no import to this Motion because the burden of establishing "justice requires" the continuation lies with the moving party. Mr. Frisbee admits in the Motion that he has had a week to prepare the Motion or obtain any supporting documentation, see Motion at 2:69, but has failed to provide any evidence to meet his client's burden to justify a continuance on the grounds of this purported scheduling conflict. See, e.g., Martel, 56 F.3d at 995; MOORE'S FEDERAL PRACTICE at § 40.02[5][a]. III. MR. HANCOCK'S PURPORTED CONFLICT Again, for the reasons set forth above, Defendant Hancock has not met his burden in establishing his purported "Hawaii trip" conflict and that that conflict causes him "actual and substantial prejudice." See, e.g., Martel, 56 F.3d at 995; MOORE'S FEDERAL PRACTICE at § 40.02[5][a]. Defendant Hancock only asserts that some unidentified and ambiguous "substantial financial sacrifice" will fall upon him. Motion at 2:20. Defendant Hancock is not telling the Court that he would lose the $12,000 golf vacation to play the Plantation Course at Kapalua, Maui, Hawaii. Perhaps, the ambiguous "substantial financial sacrifice" would be a few hundred dollars in rebooking charges. But even assuming that we were to believe that Defendant Hancock had a trip to Hawaii planned and paid for and that he would lose that trip in its entirety, Defendant Hancock's $12,000 golf vacation is not the "justice requires" envisioned by this Court in the Local Rules or "actual and substantial prejudice" envisioned by the Ninth Circuit in Martel and its progeny. While this Court always has the discretion to control its docket, there is nothing in the Federal Rules of Civil Procedure, the case law, or in comity that requires a Court to continue a four-and-a-half year old case that has already been set for trial three times to accommodate a vacation to Hawaii while Plaintiffs wait for a judgment
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on their various claims totaling in excess of $50 million in damages. IV. THE PREJUDICE TO MERITAGE Even though as the non-moving party Meritage has no burden on proof on Defendant Hancock's motion for a continuance, see, e.g., Martel, 56 F.3d at 995; MOORE'S FEDERAL PRACTICE at § 40.02[5][a], any further delay poses a real risk of substantial prejudice to Meritage: the possibility that Meritage's lead trial counsel, Grant Woods, would be unavailable for trial. See Declaration of Grant Woods at ¶¶ 5-7, attached as Exhibit 2.2 Meritage hired Mr. Woods on July 10, 2006, more than a year and three months in advance of the first of three trial dates. Id. at 1. It hired Mr. Woods specifically and solely as lead trial counsel. Id. at 2. Meritage agreed to pay Mr. Woods a flat rate, already paying him a substantial fee. Id. at 3. Mr. Woods has spent hundreds of hours to prepare for the two previous trial dates. Id. at 4. As Mr. Woods explained to Mr. Frisbee a week ago and recited in quotations by Mr. Frisbee in his motion papers, "'[i]t would be fundamentally unfair to Meritage to delay the trial again (past October) when that could deprive [Meritage] of [Mr. Woods'] participation in the trial.'" Motion at 2:2425. The undersigned counsel agrees. V. CONCLUSION For the reasons set forth above, Defendant Greg Hancock's Motion to Continue Dates for Final Pretrial Conference and Trial should be denied. DATED this 14th day of May, 2008. SNELL & WILMER L.L.P. By s/ Dan W. Goldfine Dan W. Goldfine Richard G. Erickson Snell & Wilmer, L.L.P. One Arizona Center 400 E. Van Buren Street Phoenix, Arizona 85004-2202 Attorneys for Meritage
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Defendant Hancock's speculation on "information and belief" of a "promised appointment" is mistaken. Declaration of Grant Woods at ¶¶ 5-7.
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Case 2:04-cv-00384-ROS
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and GRANT WOODS, P.C. By s/ Grant Woods Grant Woods, Esq. GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, Arizona 85006 Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants Steve Hilton and John Landon

CERTIFICATE OF SERVICE I hereby certify that on May 14, 2008, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to all CM/ECF registrants. s/ Lindsey Perez

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