Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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SUSAN MARTIN (#014226) DANIEL L. BONNETT (#014127) JENNIFER L. KROLL (#019859) MARTIN & BONNETT, P.L.L.C. 3300 N. Central Ave., Suite 1720 Phoenix, AZ 85012-2517 (602) 240-6900 email: [email protected] [email protected] [email protected] Attorneys for Plaintiff

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ROBERT J. SOKOL (#012573) REBECCA J. HERBST (#012573) OFFICE OF THE ATTORNEY GENERAL Transportation Section 1275 W. Washington Street Phoenix, AZ 85007-2997 email: [email protected] [email protected] Attorney for Defendants, State of Arizona, Department of Transportation (ADOT), Ronald Thomas and Nancy Thomas

IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Paulette Gilbert, Nikki Welch Solper,

) ) Plaintiffs, ) ) vs. ) ) State of Arizona, Department of Transportation ) (ADOT); Ronald Thomas and Jane Doe ) Thomas, husband and wife; and Britt Bowen ) and Jane Doe Bowen, husband and wife, ) Defendants.

No.

CV04-0298 PHX-SMM

JOINT MOTION TO MODIFY SCHEDULING ORDER (Second Request)

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NOW COME the parties by and through their respective counsel undersigned and herein jointly move this Court for an order further modifying the Scheduling Order (Dkt# 23) previously entered in this case for the reasons that follow. The

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parties stipulate and agree that good cause exists to further extend the time for completion of discovery and other deadlines previously set by the Court in order to permit the parties to explore private mediation and conserve judicial resources as well as the resource of the parties. The Court previously extended the expert disclosure, discovery cutoff and dispositive motion deadlines on June 29, 2005 at the joint request of the parties (Dkt# 46). Expert disclosures were extended to September 30, 2005; discovery cutoff was extended to October 28, 2005 and the dispositive motion deadline was extended to November 30, 2005. (Id.) As of the date of this joint motion, the parties have essentially completed written discovery. More than 1900 pages of documents have been exchanged and examined by the parties. Written interrogatories and requests for admission have assisted the parties in narrowing some issues. Written discovery was analyzed after which counsel for the parties held discussions in an effort to narrow factual and legal issues. Expert witness disclosures have been completed. Plaintiffs retained two expert witnesses whose disclosures were made in accordance with the requirements of the Court s original Scheduling Order, as modified. Through additional document production and cooperation of counsel, one expert s report has been supplemented thereby eliminating the need for his deposition. In addition, through further

cooperation of counsel, additional information has been exchanged which has eliminated the need to depose one identified fact witness. The parties have taken 7 depositions including 3 records depositions, however, the parties have identified nine (9) additional depositions remaining to be completed. Through disclosures in a related lawsuit, Stevenson v. State of Arizona, Department of Transportation, No. CIV-03-1031-PHX-DGC, deposition testimony of the Plaintiffs

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in this action was obtained on several factual and legal issues that are inter-related to this lawsuit. Undersigned counsel for the parties also represented the plaintiff and defendant in the Stevenson lawsuit. Defendants still desire to depose Plaintiffs in this lawsuit, however, it is anticipated that there will be no overlap of factual or legal issues. The parties have been informally discussing settlement. Matters are now at a critical point where the parties agree that the prospects of settlement warrant retaining the services of a private mediator and devoting time and resources to alternative dispute resolution rather than consume time and resources in an adversarial context that might otherwise be directed toward achieving an agreed resolution of this litigation. The parties have retained the services of Lawrence H. Fleischman, a wellknown and highly respected private mediator. Mr. Fleischman was also the mediator in the above-referenced Stevenson lawsuit and was successful in assisting the parties in reaching a settlement through mediation. Unfortunately, due to the schedules of the mediator, undersigned counsel and the parties, the first available date mediation could be scheduled is December 12, 2005. Mediation is, in fact, scheduled to occur on that date which is after the close of discovery and other deadlines set forth in the current scheduling order. The parties and their attorneys are cognizant of the fact that if all remaining discovery is required to be completed prior to the mediation, it will be an impediment to settlement both in terms of the Defendants expending resources that may otherwise be available for settlement and in terms of the Plaintiff incurring costs and attorneys fees for which they will seek reimbursement. For these reasons, the parties believe that good cause exist to extend discovery and other deadlines set forth in the current scheduling order. The parties have set firm dates for the remaining depositions and have agreed to the following deposition schedule:
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Paulette Gilbert Nikki Welch Solper Michael Hynes, Ph.D. (expert) Jae Richardson Richard Wright Lisa Wormington Kris Rowen John Bogert John Carlson

January 17, 2006 January 18, 2006 January 20, 2006 January 19, 2006 January 10, 2006 January 11, 2006 January 11, 2006 January 12, 2006 January 12, 2006

The parties believe that it is in the best interest of all concerned (including lay and expert witness(es) yet to be deposed) that discovery be extended along with other deadlines set by the Court until a reasonable time after the completion of the scheduled mediation on December 12, 2005 so the above identified depositions can be competed in the event the case does not settle at mediation. The parties are prepared to appear before the Court for a status conference either in person or telephonically, if necessary, to address this joint motion and any concerns the Court may have over a further extension of deadlines. If the Court determines that a status conference is unnecessary, the parties jointly request that the Court s Scheduling Order (Dkt# 23), as modified (Dkt# 46), be further modified in order to allow the parties to proceed with private mediation on December 12, 2005, take those depositions on the dates set forth herein should the case not settle and set new dates and deadlines as follows:

Completion of all discovery including expert witness depositions: Deadline for Dispositive Motions:
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January 30, 2006 March 10, 2006

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Final Pretrial Conference

On or after April 28, 2006

WHEREFOR, the parties jointly request that the Court modify its Scheduling Order as requested herein and grant such other relief as may be equitable and just.

Dated this 7th day of October, 2005. PAULETTE GILBERT AND NIKKI WELCH SOLPER, Plaintiffs By: s/Daniel L. Bonnett Daniel L. Bonnett, Esq. Susan Martin, Esq. Jennifer L. Kroll, Esq. Martin & Bonnett, P.L.L.C. 3300 N. Central Avenue, Suite 1720 Phoenix, AZ 85012 STATE OF ARIZONA, DEPARTMENT OF TRANSPORTATION (ADOT), RONALD THOMAS AND NANCY THOMAS, Defendants By: s/Robert J. Sokol Robert J. Sokol, Esq. Rebecca J. Herbst, Esq.. Assistant Attorneys General Transportation Section 1275 W. Washington Street Phoenix, AZ 85007-2997

CERTIFICATE OF SERVICE I hereby certify that on October 7, 2005 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: Robert J. Sokol, Esq. Rebecca J. Herbst, Esq.
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Attorney for Defendants, State of Arizona, Department of Transportation (ADOT), Ronald Thomas and Nancy Thomas, Richard Wright and Jane Doe Wright s/Daniel L. Bonnett Daniel L. Bonnett Attorney for Plaintiffs

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