Free Order on Motion to Compel - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CIVIL MINUTES - TELEPHONE CONFERENCE Phoenix Division CIV 04-78-PHX-FJM Year Case No Initials DATE: 3/20/2008

Title: Timothy A. Shimko, et al. vs. David Goldfarb, et al. Plaintiff(s) Defendant (s) ========================================================================= HON: FREDERICK J. MARTONE Kerry Reynolds Deputy Clerk Attorney(s) for Plaintiff(s) David Welling and Timothy Shimko ________________________________ ________________________________ Judge # 7028 Linda Schroeder Court Reporter/ECR Attorney(s) for Defendant(s) Roger Cohen for Ross defendants Richard McDaniel for Paul Woodcock David Goldfarb, pro se

========================================================================= PROCEEDINGS: XXX Open Court Chambers Other

Telephone conference held. The Court has reviewed all the documents filed in connection with the Emergency Motion to Compel Appearance of Plaintiff Timothy Shimko and Frank Piscitelli at Depositions on March 19, 2008 (doc. 182) filed by Defendants Ross as well as the Motion to Continue Date for Completion of Discovery and Filing Dispositive Motions; Motion to Continue Depositions; and Request for Expedited Consideration (doc. 185) filed by Defendant Woodcock. A discussion is held and the Court rules as follows: To the extent that either of these motions seek continuances or amendments to the Rule 16 Scheduling Order, they are both denied for the reason that they both fail to show any good cause as to why the parties, if they were acting in good faith, could not have successfully completed these depositions many months ago. To the extent that the motion of the Ross defendants asks that the costs and any increased costs over and above the expenses that otherwise would have been incurred had these depositions occurred within the District of Arizona be borne by the party deponent, namely Mr. Shimko, that part of the motion is granted. The Court ORDERS that Mr. Shimko appear at his deposition on or before the deadline of March 28, 2008 or the claim will be dismissed with prejudice. As to Mr. Piscitelli, he is a nonparty and is simply a witness. The defendants will need to continue to try to serve him and depose him wherever he is. The Court ORDERS that unless Mr. Piscitelli appears for his deposition before the deadline, he will not be allowed to appear as a witness for the plaintiff nor will the existing plaintiffs be allowed to make a claim for any attorney's fees that are the subject of the original complaint in this case that relate to Piscitelli's services since the defendants will have been denied a full and fair opportunity to cross-examine with respect to those claims. Time in court: 38 mins.
Case 2:04-cv-00078-FJM Document 189 Filed 03/20/2008 Page 1 of 1