Free Motion to Strike - District Court of Arizona - Arizona

1 Joseph A. Kendhammer, SBN 009156
2 Jeanne E. Vamer Powell, SBN 017535
Kendhammer & Colburn, L.L.P.
3 394 North Third Avenue
Phoenix, Arizona 85003
4 (602) 340-9900
5 Attorneys for Defendants Mesa General Hospital Medical Center, L.P.
6 Thomas J. Kennedy (SBA, 006907)
Rachel M. Bacalzo (SBA, 016117)
7 SHERMAN & HOWARD L.L.C.
1850 North Central Avenue, Suite 500
8 Phoenix, Arizona 85004-2003
9 Telephone: (602) 636-2000
Facsimile: (602) 636-2099
1 0
Attorneysfor Defendant Bashas ’ Inc.
1 1
12
13 IN THE UNITED STATES DISTRICT COURT
1 4
FOR THE DISTRICT OF ARIZONA
1 5
Wyvonna M. Barnett )
1 6 )
Plaintiff, ) Case N0. CV032566 PHX ROS
17 g
18 VS` ) DEFENDANTS’ JOINT MOTION TO
, ) STRIKE PLAINTIFF’S DEFAULT
19 Bashas InC·» Gt al-» ) REGARDING EXPERT WITNESSES,
D€f€Hd8111S· ) AND PLAINTIFF’S TWO COURT
20 ) FILINGS DATED AUGUST 24, 2005
)
2 1 )

22
23 Defendants Mesa General Hospital Medical Center L.P. ("Mesa General") and
24 Bashas’ Inc. ("Bashas"’) (collectively the "Defendants"), by and through undersigned
25 counsel, move this Court to strike three of Plaintiff Wyvonna Barnett’s Court filings:
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ase 2:03—cv—02566-ROS Document 82 Filed 08/30/2005 Page 1 of 3

l "DEFAULT REGARDING EXPERT WITNESSES"; "DOCUMENTS AND
2 EVIDANCE [sic] PREPARED FOR STATUS CONFERENCE"; and "PREPARED
3 FOR STATUS REGARDING DAMAGES DISCRIMINATIONS, ADA, ADEA, AND
4 WRONGFUL TERM1NATION." None of these Court filings request relief. In
5 addition, they are procedurally improper. This Motion is supported by the attached
6 Memorandum of Points and Authorities.
7 MEMORANDUM OF POINTS AND AUTHORITIES
8
9 Plaintiff filed the latter two documents on August 24, 2005. They presumably
IO relate to the Court’s status conference that was scheduled for the same date. In neither
of these Court filings, does Plaintiff request relief. Yet, both contain immaterial,
l l irrelevant, untrue and unsupported statements about Defendants and non—parties.
12 Viewing them in the best possible light, the Court may consider them to be disclosure
13 statements, since they simply set forth the arguments Plaintiff apparently will offer at
M trial. Even so, disclosure statements are not to be filed with the Court. These documents
15 certainly do not constitute appropriate pre-trial motions or pleadings. Defendants realize
l 6 Plaintiff is appearing in this action pro se, however, she is expected to adhere to the
U Federal Rules of Civil Procedure. Defendants request the Court to strike these two
18 filings and instruct Plaintiff to ensure any future Court filings conform to the
19 requirements of the Federal Rules of Civil Procedure, address appropriate pre-trial issues
20 and request relief based on law.
21 With regard to the remaining "Default" filing, although it does contain a request
22 for relief, there is no legal or procedural basis for the relief requested. Specifically,
23 Plaintiff asks this Court to default Defendants and enter judgment in her favor because
2 4 the Case Management Order specifies that expert depositions shall be completed by
25 August 5, 2005 and no experts have been deposed. The true state of affairs is that
Plaintiff has not disclosed any experts for Defendants to depose, and she has not noticed
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ase 2:03—cv—02588-ROS Document 82 Filed 08/30/2005 Page 2 of 3

I the depositions of any defense experts. In any event, since there is no rule requiring a
2 party to depose experts, the lack of expert depositions is totally immaterial to Plaintiffs
3 request for default. Since there is no legal basis for entering default against any party at
4 this juncture, the pleadinéii-meritless and should be denied, if not stricken first.
5 DATED this day of August, 2005.
6 KENDHAMMER & COLBURN, SHERMAN & HOWARD L.L.C.
L.L.P.
7
8 By: - By: r
9 osep A. Kendhammer T s J. K nnedy
Jeanne E. Varner Pow Rachel M. Bacalzo
10 Attorneys for Defendant Mesa Attorneys for Defendant, Bashas ’
General Hospital, L.P. dba Mesa Inc.
1 1 General Hospital Medical Center
12
13 ORIGINAL tiled electronically
1 4 and copies mailed this30":‘°day
of August, 2005, to:
15
Hon. Roslyn O. Silver
16 United States District Court Judge
17 401 West Washington
Phoenix, Arizona 85003
18
Wyvonna M. Barnett
1 9 506 East McKamey
Payson, Arizona 85541
20 Plaintiff Pro Per
21
22 ja.¢.¢.4¤.. ®v‘o¤KJ
23
24
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