Free Motion to Compel - District Court of Arizona - Arizona

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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

Guttilla & Murphy, PC
Firm No. 00133300 Ryan W. Anderson (No. 020974) 4150 West Northern Ave. Phoenix, Arizona 85051 (623) 937-2795 [email protected]

Attorneys for the Receiver

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Lawrence J. Warfield, Receiver, Plaintiff, v. Michael Alaniz, et al. ) ) Cause No. CV 03-2390 PHX JAT ) ) ) EMERGENCY MOTION TO COMPEL ) DEFENDANTS' COMPLIANCE WITH ) COURT'S ORDER SETTING FINAL ) PRETRIAL CONFERENCE ) ) )

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Plaintiff Lawrence J. Warfield hereby moves this honorable court for an Order to compel Defendants1 to comply with the Court's Order Setting Final Pretrial Conference. I. BACKGROUND On August 7, 2006, this Court entered its Order Setting Final Pretrial Conference which, among other things, directed the parties to prepare a joint proposed final pretrial order in the above-captioned case. The creation of a joint pretrial order in this case is a significant undertaking as eleven (11) separate Defendants remain and the case involves nuanced factual and legal issues. This motion seeks to compel the Rada Defendants to comply with the Court's Order Setting Final Pretrial Conference. Pro per Defendant Renald Bidwell has not responded to Plaintiff's written request to participate in the creation of a joint proposed pretrial order. However, Defendant Bidwell has not participated in any stage of the case and Plaintiff intends to move for a default against Defendant Bidwell.
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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

On September 18, 2006, the parties exchanged drafts of the joint proposed final pretrial order. Counsel for Plaintiff and Rada Defendants spent nearly four (4) hours debating the substance of a comprehensive joint pretrial order. At the September 18, 2006 meeting, the parties exchanged proposed jury instructions, proposed voir dire questions, and each party's respective list of exhibits and witnesses. At the end of the September 18th meeting, counsel for the Plaintiff agreed to merge the two proposed joint pretrial orders into one document incorporating the agreements from the meeting. Additionally, counsel for the Plaintiff and counsel for the Rada Defendants, agreed to exchange and finalize all trial exhibits on September 21, 2006 and meet on September 25, 2006 to finalize the joint pretrial order. On September 19, 2006, in an e-mail sent from an assistant to counsel for the Rada Defendants, the Rada Defendants advised they had additional changes to their portions of the joint proposed final pretrial order, and agreed that the Plaintiff should not merge the version of the a joint proposed final pretrial order which was physically exchanged at the meeting a day earlier. On or about September 20, 2006, counsel for the Rada Defendants caused the September 21, 2006 and September 25, 2006 meetings to be cancelled and advised that the Rada Defendants would file an appeal of the Courts' Amended Order Supersedes August 1, 2006 Order. On September 21, 2006, the Rada Defendants filed its Notice of Appeal. As previously agreed, counsel for the Plaintiff delivered to counsel for the Rada Defendants a copy of the Plaintiff's proposed exhibits. On the same date, counsel for the Plaintiff hand delivered a letter to counsel for the Rada Defendants detailing that the Plaintiff
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4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

disagreed that merely filing a notice of appeal stays the provisions of the Order Setting Final Pretrial Conference. Regardless of the Notice of Appeal, Plaintiff advised counsel for the Rada Defendants that he would continue to complete the proposed joint pretrial order and file it with the Court on October 2, 2006. (See Attached Exhibit 1). On September 22, 2006, counsel for the Plaintiff telephoned counsel for the Rada Defendants and advised that he believed the Rada Defendants' Notice of Appeal did not stay the Court's Order Setting Final Pretrial Conference and advised counsel for the Rada Defendants that the Plaintiff would continue to complete the proposed joint pretrial order and file it with the Court on October 2, 2006. On September 22, 2006, in a letter faxed to Plaintiff's counsel at 5:52pm, counsel for the Rada Defendants advised that he would cooperate with the Plaintiff, exchange various portions of the proposed joint pretrial order, and participate in the drafting of a joint pretrial order. (See attached Exhibit 2). On September 25, 2006, after Plaintiff reviewed the letter from the Rada Defendants, a legal assistant to counsel for the Defendants advised that the Rada Defendants have "changed their mind" and decided to not participate in the creation of a proposed joint pretrial order. In response, and now thoroughly confused, counsel for the Plaintiff sent a letter to counsel for the Rada Defendants asking for written confirmation of Rada Defendants' position. (See attached Exhibit 3). In reply, counsel for the Rada Defendants advised that cooperation with the Plaintiff in creation of a joint proposed pretrial order might be construed by the District Court as waiving the Notice of Appeal. Finally, counsel for the

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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

Rada Defendants advised they would "not proceed with the Joint Pretrial Conference preparations." (See attached Exhibit 4) As of the date of filing, counsel for the Rada Defendants have not provided any exhibits to the Plaintiff as required by this Court's order; not provided any response to the Plaintiff's proposed jury instructions or proposed voir dire questions; not responded to the Plaintiff's proposed stipulated description of the case and not provided to the Plaintiff the Rada Defendants' revised portions of the joint proposed final pretrial order. In effect, counsel for the Rada Defendants has not participated in any meaningful way in the creation of the joint proposed final pretrial order. II. ARGUMENT A. A Notice of an Appeal Does Not Serve to Stay the Court's Order Setting Final Pretrial Conference. Counsel for Rada Defendants has reasoned that the filing of a Notice of Appeal automatically divests the United States District Court of jurisdiction and vacates all orders of the Court. Plaintiff is unable to identify any cases which support this proposition. However, this Court has not issued a stay of these proceedings, and its Order Setting Final Pretrial Conference requires significant cooperation between the parties to complete a joint proposed final pretrial order. Furthermore, "[w]here there is a deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, or reference to a non-appealable order, if clear to the district court, it may disregard the purported notice of appeal and proceed with the case, knowing that it has not been deprived of jurisdiction." Ruby v. Secretary of United

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States Navy, 365 F.2d 385, 389 (9th Cir. 1966) (en banc), cert. denied, 386 U.S. 1011 (1967). B. Plaintiff's Completion of his Portion of Joint Proposed Final Pretrial Order Plaintiff has provided to counsel for Rada Defendants all documents required under the Order Setting Final Pretrial Conference. Rada Defendants have not cooperated, reasoning that cooperation with the Plaintiff would act as a waiver of their Appeal. Regardless of the basis for the Rada Defendants failure to cooperate, the Plaintiff is unreasonably prejudiced by Rada Defendants failure to participate in the creation of a joint proposed final pretrial order: Plaintiff is unable to formulate its motions in limine, as Rada Defendants have exchanged no evidence; Plaintiff is unable to revise its portions of the joint proposed final pretrial order to address Rada Defendant's legal and factual contentions as Rada Defendants have failed to provide to Plaintiff a version of Rada Defendants' portion of the joint pretrial order; Plaintiff is unable to obtain consensus regarding the stipulated description of the case; and Plaintiff is unable to complete joint proposed voir dire and jury instructions, as counsel for Rada Defendants has not responded to Plaintiff's proposed instructions. A joint proposed final pretrial order requires the cooperation of both Plaintiff and Defendant to attempt to resolve certain basic issues before a trial. The lack of Defendants' cooperation, coupled with his failure to seek the appropriate relief to vacate this Court's Order Setting Final Pretrial Conference, leaves Plaintiff with no option

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other than to complete the Plaintiff's portions of the Order Setting Final Pretrial Conference without the cooperation of the Rada Defendants. C. Relief Sought by Plaintiff

The Rada Defendants' failure to complete a joint proposed final pretrial order prejudices Plaintiff significantly. Plaintiff seeks an Order compelling counsel for Rada Defendants to complete his portions of the joint final pretrial order under the time limits prescribed in this Court's Order Setting Final Pretrial Conference or submit authority for their position that the entire action is stayed. Furthermore, Plaintiff seeks an order granting to Plaintiff a period of ten (10) days from October 2, 2006 to file its motions in limine and provide objections to the Rada Defendant's proposed jury instructions and supplement its portions of the joint pretrial order. If the Rada Defendants are provided additional time to complete its portion of the joint pretrial statement, counsel for the Rada Defendants would be rewarded for his failure to cooperate with Plaintiff. Plaintiff also asks this Court to impose monetary sanctions upon counsel for Rada Defendants, whose action has caused the Receiver to incur additional legal fees and costs to prepare this Motion and complete a joint proposed final pretrial order without the cooperation of counsel for the Rada Defendants. Respectfully submitted this 25th day of September, 2006. GUTTILLA & MURPHY, PC s/Ryan W. Anderson Ryan W. Anderson Attorneys for the Receiver

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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

PROOF OF SERVICE This is to certify that on this 25th day of September, 2006, 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 the CM/ECF registrants listed below; and that the persons listed below who are not registered participants of the CM/ECF System have been served with a copy of the foregoing document by first class mail this date. s/Ryan W. Anderson Ryan W. Anderson Burton M. Bentley ECF Registered [email protected] Attorney for Defendants Leonard and Elizabeth Bestgen, Robert Carroll,Rudy and Mary Crosswell, Charles Davis, Richard Derk, Orville Frazier, Ronald Kerher, Dwight Lankford, John and Candes Rada, Paul Richards, and Patrick and Andrea Wehrly Gregory Shebest ECF Registered [email protected] Attorney for Heritage Marketing David L. Kagel ECF Registered [email protected] Attorneys for Paul Pichie Steve A. Bryant Steve Bryant & Associates 3618 Mt. Vernon Street, Suite A Houston, TX 77006 Attorneys for Dwight Lankford Robert Tretiak 4615 N. Ft. Apache Road Las Vegas, NV 89129 Defendant Pro Se Ren Bidwell 3430 Pacific Ave SE Olympia, WA 98501 Defendant Pro Se
0758-011(55150)

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