Free Reply - District Court of Arizona - Arizona

1 RYLEY, CARLOCK & APPLEWHITE
One North Central Avenue, Suite l200
2 Phoenix, Arizona 85004-4417
3 Telephone: 602/258~'770l
Telecopier: 602/257-9582 .
4
Charles L. Chester — 002571
5
6 UNITED STATES DISTRICT COURT
7 DISTRICT OF ARIZONA
8
KAYE K. HUTTON, as an individual and as No. CV2003-2262·~PI-IX-ROS
9 representative of a class consisting of others
similarly situated,
l0 _ _ _ nnrrv on nnFnNnANr·s
1 1 Plamnft, onrecrions TO Form or
ORDER AND MOTION TO EXTEND
12 V· DEADLINES ON SCHEDULING
RDER
13 BANK OF AMERICA, NA., O
14 Defendant.
15
16 Loaded with alleged “neglect" by Defense Counsel, Plaintiffs response is inaccurate.
17 Perhaps most telling, Plaintiff does not deny agreeing to extend all other deadlines to a date to
tg be agreed upon. Following Plaintiff s numbered "reasons", Defendant offers the following:
19 l. All are presumed to know when the Scheduling Order Deadlines occur. That is
20 not th point. `l` he point is that Plaintiff asked for the extension of one deadline
2l
(non-expert disclosures) and Defendant agreed only if all other deadlines were
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73 extended. Plaintiff accepted this then refused to agree to extend all others.
24 2. The payroll records from November l, 2001 to February 28, 2002 had been
25 provided for Ms. Hutton and, counsel undersigned believed, for the original Opt-
26 ins, Ms. Larkin, Peterson and Lyitogt. The remaining Opt—in’s statute of
27 limitations, in light of the Stay Order entered in this case, commenced in April,
28 2002 (Proceedings stayed 2/l?/04 to 12/22/04; Opt~ins filed 2/18/05). T here is
§’§f§(g:O3—cv-02262-ROS Document 152 Filed O9/29/2005 Page 1 of 4

1 no relevance to their payroll records before April 2002. Nevertheless, Defendant
2 provided payroll records from March 3l, 2001 to February 28, 2002 on
3 September 19, 2005. (Exhibit "A”) Plaintiff omits this in her September 28,
4 2005 Response. See p 2, note l)
2 3. On August 22, 2005, when the last mediation broke down, the Bank offered to
7 extend gl deadlines 60 days so that the parties could complete discovery in a
8 less pressed environment. Plaintiff declined. Counsel undersigned does not
9 recall making the offer again on September 8, 2005. The deposition of Opt—in
l0 Janice Peterson was taken that day, and the offer could have been made again.
1 1 However, n_o_ offer ever was made to extend only one deadline
12 4. On September 9, 2005, Plaintiffs counsel clearly asked to extend only the non-
expert deadline. The request was accepted, but only because the parties agreed
E5 to extend all other deadlines to a date to be determined the next week.
16 5. Plaintiff is mistaken. Counsel undersigned sought and obtained agreement on
17 September 9, 2005, to the extension of all deadlines. At the time, he was
18 unaware that the "Pinal Supplement to Expert Report” had been served that day.
19 An Oklahoma pasture is a long way from downtown Phoenix.
il; 6. Plaintiffs assertion that the salary test was opined upon in Defendant’s expert
22 report is inaccurate. The Administrative exemption has two parts, the salary test
23 and the duties test. Plaintiffs expert’s initial report (Exhibit "B”) said nothing of
24 the salary test. Defendant’s expert report mentioned the test in passing, only,
25 rendering no opinion. Pages l and 6 say nothing of the test. Page 7 salary the
26 salary test as part ofthe Regulations, noting that counsel undersigned stated the
27 client managers were never paid a "guaranteed salary less than $250 per week."
28 Page 8 notes only that the salary test in part 54l.2(c) of the old Regulations is
ase 2:O3—cv—O2262—ROS Document 1522- Filed O9/29/2005 Page 2 of 4

I inapplicable because the employees are salaried at $250 or more. Page 10, which
2 notes the new salary test effective August 23, 2004, only mentions the increase
3 to $455 per week and mentions that counsel undersigned said no Client
4 Manager’s guaranteed salary was less that $455 per week. Therefore, in the
; initial 2 expert reports, neither expert rendered an opinion on the salary test.
7 Nevertheless, in his "Rebuttal" (Exhibit "C") Plaintiffs expert, Clemons, opined
8 at pages 1 and 2 that the salary test was not met. That rebuts no opinion, it is an
9 opinion on a new topic. Defendant did not intend to seek leave to tile another
IO expert opinion because the salary test section was not rebuttal and would be
ll stricken. Then, unknown to counsel undersigned, on September 9, 2005,
12 Plaintiff tiled her Final Supplement to Expert Report (Exhibit "D°’). First, the
fp Final Supplement contains no ":naterial changes" to an earlier report. The
15 Court’s Scheduling Order permits only the tiling of "material changes" to expert
16 reports after August 22, 2005. Order of April 27, 2005, p 2, lns 23-26. Rather,
17 the Final Supplement adds to the new opinion expressed for the first time in
lg "Rebuttal". Whether Plaintiff had sought the extension of non~expert discovery
lg or not on September 9, a motion would have been filed by Defendant striking
il; the salary test opinions or seeking leave to supplement Defendant’s expert
22 report. The agreement to extend all other deadlines resolved the need.
23 7. No inequity will occur by allowing Defendant’s expert to opine on the new topic
24 introduced in rebuttal.
25 8. In "Rebuttal" and "Supplement", Plaintiff has offered an opinion on a new topic.
26 Allowing Defendant time to submit an expert opinion on the new topic is only
27 fair. Befendant will agree that Plaintiff can file a true rebuttal opinion on the
28 new topic.
ase 2:O3—cv—O2262—ROS Document 155,* Filed O9/29/2005 Page 3 of 4

I In conclusion, though unknown to Defendant at the time, the parties’ September 9,
2 2005, agreement to extend all deadlines would have cured the trickery of Plaintiff. Therefore,
3 Defendant requests that all deadlines be extended. if the Court deems it proper, Defendant
4
stipulates to a time line permitting i’laintit`f to file a rebuttal report to Defendanfs expert
5
6 opinion on the new salary test topic.
7 DATED this2 2%)/ of September, 2005.
8
9 RYLEY CARLOCK & APPLEWHITE
10 / [
E 1 By ./C
Charles L. Chester
I2 One North Central Avenue, Suite 1200
Phoenix, Arizona 850044417
13 Attorney for Bank of America, NA.
14
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l7 Eiectroni aily iiied
18 this llday ofiSepternber,2005.
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lg By li A -...
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