Free Response - District Court of Arizona - Arizona

Lydia A. Jones - 017178 ROGERS & THEOBALD LLP 2 The Camelback Esplanade, Suite 850 2425 East Camelback Road 3 Phoenix, Arizona 85016
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Telephone: (602) 852-5582 [email protected]

Attorneys for Plaintiffs UNITED STATES DISTRICT COURT ARIZONA DISTRICT KAYE HUTTON, as an individual and representative of a class consisting of others similarly situated, Plaintiff, vs. BANK OF AMERICA, N.A., Defendant. No. CV2003-2262-PHX-ROS PLAINTIFF'S RESPONSE TO DEFENDANT'S OBJECTION TO THE FORM OF ORDER AND OPPOSITION TO DEFENDANT'S MOTION TO EXTEND DEADLINES ON SCHEDULING ORDER

The Objection and Motion attempt to connect and combine two separate and distinct issues. One is the deadline for both sides to serve their final supplemental expert disclosures as required by this Court's Scheduling Order dated April 27, 2005. The other is extensions to all other deadlines in the scheduling order. As to the second issue, Defendant's Counsel neglects to mention that Plaintiff has already agreed to extend the other deadlines in the scheduling order. Consequently, the only remaining issue is the applicable date for serving final supplemental expert disclosures. There are eight reasons for denying the defendant's motion for an extension on final expert disclosures.
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1) Defendant's Counsel neglects to mention that: a) the deadline for filing the final supplemental expert report has been in the schedule since the Court's First Amended Scheduling Order dated April 27, 2005; b) Plaintiff's Counsel had reminded Defendant's Counsel of the deadline for serving the final supplemental expert report by fax on July 28, 2005; and c) Plaintiff's Counsel therefore had no reason to believe that Defendant's Counsel had misplaced or forgotten the deadline. 2) Defendant's Counsel neglects to mention that the single extension that Plaintiff requested was necessary because the Bank had then (and still has) failed to produce documents Plaintiff needed to complete the non-expert final disclosure of witnesses and documents to be used at trial. Specifically, the Bank has failed to produce any of the "per pay period records" (meaning the every two week pay period records) from 2000 through mid-2002 it is required by law to maintain and to produce. The per two week pay period records are the very records relevant to determining whether the Bank can meet the "salary test" it has raised in its own defense.1 3) Specifically, on September 8, 2005, because the Bank had failed to produce per pay period records, the Bank offered to extend scheduling order deadlines as an accommodation. Plaintiff accepted that offer, and on September 9, 2005 sent a proposed Stipulation extending only the non-expert disclosure of final documents and witnesses, and no other deadlines. 4) Defendant's Counsel neglects to mention that during the telephone conversation he references, Plaintiff's Counsel, both in initial discussions and

Although Defendant Bank has repeatedly promised to produce these documents, which most recently were promised for September 15, 2005, Bank continues to fail to deliver them. This stonewalling prevents the case from unfolding as the Federal Rules require, and can fairly be interpreted to mean that the documents Bank is withholding would aid the Plaintiff's case.

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in recap of the conversation, made clear that the deadlines to be changed were only the non-expert deadlines. 5) Defendant's Counsel only sought to extend the deadline for serving the final supplemental expert report after: a) the deadline had already passed; and b) Counsel received Plaintiff's timely served final supplemental expert report, which unequivocally demonstrates among other things that the Bank cannot meet the salary test (and therefore cannot avoid liability in this action). 6) Relatedly, Defendant's Motion claims that Plaintiff's final supplemental expert report raises a new topic (the salary test), which warrants additional time for response. That is demonstrably untrue. The salary test was first raised by Defendant's own expert. [See Defendant's Expert Report of Brian T. Farrington dated July 20, 2005, pp. 1, 6-8, 10 attached as Exhibit A.] Then Plaintiff's expert also addressed the salary test in his rebuttal report of August 22, 2005. [See Rebuttal to Defendant's Expert Report dated August 22, 2005, pp. 1-2 attached as Exhibit B.] 7) Defendant seeks time beyond a past deadline to respond to an issue (the salary test) as to which it continues to withhold critical documents (the per two week pay records). To excuse the Bank from complying with the Court's

Scheduling Order and allow a belated expert report to address the very issue on which it is withholding documents would create serious inequities between the parties and effectively punish the plaintiff for having complied with this Court's Order in a timely manner. 8) Finally, if the Court were to grant Defendant's motion, it would grant the Bank an unfair and unearned advantage and thereby prejudice the Plaintiff's case. Specifically, the Court would be rewarding the Bank ­ for its failure to meet the deadline for serving its own final supplemental report simultaneously
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with Plaintiff's serving ­ with the opportunity to develop its own final report while still withholding documents key to the salary test and after already having seen the Plaintiff's final expert's report.

The Bank's motion is an effort to correct indirectly an error that cannot be corrected directly. Specifically, the motion attempts an end run around a missed deadline by claiming it was somehow covered by an agreement and stipulation that specifically excluded it. The motion should be denied and the remaining deadlines in the scheduling order should be adjusted in relation to the time at which the defendant either admits that it has lost the key per two week pay records or produces them - the absence of which created the genesis of the agreement to extend deadlines relating to non-expert deadlines in the first place.

DATED this28th day of September, 2005.

ROGERS & THEOBALD, LLP
By /s/ Lydia A. Jones

Lydia A. Jones The Camelback Esplanade, Suite 850 2425 East Camelback Road Phoenix, Arizona 85016 Telephone: (602) 852-5582 Attorneys for Plaintiffs

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I hereby certify that on this 28th day of September, 2005, I electronically transmitted to the clerk's office using the CM/ECF system for filing and transmittal of a notice of 2 electronic filing to the following CM/ECF registrants:
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Charles L. Chester 4 Ryley Carlock & Applewhite One North Central Avenue, Suite 1200 5 Phoenix, AZ 85004-4417 Attorneys for Defendant Bank of America, N.A.
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And a courtesy copy hand-delivered to:

Honorable Roslyn O. Silver United States District Court 9 Sandra Day O'Connor U.S. Courthouse, Suite 624 10 401 West Washington Street, SPC 59 Phoenix, AZ 85003-2158
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By /s/ Lydia A. Jones

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