Free Response to Motion - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7846 [email protected] [email protected] Attorney for Defendants Brad Weekley and Guy Gorman UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA James W. Field, Plaintiff, v. County of La Paz, et al., DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION REQUESTING PERMISION (SIC) TO SUPPLEMENT DAMAGE DISCLOSURE (FORCIBLE Defendants. DETAINER JUDGMENT) CV 03-2214-PHX SRB

Defendants Weekley and Gorman, through counsel, submit their Response to Plaintiff's Motion Requesting Court's Permision (sic) to Supplement Damage Disclosure Pursuant to FED. R. CIV. P. 26(e)(1) (Forcible Detainer Judgment). Plaintiff's Motion must be denied because Plaintiff failed to set forth a "good cause" basis for untimely disclosing the Forcible Detainer Judgment that was signed prior to the discovery deadline. Accordingly, Defendants respectfully request that this Court deny Plaintiff's Motion.

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This motion is supported by the following Memorandum of Points and Legal Authorities, the pleadings and exhibits on file with the Court, and any oral argument the Court may hold in this matter. MEMORANDUM OF POINTS AND LEGAL AUTHORITIES PROCEDURAL BACKGROUND Plaintiff seeks to introduce two documents to support his damages claim at trial: (1) a Judgment signed by Judge Burke on November 8, 2005; and (2) a Judgment (Forcible Detainer) also signed by Judge Burke on November 8, 2005. As the Court is aware, the Court entered a Rule 16 Scheduling Order on July 25, 2005, setting the discovery deadline in this case for November 30, 2005.1 The abovereferenced "damages" documents were dated November 8, 2005, nearly three weeks before the discovery deadline and six months before the first trial of this case. Yet, Plaintiff, for an unknown or "good cause" reason, chose to sit back and wait until one month before the second trial of this matter, and over one year since obtaining the signed Forcible Detainer documents, to disclose these documents. This is improper and the exhibits must be prohibited. II. LEGAL ARGUMENT. A. No Good Cause Exists for Plaintiff's Late Disclosure. Pursuant to Rule 26(a)(1)(B), Plaintiff was required to disclose "a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment." As outlined in Rule 37(C)(1), FED. R. CIV. P., a party who fails to timely disclose documents or other tangible exhibits, "shall not, unless such failure is harmless, be permitted to use evidence at trial ... the information or witness not disclosed."
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See Court's Order dated July 28, 2005.
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Under Johnson v. Mammoth Recreations, Inc., when a party attempts to set aside or adjust the deadlines set in the Scheduling Order, "good cause" must be shown.2 Once the District Court has filed a Pretrial Scheduling Order pursuant to FED. R. CIV. P. 16, establishing a timetable for amending pleadings, the "schedule cannot be modified except by leave of ... [the district court] upon a showing of good cause."3 Rule 16(b)'s "good cause" standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension."4 Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Thus, if a party was not diligent in complying with the Court's deadlines, the inquiry should end.5 In this case, Plaintiff has not been diligent in obtaining relevant discovery materials to support his claim. Plaintiff initiated this lawsuit on November 12, 2003. Plaintiff had over three years to complete discovery, yet chose to sit idly by until a month before the second trial of this case to disclose "Forcible Detainer" damages information that were dated three weeks before the close of discovery and presumably in Plaintiff's position. Allowing Plaintiff to now have additional time to locate and disclose these damages documents, will reward both Plaintiff's non-diligence and non-compliance with the Court Ordered deadlines established in this case. This severely prejudices the Defendants who have complied with the deadlines established by the Court and are less than one week away from beginning the second trial of this case. This untimely and 975 F.2d 604, 609 (1992). Id. at 609. See generally Coleman v. Quaker Oats Co., 232 F.3d 1271 (Ariz. 2000); Johnson, 975 at 609; Fed. R. Civ. P. 16 advisory committee's notes (1983) amendment; Amcast Indus. Corp. v. Detrex Corp., 132 F.R.D.213, 217 (N.D. Ind. 1990); 6A Wright, Miller & Kane, Federal Practice and Procedures § 1522.1 at 231 (2d. ed 1990) ("good cause" means scheduling deadlines cannot be met despite party's diligence). 5 Johnson, 975 at 609.
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prejudicial action by the Plaintiff cannot be tolerated and the Forcible Detainer documents must therefore be precluded as trial exhibits in his case. Moreover, notably absent from Plaintiff's disclosure of the Forcible Detainer documents is a "good cause" basis for failing to disclose the exhibit earlier. Without any evidence as to why Plaintiff sat idly by until one month before the second trial of this case before disclosing the documents as trial exhibits, Plaintiff cannot establish a "good cause" basis for allowing the exhibit to come into evidence at trial. Accordingly, Plaintiff's Motion must be denied and the Forcible Detainer documents must be precluded at trial. III. CONCLUSION Based on the foregoing, Defendants respectfully request the Court deny Plaintiff's Motion Requesting Court's Permision (sic) to Supplement Damage Disclosure Pursuant to FED. R. CIV. P. 26(e)(1) (Forcible Detainer Judgment). DATED this 16th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

BY /s/Jennifer L. Holsman John T. Masterson Jennifer L. Holsman Randall H. Warner 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright ORIGINAL of the E-filed filed this 16th day of January, 2007, with: COPYth the foregoing mailed of this 16 day of January, 2007, to: James. W. Field PO Box 248 Salome, Arizona 85348 Plaintiff Pro Per
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David F. Gaona, Esq. Nicole Cantelme, Esq. Gaona Law Firm 3101 North Central Avenue Suite 720 Phoenix, AZ 85012 Attorney for Co-Defendants By /s/ Peggy Sue Trakes

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