Free Motion to Strike - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700 Facsimile No.: (602) 263-1784 E-Mail: [email protected] [email protected] Attorneys for Defendants La Paz County, La Paz County Department of Community Development, La Paz County Sheriff's Office, Jay Howe, James Martin, Brad Weekley, Jerry Palmer, Penny Dalhberg, Guy Gorman, Dave Boatwright, Joe Deschaine, Curt Bagby, Joe Esqorsa, Pete Heere, and Jeff Bohlen UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JAMES W. FIELD and SUSAN F. FIELD, husband and wife, Plaintiffs, v. LA PAZ COUNTY, et al., Defendants. La Paz County Defendants, file this Motion to Strike Plaintiffs' CounterMotion for Summary Judgment because it is untimely. Plaintiff's Motion was filed over 60 days after the dispositive motion deadline mandated by the Court's Rule 16 Scheduling Order dated July 25, 2005. Accordingly, Plaintiffs' untimely dispositive Case No. CV03-2214 PHX-SRB LA PAZ CO UNTY DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' COUNTER-MOTION FOR SUMMARY JUDGMENT

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motion must be stricken. This Motion is Supported by the following Memorandum of Points and Authorities. /

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MEM ORANDUM OF POINTS AND AUTHORITIES PROCEDURAL HISTORY On July 25, 2005, the Court ordered a scheduling order regarding all deadliness in this matter. This Order identifies the dispositive motion deadline for all parties as December 30, 2005. Counsel for APS and La Paz County filed dispositive motions by this deadline. Plaintiff did not file a dispositive motion prior to December 30, 2005,

8 9 10 11 12 13 14 15 16 16, establishing a timetable for amending pleadings, the "schedule cannot be modified 17 18 19 20 21 22 23 24
1.

and did not seek an extension of time from the Court to file a dispositive motion.

II.

NO "G OOD CAUSE" EXISTS FOR AM ENDING THE RULE 16 SCHEDULING ORDER 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.

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Once the District Court has filed a Pretrial Scheduling Order pursuant to FED.R.C IV.P.

except by leave of ... [the district court] upon a showing of good cause." 2 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

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975 F.2d 604, 609 (1992).

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Id. at 609. 2

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reasonably be met despite the diligence of the party seeking the extension." 3 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. As outlined, the Court's July 25, 2005, Scheduling Order clearly identified the deadlines in this case. Specifically, the parties were given five months to participate in discovery and to file their dispositive motions by December 30, 2005. Counsel for both APS and the La Paz County Defendants complied with the Court's Order. Despite the Court's July 25, 2005, Order however, Plaintiffs filed their Counter Motion for Summary Judgment on March 6, 2006, over 60 days after the dispositive motion deadline. Plaintiffs never requested an extension of time to file dispositive motions from the La Paz County Defendants and did not file a request for extension of time with the Court.

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3.

Plaintiffs disregard for the Court's Order establishing deadlines in this matter cannot be tolerated. Plaintiffs were aware of the December 30, 2005, dispositive motion deadline for over 5 months prior to the deadline. Recognizing their mistake, Plaintiffs

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 Procedure § 1522.1 at 231 (2d ed. 1990) ("good cause" means scheduling deadlines cannot be met despite party's diligence.")

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have tried to pull the wool over the Court's eyes. This is inherently prejudicial to the Defendants who have complied with the Court's deadlines throughout this matter. Accordingly, Plaintiffs' Counter-Motion for Summary Judgment must be stricken. III. CONCLUSION Because Plaintiffs have clearly violated the Court's Rule 16 Scheduling Order, Defendants have not prepared a response to Plaintiffs' Counter Motion for Summary

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 Case 2:03-cv-02214-SRB Document 157 Filed 03/17/2006 Page 4 of 5 DATED this 17 th day of March, 2006. J ONES, S KELTON & H OCHULI, P.L.C. By s/ Jennifer L. Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for La Paz County Defendants Judgment. If the Court would like Defendants to further respond to Plaintiffs' Motion, they will do so as ordered. Otherwise, Plaintiffs' Counter Motion for Summary Judgment must be stricken for the foregoing reasons.

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1601048_1

ORIGINAL/ONE COPY of the foregoing filed this 17th day of March, 2006, with the Clerk of the United States District Court for the District of Arizona. COPY of the foregoing mailed even date to: James W. Field and Susan F. Field Post Office Box 248 Salome, Arizona 85348 Plaintiffs Pro Per

s/ Colleen Webb

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