Free Objection - 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 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, Poete Heere, and Jeff Bohlen UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JAMES W. FIELD and SUSAN F. FIELD, husband and wife, v. Case No. CV03-2214 PHX-SRB

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LA PAZ CO UNTY DEFENDANTS' Plaintiffs, OBJECTION TO PLAINTIFFS' AFFIDAVIT AND NOTICE TO THE COURT THAT SOME AFFIDAVITS ARE CURRENTLY UNAVAILABLE AND NEED FOR ADDITIONAL Defendants. TIME PURSUANT TO RULE 56(F)

La Paz County Defendants, submits this opposition to Plaintiffs' Affidavit 18 and Notice to the Court that Some Affidavits are Currently Unavailable and Need for 19 Additional Time Pursuant to Rule 56(f). Plaintiffs' Motion, although not titled as such, is 20 a request for extension of time to complete fact discovery. Plaintiffs' request must be 21 denied because he has failed to set forth a "good cause" reason for modifying the Rule 16 22 Scheduling Order in this case and because Defendants would be prejudiced by an 23 extension of time for Plaintiffs to conduct fact discovery. 24 This motion is supported by the following Memorandum of Points and Legal 25 Authorities, the pleadings and exhibits on file with the Court, and any oral argument the 26 Court may hold in this matter. Case 2:03-cv-02214-SRB Document 156 Filed 03/17/2006 Page 1 of 5

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MEMO RANDUM OF POINTS AND LEGAL AUTHORITIES I. PROCEDURAL BACKGROUND Plaintiffs filed their initial complaint on November 12, 2003. Approximately four months later, Plaintiffs filed their First Amended Complaint. 1 Plaintiffs First Amended Complaint alleged that the Defendants violated their constitutional rights after electrical service was terminated to their property. On July 25, 2005, the Court entered a Rule 16 Scheduling Order, in which the following deadlines were mandated: · · · · Initial Disclosure Statements to be Exchanged: August 8, 2005 Expert Disclosure Statements to be Exchanged: September 9, 2005 All Supplemental Disclosures: October 31, 2005 All Discovery to be Completed (including responses to written discovery and depositions): November 30, 2005 · Dispositive Motion Deadline: December 30, 2005

Despite the Court's Order regarding the discovery deadline, Plaintiffs' recently requested "additional time in which to attempt to track down former employees of Wickenburg Pump and Electrical to secure their AFFADAIVATTS (sic), that indeed they performed the work indicated in plaintiff's statement of facts. Plaintiff also recently has discovered the need to certify his exhibits attached to the statement of facts referred to in this motion, however feels this can also be accomplished within the 30 days requested." 2 Plaintiffs have never requested an extension of time to conduct fact discovery and failed to submit a Local Rule 7.3 request with the Court prior to the

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See Plaintiffs' Amended Complaint filed March 4, 2004 See Plaintiffs' Motion, page 1-2, filed with the Court on March 6, 2006.

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discovery deadline. Now, nearly four months have passed since discovery has been completed, yet Plaintiffs want time to track down information that has been at issue since at least November 2002. Because no "good cause" reason exists for extending the expert disclosure deadline, Plaintiff's extension request must be denied. II. NO "GOOD CAUSE" EXISTS FOR AMENDING 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.3 Once the District Court has filed a Pretrial Scheduling Order pursuant to FED.R.C IV.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." 4 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." 5 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.6 In this case, Plaintiff has not been diligent in obtaining relevant discovery materials to support his claims. For example, on November 5, 2002, Plaintiffs were
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975 F.2d 604, 609 (1992). Id. at 609.

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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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Johnson, 975 at 609. 3

Case 2:03-cv-02214-SRB

Document 156

Filed 03/17/2006

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provided with a checklist of items that needed to be brought up to code before electrical service could be restored to the property. One notation from the checklist stated: ACTION REQUIRED: A Licensed Electrical Contractor shall be employed to inspect and bring the existing electrical system up to code. (Items No. 1, 2, 3, 7, 9, 14 and 19).7 Thus, Plaintiffs have known that having a licensed electrical contractor inspect and bring the existing electrical system up to code since November of 2002. Plaintiffs never provided this information to Defendants, yet now want an additional 30 days to obtain copies of affidavits from the W ickenburg Pump and Electrical to support their claim that "electrical employees did perform electrical work on plaintiffs' property." Allowing Plaintiffs to now have additional time to conduct discovery, when discovery has been closed for four months, will reward both Plaintiffs' non-diligence and noncompliance with the Court Ordered deadlines. This severely prejudices the Defendants who have complied with the deadlines established by the Court. III. CONCLUSION Based on the foregoing, Defendant respectfully requests the Court deny Plaintiffs' Affidavit and Notice to the Court that Some Affidavits are Currently Unavailable and Need for Additional Time Pursuant to Rule 56(f) because Plaintiffs have failed to show a "good cause" reason for failing to comply with the Rule 16 Scheduling Order. DATED this 17th day of March, 2006. JONES, SKELTON & HOCHULI, P.L.C. By: s/Jennifer L. Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012
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See November 26, 2002 Abatement Order and Checklist, attached hereto as Exhibit 2.

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1 2 3 COPY of the foregoing mailed even date to: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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ORIGINAL of the foregoing e-filed this 17th day of March, 2006

James W. Field and Susan F. Field Post Office Box 248 Salome, Arizona 85348 Plaintiffs Pro Per David F. Gaona, Esq. Nicole Cantelme, Esq. Gaona Law Firm Suite 720 3101 North Central Avenue Phoenix, AZ 85012 Attorney for Co-Defendants s/Colleen Webb

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Case 2:03-cv-02214-SRB