Free Motion for Reconsideration - District Court of Arizona - Arizona

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Curt W. Clausen, Esq. ­ #019709 LUCIA STARK WILLIAMSON LLP 2700 North Central Avenue, Suite 1400 Phoenix, Arizona 85004 Telephone: (602) 285-4400 Facsimile: (602) 285-4483 Firm E-mail: [email protected] Christopher J. Berry, Esq. ­ #015385 WHITTEN BERRY, PLLC 101 North First Avenue, Suite 1800 Phoenix, Arizona 85003 Telephone: (602) 462-1141 Facsimile: (602) 462-1151 E-mail: [email protected] Special Counsel for Trustee, Robert Patrick Abele
UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

ROBERT PATRICK ABELE, Trustee for the Bankruptcy Estate of Wavo Corporation, Plaintiff,

No. CIV 03-1929-PHX-SRB PLAINTIFF'S MOTION FOR RECONSIDERATION OF DISMISSAL AS SANCTION

14 vs. 15 16 17 18 19 20 21 22 23 24 25 26 DAVID E. DEEDS and STACEY A. DEEDS, husband and wife; MICHAEL J. COFFIN and TONI M. COFFIN, husband and wife; KENNETH D. SWENSON and SHARON C. SWENSON, husband and wife; THOMAS P. HULL and SANDRA M. HULL, husband and wife; PLYMOUTH DEWITT, L.L.C, a Nevada corporation, Defendants.

Pursuant to L. R. Civ. P. 7.2(g), the Trustee for Debtor Wavo Corporation respectfully asks this Court to reconsider its dismissal as a sanction for Plaintiff's failure to prosecute this action in a timely manner. It is clear from the Court's Order that the Court did not find acceptable how counsel and the Trustee handled this matter, particularly after Tony Lucia's death. This motion is not brought to re-argue that issue, or in the hope that the Estate can provide some additional fact or circumstance that the Court has not
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considered, which might change how the Court views the events leading up to its Order. The Motion is brought to ask the Court to examine whether dismissal, the harshest possible sanction, is appropriate, and whether some lesser sanction can be imposed. Federal Rule of Civil Procedure 41(b) allows a trial court to dismiss an action for failure to prosecute the claim in a timely manner. Dismissal, however, is a harsh sanction and should only be imposed "in extreme circumstances." See Oliva v. Sullivan, 958 F.2d 272, 273-74 (9th Cir. 1992). Before imposing dismissal, a court must first consider: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to [defendants]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of lesser sanctions. Porter v. Martinez, 941 F.2d 732,733 (9th Cir. 1991); see also, Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (applying same factors to dismissal under Rule 41(b)). "[T]he key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990). With the exception of interfering with this Court's ability to manage its docket, the remaining factors applied to this case weigh against dismissal. Although prejudice may be presumed, this presumption is rebuttable. See Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). Here, even Defendants' Response to the Show Cause Order reveals that the delay of this lawsuit did not prejudice Defendants. Defendants had no real defense activity in the case. They requested and took no depositions. There were no motions filed and no procedures delayed. No witnesses have died or become unavailable. No time periods or deadlines have lapsed outside of the trial schedule. Plaintiff has maintained the Debtor's records, which have always been available for inspection. While Plaintiff understands that memories may fade over time, and there will undoubtedly be some independent witness testimony, the vast majority of testimony will come from the individual Defendants themselves. Since the filing of the Complaint,
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Defendants have been in a position to actively plan their defense, including interviewing witnesses. Therefore, any perceived prejudice results only from having to defend claims that are otherwise dismissed, not as a result from delay in prosecuting the claims. See Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990) (prejudice concerns only the impairment of "defendant's ability to go to trial."). As the Ninth Circuit has noted, "even where a plaintiff has failed to do what he might have done earlier, he may have an explanation that excuses or justifies his failure. It is at this point that he extent of prejudice to the defendant, if any, becomes important...a weak excuse may suffice if there has been no prejudice; an exceedingly good one might still do even when there has been some. Thus, delay alone should not be deemed to create a presumption of prejudice..." Nealey v. Transportation Maritima, S.A., 662 F.2d 1275, 1280 (9th Cir. 1980)(counsel's excuse that he did not want his client to be subject to a dragnet of discovery or the pressure created by the implication that the client was looking for a lot of money in a lawsuit was weak, but sufficient to trigger appellee's obligation to show some real evidence of actual prejudice). Respectfully, when the five considerations set forth in Oliva v. Sullivan are considered, the imposition of dismissal is unduly harsh to the Estate and it rewards Defendants for their contribution to the delay. The Defendants were not prejudiced by the delay. Their situation today is no different due to the passage of time. If anything, the Defendants' position is enhanced, because Mr. Lucia and his knowledge of the case are gone, and new counsel would be starting with a knowledge deficit. Similarly, the policies in favor of adjudication on the merits favor this matter being resolved at trial. Finally, lesser sanctions are available against current counsel or the Estate. Plaintiff thus requests that this Court consider and impose lesser sanctions than dismissal of this action.

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RESPECTFULLY SUBMITTED this 9th day of February, 2006. WHITTEN BERRY, PLLC

By /s/ Christopher J. Berry Christopher J. Berry 101 North First Avenue, Suite 1800 Phoenix, Arizona 85003 Curt W. Clausen LUCIA STARK WILLIAMSON LLP 2700 N. Central Ave., Suite 1400 Phoenix, Arizona 85004 Attorneys for Trustee, Robert Patrick Abele ORIGINAL E-FILED AND COPY hand delivered this 9th day of February, 2006, to: Hon. Susan R. Bolton 401 W. Washington Street Phoenix, AZ 85003 COPY of the foregoing e-mailed this 9th day of February, 2006, to: Philip R. Rudd, Esq. 8601 N. Scottsdale Rd., Suite 300 Scottsdale, AZ 85253 Attorneys for Defendants By /s/ Nicole A. Nimtz

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