Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Robert Patrick Abele, Trustee for the) Bankruptcy Estate of Wavo Corporation, ) ) ) Plaintiff, ) ) vs. ) ) ) David E. Deeds, et al., ) ) Defendants. ) )

No. CV03-1929-PHX-SRB ORDER

This Court issued its Order to Show Cause why this case should not be dismissed for lack of prosecution on November 22, 2005. In that order the Court noted the near total lack of activity on this case between its filing in October 2003, and December 1, 2004 when the parties filed the Second Joint Notice of Discovery and Settlement. During that time a Rule 16 Scheduling Order had been entered and Rule 26 disclosure statements had been exchanged. Subsequent filings by the parties revealed that no discovery was undertaken during that period. Between December 1, 2004 and November 17, 2005, no activity took place toward the prosecution of this case even though the Rule 16 Scheduling Order signed by the Court on April 6, 2004, set a discovery deadline for the case of January 15, 2005. On November 17, 2005, the Court heard from the parties for the first time since December 1, 2004. They filed a stipulation to substitute counsel for Plaintiff, moved to vacate the trial date and requested a status conference. The tragic and untimely death of
Case 2:03-cv-01929-SRB Document 27 Filed 01/26/2006 Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff's lead attorney, Tony Lucia, was cited as the reason for the stipulation, motion and request. In response to the Order to Show Cause Plaintiff's other counsel of record acknowledged their awareness of the discovery deadlines and other deadlines in the case and their awareness that there had never been a timely request for any extension made to the Court. They also acknowledged that not only counsel in this case but the Plaintiff through his counsel, Dan Collins, was well aware that new lead counsel would have to be found after Mr. Lucia's death in May of 2005. According to the affidavit submitted with the response, as early as June 2005 Mr. Collins had identified Marty Harper of Shughart Thomson and Kilroy, the proposed substituted counsel in the November 17, 2005 stipulation, as an individual who might be willing to take over the prosecution of this case. But in the five months between the first contact with Mr. Harper and November 17, 2005, not any of the remaining counsel of record for the Plaintiff or the Plaintiff himself through his counsel, Mr. Collins, took any steps to advise the Court of the status of the case or to request any extensions of time. It was not until after this Court's Judicial Assistant placed at least two telephone calls to Plaintiff's counsel in late October and early November, 2005 inquiring about the status of the upcoming trial that the stipulation, motion and request were filed. After Plaintiff responded to the Court's Order to Show Cause the Court directed Defendants to respond and also indicated that the Plaintiff could file a reply. Defendants' response confirmed the complete lack of activity on the case by the Plaintiff prior to Mr. Lucia's illness. Even though notices of deposition apparently were sent on December 13, 2004, a letter which accompanied the notices stated that there would be a stipulated motion prepared for the Court extending the discovery cutoff 90 days, to April 15, 2005, and once this motion was filed the depositions would be postponed. No stipulation was ever prepared and submitted to the Court but the depositions were cancelled. These events occurred before Mr. Lucia became ill. Defense counsel also detailed the continued request to dismiss certain Defendants who, from the Defendants prospective, should never have been joined in the case and Plaintiff's counsel's lack of response. Defense counsel also acknowledges that between -2Case 2:03-cv-01929-SRB Document 27 Filed 01/26/2006 Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

June and November 2005, when Plaintiff's counsel finally called to request a signature on the stipulation to vacate the trial date and for substitution of counsel, defense counsel had heard nothing from Plaintiff's counsel. Despite being giving the opportunity to reply, Plaintiff has not. While the death of Mr. Lucia was unfortunate it cannot be blamed for Plaintiff and his counsels' failure to prosecute this case, to comply with the Rule 16 Order or to follow the Local Rules of the Court regarding timely extension requests. The case was not prosecuted through December 1, 2004. Plaintiff was well aware of the need to complete or extend discovery by January 15, 2005, yet took no steps to do so. After Mr. Lucia's death in May 2005, Plaintiff and his counsel apparently took steps to obtain substitute counsel but did not act diligently. They never sought any extensions of any of the dates established in the Rule 16 Scheduling Order and only filed the request for substitution of counsel, to vacate the trial date and to have a status conference after this Court's Judicial Assistant called Plaintiff's counsel to inquire about the status of the case since the Court has heard nothing from the parties for almost a year and trial was scheduled for December 13, 2005. The Court finds that the fault for the lack of prosecution does not rest solely on counsel of record in this matter. Plaintiff himself, as represented by Mr. Collins, is similarly responsible for the lack of prosecution, the failure to diligently seek substitute counsel and most importantly the failure to advise the Court of what appears to be an unwarranted delay of almost six months between the death of Mr. Lucia and the first request to this Court of any need of any adjustment to the Rule 16 Scheduling Order. The Court can only speculate as to when it might have heard from Plaintiff had this Court, in an attempt to manage its calendar, not first made inquiry of Plaintiff's counsel concerning the impending trial date. The Court finds that this case has not been prosecuted and that Plaintiff has failed to comply with the Rule 16 Scheduling Order and the Local Rules of this Court regarding timely requests for extensions of time. The Court further finds that dismissal of this case is warranted under Rules 16(f) and 41(b), Federal Rules of Civil Procedure and Rule 83.1(e), Rule of Practice of the United States District Court for the District of Arizona. -3Case 2:03-cv-01929-SRB Document 27 Filed 01/26/2006 Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS ORDERED dismissing this case and directing the Clerk to enter judgment accordingly. DATED this 26th day of January, 2006.

-4Case 2:03-cv-01929-SRB Document 27 Filed 01/26/2006 Page 4 of 4