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 party. October 2, 2003, the complaint was filed in this case. Four lawyers appeared as counsel of record for Plaintiff. Anthony Lucia, Curt Clausen, Christopher Berry and Thomas Moring. Defendants waived service and an answer was filed on February 17, 2004. The Court held its Rule 16 Scheduling Conference on April 6, 2004, and established the deadlines for the case based on the agreement of the parties in their Rule 16 Case Management Plan. Since the Court entered its Rule 16 Scheduling Order, only four documents have been filed; the notices of service of Plaintiff and Defendants Rule 26 disclosure in April 2004, an August 2, 2004 First Joint Notice of Discovery and Settlement and a December 1, 2004, Second Joint Notice of Discovery and Settlement. It is apparent from a review of the file that no discovery has been initiated by either The file contains no notices of service of any requests for production, of 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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

interrogatories or of deposition. The parties' Joint Proposed Pretrial Order was to be lodged
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on November 21, 2005. On November 17, 2005, the Court heard from the parties for the first time since December 1, 2004. Plaintiff filed a Stipulation to Substitute Counsel for Plaintiff, Motion to Vacate Trial and Request for Status Conference. The stipulation seeks to substitute the law firm Lucia Stark Williamson, LLP with the law firm Shughart Thomson & Kilory, PC. The stipulation recites that it is necessitated by the untimely death of Plaintiff's lead attorney, Tony Lucia. The stipulation and motion then recite that the parties have not completed discovery, that Defendants still have not reviewed the records that were made available on August 2, 2004, and that nearly a year ago the parties had agreed to extend the discovery date but that no stipulation for an extension was ever filed. The letter containing that agreement was dated December 13, 2004, and memorialized an agreement to extend the discovery cutoff to April 15, 2005. Finally, the parties recite that because of Mr. Lucia's illness and subsequent death the parties were unable to complete discovery as set forth in the Court's Scheduling Order and therefore are not ready to proceed to trial as currently scheduled on December 13, 2005. In addition to requesting that the Court vacate the current trial date, the parties requested a status conference for the purpose of establishing an amended discovery schedule. The Stipulation, Motion to Vacate and Request for Status Conference are problematic for several reasons. First, counsel of record is not the law firm of Lucia Stark Williamson, LLP, and proposed substituted counsel cannot be the law firm of Shughart Thomson & Kilroy, PC. Counsel of record for the Plaintiff are Curt Clausen, Christopher Berry and Thomas Moring. Any substituted counsel for the Plaintiff must be an individual admitted to practice before this Court. Presumably this individual will be Marty Harper. Second, the request for Status Conference presumes that the Court will re-establish all Rule 16 deadlines other than the initial disclosure deadline and perhaps the deadline for moving to amend the complaint. The Motion to Vacate Trial and Request for Status Conference does not in any way acknowledge that there were four counsel of record until the death of Mr. Lucia and there is no explanation of those lawyers' failures to advise the Court about any inabilities to meet the Rule 16 deadlines or of their failures to comply with the provisions Rule 7.3, -2Case 2:03-cv-01929-SRB Document 23 Filed 11/22/2005 Page 2 of 3

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LRCiv. requiring that stipulations or requests for extensions of time be made prior to the expiration of the time sought to be extended. Finally, the Court is aware that Mr. Lucia passed away in the spring of 2005. Nothing in the parties' recent filing acknowledges the amount of time that has passed since Mr. Lucia's death or explains Plaintiff's attorneys' failure to take any action in this case including any requests for extension of any deadlines in the months between his death and November 17, 2005. IT IS ORDERED denying the Stipulation to Substitute Counsel for Plaintiff because it purports to substitute law firms rather than lawyers. (docs. 20, 21). IT IS FURTHER ORDERED granting the Motion to Vacate Trial presently set for December 13, 2005. (doc. 21). IT IS FURTHER ORDERED vacating the joint proposed pretrial order deadline and the final pretrial conference presently scheduled for November 28, 2005. IT IS FURTHER ORDERED denying the Request for a Status Conference. (doc.21). IT IS FURTHER ORDERED that counsel for the Plaintiff shall show cause in writing within 10 days of the date of this order why this case should not be dismissed for lack of prosecution. DATED this 22nd day of November, 2005.

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