Free Motion to Dismiss Counts/Claims - District Court of Arizona - Arizona

M. Brett Bums (admitted pro hac vice)
Stephanie K. Osteen (admitted pro hac vice)
AKIN GUMP STRAUSS HAUER & FELD LLP
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
(214) 969-2800
facsimile (214) 969-4343
Tricia Schafer (018748)
MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A.
2901 North Central Avenue, Suite 200
Phoenix, Arizona 85012
(602) 285-5000
facsimile (602) 285-5100
— Attomeys for Defendants 1
UNITED STATES DISTRICT COURT A
` DISTRICT OF ARIZONA n
Patrice Jerome,
N0. CV03-1913-PHX-MHM `
Plaintiff,
DECLARATION OF
v. STEPHANIE K. OSTEEN
Midway Holdings, Inc. et al. . ‘
Defendants.
l. My name is Stephanie K. Osteen. I am over twenty—one years of age, and
· have personal knowledge that the matters set forth in this Declaration are true and
I correct. I am fully competent to make this Declaration. Q I
2. I am one of the attorneys representing Defendants Midway Holding, Inc.
and Midway Chevrolet, Inc. in this case. I
EXHIBIT
2
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3. On September l5, 2004, Defendants served their first discovery requests on
Plaintiff, and Plaintiff responded on November 2, 2004. Attached as Exhibit Al is a true
and correct copy of Plaintiff ’s Responses to Defendant’s First Set of Interrogatories and a
true and correct copy of Plaintiff ’s Responses to Defendant’s First Request for Production
of Documents.
4. Attached as Exhibit A2 is a true and correct copy of Plaintiff ’s Initial
Disclosure Statement, which was served on April 8, 2005.
5. Plaintiff was deposed on February 28, 2005, continuing on July 27, 2005.
I Attached as Exhibit A3 is a true and correct copy of excerpts from the transcriptlof
Plaintiff ’s deposition. -
6. On August 30, 2005, I sent a letter to counsel for Plaintiff requesting the
pay records that Plaintiff testified about in her deposition. Attached as Exhibit A4 is a
. true and copy of my August 30, 2005 letter. i A
7. On August 31, 2005, Defendant Midway Holdings, Inc. served a Second
Request for Production of Documents to Plaintiff. Attached as Exhibit A5 is a true and
correct copy of Defendant’s Second Request for Production of Documents.
8. On September 27, 2005, I sent another letter to counsel for Plaintiff .
A requesting the pay records that Plaintiff testified about in her deposition. Attached as
Exhibit A6 is a true and correct copy of my September 27, 2005 letter. ~
9. On or about September 27, 2005, I spoke with counsel for Plaintiff in
person regarding the outstanding discovery in this case. He informed me that plaintiff
. would provide the requested discovery. L A
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10. On September 28, 2005, I sent a letter to counsel for Plaintiff confirming
our conversation from the previous day regarding outstanding discovery. Attached as
Exhibit A7 is a true and correct copy of my September 28, 2005 letter.
11. On October 25, 2005, I sent a letter to counsel for Plaintiff again requesting
the pay records that Plaintiff testified about in her deposition and supplemental
calculations for Plaintiff ’s alleged economic damages. Attached as Exhibit A8 is a true
and correct copy of my October 25, 2005 letter.
12. On December 1, 2005, Defendants notified the Court that they needed the
Court’s assistance in compelling Plaintiff ’s responses and the outstanding discovery
issues in this case. Attached as Exhibit A9 is a true and correct copy of the December 1,
2005 letter Defendants sent to the Court. p
I 13. Although the Court ordered that Plaintiff produce outstanding discovery by
December 16, 2005, Defendants did not receive anything by that deadline, nor did
Defendants receive anything before the start of the Settlement Conference on December
t 20, 2005. `
I 14. After the Settlement Conference ended on December 20, 2005, Plaintiff ’s
counsel faxed a letter to me containing what Plaintiff purports to be her supplemental
disclosures regarding back pay calculations and earnings estimations for 2003, 2004, and
2005. Attached as Exhibit A10 is a true and correct copy of the December 20, 2005 letter
I received from Plaintiff ’s Counsel. 4
I 15. Plaintiff has not provided written responses to Defendant’s August 31,
2005 discovery requests. Plaintiff has provided faxed copies of the releases for records,
3
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‘ but has not provided the original releases. Plaintiff has not produced any other;
documents in response to the August 31 requests, including requested bank records or
statements.
I declare under penalty or perjury under the laws of the United States of America
that the foregoing is true and correct and that this Declaration was executed this 30th day
of December, 2005.
STEPHANIE K. OSTEEN . ‘
#5849692
. 4 I
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