Free Response - District Court of Arizona - Arizona

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Eric G. Slepian Bar # 017495 SLEPIAN LAW OFFICE 3737 N. 7th Street, Ste. 106 Phoenix, Arizona 85014 Telephone (602) 266-3111 Attorney for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Michelle Zenko, Plaintiff, vs. Motorola, Inc., a Delaware Corporation, The Motorola Long Term Disability Plan, Defendants. NO. CV-03-1815-PHX-JAT RESPONSE TO SHOW CAUSE HEARING AND MOTION FOR A CONTINUANCE OF SHOW CAUSE HEARING

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A Final Pretrial Conference was set for the above referenced matter for August 8, 2005 at 11:00 a.m. On July 13, 2005 this Court vacated the Pretrial Conference and set a Show Cause hearing, for the same date and time, directing counsel to show cause

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why they should not be sanctioned for failure to file a Joint Proposed Pretrial Order in accordance with this Court's March 21, 2005 Order. By way of this Motion, counsel respectfully requests that the Show Cause hearing be vacated as the matter has been settled and a stipulation to dismiss, with prejudice, has been filed with the Court. In the alternative, counsel respectfully requests that the Show Cause hearing be

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continued, as he will be out of the country on the date of the scheduled Show Cause hearing.

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RESPONSE TO SHOW CAUSE HEARING Although the matter has been dismissed with prejudice, counsel has learned that this does not affect the Show Cause hearing. Therefore, it is important for the Court to know that counsel did not intentionally fail to comply with an Order of this Court. The issues involved in this case are governed by the ERISA Statute, which is a complex

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statute that alters standard discovery and burden of proof issues. During the course of discovery, it was ascertained that the dollar amount in dispute as of the present date is not substantial. In the interest of judicial economy and the parties financial concerns, both parties believed it was in their best interest to fully explore settlement options prior to taking up more time and incurring additional legal fees. As of June 10, 2005, seventeen (17) days prior to the date of the scheduled Joint Proposed Final Pretrial

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Order, the parties believed that they had already came to settlement terms. The Court was advised by telephone conference that counsel anticipated that a settlement agreement would be entered into and a Notice of Dismissal would be filed prior to the June 27, 2005 date. Based on the anticipated execution of settlement documents, counsel for Plaintiff prepared a Stipulation to Continue the Final Pretrial Conference set

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for August 8, 2005. In the Stipulation, it states that the parties seek the continuance for the sole purpose of completing settlement discussions; and that counsel believes that the material terms have been agreed upon. A copy of the Stipulation prepared by Plaintiff's counsel was forwarded to Defendant's attorney and is annexed hereto as Appendix A. Thereafter, Defendant's attorney prepared and forwarded a Settlement

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Agreement. Based on the belief that the settlement would be finalized prior to June 27, 2005, the Stipulation prepared by Plaintiff's counsel was thought to be superfluous,

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unfortunately, the settlement was delayed due to an inability for the parties to agree upon the wording of the written agreement. Due to an oversight and some rather heated discussions regarding settlement terms, it appears that the June 27, 2005 date went by without the filing of a Joint Proposed Final Pretrial Order or the filing of the stipulation for a continuance. For this, counsel apologizes for the missing of the date was inadvertent. Shortly after June 27, 2005, counsel received an Order from the Court advising that the Joint Pretrial Conference was cancelled and that instead, there would be a Show Cause hearing. Counsel for Plaintiff contacted the Court and advised that: 1) the parties were near settlement; 2) that he would be out of the country on August 8, 2005; and that 3) counsel for the Defendant indicated that he would have no objection to a continuance of the Show Cause hearing. The Court indicated that if the Show Cause hearing needed to

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be continued, then a Joint Motion should be filed with the Court. In accordance with this conversation, counsel for Plaintiff prepared a Joint Motion for a Continuance of the Show Cause hearing. This motion was forwarded to the attorney for Defendant, for review (Appendix B). During this time, counsel for both parties moved forward with settlement negotiations and believed that the matter was only minutes away from final

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resolution. Both counsel expected that a resolution prior to the Show Cause hearing would put a final end to all issues, including the Show Cause hearing. As expected, the matter was settled prior to the Show Cause hearing. On August 1, 2005 the parties agreed to all written settlement terms. A Stipulation of Dismissal, with prejudice, was filed with the Court on the same date. So as to cover the bases, a

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joint telephone call was placed to the Court advising of the final resolution of the case, with prejudice. The attorneys were then advised that the settlement does not

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necessarily resolve the Court's Show Cause hearing. Accordingly, counsel for Plaintiff is filing this motion, and asks this Court's indulgence in forgiving the missed filing date. It is expected that Defendant's attorney will be filing a similar motion requesting that the Show Cause hearing be cancelled based upon the Stipulation of Dismissal, and counsel's apparent erroneous presumption that the dismissal would resolve all related matters pending before the Court. REQUEST FOR CONTINUANCE In the event the Show Cause hearing is to remain on the Court's calendar, it is respectfully requested that it be continued until August 22, 2005, as counsel for Plaintiff will be out of the country on the scheduled hearing date. The request for the continuance was not made earlier as counsel believed the matter would be settled and

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the hearing rendered moot. DATED this 2nd day of August, 2005. s/Eric G. Slepian Attorney for Plaintiff

ORIGINAL of the foregoing electronically filed this 2nd day of August, 2005.

Copy of the foregoing hand-delivered this 2nd day of August, to:

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Honorable James A. Teilborg United States District Court 401 W. Washington Phoenix, AZ 84003 Copy of the foregoing mailed this 2nd day of August, to: John Thomas Murray Michael P Elkon Seyfarth Shaw LLP 1545 Peachtree St NE Ste 700 Atlanta, GA 30309-2401

By: s/ Genesia Conover

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