Free Motion to Continue - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JANET M. WALSH Assistant U.S. Attorney Arizona State Bar No. 014087 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CIV-03-1631-PHX-ROS Plaintiff, v. Merrie Sue D'Avis, Defendant. UNITED STATES' MOTION FOR CONTINUANCE OF THE DEADLINES SET BY ORDER OF APRIL 18, 2005 AND REQUEST FOR STATUS CONFERENCE

Plaintiff United States of America hereby moves the Court to continue the deadlines in its Scheduling Order of April 18, 2005, and schedule a status conference. As set forth in more detail below, Defendant has not provided a completed financial statement, which is a prerequisite to settlement in an amount of less than the Government's loss based on a claim of financial inabiltiy to pay by Defendant. Because of the desire to avoid unnecessary litigation expense to Defendant, counsel for Plaintiff has delayed initiating discovery in this matter and has inadvertently missed the deadline to disclose Plaintiff's trial witnesses. In its Order of April 18, 2005, the Court set the following deadlines: 1) Plaintiff to disclose all trial witnesses by September 2, 2005; Defendant to disclose all trial witnesses by September 30, 2005; Plaintiff to disclose rebuttal witnesses by November 4, 2005; 2) All discovery to be completed by December 2, 2005; 3) Final supplementation of discovery by January 6, 2005; 4) Joint Proposed Pretrial Order and motions in limine filed by January 27, 2006. Pursuant to the terms of this Order, the deadline for filing dispositive motions had elapsed.

Case 2:03-cv-01631-ROS

Document 45

Filed 09/30/2005

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As the Court may recall, Michael Helms, defense counsel, notified the Court at the

2 scheduling conference on April 8, 2005, that he was unable to locate his client. On May 24, 3 2005, 2005, counsel for the United States learned that defense counsel had located his client. On 4 that date, counsel for the United States forwarded a Department of Justice "Financial Statement 5 of Individual Debtor" form ("Financial Statement"). On June 8, 2005, Plaintiff filed a first notice 6 of discovery and settlement and notified the Court that Defendant had not returned a completed 7 Financial Statement as of the date of that notice. 8 On June 15, 2005, this Court issued an Order, requiring Defendant to produce a completed

9 Financial Statement to the United States within ten days of the Order, and indicated that the Court 10 would require Defendant to show cause why sanctions should not be imposed. On July 18, 2005, 11 Plaintiff filed a notice indicating that Defendant had not complied with the Court's Order of June 12 15, 2005, by providing a completed financial statement to the United States. In that notice, 13 Plaintiff also requested that the Court schedule a status conference. 14 On September 7, 2005, defense counsel forwarded Defendant's incomplete and unsigned As of today's date, Defendant remains in

15 Financial Statement to the United States.

16 noncompliance with the Court's Order of June 15, 2005. 17 In reviewing upcoming deadlines in this matter, counsel for the United States realized that

18 she had inadvertently missed Plaintiff's deadline of September 2, 2005, to disclose all trial 19 witnesses. Undersigned counsel realized today, for the first time, that the deadline of September 20 30, 2005, the deadline for Defendant to disclose trial witnesses, had been inadvertently entered 21 on her calendar as the Plaintiff's deadline. 22 In light of Defendant's failure to notify defense counsel of her whereabouts for several

23 weeks and her continued refusal to comply with the Court's Order of June 15, 2005, which could 24 subject her to sanctions, Plaintiff asks the Court to schedule a status hearing to consider whether 25 additional time for settlement negotiations would assist in informally resolving this matter and 26 issue an order continuing the deadlines in its Order of April 18, 2005, until new dates are 27 determined at or following the status conference. If this Court determines that additional time 28 for settlement negotiations would not assist the parties, Plaintiff would request that the Court 2
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1 vacate its prior Order regarding the deadline for dispositive motions, set a new deadline for 2 dispositive motions of ninety days following the status conference, and reschedule the deadlines 3 in its Order of April 18, 2005, to allow Plaintiff additional time to conduct discovery. 4 5 6 7 s/Janet M. Walsh 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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Respectfully submitted this 30th day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

JANET M. WALSH Assistant United States Attorney Attorneys for Plaintiff United States of America

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CERTIFICATE OF SERVICE I hereby certify that on September 30, 2005, I electronically transmitted the attached

3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice 4 of Electronic Filing to the following CM/ECF registrants: 5 Michael G. Helms 6 Kothe & Helms Great American Tower 7 3200 North Central Ave Suite 1260 8 Phoenix, Arizona 85012 9 s/Janet M. Walsh ______________________________ 10 Office of the U.S. Attorney 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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