Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6

Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 Shannon Michael Clark, 9 Plaintiff, 10 v. 11 ValueOptions, Inc., 12 Defendant. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In compliance with Rule 56.1, Local Rules of Practice, Defendant Thomas Crumbley, whose true name is Thomas Nathan Crumbley, M.D. ("Crumbley") submits the following objections and Additional Statement of Facts in Opposition to Plaintiff's Motion for Summary Judgment ("Motion"). In support of his Motion, Plaintiff submits nineteen (19) Statements of Fact. Though Crumbley does not generally object or controvert Plaintiff's Statement of Facts ("PSOF") in regard to the factual background of certain events for purposes of this Response, Crumbley does object and controvert each and every statement of fact that relies on Plaintiff's Request for Admissions ("Requests"). Plaintiff improperly asserts that Crumbley failed to timely file responses to the Requests and that they are automatically deemed admitted. As demonstrated by the Additional Statement of Facts ("ASOF"), a timely response to the Requests was filed in the accordance with applicable Federal Rules of Civil Procedure. The timely filing of responses precludes the Requests from being deemed admitted. DR. THOM AS CR U M BLEY 'S CONTROVERTING STATEMENT OF FACTS AND ADDITIONAL S T A T E M E N T O F F A C T S IN OPPOSITION TO PLAINTIFF'S M OTION FOR SUM M ARY JUDGMENT Case No. CIV-03-1344-PHX-EHC (HCE)

Case 2:03-cv-01344-EHC-HCE

Document 265

Filed 09/27/2006

Page 1 of 3

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 1.

ADDITIONAL STATEMENT OF FACTS The certificate of mailing for the Requests asserts they were mailed on August

7, 2006. (PSOF Exhibit 1, pg. 5). 2. However, the envelope in which the Requests were enclosed clearly evidences

the Requests were not mailed until August 8, 2006. (A true and correct copy of the envelope is attached hereto as Exhibit "A"). 3. The Requests were not received in counsel for Crumbley's office until August

9, 2006. (A true and correct copy of the date stamped and docketed Requests is attached hereto as Exhibit "B"). 4. Pursuant to Rule 36, Fed.R.Civ.P., a party has thirty (30) days to provide

responses to requests for admissions. 5. In addition, Rule 6(e) provides for an additional three (3) days when service

is perfected by mailing, as it was in this case.1 (PSOF Exhibit 1, pg. 5). 6. Based upon application of the appropriate Rules of Civil Procedure,

Crumbley
admitted since Crumbley's responses were mailed on September 7, 2006, within the time provided by the Rules. (A true and correct copy of the Responses is attached hereto as Exhibit "C"). /// /// /// ///

Even if the Requests were mailed on August 7, 2006 as Plaintiff asserts, the responses would not be due until September 11, 2006, since the 33 days would have ended on Saturday, September 9, 2006 and, according to Rule 6(e), Fed.R.Civ.P., the last day of computation cannot be a Saturday, Sunday or legal holiday. 2

1

Case 2:03-cv-01344-EHC-HCE

Document 265

Filed 09/27/2006

Page 2 of 3

1 2 3 4

DATED this 27 th day of September, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 /s/ Pam Whitmore 20 21 22 23 24 25 26 27 28 3 The Honorable Earl H. Carroll United States District Court 401 West Washington Street Phoenix, AZ 85003 The Honorable Hector C. Estrada United States District Court 405 West Congress Street Tucson, AZ 85701 Copy of the foregoing mailed this 27 th day of September, 2006, to: Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, Arizona 85734-4406 Plaintiff pro per Original of the foregoing e-filed with the Clerk and Copy hand-delivered this 27 th day of September, 2006, to:

/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendants

Case 2:03-cv-01344-EHC-HCE

Document 265

Filed 09/27/2006

Page 3 of 3