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 DISTRICT OF ARIZONA Shannon Michael Clark, Plaintiff, v. ValueOptions, Inc., Defendant. DR. CRUMBLEY'S RESPONSE TO PL A IN T IFF'S M O T IO N FO R SUMMARY JUDGMENT Case No. CIV-03-1344-PHX-EHC (HCE)
Defendant Thomas Crumbley, whose true name is Thomas Nathan Crumbley, M.D. ("Crumbley"), through counsel, hereby responds to Plaintiff
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/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendants
Case 2:03-cv-01344-EHC-HCE
Document 264
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MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL STATEMENT Though Plaintiff's Requests certify they were mailed on August 7, 2006, the envelope in which the Requests were enclosed clearly evidences they were not mailed until August 8, 2006. [Crumbley's Additional Statement of Facts ("ASOF") 1 & 2]. As such, the date of service of the Requests would be August 8, 2006, the day the Requests were actually mailed. [ASOF 2]. Counsel did not receive the Requests until August 9, 2006. [ASOF 3]. Crumbley had thirty (30) days, plus three (3) additional days for mailing under Rule 6(e), which made the response date for the Requests Monday, September 11, 2006. [ASOF 3, 4, 5 & 6]. Even though Crumbley had until September 11, 2006, responses and objections to the Requests were provided on September 7, 2006, within thirty (30) days of the date of service as evidenced by the certificate of mailing for the responses. [ASOF 7]. Crumbley provided timely responses and objections to the Requests and, therefore, they cannot automatically be deemed admitted. II. ARGUMENT Crumbley does not dispute the standard applicable to summary judgment as stated in the Motion. Similarly, Crumbley generally agrees with the legal authority cited in the Motion establishing the elements necessary to prove a deliberate indifference claim. However, this Court must deny Plaintiff's Motion for the simple fact that the admissions upon which he relies were not deemed automatically admitted since Crumbley filed a timely response to the Requests. In the absence of the Requests being deemed admitted, no admissible evidence of the necessary elements exist leaving disputed facts precluding entry of summary judgment in Plaintiff's favor. Pursuant to Rule 5, Fed.R.Civ.P., the date of service is considered to be the date mailing was completed. Despite Plaintiff
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clearly was not mailed until August 8, 2006. Based upon proper application of the Rule, service of the Requests was not made until August 8, 2006. Pursuant to Rule 36, Fed.R.Civ.P., Crumbley had thirty (30) days after service of the Requests to file responses and objections before the matter may be deemed admitted. In addition to the thirty (30) days provided in Rule 36, Rule 6(e) mandates that three (3) additional days are added to the calculation. As such, responses and objections to the Requests would not be due until September 11, 2006.1 As such, Plaintiff has no admissible evidence of the elements necessary to prove his deliberate indifference or state created medical malpractice claims. Since Plaintiff fails to offer admissible evidence demonstrating the necessary elements of his causes of action, Plaintiff's Motion must be denied. III. CONCLUSION Crumbley did not fail to timely provide responses to Plaintiff's Requests. Since, the Requests are not deemed admitted, Plaintiff lacks sufficient evidence to demonstrate any entitlement to summary judgment. As such, Crumbley respectfully requests this Court deny Plaintiff's Motion. DATED this 27 th day of September, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.
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/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendants
Even if this Court considered that the Requests were served on August 7, 2006, Crumbley had until September 11, 2006 to provide responses under the proper calculation in Rule 6(a). Therefore, Crumbley
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Original of the foregoing e-filed with the Clerk and Copy hand-delivered this 27 th day of September, 2006, to: 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 27th day of September, 2006, to: Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, Arizona 85734-4406 Plaintiff pro per /s/ Pam Whitmore
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