Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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 Pending before the Court are three matters that should be res olved before addressing the pending M otions for Summary J udgment : (1) a Rep ort and Value Options, Inc.; Karen Thomas Crumbley, Defendants. vs. Shannon M ichael Clark, Plaintiff, ) ) ) ) ) ) ) M arshall;) ) ) ) ) ) No. CV 03-1344-PHX-EHC (M S) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Recommendation [dkt. 255] regarding P laintiff's M otion to Strike Affidavit of Robert Walters, Ph.D . [dkt . 219], M otion for Entry of Default [dkt. 221], and M otion for Leave to Late File Newly Discovered Evidence [dkt. 222], (2) Plaint iff's Objection [dkt. 169] to M agistrate Judge Sitver's Order of October 27, 2005 [dkt. 157], and (3) Defendant ValueOptions' M otion to Strike Second Affidavit of M ichael Robinson, LCSW [dkt. 208]. These matters are fully briefed. 1. Report and Recommendation On April 7, 2006, M agistrate Judge M ort on Sitver issued a Report and Recommendation [dkt. 225] regarding Plaintiff's M otion t o St rike Affidavit of Robert

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Walters, P h.D . [dkt . 219], M otion for Entry of Default [dkt. 221], and M otion for Leave to Late File Newly Discovered Evidence [dkt. 222]. Plaintiff filed an Objection. [Dkt. 230]. A. Motion to S trike

P laint iff filed a M otion to Strike the Affidavit of Dr. Walters on the ground that it is untimely discovery material and contains improper expert opinion.1 M agistrate Judge Sitver recommended denying the M otion to Strike and Plaintiff objected. After reviewing the M otion to Strike and related briefing de novo, the Court w ill deny the M otion to Strike. The Affidavit was not untimely disclosed; it was filed on October 13, 2004 [dkt. 58, ex. 1] and the discovery deadline w as October 19, 2004 [dkts. 37, p. 2; 175, p. 3 fn. 1]. The Affidavit offers Dr. Walters' opinion that Defendant ValueO p t ions appropriately determined Plaintiff was not eligible for Seriously M ental Ill services. Because Dr. Walters is a licensed psychologist familiar with the procedures for determining eligibility, his op inion is relevant. B. Motion for Entry of Default

Plaintiff moved for entry of default as to Defendant Karen M arshall. [Dkt. 221]. On Ap ril 24, 2006, the Court noted that Defendant M arshall had not been served and ordered service packets be sent to Plaint iff t o s erve Defendant M arshall. [Dkt. 229]. In these circumstances, entry of default would be improper. C. Motion for Leave to Late File

M agistrate Judge Sitver recommended denying Plaintiff's M ot ion for Leave to Late File Newly Discovered Evidence. Plaintiff has been allow ed to supplement his Response to Defendant ValueOptions' Second M otion for Summary Judgment three times . [See dkts. 167, 172 & 200]. The Court denied D efendant ValueOptions' First M otion for Summary Judgment to provide Plaintiff an opportunity to present evidence supporting his claims.

In his Reply [dkt. 227], Plaintiff argues t hat the Affidavit should be stricken because Dr. Walters was not disclosed in Defendant ValueOptions' initial disclosures. The Court will not address an argument first raised in a Reply. See Armentero v. INS, 412 F.3d 1088, 1095 (9th Cir. 2005) ("Failure to raise an argument in an opening brief constitutes waiver."). -2Document 232 Filed 05/10/2006

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[Dkt. 121]. Allowing P laint iff another opportunity to supplement his Response, would further delay resolution of the M otion for Summary Judgment, which was filed on September 2, 2005. 2. Plaintiff's Objection Plaintiff filed an Objection [dkt. 169] to M agistrate Judge Sitver's Order denying Plaintiff's M otion to Reopen Discovery and M otion to Appoint Counsel. The M otion to Reopen Discovery was properly denied given the opportunities, discuss ed above, Plaintiff has had for discovery . Plaintiff does not point to any specific reason why M agistrate Judge Sitver erred in deny ing Plaintiff's M otion to Appoint Counsel instead arguing "this entire case, its filings and all of the complications" demonstrate that Plaintiff is entitled to counsel. 3. Defendant ValueOptions' Motion to S trike Defendant ValueOptions filed a M otion to Strike Second Affidavit of M ichael Robinson, LCSW on the ground that Robinson's expert opinion does not comply w it h Fed. R. Evid. 702. [Dkt. 208]. Robinson testified that he has "conducted several hundred A dult Intake Assessment[s] as an Evaluator for ValueOptions, Inc. and for various community based mental health agencies." [Dkt. 197]. Based on his experience, he offers the opinion that Defendant ValueOptions failed to properly consider Plaintiff's medical records and should have deemed him eligible for their services. Given his experience, Robinson's opinions conform to Rule 702's requirements for expert opinion. Accordingly, IT IS ORDERED that the Report and Recommendation [dkt. 225] is ADOPTED as stated in this Order. IT IS FURTHER ORDERED that Plaintiff's M otion to Strike Affidavit of Robert Walters, Ph.D. [dkt. 219] is DENIED. IT IS FURTHER ORDERED that Plaintiff's M otion for Entry of Default [dkt. 221] is DENIED.

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IT IS FURTHER ORDERED that Plaintiff's M ot ion for Leave to Late File Newly Discovered Evidence [dkt. 222] is DENIED. IT IS FURTHER ORDERED that Plaintiff's Objection [dkt. 169] is DENIED. IT IS FURTHER ORDERED that Defendant ValueO p t ions' M otion to Strike Second Affidavit of M ichael Robinson, LCSW [dkt. 208] is DENIED. DATED this 9th day of M ay, 2006.

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