Free Reply to Response to Motion - District Court of Arizona - Arizona

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SABINUS A. MEGWA, ESQ. The Megwa Law Office 6811 South Central Avenue Phoenix, Arizona 85042 State Bar Number: 011266 Telephone (602) 243-6151 E-mail: [email protected] Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Nicholas Alozie, a single man, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. Background On August 19, 2005 a jury rendered a verdict in this action in favor of Plaintiff and against Defendant for discrimination in violation of Plaintiff's civil rights under 42 U.S.C. Sections 1981 and Plaintiff, Nicholas Alozie, by and through his undersigned counsel, hereby submits his reply in support of his Emergency Motion for Extension of Time to File Memorandum in Support of Motion for Attorney's Fees and Related Non-Taxable Costs. This reply is based upon the pleadings, the entire case file and the attached Memorandum of Points and Authorities. ) NO. CIV'02 2639 PHX SRB ) ) Plaintiff, ) REPLY TO DEFENDANTS' RESPONSE TO ) PLAINTIFF'S EMERGENCY MOTION FOR vs. ) ) EXTENSION OF TIME TO FILE ) MEMORANDUM IN SUPPORT OF MOTION The Mills Corporation, a foreign corporation; ) FOR AWARD OF ATTORNEY'S FEES AND MillsServices Corp., a foreign corporation; and ) RELATED NON-TAXABLE COSTS Arizona Mills, L.L.C., a foreign corporation, ) ) ) (Before The Honorable Susan R. Bolton) Defendants, ) ) )

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1982. On August 24, 2005, the Clerk of Court entered Judgment in this action. On September 6, 2005 Defendants electronically filed a Motion for New Trial and Plaintiff filed a timely response by September 20, 2005 and Defendant timely filed their reply on September 30, 2005.

4 5 6 7 8 9 sent to Defendants to the five e-mail addresses they registered with the Court. Interestingly, the 10 11 12 13 14 15 16 17 18 19 20 Defendants filed an Emergency Motion for Extension of time to File a Response to Plaintiff's Motion 21 22 23 24 25 26 extension for taking action under Rule 59(b), (d) and (e). On at least two occasions, Plaintiff's office 27 28 checked with the Clerk of Court to verify if the Court's records indicate that the Motion was in fact for New Trial on September 30, 2005 which happened to be the day that Plaintiff would have filed his reply to Defendant's response to Plaintiff's Motion for a New Trial. In that Motion, Defendants claimed that they did not receive the electronically filed Motion for New Trial and therefore requested a ten day extension to file a Response even though Rule 6(b) specifically prohibits such entered by the Clerk of Court at 10:38 PM MST and filed on 9/6/2005. The significance of this background is that Defendant's conduct also caused Plaintiff delay in timely filing the Memorandum in Support of Attorney's fees by approximately 20 days. After the expiration of time to file their response to Plaintiff's Motion for New Trial, Defendants received Plaintiff's Statement of Costs and Application for Taxation of Costs which was entered by the Clerk of Court at 11:24 PM MST and filed on 9/6/2005, and a Motion for Award of Attorney's Fees entered by the Clerk of Court at 10:55 PM MST and filed on 9/6/2005, but allegedly claimed that they did not receive Plaintiff's electronically filed Motion for a New Trial which was On September 6, 2005 Plaintiff electronically filed three Motions consisting of a Motion for New Trial, Plaintiff's Statement of Costs and Application for Taxation of Costs, and a Motion for Award of Attorney's Fees. Plaintiff's counsel received three notices of filing and copies of all three motions via e-mail and each of three Notices of Electronic Filing indicated it was also electronically

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sent to Defendants electronically. The Clerk of Court's office stated that its records reflect that all three electronically filed Motions, including Plaintiff's Motion for a New Trial were transmitted to these Defendants. Again Defendants' counsel's office registered five e-mail addresses for receiving

4 5 6 7 8 9 Response to Plaintiff's Motion for a New Trial. Such action by this Court and the Defendants also 10 11 12 13 14 15 16 17 18 19 20 work caused by Defendants. In view of the totality of the above events good cause exist to allow 21 22 23 24 25 26 Plaintiff timely filed his Motion for Award of Attorney's Fees prior to the expiration of the 27 28 fourteen (14) days deadline from the entry of judgment as required by Rule 54(b) Federal Rules of II. Excusable Neglect. Plaintiff a brief seven (7) days extension of time to file his Memorandum in Support of his Motion for Award of Attorney's Fees. an addition 20 days time that would have been spent on preparing and filing Plaintiff's Memorandum and documents in Support of Motion for Attorney's fees. Despite Plaintiff's counsel's improper calendaring of the filing date, the error would likely have been discovered timely to file the Memorandum or seek extension prior to October 24, 2005, but for the 20 days distraction and extra caused Plaintiff's counsel additional time to review Defendants' Emergency Request for Extension of time to File its Response and the Response itself and to research, prepare and file Plaintiff's Reply. The Plaintiff's reply was filed on October 20, 2005 instead of September 30, 2005 when it was due had Defendants timely filed their response. The action of the Defendants also costs Plaintiff's counsel electronically filed documents in this case. Nevertheless Plaintiff gave these Defendants the benefit of the doubt by not opposing the Motion and allowing the matter to be decided on its merits and not on mere technicality. Without the benefit of knowing if this Court verified the electronic filing system accuracy and error record, the Court did in fact grant Defendants an extension of time to file a

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Civil Procedure and Local Rule 54(b)(1). For the reason's set forth in Plaintiff's original Emergency Motion for Extension of Time to File Memorandum in Support of Motion for Attorney's Fees and the twenty (20) days delay caused by Defendants' Emergency Request for Extension of Time to Respond

4 5 6 7 8 9 Defendants. Non of the cases cited by Defendants dealt with a similar situation where the Motion for 10 11 12 13 14 15 16 17 18 19 20 excusable mistake so as to permit extension of time for filing request. This plaintiff did in fact file his 21 22 23 24 25 26 for filing a bill of costs. Plaintiff's Statement of Costs and Motion for Award of Attorney's Fees were 27 28 Motion for Award of Attorney's Fees within 14 days from the entry of Judgment. Rather, Plaintiff is seeking a very brief seven days to file Memorandum and supporting documents in Support of the Attorney's fees. In Electro Scientific Indus., Inc. v. General Scanning, Inc., 247 F.3d 1341 (Fed. Cir. 2001), the court held that Rule 6(e) of three days extension does not apply to prescribed period mail to time for filing post-trial motion for attorney's fees. That is not the case here. Plaintiff herein did in fact timely file his Motion for Attorney's Fees. In Committee for Idaho's High Desert v. Yost 92 F.3d 814 (9th Cir. 1996) the Court held that counsel's ignorance of the amended procedural requirements for filing a request for attorney's fees within 14 days of the entry of judgment was not Award of Attorney's Fees was timely filed and a Motion for Extension of time to file Memorandum was filed mere two days after the expiration of time for filing and the request for extension was for only seven (7) days. Specifically, the case of Kyle v. Campbell Soup Co., 28 F.3d 928 (9th Cir. 1994) cited by Defendants addressed only the issue of attorney's mistake in adding three days for service by to Plaintiff's Motion for New Trial, and Plaintiff's counsel's time in reviewing, researching, preparing and filing the Reply to Motion for a New Trial, reasonable excuse prevented Plaintiff from timely filing his Memorandum in Support of Attorney's Fees by October 24, 2005. This is a case of first impression. This case is distinguishable from the cases cited by

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timely filed. None of these cited case had any thing to do with filing supporting documents where the original Motion for Attorney's Fees was timely filed. The U.S. Supreme Court ruling in Pioneer Investment Services Co. v. Brunswick Associates

4 5 6 7 8 9 rather his office failed to properly calendar the filing date. In his Motion for Award of Attorney's 10 11 12 13 14 15 16 17 18 19 20 Supporting Documents and a brief extension of seven days would not prejudice Defendants or the 21 22 23 24 25 26 counsel Shelton L. Freeman by telephone to discuss the attorney's fees issue in accordance with 27 28 Local Rules, Mr. Freeman simply asked, what Local Rule is that? In fact Mr. Freeman had absolutely Court. Defendants' counsel argued in their Response that Plaintiff's counsel was required to conduct a personal consultation with Defendants' counsel to resolve whatever dispute might exist regarding attorney's fees. It should be noted that when Plaintiff's counsel did in fact contact Defendants' lead moving party. Id. at 392. The totality of circumstance in this case, including the delay caused by defendants' claim of not receiving transmittal of Plaintiff's Motion for New Trial, demonstrates good cause and excusable neglect. Un like all the cases cited by Defendants, this Plaintiff did in fact timely file his Motion for Award of Attorney's Fees and all that was left is the Memorandum and Fees, Plaintiff did in fact state that the Memorandum will be filed within 60 days from the entry of Judgment. The improper calendaring is simply inadvertence which constitutes excusable neglect. Id. at 391-392. The Court indicated that "excusable neglect" under Rule 6(b) is a some what "elastic concept" and not limited strictly to omissions caused by circumstances beyond the control of the Limited Partnership, 507 U.S. 380, 392, 113 S. Ct 1489 (1983), dealt with a bankruptcy case, however the criteria stated therein in considering excusable neglect were clearly met by Plaintiff in this case. Furthermore, all the 9th Circuit cases cited by Defendants considered the facts of each case and the specific reasons before reaching a decision. Plaintiff is not pleading ignorance of the law,

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no clue as to the applicable Local Rule requirement of consultation regarding attorney's fees. Plaintiff's counsel informed Mr. Freeman cited the Local Rule to Mr. Freeman and he promised to review it and that he called Plaintiff's counsel back after doing so. The following day, Mr. Freeman

4 5 6 7 8 9 understanding of the Local Rules regarding Consultation in reference to Attorney's Fees. Not 10 11 12 13 14 15 16 17 18 19 20 the Court grant him the seven (7) days brief extension of time as stated in his original Motion for 21 22 23 24 25 26 Motion for Award of Attorney's Fees timely filed by Plaintiff, this Court also has the authority and 27 28 discretion to make any orders that are just and equitable by ordering Plaintiff to submit additional Extension of Time to File Memorandum in Support of Attorney's Fees and Related Non-Taxable Costs by Monday October 31, 2005. Plaintiff timely filed his Motion for Award of Attorney's Fees. This Court has broad discretion to extend the time for Plaintiff to file his Memorandum in Support of his Motion for Attorney's fees and supporting documentation. In the alternative, in ruling on the III. Conclusion Plaintiff has demonstrated good cause and excusable neglect based on the totality of circumstances as stated in the foregoing reply. Based on the foregoing, Plaintiff hereby requests that surprisingly however, Defendants now claim expertise in the requirement of consultation regarding attorney's fees. Such attitude displayed by Defendants through out the litigation of this case is more likely the reason the Local Rule's consultation requirement need not be followed in this case, because it will most likely be unsuccessful. called Plaintiff's counsel back to discuss the attorney's fees and indicated that he would need to see exactly what Plaintiff is claiming before discussing the matter. When asked of his hourly fee in this case, he stated that they were billing their clients $200.00 per hour in this case. Contrary to the representation in their Response, Defendants' lead counsel did not have any knowledge or

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documentation in Support of his Motion for Award of Attorney's fees and Related Non-Taxable Costs.

RESPECTFULLY submitted this 28th day of October 2005.

THE MEGWA LAW OFFICE BY_/s/ Sabinus A. Megwa SABINUS A. MEGWA 6811 South Central Ave. Phoenix, Arizona 85042 Attorney for Plaintiff Original of the foregoing document Electronically transmitted to the Clerk of Court's Office using CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants on this 28th_day of October 2005, to: Shelton L. Freeman, Esq. Michael A, Cordier, Esq. Lisa Ann Smith, Esq. DeConcini, McDonald, Yetwin & Lacy, P.C. 7310 North Sixteenth Street, Suite 330 Phoenix, AZ 85020 Attorneys for Defendants /s/ Sabinus A. Megwa

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