MICHAEL A. CORDIER (AZ #014378)
2 Liszt ANNE SMITH (AZ# 16762)
DECONCINI McDoNAi.0 YE*rwiN & LAcY, P.C.
3 7310 NORTH SIXTEENTH STREET, SUITE 330
PHOENIX, ARIZONA 85020
4 .........._.
Eh; (602) 282-0500
5 Fax: (602) 282-0520
E—maiI: _tf;[email protected]
6
7 Attorneys for Defendants
8
Q 9 UNITED STATES DISTRICT COURT
on
5 10 FOR Tl—lE DISTRICT OF ARIZONA
<
Q § H Nicholas Alozie, a single man, Case No. CIV O2 2639 PHX SRB
§ 12 Plaintiff,
g 13 v. DEFENDANTS’ EMERGENCY
>~ 2 ig REQUEST FOR EXTENSION OF TIME
Q fg Q 14 The Mills Corporation, a foreign TO RESPOND TO PLAINTlFF’S
§ .§“ corporation; Mills Services Corp., a MOTION FOR NEW TRIAL
8 E vg I5 foreign corporation; and Arizona Mills, AND
U ie ¤~ 16 L.L.C., a foreign corporation,
% g REQUEST FOR EXPEDITED
é “ I7 Defendants. DETERMINATION
z
o 18
O
m
Q I9 Defendants The Mills Corporation, Mills Services Corp., and Arizona Mills,
20 l..I..C. (collectively, "Defendants"), by and through undersigned counsel, hereby
21 request an extension of time to respond to Plaintiffs Motion For New Trial. This
22
motion is made on an emergency basis for the reasons set forth in the
23
24 accompanying Memorandum of Points and Authorities. Defendants likewise
25 request an expedited determination of this motion.
26
Case 2:02-cv-02639-SRB Document 148 Filed O9/30/2005 Page 1 of 4
I MEMORANDUM OF POINTS AND AUTHORITIES
2
3 l. Notice and Service of Plaintiffs Motion
4 On August 24, 2005, the judgment was entered in this case as a result of a
5 jury trial that concluded on August 19, 2005. Accordingly, Defendants filed a
6 Motion for New Trial/Motion for Remittur on September 6, 2005. On this same
7 date, Plaintiff filed his Motion for Attorneys’ Fees and Bill of Costs.
_ 8 Unbeknownst to Defendants until this date, Plaintiff filed his own Motion for
9 New Trial on September 6, 2005. Defendants counsel did not receive notice of
gig O such filing via the ECF system despite the fact that Plaintiff, according to the
E gg 12 docket, electronically filed this motion. According to the certificate of service
§ 13 attached to Plaintiffs Motion for New Trial, copies were served on Defendants
E 14 counsel via U.S. mail. However, Defendants’ counsel have not to date received
E 15 any such Motion.
E if 16 Defendants first became aware of Plaintiffs’ own Motion this morning
g 5 17 during the process of electronically filing their Reply in support of Defendants
§ 18 Motion for New Trial/Motion for Remittur. Having no knowledge of the existence
E 19 of this Motion, Defendants’ did not file a response in opposition within the
20 timeframe prescribed by the Federal Rules. However, based on the fact that
21 Defendants were unaware of Plaintiff’s Motion, and that to date, no copy has
22 been served on Defendants, good cause exists for allowing Defendants an
it extension of time to file a response.
25
26
c;xrvuil$IEmerg.mi¤.ext.rant->.a€sp.Mm.r~1aW.niai.os.¤¤¤ 2
Case 2:02-cv-02639-SRB Document 148 Filed 09/30/2005 Page 2 of 4
I ll. Legal Standard Supporting Extension
2 Rule 6(b), Fed.R.Civ.P., provides as follows:
3
4 When by these rules or by a notice given thereunder or by order of
court an act is required or allowed to be done at or within a specified
5 time, the court for cause shown may at any time in its discretion".
6 (2) upon motion made after the expiration of the specified period
permit the act to be done where the failure to act was the result of
7 excusable neglect; but it may not extend the time for taking any
8 action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), and
O 60(b), except to the extent and under the conditions stated in them.
¤-Q 9 Accordingly, and based on good cause shown, this Court has the discretion to
>* 10
E grant the relief requested and extend the time for Defendants to file their
2 11
°; E response in opposition to Plaintiffs Motion for New Trial. The failure to timely tile
,.. g 3 12
é ·<§§ 13 their response was clearly excusable neglect in as much as Defendants were not
E M even aware of the filing of this motion until this day. Having not received a hard
»-2 O <
gégé I5 copy of this motion from Plaintiff despite the indication on the certification of
g gg 16 service, and the failure of the ECP system to notify Defendants’ counsel of the
Z 5 17 filing of this motion, it was not possible for Defendants to timely file their
U
§ 18 response.
Ei I9 While Rule 6(b) notes that the extension is restricted for filings related to
20 Rules 59(b), (d) and (e), such restriction relates only to the initial filing of a Motion
21 for New Trial. Rule 59 does not specifically mention the filing of a response to
22
such motion and, therefore, a request for enlargement of time is within this
23
Court’s discretion as set forth in Rule 6(b). Good cause has been established by
24
25 Defendants and any failure to timely file meets the criteria for excusable neglect.
26 Although Defendants would normally be entitled to ten (10) days
(excluding weekends) to respond to the motion, Defendants will file their
C:\Mills\Emerg.MtnExt.File.Resp,Mtn.New,Trial.03.do<: 3
Case 2:02-cv-02639-SRB Document 148 Filed O9/30/2005 Page 3 of 4
l response on or before Monday, October 10, 2005. Further, given the status of
2 this matter, Plaintiff will not be prejudiced by a brief extension in the briefing
3 schedule.
4 Based on the need for immediate resolution of this motion, Defendants
5
respectfully request this Court’s expedited determination of this motion.
6
7 lll. Conclusion
8 Defendants request that good cause has been established for the
Q 9 enlargement of time to file their Response in Opposition to Plaintiffs Motion for
can
5 10 New Trial and ask this Court to grant Defendants’ Motion on an expedited basis
<:
Q 3 11 allowing a response to be filed on or before October 10, 2005.
§ 3 12 DATED this S30"` day of September, 2005.
g is
cu g M De is ¤ ClNl ri •w YETWIN & LACY, P.C.
»—··l 0 % '§ 15 »-4 =
*1]
8 is ,6 By
E é She on L. Fre n
Z P 17 Michael A. Cordier
E Lisa Anne Smith
8 18 Attorneys for Defendants
S 19
20
COPY of the foregoing mailed,
2i faxed and sent by electronic mail
this 30 day of September, 2005, to:
22
23
Sabinus A. Megwa
24 the iviegwa Law crime
25 6811 South Central Avenue
Phoenix, AZ 85042
26
td?_
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