Free Motion to Strike - District Court of Arizona - Arizona

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Gary L. Birnbaum (#004386) [email protected] Timothy J. Thomason (#009869) [email protected] Scot L. Claus (#14999) [email protected] MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012-2705 Phone: (602) 285-5000 Fax: (602) 285-5100 Attorneys for Defendant Snell & Wilmer, LLP IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, v. PETER THIMMESCH, et al., Defendants.

CASE NO. CV 02 2405 PHX HRH DEFENDANT SNELL & WILMER'S MOTION TO STRIKE OR PRECLUDE UNTIMELY FILINGS (Assigned to the Honorable H. Russell Holland)

This Court's Pretrial Orders1 are clear, unambiguous, and categorical. They required certain documents to be timely filed with the Court and/or exchanged with opposing counsel such that both the Court and counsel could fairly and adequately prepare for trial; and, in the case of required simultaneous filings, so that neither party would have the advantage (or opportunity) to "respond" to a timely filing by its adversary. Plaintiff has routinely acted in derogation of both the letter and the spirit of the Court's Pretrial Orders. It has filed

There have been two pretrial orders relevant to this motion: the July 18, 2007 Amended Pretrial Order and the December 3, 2007 Second Amended Scheduling Order.
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documents in an untimely manner, and has seriously hampered Snell & Wilmer's ability to fairly prepare for trial. The Court should not countenance such disregard for its orders. The following papers were either filed untimely, or still have not been filed by plaintiff: 1. 2. Exhibit Objections2: Due on January 2, 2008; not filed until January 21, 2008. Response to Exhibit Objections3: Due on January 14, 2008; not filed as of February 6, 2008. 3. Trial Brief4: Due on February 1, 2008; not filed as of February 6, 2008.

It is not just patent tardiness to which Snell & Wilmer objects. Rather, the Court ordered the timely filing of these documents so that counsel for both parties could fairly and adequately prepare for trial. Further, with respect to the Trial Brief, it does not appear that the Court contemplated that one side would have an opportunity to review and analyze the other side's brief such that it could file a "response." Yet, because Snell & Wilmer timely filed its Trial Brief, plaintiff now has an unfair opportunity to attempt to file a responsive brief. The Court should not reward such actions (and violations of its Orders), whether they are tactical or merely negligent. For the foregoing reasons, the Court should strike any late-filed paper (and preclude any due, but unfiled, paper) such that counsel for Snell & Wilmer can focus on preparing for the trial of this matter. This is the only appropriate remedy under the circumstances.

The Court's Order (as amended via a December 14, 2007 teleconference) required the parties to submit exhibits to the other side no later than December 19, 2007. The parties were then required to file with the Court objections to the other side's exhibits no later than January 2, 2008. Snell & Wilmer timely filed its objections. 3 Within two weeks after receiving the other side's objections, the parties were required to file a Response to those objections in support of their proffered exhibits. Snell & Wilmer timely filed its response to plaintiff's untimely objections. 4 The Court ordered the parties to simultaneously file their respective Trial Briefs on February 1, 2008. Snell & Wilmer timely filed its Trial Brief.
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DATED this 6th day of February, 2008. MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. By /s/ Scot L. Claus Gary L. Birnbaum Timothy J. Thomason Scot L. Claus 2901 N. Central Ave., Suite 200 Phoenix, Arizona 85012-2705 Attorneys for Defendant Snell & Wilmer, LLP

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CERTIFICATE OF SERVICE Biltmore Associates v. Peter Thimmesch, et al. (Case No. CV-02-2405-PHX-HRH) I hereby certify that on February 6, 2008, I electronically transmitted the attached document(s) to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Christopher R. Kaup [email protected] Tiffany & Bosco, P.A. Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Special Counsel for the Plaintiff I hereby certify that on February 6, 2008, I caused the attached document to be served by federal express on: HON. H. RUSSELL HOLLAND UNITED STATES DISTRICT COURT 222 West 7th Avenue ­ No. 54 Anchorage Alaska 99513 (Ph: 907) 677-6252 I hereby certify that on February 6, 2008, I caused the attached document to be served by first class mail on the following, who are not registered participants of the CM/ECF System: Peter Thimmesch 11337 Stonehouse Place Potomac Falls, Virginia 20165-5123 Defendant Pro Se MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. By: /s/ Scot L. Claus
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