Free Motion for Extension of Time - District Court of Arizona - Arizona

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Christopher R. Kaup State Bar No. 014820 Jeffrey A. Sandell State Bar No. 020658 third floor camelback esplanade II 2525 east camelback road PHOENIX, ARIZONA 85016-4237 TELEPHONE: (602) 255-6024 FACSIMILE: (602) 255-0103 Counsel for Biltmore Associates, Trustee of the Visitalk Creditors' Trust UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, v. PETER THIMMESCH and CYNTHIA THIMMESCH, husband and wife; MICHAEL O'DONNELL and MARSHA O'DONNELL, husband and wife; et al., Defendants.

Case No. 02-2405-PHX-HRH MOTION TO EXTEND DEADLINE FOR SERVICE OF TWO EXPERT REPORTS (Assigned to the Honorable H. Russel Holland)

Plaintiff Biltmore Associates, as the Trustee for the Visitalk Creditors' Trust moves for an extension of the deadline for service of two of three expert reports for the periods set forth below. The current due date for Plaintiff to serve its expert reports is

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December 1, 2006. Plaintiff expected to have three experts provide reports and testify in this case: Mr. Thomas O'Neal, covering bankruptcy matters germane to the preference action against Defendant Snell & Wilmer; Mr. Boyd Lemon, a standard of care and legal
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malpractice expert; and Ms. Renee Jenkins, an expert on insolvency, damages and Ponzi schemes. Plaintiff expects it will have served the expert report prepared by Ms. Jenkins on or prior to December 1, 2006, and seeks no extension as to that report. However,

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Counsel for Plaintiff was informed via e-mail on Saturday, November 18, 2006, that Mr. O'Neal had unexpectedly developed a serious medical condition (an infected heart valve) which may require him to stay in an extended care facility for four to eight weeks and prevented him from serving as an expert in this matter. Plaintiff has already spoken with two possible alternative experts on the topics on which Mr. O'Neal was expected to testify but has not yet retained a replacement. Counsel for Plaintiff informed Timothy

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Thomason, Counsel for Snell & Wilmer, regarding the medical circumstances via e-mail promptly after learning of those problems. Mr. Thomason agreed to a one month

extension on the deadline for Plaintiff to submit an expert report on the topics of Mr. O'Neal's expected testimony. However, Mr. Thomason and Snell & Wilmer would not agree to the extension of the deadline for the service of any other expert reports by other experts. Mr. Lemon has reviewed thousands of pages of deposition testimony, exhibits and

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other documents relevant to the areas of his expected testimony. However, he has not yet been able to complete his report due to the tremendous volume of documents and deposition testimony, the complex nature of the issues in this case, his travel schedule and the long Thanksgiving holiday. Mr. Lemon and Plaintiff's counsel expect he will be

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able to complete his report and serve it on the other parties on or before December 11, 2006 (a ten day extension). Plaintiff hereby stipulates to a reciprocal ten day extension for the service by Defendants of any expert reports bearing on the topics contained in Mr. Lemon's report

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and one month extension of Defendants' deadlines to serve expert reports on the topics on which an expert in place of Mr. O'Neal will address in a report. The Defendants will

not be prejudiced by the 10 day extension of the deadline for the expert report from Mr. Lemon. Snell & Wilmer has agreed to the 31 day extension of the due date for the report on the matters relating to the bankruptcy preference action against it. 1. Counsel for Plaintiff has prosecuted this large and complex matter in a

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diligent manner and lawyers for the parties have professionally and expeditiously conducted and now completed fact discovery. 2. Counsel for Plaintiff and Counsel for Snell & Wilmer reviewed a large

volume of e-mail recovered from a computer hard drive by a computer forensics and data recovery company in the late summer of 2005. 3. Pursuant to the authority granted by the Court's Order, the Plaintiff filed its

Second Amended Complaint on November 30, 2005 and Defendant Snell & Wilmer
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timely filed an Answer to the Second Amended Complaint on December 12, 2005. The parties then continued with discovery on the matters pled in the Second Amended Complaint and the denials of Snell & Wilmer contained in its Answer thereto. 4. The documents that have thus far been exchanged in this case, including

electronic material, are extremely voluminous. As a result and as the parties previously

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jointly informed the Court, more extensive discovery was necessary than what was projected during the earlier stages of this matter. As a direct result, the amount of work required by the expert witnesses was substantially greater and more time consuming that Plaintiff expected at the earlier portions of this case.

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5.

Interrogatories and other written discovery have been propounded and

responded to by Plaintiff and Snell & Wilmer. Voluminous documents have been exchanged. Since July of 2005, the parties have deposed twenty-three witnesses, in several cities, many of which have lasted eight hours or more and covered two or more sessions. From May, 2006, through the end of September, 2006, the parties deposed thirteen witnesses during nineteen separate sessions.

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6.

Plaintiff has diligently pursued and has now completed this exhaustive fact

discovery. Plaintiff reasonably believes that a modest additional amount of time, just ten days, is necessary for Mr. Boyd to prepare his expert report. Plaintiff also believes that an expert on the bankruptcy preference topics in place of Mr. O'Neal may be able to prepare a report by the end of the year. Plaintiff is not seeking an extension for the purpose of a delay. Indeed, an extension of the discovery time will unnecessarily protract this litigation or prejudice any party.

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7.

Plaintiff also diligently negotiated with a number of defendants to

consensually resolve claims and narrow the issues to be tried. During the last year, a number of stipulations resulting in stipulated judgments against several parties were submitted to and entered by the Court. These settlements have reduced significantly the large number of complex issues to be litigated and eventually tried in this case.

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8.

Counsel for Plaintiff and counsel for Snell & Wilmer have personally

consulted regarding the proposed extension and have reached the limited agreement set forth above. For all foregoing reasons, Biltmore Associates respectfully request that the Court

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enter its Order extending the remaining discovery dates in this case as follows:
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(A)

Deadlines for service by Plaintiff of its Expert Report by Boyd Lemon is extended from December 1, 2006, to December 11, 2006 and its Expert Report on matters relating to the bankruptcy preference action against Snell & Wilmer is extended from December 1, 2006 to January 2, 2007;

(B)

Deadlines for service by Snell & Wilmer of its Expert Report on matters contained in the Report by Boyd Lemon is extended from February 2, 2007, to February 12, 2007, and its Expert Report on matters relating to the bankruptcy preference action against Snell & Wilmer is extended from February 2, 2007 to March 5, 2007;

(C)

Completion of Expert Discovery is extended from March 19, 2007 to April 19, 2007;

(D)

Date for filing Dispositive Motions and in Limine are extended from April 19, 2007 to May 19, 2007;

(E)

Responses to Dispositive Motions and in Limine are extended from May 19, 2007 to June 20, 2007;

(F)

Reply to Responses to Dispositive Motions and in Limine are extended from June 15, 2007 to July 15, 2007.

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WHEREFORE, Plaintiff Biltmore Associates respectfully requests that the Court extend the deadline for the service of an expert report on the bankruptcy preference matters for one month, without an objection from Defendant Snell & Wilmer, and further requests the Court extend for ten days the deadline for the service of an expert report by Mr. Lemon and grant the reciprocal extensions in favor of Snell & Wilmer as set forth above. Counsel for Plaintiff will upload an appropriate form of Order extending the pretrial deadlines as set forth above. RESPECTFULLY SUBMITTED this 1st day of December, 2006.

TIFFANY & BOSCO, P.A.

By: ___/s/ C.R.K. #014820____________ Christopher R. Kaup, Esq. Jeffrey A. Sandell, Esq. Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Counsel for Biltmore Associates, Trustee of the Visitalk Creditors' Trust

ORIGINAL of this pleading electronically filed with the Court on this 1st of December, 2006.

and copies electronically mailed this 1st day of December, 2006, to:

Timothy J. Thomason Mariscal, Weeks, McIntyre & Friedlander, P.A. 2901 N. Central Avenue, Suite 200 Phoenix, AZ 85012 Attorneys for Defendant Snell & Wilmer, LLP

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and copies mailed via U.S. First Class Mail this 1st day of December, 2006, to: Peter Thimmesch 11337 Stonehouse Place Potomac Falls, VA 20165-5123 Pro Per Vern Schweigert Biltmore Associates 1121 E. Missouri Avenue #100 Phoenix, AZ 85014 Creditors' Trustee Dean M. Dinner, Esq. JENNINGS, HAUG & CUNNINGHAM, LLP 2800 North Central Avenue, Suite 1800 Phoenix, Arizona 85004-1049

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