Free Reply in Support of Motion - District Court of Arizona - Arizona

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Ernest Calderón (#007677) Faith C. Klepper (#018444) CALDERÓN LAW OFFICES 2020 N. Central Ave., Suite 1100 Phoenix, AZ 85004 (602) 265-0004

Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JOYCE A. CORRALES, Plaintiff, vs. CHASE BANKCARD SERVICES, INC., a Delaware corporation, d/b/a Chase Manhattan Bank, N.A., Defendant. DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR SANCTIONS FOR FAILURE TO COMPLY WITH DISCOVERY ORDER (Honorable Susan R. Bolton) No. CIV 02-2157-PHX-SRB

Defendant Chase BankCard Services, Inc., by and through undersigned counsel, hereby
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replies to Plaintiff Joyce Corrales' Response to Defendant's Motion for Sanctions filed August 15, 2006. This motion is supported by the accompanying Memorandum of Points and

Authorities which are incorporated herein by this reference. RESPECTFULLY SUBMITTED this 25th day of August, 2006. CALDERÓN LAW OFFICES ___s/Faith C. Klepper__________________ Ernest Calderón Faith C. Klepper

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MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff admits that she failed to comply with an explicit order of this Court and make timely disclosures to Defendant pursuant to the Federal Rules of Civil Procedure. Defendant requested, on more than one occasion, four separate items of discovery: 1) the names and phone numbers of all persons/companies who can verify her employment status during the time period

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following her resignation, 2) her unemployment records since the date of her resignation, 3) a
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copy of the letter she wrote to Chase Bright and 4) information or documentation regarding her alleged treatment for depression. (See Exhibits 1 and 2.) Plaintiff failed to produce any of the items prior to the discovery deadline requested by Plaintiff and set by the Court. At no time did Plaintiff ever inform Defendant that it had any difficulty obtaining any of those items. Her sole response was a telephone message given to defense counsel's receptionist stating that the requested information was forthcoming. (See Exhibit 3.) The medical releases attached to Plaintiff's response are dated July 2006, well after the discovery deadline and nearly

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a month after Defendant filed the motion for sanctions.

Even if one were to accept the

unsupported assertion that Plaintiff was unable to take any time off work for nearly 10 months to sign such forms, Plaintiff fails to explain why she never contacted Defendant regarding this alleged problem before the discovery deadline. Plaintiff's response to the request for sanctions is the first time in nearly a year that any explanation has been offered for the failure to provide any of the requested discovery. Even now, Plaintiff offers this Court no explanation why the

remaining items of discovery were not produced until well after the discovery deadline and after
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Defendant filed its motion for summary judgment.
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Plaintiff argues that she should not be sanctioned for ignoring legitimate discovery requests for nearly a year, calling the sanctions "draconian." Nevertheless, Defendant has asked
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for nothing more than those sanctions permitted or required by the Federal Rules of Civil Procedure. Rule 41(b) is clear that dismissal is an appropriate sanction for failure to comply with court orders. This Court has repeatedly stated that it would dismiss this matter if Plaintiff did not follow its Orders. As explained in a previous motion for sanctions, Plaintiff has a history of

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dilatory tactics. Similarly, Rule 37(c)(1) provides that a party that fails to disclose information required by Rule 26 without substantial justification, is not permitted to use the undisclosed witness or information as evidence at a trial, at a hearing, or on a motion. Under Rule 37(d), sanctions are mandatory for failure to respond to a request for production of documents unless the court finds the failure was "substantially justified." Belated compliance with discovery requests does not justify the misconduct or cure its effects so as to preclude the imposition of sanctions under the

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rule. Lee v. Walters, 172 F.R.D. 421, 428 (D. Or. 1997).
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Sanctions are appropriate in this case because Plaintiff's belated disclosure of the four items requested by Defendant does not excuse her misconduct. Moreover, Plaintiff has not provided any reasonable justification for failing to obtain a medical release form until just last month, despite the fact that Plaintiff and her attorney were personally aware of the impending discovery deadline. Additionally, Plaintiff's response still does not give any justification why she failed to provide the other discovery Defendant requested prior to the deadline set by this Court. Accordingly, Plaintiff has not met her burden to show that any failure to disclose was

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substantially justified and this Court must impose sanctions pursuant to Rule 37(d).
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Therefore, for the reasons set forth above, this Court must prohibit the use of any evidence undisclosed prior to the discovery deadline set by this Court as evidence at a trial, at a hearing, or in a motion or response thereto. Similarly, this Court should dismiss this matter for
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Plaintiff's repeated failure to comply with express Orders of the Court, despite previous warnings from this Court that the failure to comply with any Order would result in dismissal. Finally, Defendant requests this Court require Plaintiff to pay reasonable expenses, including attorney's fees, caused by her dilatory actions.

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RESPECTFULLY SUBMITTED this 25th day of August, 2006. CALDERÓN LAW OFFICES

______s/Faith C. Klepper__________ Ernest Calderón Faith C. Klepper Attorneys for Defendant Chase BankCard Services, Inc.

ORIGINAL of the foregoing electronically filed this 25th day of August, 2006, with: Clerk of the Court United States District Court District of Arizona COPY of the foregoing mailed this 25th day of August, 2006, to: The Honorable Susan R. Bolton United States District Court COPY of the foregoing mailed and faxed this 25th day of August, 2006, to: Mark Brinton 1745 South Alma School Road, Suite 100 Mesa, Arizona 85210-3010 Attorney for Plaintiff

s/Faith C. Klepper

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