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

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Ernest Calderon (#007677) Faith C. Klepper (#018444) CALDERON LAW OFFICES 2020 N. Central Ave., Suite 1110 Phoenix, AZ 85004 (602) 265-0004 Attorneys for Defendant Chase BankCard Services, Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA JOYCE A. CORRALES,
Plaintiff,

No. CIV 02-2157-PHX-SRB DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS COMPLAINT FOR FAILURE TO COMPLY WITH RULE 41, FEDERAL RULE OF CIVIL PROCEDURE (Honorable Susan R. Bolton)

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vs. CHASE BANKCARD SERVICES, INC., a Delaware corporation, d/b/a. Chase Manhattan Bank, N.A., Defendant.

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Plaintiff does not dispute the fact that she did not communicate with Defendant pursuan to this Court's May 17, 2005 order until after the deadline for filing the case management pIa had passed. Thus, she does not dispute that she violated this Court's May 16,2005 order. Instead, she attempts to excuse her conduct by claiming that she has "no counsel.' (plaintiffs Response to Rule 41 Motion to Dismiss at 2.) This claim of ignorance is bot

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irrelevant and disingenuous. First, Plaintiff s "pro per" status does not excuse her failure t
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follow clear orders of the court. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9thCir. 1992), cel
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denied 506 U.S. 915 (1992) (court dismissed complaint of pro per plaintiff who failed to folIo
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court orders). 26

Second, as has been previously noted in this litigation, Plaintiff is being assisted b 1

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former attorney Roger McKee, to whom she has referred as her "legal advisor." (See Plaintiff Response to Motion to Dismiss Complaint, Exhibit 1 at 2; Defendant's Reply to Motion t Dismiss Plaintiffs Complaint, Reply Declaration of Ernest Calderon at 2.)1 Mr. McKee wa even involved in the preparation of the case management plan. As the court will note b reviewing the facsimile transmission identifier at the top of Exhibits Band C of Defendant' Rule 41 Motion to Dismiss, both the July 2 and July 6 facsimiles from Plaintiff were sent b, Roger McKee.2 Plaintiffs claim that she is proceeding with this litigation unassisted is speciou and belied by the facts of this matter. Additionally, Plaintiff appears to claim that she timely submitted her input for the cas management plan. The facts indicate otherwise. First, Plaintiff misrepresents Defendant'

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statement in its motion about her memo dated July 1,2005. In the motion, Defendant stated tha
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Plaintiff faxed the memo to Defendant on July 2, 2005.3 However, because July 2 was
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Saturday and the first day of a three-day holiday weekend, defense counsel did not personall
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review the memo until Tuesday July 5, 2005, which was already past the court's deadline fo
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submitting
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the case management

plan.4

Thus, Plaintiffs

claim that Defendant "waite

inexplicably" until July 7 to file the case management plan is absurd. It should be obvious tha Defendant could not file anything on a weekend or federal holiday, even if it had receive
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Plaintiff s fax during the holiday weekend. That Defendant filed the plan the day after receivin
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According to the State Bar of Arizona, Mr. McKee is on court-ordered permanent disabilit: and is not authorized to practice law. (See attached Exhibit D.) 2 The facsimile stamp on the memo dated July 1,2005 reads as follows: "FROM: ROGER A MCKEE FAX NO: 602 2741526 Jul. 02 2005 09:24AM PI.' The facsimile stamp on the July 6 handwritten response is similarly stamped. 3 The exact statement in the Motion to Dismiss was: "However, Plaintiff did not initiate an: communication with the defense until she faxed a letter dated July 1, 2005 to undersigne~ counsel on Saturday, July 2, 2005." (Rule 41 Motion to Dismiss at 2.) 4 The Court's order clearly specified that the plan was due 5 working days prior to th conference. (See May 17, 2005 Order Setting Rule 16 Scheduling Conference at 8.) Thus, th plan was due on Friday July 1, 2005, before Plaintiff faxed her erroneously dated memo tl Defendant.
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Plaintiffs conditional approval to file the plan (see Exhibit C) demonstrates its good faith effo to comply with the court's order, despite Plaintiffs disregard of the same. Additionally, Plaintif misrepresented to this Court when she actually sent her memo. Plaintiff stated that she "faxed i to counsel for the Defendant on July 1,2005 " (Response at 3.) This claim is belied by th

facsimile transmission notation at the top of the memo which notes that she (or rather Mr. McKee) did not send the memo until Saturday July 2, 2005. Plaintiff also appears to claim that Defendant has somehow waived this objection to he blatant disregard of the court's order because "no one raised any objection" at the schedulin conference. However, Defendant did raise an objection to Plaintiffs actions. The objection too the form of a written Motion to Dismiss the Complaint filed prior to the scheduling conference.! Obviously, the objection has not been waived.

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Finally, Plaintiff claims that the sanctions of Rule 41 are not applicable to this Court'
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May 16 order because the court did not warn her again of the consequences of her failure t
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comply.
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This argument has no merit.

This Court clearly and unequivocally

put Plaintiff 0

notice that the failure to comply with any order of the court would result in dismissal of th
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action. Plaintiff essentially argues that this Court only requires her to comply with some of it
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orders, while permitting her to ignore others. The plain language of the court's April 7, 2003!
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order, which reads that a violation of "this or any other court order" will result in dismissal
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dictates otherwise.
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Moreover, Plaintiff continued to disregard court orders even after Defendant filed it
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motion to dismiss and the court warned her again of the consequences of a failure to compl with all court orders. At the scheduling conference, both parties were ordered to make thei initial disclosures no later than July 25, 2005. (See Rule 16 Scheduling Order at 1.) Plaintifj was present at the scheduling conference when this Court personally informed her of thi deadline. However, Plaintiff did not send her initial disclosure statement to Defendant unti 3

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August 2,2005. (See attached Exhibit E.) Defense counsel received the disclosure on August 3. (Id.) Despite the court's prior order informing Plaintiff of her obligation to follow all con orders and the potential sanctions for a violation and the court's reiteration of that warning in it July 13 order, she inexplicably continues to ignore orders of this Court. This case is a simple one. Some of the discovery work has already been done. Plaintit1 admitted as much in her response, when she appeared to claim that her input on a prior cas management plan obviated her of the need to duplicate the effort after the court ordered anothe plan. Despite that, however, this Court granted her request for generous discovery deadline that, at best, will not put this case before a jury for another year. Yet, even with the generou amount of time she was given, Plaintiff did not submit her initial disclosure statement until mor

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than a week after the court ordered her to do so. Even after the court repeated its warning t
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Plaintiff in its July 13 order that her failure to "strictly adhere to the provisions of this or an
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other Court Order will result in dismissal of the Plaintiff's Complaint pursuant to Rule 41'
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Plaintiff still fails to follow the court's orders. At this point, it cannot be said that her prio:
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failure to adhere to the court's order was an isolated incident. Plaintiff has shown a pattern 0
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disobedience that can only be remedied by the Court's adherence to its dual warnings to Plaintiff.
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This Court must, therefore, dismiss Plaintiff s Complaint.
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RESPECTFULLY SUBMITTED this,::>J--l-.ciayAugust, 2005. of
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CALDERON LAW OFFICES
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(~~~~~ Ernest alderon C

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Faith C. Klepper Attorneys for Defendant Chase Bankcard Services, Inc.

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ORIGINAL ofthe foregoing filed this ~ day of August, 2005, with: Clerk of the Court United States District Court, District of Arizona 401 West Washington Phoenix, Arizona 85003 COpy of the foregoing mailed this 5 day of August, 2005, to: Ms. Joyce A. Corrales 3318 W. Sierra Vista Drive Phoenix, AZ 85017 In propria persona

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