Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 Ronnie L. Cook, 11 Defendant. 12 13 14 vs.

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Orthodontic Centers of America, Inc., Plaintiff,

) ) ) ) ) ) ) ) ) ) ) )

No. CV03-2137-PHX-SRB ORDER

On November 22, 2005, this Court ordered Plaintiff to show cause in writing within 15 10 days why its case should not be dismissed for lack of prosecution. In the order, the Court 16 noted that there was no activity reflected in the Court's docket since April 27, 2005, and that 17 the Joint Proposed Pretrial Order due November 21, 2005, had not been filed nor had any 18 party moved to extend the time to file it. Plaintiff responded on December 2, 2005, stating 19 that the case should not be dismissed for lack of prosecution because the parties had 20 negotiated a settlement, the settlement documents were complete and approved except for 21 one document, it would take two weeks to execute the settlement documents and the delay 22 in the drafting, approval and execution of the settlement documents was based on the fact 23 that "two hurricanes caused its headquarters to be shut down and for key individuals (needed 24 to finalize the settlement) to be scattered around the country." Plaintiff requested 30 days 25 to finalize and execute the settlement documents and to file its stipulation and form of order 26 for dismissal with prejudice. 27 28
Case 2:03-cv-02137-SRB Document 80 Filed 01/26/2006 Page 1 of 2

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Defendant responded on January 3, 2006, to advise this Court that although the 30 days requested in Plaintiff's response to finalize and execute the settlement documents as well as to file a stipulation and form of order for dismissal with prejudice had now elapsed, Plaintiff's counsel had still not contacted Defendant's counsel regarding any revisions to the settlement agreement. Defendant's response also advised the Court that the parties negotiated the settlement during the first week of May 2005, that defense counsel drafted and forwarded settlement documents to Plaintiff's counsel on May 9, 2005, and wrote several times since then asking for the executed settlement documents and was promised by Plaintiff's counsel that the settlement documents would be executed by June 29, 2005. They were not and in mid-July, counsel again exchanged e-mails regarding the still unexecuted settlement documents. On August 11, 2005, Plaintiff's counsel promised in writing that he would contact his client that week about proposed changes. Plaintiff's counsel never subsequently contacted Defendant's counsel. Defendant's counsel notes that despite the Court's threat to dismiss the case, between November 22, 2005, when the Court issued its order to show cause and January 3, 2006, when Defendant's filed their response, Plaintiff's counsel had made no contact with Defendant's counsel. Finally, the Court notes that Plaintiff has not filed a reply disputing any of the information set forth in Defendant's response. It is now 64 days from the date this Court issued its order to show cause why this case should not be dismissed for lack of prosecution. Plaintiff asked for only 30 days to finalize and execute the settlement documents and to file a stipulation and form of order for dismissal with prejudice. Nothing has been received from Plaintiff since its December 2, 2005, request that the Court not dismiss the case for 30 days. IT IS ORDERED dismissing this case for lack of prosecution.

DATED this 25th day of January, 2006.

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