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

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Mary H. Beard Admitted Pro Hac Vice FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Building B-3rd Floor Memphis, TN 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected] FENNEMORE CRAIG, P.C. Lori A. Higuera (No. 017273) Alec R. Hillbo (No. 020185) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendant Federal Express Corporation UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA SEAN L. HARGROW, Plaintiff, v. FEDERAL EXPRESS CORPORATION, a Delaware corporation; JOHN and JANE DOES I-X; BLACK CORPORATION I-X; WHITE LIMITED LIABILITY COMPANIES I-X, Defendants. Defendant Federal Express Corporation d/b/a/ FedEx Express ("FedEx"), by and through counsel, hereby submits its Reply to Plaintiff's Response to Defendant's Objections to Order Imposing Sanctions and Request for Reconsideration and respectfully requests that this Court grant the relief requested in its Objections to the Magistrate's Order Imposing Sanctions. As incorrectly noted in Plaintiff's Response, counsel for Defendant, unbeknown to Plaintiff, did express concern for her client's safety and her own safety during the August 2, DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S OBJECTIONS TO ORDER IMPOSING SANCTIONS AND REQUEST FOR RECONSIDERATION No. 03-0642 PHX DGC

Case 2:03-cv-00642-DGC

Document 113

Filed 09/28/2006

Page 1 of 3

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2006, settlement conference after learning of the events that occurred during Plaintiff's private conference with Judge Voss. Further, during a joint session with Judge Voss and counsel for Defendant, Plaintiff's counsel even expressed her concern for her safety. As previous stated, counsel for Defendant had no prior experience of a plaintiff threatening harm to the extent that

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other private mediation, that each party would bear its own cost. Upon learning that Plaintiff Moreover, although counsel for Defendant does not recollect or have any notation of Plaintiff's counsel inquiring "on several occasions" regarding mediation, counsel for Defendant did reject the offer to mediate until after the court ruled on the motion for reconsideration. Defendant considered it futile and an inefficient use of judicial resources to mediate beforehand when the relief requested in the motion for reconsideration would have disposed of all of Plaintiff's claims. Regarding the search for a private mediator, Defendant assumed, as with all he "won't mind going to prison" coupled with the suggestion that such threats should be considered in evaluating a case for settlement purposes. Plaintiff's threatening comments and this suggestion led to Ms. Beard's contact with Mr. Saxton. Additionally, Plaintiff fails to recall that when Plaintiff confronted counsel for Defendant, Plaintiff's counsel was not present during the initial confrontation and actually returned to the area outside of Judge Voss's chambers after Plaintiff.

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Case 2:03-cv-00642-DGC - 2 Document 113 Filed 09/28/2006 Page 2 of 3 could not incur the cost of a private mediation after counsel for Plaintiff suggested using a private mediator, Defendant offered, in good faith and in the spirit of cooperation, to pay for the mediation if the case settled. Based on the foregoing, Defendant respectfully requests that this Court set aside the order imposing sanctions. DATED this 28th day of September, 2006.

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Respectfully submitted,

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Case 2:03-cv-00642-DGC - 3 Document 113 Filed 09/28/2006 Page 3 of 3 /s/ Mary H. Beard Mary H. Beard CERTIFICATE OF SERVICE I hereby certify that on September 28, 2006, I electronically transmitted the attached document 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: Mishka L. Marshall Marshall Law Group, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 By: /s/ Mary H. Beard Mary H. Beard FEDERAL EXPRESS CORPORATION and Lori A. Higuera Alec R. Hillbo FENNEMORE CRAIG, P.C. Attorneys for Defendant Federal Express Corporation