Free Reply - District Court of Colorado - Colorado

Case 1:04-cv-01825-ZLW-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Zita L. Weinshienk

Civil Action No. 04-cv-1825-ZLW-BNB

THE ESTATE OF CHANDA JOHNSON, Deceased, by DORRIS RICHARDSON, Plaintiff/Personal Representative

v. AVAYA COMMUNICATION INC., a Delaware Corporation.

______________________________________________________________________________ DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO JUDGE BOYD N. BOLAND'S ORDER TO SHOW CAUSE ______________________________________________________________________________ COMES NOW Defendant Avaya Inc. ("Defendant" or "Avaya"), through its attorneys, and respectfully submits the following Reply to Plaintiff's Response to Judge Boyd N. Boland's Order to Show Cause ("Reply"). In support of this Reply, Defendant states as follows: 1. On June 6, 2005, this Court entered an Order requiring the Plaintiff to show

cause "why this case should not be dismissed pursuant to D.C.COLO.LCivR 41.1 for lack of prosecution and failure to comply with the order of the court requiring a response to [Defendant's Motion to Compel Discovery Responses] and setting the Motion for hearing." On June 13, 2005, Plaintiff filed its Response to Judge Boyd N. Boland's Order to Show Cause ("Response"). The purpose of this Reply is to update the Court on Plaintiff's continued failure to provide Defendant with discovery responses, despite the Court's Order to do so, and to

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demonstrate the failure of Plaintiff's counsel to show cause why this case should not be dismissed. 2. In its Order, the Court pointed out that Plaintiff had failed to respond to

Defendant's First Set of Requests for Production of Documents. (Order at 1-2). It went on to order Plaintiff to "produce documents responsive to the defendant's requests for production of documents on or before June 13, 2005." (Order at 2). 3. In its Response, Plaintiff states that "[o]n May 27, 2005, Plaintiff answered

Defendant's discovery requests." This is false. As the Court noted in its Order, Plaintiff served responses to Defendant's First Set of Interrogatories but did not respond "at all" to its First Set of Requests for Production of Documents. (Order at 1). However, despite the Court's explicit Order to Plaintiff to produce all responsive documents, the undersigned still has not received any responses to Defendant's document requests. It has now been three months since Defendant served its written discovery and, despite being forced to seek and obtain an Order from the Court compelling production, and despite the fact that discovery has long-since closed, Defendant has yet to receive a single piece of paper from Plaintiff in response to its requests.1 4. In an apparent attempt to explain why Plaintiff's counsel did not (and does not)

deem it necessary to comply with properly propounded discovery requests, the Response states that Defendant did not serve a subpoena duces tecum prior to the April 13, 2005 deposition of the Estate's representative, and that "Plaintiff's counsel assumed Defendant's [sic] was complete by deposing Plaintiff without a subpoena duces tecum." (Response at ¶ 4).

Despite this fact, as well as the fact that the only document production that has taken part in nine months of litigation has been on the part of Defendant, Plaintiff recently has filed a Motion to Compel. The Court denied Plaintiff's Motion on the basis that Plaintiff's counsel did not satisfy the requirements of D.C.COLO.LCivR 7.1.

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5.

Despite the fact that the failure to serve a subpoena duces tecum does not allow a

party to refuse to respond to written discovery, Plaintiff's "assumption" is belied by the procedural history of this case. On the same day as the April 13, 2005 deposition, the parties filed a Joint Motion for Extension of Deadlines to Respond to Written Discovery and for Extension of Discovery Cutoff and Dispositive Motion Deadline. Indeed, Plaintiff's counsel signed this Joint Motion and the Court granted the same shortly thereafter. (See April 19, 2005 Amended Minute Order). It is inconceivable, then, that Plaintiff's counsel logically could have assumed that Defendant had the documents it needed when Defense counsel gave him extra time in which to provide responses to its Requests for Production. In fact, Plaintiff's counsel stated numerous times on the record at the April 13, 2005 deposition that he would provide to the undersigned certain documentation, all of which is covered by Defendant's Requests for Production. (See Deposition of Dorris Richardson, attached to Plaintiff's Response, at 12:8 ["We can get that for you, Pat[,]" referring to documents reflecting life insurance proceeds received by the Estate], 14:14 ["We'll get that for you, Pat[,]" referring to the alleged written claim for the very benefits at issue in this case], 18:10-11 ["I'll have to get that to you, Pat[,]" referring to the same letter, which Plaintiff's counsel claims he drafted], and 21:4-5 ["I'll get that information that you requested too."]). Regardless, even if Plaintiff's counsel's assumption were valid, this Court disabused him of that assumption by way of its Order compelling the production of documents. In short, the Response does nothing to explain why Plaintiff persists in refusing to produce requested, and undeniably relevant, documents.2
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In paragraph 4 of its Response, Plaintiff states that it was attaching thereto a copy of some sort of "Corporate Rules" which supposedly shows that the Estate's representative was contacted by Defendant and offered $1,200. This document, as described, is irrelevant. Moreover, no such document is attached to the Response and the undersigned has yet to see any such document.

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6.

Finally, the Response does not even attempt to explain why Plaintiff's counsel did

not respond to Defendant's Motion to Compel Discovery Responses, as required by the Court. (See Order at 3 [requiring Plaintiff to show cause why the case should not be dismissed for, among other reasons, "failure to comply with the order of the court requiring a response to the Motion . . . ."]). Plaintiff's counsel's silence on this issue exemplifies a lack of diligence in prosecuting this case and a lack of respect for this Court as well as the undersigned. A further sign of such disregard for the orderly administration of the Court's docket is Plaintiff's counsel's explanation of his absence at the June 6, 2005 hearing. Opposing counsel states that he had another engagement "and never could have appeared or agreed" to that appearance date. (Response at ¶ 2). Yet he made no attempt to contact the Court or the undersigned to attempt to reschedule the hearing. Court appearances are not optional. In short, Avaya simply cannot be expected to continue to pay to defend a lawsuit when it has received absolutely no documentation from the opposing party in response to its discovery requests and, further, where it is forced to incur fees and expenses to obtain discovery orders that Plaintiff simply disregards. WHEREFORE, Defendant respectfully requests that the Court enter an Order stating that Plaintiff has failed to show cause as to why this matter should not be dismissed pursuant to

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D.C.COLO.LCivR 41.1, and further requests that the Court recommend dismissal of this case with prejudice. Defendant also requests that it be awarded its reasonable attorney fees and costs incurred as a result of defending this action. Respectfully submitted this 21st day of June, 2005. /s/ Patrick J. Miller Patrick J. Miller SHERMAN & HOWARD, L.L.C. DC BOX 12 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Tel: (303) 297-2900 Fax: (303) 298-0940 E-mail: [email protected] Attorneys for Defendant Avaya Inc.

CERTIFICATE OF SERVICE I hereby certify that on June 21, 2005 I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email address: [email protected] Donald L. Carroll, Jr Carroll & Associates, P.C. 1900 Grant Street, Suite #650 Denver, Colorado 80203

/s/ Cheryl D. Witt, Assistant to Patrick J. Miller

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