Free Motion for Extension of Time - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Charles F. Hauff, Jr. (#014465) Andrew F. Halaby (#017251) Melissa M. Krueger (#021176) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6277 Email: [email protected] [email protected] [email protected] Attorneys for Plaintiff HomeTeam Pest Defense, LLC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA HomeTeam Pest Defense, LLC, Plaintiff, v. Pestube Systems, Inc., Defendant. Pursuant to L.R. Civ. 7.3 and Fed. R. Civ. P. 6(b), plaintiff HomeTeam Pest Defense, LLC ("HomeTeam") moves for a two-week extension of plaintiff's expert disclosure deadline to permit plaintiff time to perform testing and prepare its expert report and disclosures regarding the Centralized Pest Control Injection System for Centex Homes ("Injection System") that is marketed and sold by Pestube Systems, Inc. as a "Pro System for Centex." Counsel for HomeTeam has conferred with counsel for Pestube numerous times this week regarding the necessity of this extension and Pestube has refused to grant HomeTeam the requested extension, despite the fact that Pestube only yesterday provided HomeTeam with instruction regarding the assembly and usage of the Injection System. Good cause exists for this extension. Pestube has repeatedly obstructed HomeTeam's ability to engage in discovery necessary for preparation of its expert reports. As the Court is aware, Pestube refused to provide financial and customer information central to determining damages in this case until the Court directed them to do so. Even
Case 2:04-cv-00608-JAT Document 53 Filed 08/05/2005 Page 1 of 5

No. CV-04-0608-PHX-JAT MOTION FOR EXTENSION (First Request)

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Snell & Wilmer L.L.P.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

then, however, Pestube did not cooperate. Late in the day on July 29, 2005, Pestube informed HomeTeam that it had "50,000 to 60,000 (or more) documents responsive to the various request." See G. Hickman's July 29, 2005 letter to M. Krueger attached as Ex. 1. Instead of taking any efforts to identify and provide those documents to HomeTeam, Pestube told HomeTeam it could go to Pestube's facility to inspect the records and send the records out to be copied "on a rotating basis." Id. HomeTeam lawyers went to Pestube's facility on Monday August 1, 2005 and identified the records it wanted copied. To date, HomeTeam has received only a small number of the documents identified. Despite substantial deficiencies in financial and customer information HomeTeam has been able to obtain from Pestube, HomeTeam intends to serve its preliminary expert damages report on August 5, 2005 subject to its ability to supplement, amend and revise that report based on information subsequently obtained from Pestube. HomeTeam also intends to serve on August 5, 2005 its expert report and disclosures regarding Pestube's Do It Yourself Kit for Centex Homes. HomeTeam is unable, however, to serve its expert report and disclosure regarding the Injection System on August 5, 2005 due to Pestube's lack of cooperation and delay. In anticipation of preparing its expert reports, HomeTeam reurged its request to inspect the Injection System by serving Pestube on June 17, 2005 with a request to inspect the Injection System.1 See HomeTeam's Third Set of Requests for Production of Documents and Inspection of Tangible Things to Pestube ("Third Set of Requests") attached as Ex. 2. Pestube first requested an extension until August 9, 2005, a nearly three-week extension of time, to respond to these requests. On June 30, 2005, HomeTeam HomeTeam's First Set of Requests for Production to Pestube requested that Pestube produce an Injection System to HomeTeam. See relevant portions of these requests attached as Ex. 3. Pestube initially refused to provide an Injection System unless HomeTeam purchased it for approximately $1,500. See Pestube's Response to Plaintiff's First Set of Requests For Production Request No. 5 attached as Ex. 4. Pestube later agreed that it would make an Injection System available for inspection, however, at that juncture HomeTeam had not identified its experts. See Pestube's Supplemental Responses to Plaintiff's First Set of Requests For Production Request No. 5 attached as Ex. 5. After determining its expert witnesses, HomeTeam reurged its request for this inspection in June 2005 when it served its Third Set of Requests for Production and Request for Inspection. See Ex. 2.
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Snell & Wilmer L.L.P.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

responded that it was unable to grant a blanket three-week extension due to impending litigation deadlines. See M. Krueger's June 30, 2005 letter to K. Steele attached as Ex. 6. HomeTeam, however, did grant Pestube a three-week extension as to approximately half of the document requests, but did not extend the time for its requests to inspect. Id. On July 11, 2005, Pestube agreed to permit an inspection of the "Injection System," but would not permit destructive testing or disassembly of the equipment. See K. Steele's July 11, 2005 letter to M. Krueger attached as Ex. 7. On July 15, 2005, HomeTeam informed Pestube that it would agree to purchase an operational Injection System in lieu of an inspection in Phoenix and asked that the system be shipped along with any instructional or informational materials directly to its out of state expert. See M. Krueger's July 15, 2005 letter to K. Steele attached as Ex. 8. Pestube, in what was now appears to be a pattern of delay to obstruct HomeTeam's discovery efforts, would not simply agree to ship the device and invoice counsel, but instead insisted that counsel provide payment up front or order the device on the Internet for nearly $1,500.00. See K. Steele's July 22, 2005 letter to M. Krueger attached as Ex. 9. To move ahead, counsel ordered the device using a credit card on the Internet. Pestube failed to ship the device until six days after counsel ordered it and then only did so after counsel called to inquire about the status and agreed to pay an additional almost $200.00 in shipping charges. The Injection System finally arrived at its intended destination on July 29, 2005. However, the device received looked nothing like the Injection System on the Internet and did not contain any instructions for assembly or usage. Counsel for HomeTeam immediately notified counsel for Pestube of these deficiencies. See M. Krueger's July 29, 2005 letter to G. Hickman attached as Ex. 10. On August 2, 2005, counsel for Pestube offered to make his client available for a phone conference to explain how to assemble and use the Injection System, however, the parties were unable to arrange a time for this conference until the afternoon of August 4, 2005. On August 3, 2005, when it was apparent that HomeTeam would not have the information it needed from Pestube in time to complete its testing and report, counsel for HomeTeam, Melissa Krueger, asked
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Snell & Wilmer L.L.P.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Pestube counsel, Jerry Hickman, to agree to a two-week extension of the expert disclosure deadline to permit HomeTeam to complete its testing on the Injection System. Mr. Hickman indicated that he did not have authority to grant HomeTeam an extension and that he did not believe it was his responsibility to do so, since Mr. Steele would be back in the office on August 4, 2005. When Ms. Krueger suggested they immediately contact the Court to resolve this issue, Mr. Hickman refused and said he would talk to his client about the extension. He promised a response first thing the next morning. On the morning of August 4, 2005, Kendall Steele informed Ms. Krueger that Pestube would not agree to the extension and counsel jointly contacted the court to request intervention. For these reasons, good cause exists for the requested extension. HomeTeam respectfully requests that the Court modify the scheduling order to grant it a limited twoweek extension through and including August 19, 2005 to permit HomeTeam to prepare its expert report and disclosures on the Injection System. HomeTeam also requests an Order granting it its attorneys' fees and costs incurred in bringing this motion. DATED this 5th day of August, 2005. SNELL & WILMER L.L.P.

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Snell & Wilmer L.L.P.

By

s/Melissa M. Krueger Charles F. Hauff, Jr. Andrew F. Halaby Melissa M. Krueger Attorneys for Plaintiff HomeTeam Pest Defense L.L.C.

Case 2:04-cv-00608-JAT

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Filed 08/05/2005

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

CERTIFICATE OF SERVICE I hereby certify that on August 5, 2005, 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. In addition a copy of this document was hand delivered to: Kendall D. Steele John E. Drazkowski JARDINE, BAKER, HICKMAN & HOUSTON, P.L.L.C. 3300 North Central Avenue, Suite 2600 Phoenix, Arizona 85012 Attorneys for Defendant Pestube Systems, Inc.

s/Melissa M. Krueger
1708993.2

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Snell & Wilmer L.L.P.