Free Reply in Support of Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona Bar Number 6835 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service Defendant. CIV-04-0429-PHX-MHM DEFENDANT'S REPLY IN SUPPORT OF HIS MOTION TO CONTINUE HEARING AND JOINT STATEMENT

Defendant, John E. Potter, Postmaster General hereby files his reply in support of his

16 Motion to Continue and requests that the Court grant his request as discussed below. 17 18 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff has filed an opposition to defendant's Motion to Continue the Hearing and Joint

19 Statement on the basis that Ms. Sandoval is qualified to proceed with the hearing, the trial 20 transcripts are unnecessary, and prolonging the final judgment for couple of weeks would 21 prejudice Plaintiff, who has "waited for resolution for almost six years" and already made plans 22 to attend the hearing. Plaintiff does not claim that he cannot attend a hearing during the time 23 frame requested by Defendant or identify any specific hardship. 24 It is true that Ms. Sandoval is a competent and qualified attorney who represents the 25 Postal Service. However, that is not the issue that should impact whether the Court grants 26 Defendant's motion to continue. It is important to emphasize the Ms. Sandoval was not even the 27 agency counsel on this case until she was assigned to assist in mid-May, in connection with 28 restructuring of the Postal Service Districts. [Doc. # 118.] The key issue involves properly and

Case 2:04-cv-00429-MHM

Document 192

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1 fully briefing the Court in writing and at the hearing as to all issues regarding the equitable 2 remedies in this complicated case, which has a several year history of litigation prior to Ms. 3 Sandoval's involvement as second chair during the trial. Requiring the hearing to proceed 4 without Ms. Chynoweth, who has been lead counsel on this case since its inception, will prejudice 5 the Defendant. Prejudice to Defendant in requiring Ms. Sandoval to step into the position of lead 6 counsel while Ms. Chynoweth is absent includes: 7 · Ms. Sandoval, as agency counsel, is new to this case. Her knowledge is limited to her

8 involvement since mid-May 2007. 9 · Ms. Sandoval rarely practices in Federal District Court, and was appointed as a Special

10 Assistant due the special circumstances in this case. [See e.g., Doc. # 118]. 11 · Ms. Sandoval has only handled discrimination cases involving Arizona for a number of

12 months, and therefore has had limited exposure to Ninth Circuit law about issues relevant to this 13 case, including evidence, equitable remedies, and civil procedure. Requiring her to brief the 14 Court on these issues and conduct the hearing given her limited exposure to Ninth Circuit law 15 will prejudice the Defendant. 1/ 16 · Ms. Sandoval's office is in Colorado. The Jung case files are physically located in

17 Phoenix, Arizona, including discovery, correspondence, pleadings, and disclosure documents; 18 · Factual information that will be relevant to the hearing is kept in an internal database

19 program in the U.S. Attorneys Office comprising 2056 kb that Ms. Sandoval has never before 20 used. Accessing this information is important to preparing witnesses for the hearing and 21 identifying important facts. 22 · Requiring Ms. Sandoval to become lead counsel for purposes of the equitable remedy

23 hearing would unfairly interrupt her heavy case load and schedule to prepare for the hearing in 24 that capacity, thereby also prejudicing the Defendant on other matters. 25 The Postal Service's recent restructuring of its Districts moved Arizona from the Pacific Region (San Francisco, CA) to the Western Region (Denver, Co), where Tenth Circuit 27 law controls the employment discrimination law cases. As the Court is well aware, the Ninth Circuit law on employment discrimination differs significantly from the Tenth Circuit on many 28 issues. 26 2
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Reviewing the trial transcripts prior to briefing the Court, and preparing for and

2 conducting the hearing is important to ensure that the evidence that the jury heard can be 3 accurately conveyed to the Court, and any supplemental evidence presented regarding what 4 equitable remedies should be awarded to Plaintiff. For example, a major issue is the scope of 5 remedies and Plaintiff's failure to mitigate damages. Accurately quoting Mr. Jung's and his 6 witnesses' testimony will assist the Court in determining what facts support the parties' positions. 7 Furthermore, applying the facts of this case to Ninth Circuit law on remedies will be critical for 8 the parties and the Court. 9 Finally, Plaintiff's claim that he will be inconvenienced because he already made

10 arrangements to attend the hearing on September 24, 2007 does not justify his opposition. 11 Plaintiff's counsel was advised that Defendant would be seeking a brief continuance within hours 12 after the Court issued its order on September 7, 2007. Rather than attempt to work out the 13 scheduling conflict, Plaintiff chose to make travel plans for September 24, 2007, knowing that 14 a continuance would be sought. 15 The minor inconvenience to Plaintiff in rescheduling the hearing for a couple more weeks

16 versus the significant prejudice to Defendant in briefing and holding the hearing on equitable 17 remedies without the lead counsel assigned to this case warrants the Court's granting Defendant's 18 request for a brief continuance. 19 20 21 22 23 24 25 26 27 28 3
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Respectfully submitted this 13th day of September, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Suzanne M. Chynoweth SUZANNE M. CHYNOWETH Assistant U.S. Attorney

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CERTIFICATE OF SERVICE

I hereby certify that on September 13, 2007, I electronically transmitted the attached 3 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: 4 A. Patterson 5 Rosval Thomas Rd. 777 E. 6 Phoenix, AZ 85014 7 S/ LaRee Zickefoose 8 Office of the U.S. Attorney 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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