Free Reply - District Court of Arizona - Arizona

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James L. Blair, #016125 Charles S. Hover, #010007 RENAUD COOK DRURY MESAROS, PA Phelps Dodge Tower One North Central, Suite 900 Phoenix, Arizona 85004-4417 Phn: (602) 307-9900 Fax: (602) 307-5853 Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, CV 2003-1204 PHX RGS
(Consolidated with CV 2003-1216 PHX RGS)

10 and 11 12 13 vs. 14 HealthHelp, Inc., a foreign corporation, 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26
LAW OFFICES RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

Janis Hagy, Carolyn Johnson and Arlene Warren, Intervening Plaintiffs,

REPLY TO INTERVENORS RE: HEALTHHELP'S MOTION TO CONTINUE TRIAL DATES TO PERMIT SETTLEMENT NEGOTIATIONS (Oral Argument Requested)

On January 20, 2006, HealthHelp, Inc., defendant, filed a Motion to Continue Trial Dates To Permit Settlement Negotiations, pointing out the settlement conference scheduled before Magistrate Sitver on February 8, 2006, comes at the same time the parties are preparing this case for trial (trial date set for March 7, 2006), and time spent in trial preparation would be much better spent attempting to settle this case. HealthHelp requested a 30-60 day extension. In this reply brief, HealthHelp responds to Intervenors' brief opposing the continuance. HealthHelp's memorandum supporting this reply brief is attached and incorporated by this reference. ...

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Case 2:03-cv-01204-RGS

Document 89

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MEMORANDUM OF POINTS AND AUTHORITIES HEALTHHELP'S POSITION. HealthHelp has requested a 30-60 day continuance of the trial date and other pretrial dates because: (1) Magistrate Sitver ordered a settlement conference between the parties on February 8, 2006; That date is two days after the parties' final pretrial memo is due and five days before the final pretrial conference; HealthHelp's counsel, the undersigned, contacted Magistrate Sitver's office, arranged an earlier date for the mediation, January 19, 2006, but intervenors could not accommodate that or any other date prior to February 8, 2006; and HealthHelp, therefore, seeks a 30-60 day continuance of the trial date so that fees and costs can be devoted to settling this case rather than trial preparation.

Intervenors' response, predictably consistent with its parochial interests, is self-serving, but 13 inconsistent with the interests of the other parties and the Court.1 HealthHelp replies to each 14 of intervenors' arguments in turn. 15 II. 16 In their "Case History" argument, intervenors strive, incorrectly, to suggest HealthHelp 17 has delayed trial of this case. The first trial date was vacated by the Court because 18 HealthHelp's motion for partial summary judgment was pending. See December 7, 2004 19 Minute Order. The second continuance, from January 10 to March 7, was to permit 20 magistrate-managed settlement negotiations and, importantly, was jointly requested by all 21 parties, including intervenors. See Joint Request dated November 21, 2005. 22 Intervenors are simply wrong to suggest HealthHelp has caused any delay (see 23 Intervenors' Response at p. 2, ll. 16-17: "Just two weeks before mediation Defendant files its 24 motion to continue the trial again.") As HealthHelp pointed out in its motion, its counsel 25 26
LAW OFFICES RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

INTERVENORS' "CASE HISTORY" IS M ISLEADING.

For example, intervenors' only "compromise" is that the Court push the joint pretrial statement and pretrial conference back 15 days closer to trial. (Page 2) @PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;326564;1 Case 2:03-cv-01204-RGS Document 89 Filed 01/26/2006 Page 2 of 5

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attempted to schedule the settlement conference in mid-January, Magistrate Sitver adjusted his schedule to comply with the parties, but intervenors announced they are unavailable before February 8. See HealthHelp's Motion, at p. 3. Intervenors have created this conflict, not HealthHelp. III. INTERVENORS M ISREAD HEALTHHELP'S M OTION IF THEY BELIEVE "M EDIATION PREPARATION" IS THE ISSUE BEFORE THE COURT. Intervenors' second argument in opposition to HealthHelp is that "mediation

7 preparation" should not be expensive or time-consuming for any of the parties because there 8 was an earlier attempt to mediate the case privately, in late 2004. This argument totally 9 misses the point.2 HealthHelp agrees that preparation for the mediation will not be expensive 10 or time-consuming. The parties can update the materials from a year ago. The inefficiency 11 comes because the parties should be devoting all resources to settling the case prior to, at, or 12 immediately after the February 8, 2006 settlement conference, not spending their clients' 13 money preparing the case for trial. HealthHelp has more than a dozen witnesses in Texas 14 (HealthHelp's headquarters), Oregon, Nevada, and Arizona. While intervenors may be able to 15 do their trial preparation after February 8, 2006, if the settlement negotiation is unsuccessful, 16 17 Intervenors' tack-on argument (at p. 3, ll. 21-27), that HealthHelp should have filed its 18 motion in December "rather than wait until the last minute," is disingenuous. HealthHelp's 19 counsel filed this motion within days after intervenors' counsel advised that intervenors would 20 not be available for a settlement conference before Magistrate Sitver any day in January 2006. 21 HealthHelp has done its best to schedule a serious settlement negotiation to go forward prior 22 to trial preparation, but intervenors scuttled that effort. 23 24 25 26
LAW OFFICES RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

HealthHelp cannot.3

In fact, while intervenors seem to have quoted from HealthHelp's brief, using the phrase "mediation preparation" at lines 22-23, p. 2 of intervenors' brief, that phrase is not even in HealthHelp's brief. Intervenors' counsel did not even attend many of the Texas and the Oregon depositions, yet purports to know how HealthHelp's counsel will prepare HealthHelp's case for trial. (Page 3) @PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;326564;1 Case 2:03-cv-01204-RGS Document 89 Filed 01/26/2006 Page 3 of 5
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IV.

INTERVENORS' SETTLEMENT PREDICTIONS HAVE NO BEARING ON M OTION.

HEALTHHELP'S

At page 4 of their brief, intervenors argue the case is more likely to settle if, at the 3 time of the mediation, "trial is looming near for the parties." HealthHelp agrees. That is 4 precisely why HealthHelp has requested a short continuance, 30-60 days, so that the pressures 5 to settle, in the face of the unpredictability of trial outcomes as well as the significant fees 6 and costs anticipated for trial preparation, are evident to all parties. Intervenors, however, may 7 not recognize conducting the mediation while trial preparation is ongoing will impede serious 8 settlement negotiations, i.e., HealthHelp is not willing to offer settlement dollars it has 9 incurred to prepare the case for trial. 10 Apparently, the Equal Employment Opportunity Commission ("EEOC"), plaintiff 11 herein, understands HealthHelp's position better than intervenors do. EEOC's counsel has 12 advised she is adjusting her schedule, and the EEOC will support HealthHelp's motion. 13 V. 14 Intervenors' last argument, that they are prejudiced by a continuance, is no stronger an 15 argument for them than for HealthHelp. The company, with employees and ex-employees all 16 over the country, likewise does not want the trial delayed beyond a reasonable period to 17 attempt settlement. HealthHelp has no reason to believe a new trial date cannot be scheduled 18 to accommodate the Court and all the parties in 30-60 days after March 7th.4 19 VI. 20 For all of the reasons presented in HealthHelp's motion as well as those in its reply 21 brief, HealthHelp seeks a short continuance of the trial of this matter so that the parties can 22 devote full efforts in February to settle this case. 23 24 25 26
LAW OFFICES RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

INTERVENORS ARE NOT PREJUDICED BY A 30-60 DAY EXTENSION.

CONCLUSION.

Intervenors' reference to the Acosta decision, Acosta v. Superior Court, 146 Ariz. 437, 439, 706 P.2d 763, 765 (Ariz. App. 1985), is also misplaced. Acosta involved a late disclosure of an expert witness by plaintiff, yet the trial court refused to strike that witness's testimony. Defendant brought a special action and the Arizona court of appeals agreed the witness should be struck, noting the dilatoriness of plaintiff and the likely substantial delay in rescheduling the trial. Here, there is no such misconduct by any party, nor is there any evidence the rescheduling would be more than 30-60 days. (Page 4) @PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;326564;1 Case 2:03-cv-01204-RGS Document 89 Filed 01/26/2006 Page 4 of 5

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RESPECTFULLY SUBMITTED this 26th day of January, 2006. RENAUD COOK DRURY MESAROS, PA By: /s/ James L. Blair James L. Blair, Esq. Charles S. Hover, Esq. Phelps Dodge Tower One North Central, Suite 900 Phoenix, AZ 85004-4417 Attorneys for Defendant Filed electronically this 26th day of January, 2006.

8 9 10 11 12 13 14 15 16 17 18 /s/ Debra Garcia 19 20 21 22 23 24 25 26
LAW OFFICES RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

COPY of the foregoing e-served this 26th day of January, 2006, to: Mary Jo O'Neill, Esq. C. Emanuel Smith, Esq. Sally C. Shanley, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central, Suite 690 Phoenix, AZ 85012 Attorneys for EEOC David J. Catanese, Esq. RAKE & CATANESE 2701 E. Camelback Road, Ste. 160 Phoenix, AZ 85016 Attorneys for Intervenors/Plaintiffs

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