Free Response in Opposition to Motion - District Court of Arizona - Arizona

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RAKE & CATANESE
A PROFESSIONAL CORPORATION ATTORNEYS 2701 E. CAMELBACK RD., STE. 160 PHOENIX, ARIZONA 85016 Telephone (602) 264-9081 Facsimile (602) 265-2628

David J. Catanese,

#012083

Attorneys for Intervenors IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiffs, Vs. HEALTHHELP, INC., a foreign corporation Defendant. JANIS HAGY, CAROLYN JOHNSON and ARLENE WARREN, Intervenors INTERVENORS' RESPONSE TO DEFENDANT'S MOTION TO CONTINUE TRIAL Case No.: CIV 03-1204-PHX-RGS

Intervenors hereby respond to Defendant's Motion to Continue Trial and respectfully request this Court deny said motion on the grounds that keeping the scheduled trial date and mediation date will not affect the preparation of either; that postponing the trial will hinder rather than help settlement negotiations; and that trial has been postponed on two occasions and further delay at this stage is unduly prejudicial to Intervenors.

Case 2:03-cv-01204-RGS

Document 88

Filed 01/24/2006

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CASE HISTORY In order to rule on this motion the Court must take note of the status of this case. This complaint was filed on June 24, 2003. Mediation was already attempted on October 24, 2004 after all discovery was complete, except for several depositions that were taken in early December 2004. The trial date of November 16, 2004 was vacated in order to permit limited discovery and rule on Defendant's Motion for Summary Judgment that was filed on the eve of the dispositive motion deadline. Discovery was promptly concluded on December 10, 2004. After denying Defendant's Motion for Summary Judgment, the trial was reset for January 10, 2006. The trial date was vacated on November 29, 2005 and reset to March 7, 2006 to permit mediation by Judge Sitver. Mediation was set on December 16, 2005 by Judge Sitver for February 8, 2006. Just two weeks before mediation Defendant files its motion to continue the trial again. MEDIATION WILL NOT AFFECT TRIAL PREPARATION Defendant's only reason for a trial continuance is its argument that preparation for the mediation will affect its trial preparations. This argument is without merit. The fallacy of this argument is that there is no "mediation preparation" and certainly not to any degree that it would affect trial preparation. The Court must remember that a mediation has already been conducted. The materials for the mediation have already been prepared. The prior mediation occurred after most discovery had been completed

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and therefore there has been nothing new in this case that would require any significant time in resubmitting the mediation memorandums. At best, there may have been a reevaluation of the claims. However, such a revision would take no more than an hour or two at most. Since this matter has already been mediated and evaluated over a year ago, little more than a telephone call will be needed for the Defendant and its counsel to confer and prepare. Therefore, even giving Defendant the benefit of the doubt that some addition work must be done, it would be no more than a few hours at most. It cannot reasonably be argued that the loss of an hour or two would disrupt trial preparation to such an extent to cause a trial that has been continued on two prior occasions to be continued again. Likewise, it cannot be argued that there is not enough time after the mediation to prepare for trial in the event settlement does not occur. This matter is set for mediation on February 8, 2006. Trial is set for March 7, 2006. This is more than enough time for Defendant to prepare for trial and it is likely that most of its trial preparation will be done in those thirty days after mediation. Furthermore, Defendant has been aware of the mediation date since December 16, 2005. This was more than enough time to prepare for trial and mediation, as Intervenors have done. If Defendant was actually concerned about the time between the mediation and trial, it should have brought its motion just after the mediation was set rather than wait until the last minute.

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TRIAL CONTINUANCE WILL HINDER MEDIATION Defendant's assertion that a trial continuance is needed because of an upcoming mediation is also without merit. Contrary to Defendant's Motion, a trial continuance will hinder and not help mediation. With all due respect to opposing counsel, the Court is well aware that cases get settled when trial is looming near for the parties. Avoiding the time and expense of trial preparation and trial is a clear incentive for all parties. Moving the trial date only obviates this incentive as trial and preparation would only be moved even farther down the road. Denying Defendant's motion will assist in settling this matter. PREJUDICE TO INTERVENORS The discrimination alleged by Intervenors occurred in June 2001. They filed their Complaint in June 2003. They have conducted discovery timely, have

participated in mediation in good faith, have defeated Defendant's Motion for Summary Judgment and have endured two trial continuances from an original trial date of November 16, 2004. A trial date is a valuable asset to a party. "In addition, a fixed trial date is a valuable asset. Once lost, substantial delay of up to a year could result. Finally there is prejudice to the administration of justice where trials are delayed." Acosta v. Superior Court, 146 Ariz. 437, 439, 706 P.2d 763, 765 (Ariz.App 1985). Based on the history of this case, it is clearly an asset to these Intervenors. Since discovery has long been completed and trial has been set 3 times, a trial continuance

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should not be granted unless there will be clear prejudice to the moving party. Defendant's loss of a few hours of trial preparation woefully fails to meet this burden. MOVING DATE FOR FILING JOINT PRETRIAL STATEMENT As set forth above, there is more than enough time for Defendant to prepare for trial and it is likely that most of its trial preparation will be done in those thirty days after mediation. However, as a compromise, in order to avoid any unnecessary work in the event settlement does occur, Intervonor would agree to the Court keeping the current trial date but making the joint pretrial statement due fifteen (15) days after the mediation and resetting the pretrial conference for shortly thereafter.
DATED: January 24, 2006. /s / David J. Catanese Rake & Catanese, P.C. 2701 E. Camelback Rd., Ste. 160 Phoenix, Arizona 85016 Attorneys for Plaintiffs

COURTESY COPY delivered and e-mailed this 24th day of January, 2006 to : Honorable Roger Strand Arizona District Court ELECTRONICALLY DELIVERED this 24th day of January, 2006 to: Sally C. Shanley EEOC 3300 N. Central Ave., Ste. 690 Phoenix, Arizona 85012 Attorneys for Plaintiff EEOC

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James L. Blair, Esq. Charles S. Hover, Esq. RENAUD, COOK & DRURY, P.A. Two Renaissance Square 40 North Central, Suite 1600 Phoenix, Arizona 85004-4449 Attorneys for Defendant

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