Free Order - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

BILTMORE ASSOCIATES, L.L.C., as Trustee for the Visitalk Creditors' Trust,

) ) ) ) Plaintiff, ) ) vs. ) ) PETER THIMMESCH, et al., ) ) Defendants. ) ___________________________________)

No. 2:02-cv-2405-HRH

O R D E R Form of Trial By order of June 21, 2007,1 the court called the parties' attention to the fact that a question had arisen regarding whether this case should be set for a jury trial or a bench trial. The

court indicated its intention to revise its trial setting order to set this case for a bench trial absent an objection from any party. Plaintiff objected,2 and defendant Snell & Wilmer has responded.3

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Docket No. 369. Docket No. 372. Docket No. 373. - 1 -

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The circumstances that gave rise to the question of whether this case should have been scheduled for a jury trial are Now

adequately set forth in the court's order of June 21, 2007.

that everyone has had an opportunity to evaluate the question of whether or not a jury trial was requested, the court finds that no party ever requested a jury trial in this case. Patently, the

entry at the head of the clerk's docket suggesting that plaintiff had requested a jury trial was a clerical error. Plaintiff argues that the court should consider this matter pursuant to Rule 59(e), Federal Rules of Civil Procedure. not a Rule 59 situation. This is The

The applicable rule is Rule 60(a).

latter rule permits the court to correct "[c]lerical mistakes in judgments, orders or other parts of the record" and further provides that the court may make such corrections "at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders." Here, a clerical error was made. Fed. R. Civ. P. 60(a).

The parties have been notified

and afforded an opportunity to respond. No party having requested a jury trial in this case, the clerk's docket shall be amended to so reflect. The court's trial

setting order of May 15, 2007,4 is herewith amended to provide for trial by court rather than jury trial. The court's order for

pretrial proceedings and final pretrial conference5 is vacated;

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Docket No. 349. Docket No. 367. - 2 -

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and, concurrent herewith, an amended order for pretrial proceedings and final pretrial conference is being entered. DATED at Anchorage, Alaska, this 17th day of July, 2007.

/s/ H. Russel Holland United States District Judge

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