Free Response - District Court of Arizona - Arizona

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Gary L. Birnbaum (#004386) [email protected] Timothy J. Thomason (#009869) [email protected] Charles S. Price (#006197) [email protected] Scot L Claus (#014999) [email protected] MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. 2901 N. Central Avenue, Suite 200 Phoenix, Arizona 85012-2705 Phone: (602) 285-5000 Fax: (602) 285-5100 Attorneys for Defendant Snell & Wilmer, LLP IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA VISITALK.COM, INC., an Arizona corporation, Plaintiff, v. PETER THIMMESCH, et al., Defendants. (Assigned to the Honorable H. Russell Holland) CASE NO. CIV 02-2405 PHX HRH RESPONSE TO PLAINTIFF'S OBJECTION TO CONVERSION OF CASE FROM JURY TRIAL TO BENCH TRIAL

Pursuant to the Court`s June 20, 2007 Order, Defendant Snell & Wilmer, LLP (Snell & Wilmer) responds in opposition to Plaintiff`s Objection to Conversion of Case from Jury Trial to Bench Trial (the Objection). I. INTRODUCTION AND BACKGROUND. On May 15, 2007, this Court entered a Scheduling Order in which it, inter alia, ordered that a trial by jury . . . shall commence on Tuesday, January 29, 2008. On June 14, 2007, the Court entered its Order for Pretrial Proceedings & Final Pretrial Conference (the June 14 Order). In the June 14 Order, the Court again indicated that the trial of this matter would be before a jury. -1C:\Documents and Settings\RAR\Local Settings\Temporary Internet Files\Content.Outlook\U8X4KF6W\Response ofPlaintiff's Objection 7Case 2:02-cv-02405-HRH Document 373 Filed 07/12/2007 Page 1 to 8 12-07 FINAL (2).doc

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After researching all pleadings filed in this matter and finding no demand from any party for a jury trial, counsel for Snell & Wilmer contacted the Court staff and requested assistance in locating the demand. (Contrary to plaintiff`s suggestion, see Objection at 5, counsel for Snell & Wilmer in no way requested during the communication with Court staff that the Court vacate any order or take any action whatsoever.) On June 20, 2007, the Court entered another Order (the June 20 Order), in which it explained that the Court likewise was unable to find a jury demand from any party. Because no demand for a jury trial had been made pursuant to Rule 38 of the Federal Rules of Civil Procedure, the Court indicated that it intended to set a bench trial, rather than a jury trial. The Court, however, permitted any party to object to the June 20 Order. The Court also mandated that any such objection shall contain a statement of reasons and good cause showing why this case should not be scheduled for a bench trial. Order at 2. Plaintiff has filed an Objection, but has not complied with this Court`s mandate. Plaintiff did not include a statement of reasons why this case should be heard by a jury. Plaintiff did not show good cause ­ or any cause for that matter ­ why the matter should not be scheduled as a bench trial. Indeed, plaintiff did not argue that it had properly or timely requested a jury trial, did not attempt to excuse its failure to demand a jury pursuant to Rule 38, Fed.R.Civ.P, and did not, even at this late date, make a proper motion for a jury trial (merely stating in its Objection that it respectfully requests the matter remain set for a trial by jury). Plaintiff`s Objection is an amalgam of misapplied law and misguided logic.

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II.

ARGUMENT. A. Rule 59 Does Not Apply. Plaintiff claims that the Court should focus not on whether a jury trial is warranted or

proper under the Federal Rules, but whether Snell & Wilmer is now precluded from seeking reversal of the Court`s prior, erroneous scheduling orders pursuant to Rule 59 of the Federal Rules of Civil Procedure. (Objection at 2). Plaintiff`s argument is not well-taken. According to its very language, Rule 59 only applies when a party seeks relief from the "entry of judgment" in "actions in which there has been a trial by jury" or "tried without a jury." Here, there has not yet been a trial. Snell & Wilmer is not seeking relief from a final judgment. Plaintiff`s Objection cites no legal authority in which Rule 59 has precluded a party or the Court from correcting an error in a scheduling order. Such an omission is not surprising given the complete inapplicability of Rule 59 to a situation such as that presented here. See, e.g., Longstreth v. Copple, 189 F.R.D. 401, 403 (D. Iowa 1999) (Federal Rules of Civil Procedure 59(e) . . . which provide[s] for alteration and amendment of judgment . . . by [its] express terms appl[ies] only to final judgments . . .). Since Rule 59 does not apply, there is no timeliness issue here. The Federal Rules of Civil Procedure do, however, permit and prescribe the very remedy invoked by the Court. B. Rule 60(a) Does Apply. Rule 60(a) of the Federal Rules of Civil Procedure provides that [c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative. (Emphasis added). Here, the May 15 and June 14 Orders resulted from an item in the Court`s docket that was likely mistakenly entered by a court clerk. In its June 20 Order, the Court explained that [t]he court`s reference to a jury trial in the two trial scheduling orders flows from an entry made on or before October 31, 2005 in the -3C:\Documents and Settings\RAR\Local Settings\Temporary Internet Files\Content.Outlook\U8X4KF6W\Response ofPlaintiff's Objection 7Case 2:02-cv-02405-HRH Document 373 Filed 07/12/2007 Page 3 to 8 12-07 FINAL (2).doc

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court docket where the first page of the docket sheet reads, Jury Demand:

Plaintiff`.

However, this entry contains no reference to a filing that would have prompted it. Thus, the Court properly exercised its own initiative in entering the June 20 Order to correct the prior erroneous scheduling orders. Rule 60(a), Fed.R.Civ.P.; see also American Precision Vibrator Co. v. National Air Vibrator Co., 863 F.2d 428, 431-32 (5th Cir. 1989) (Recognizing that, pursuant to Rule 60(a), courts have power to rectify the direct consequences of their mistakes.) C. Plaintiff Presented No Reason For the Court to Permit A Jury Trial.

Despite the mandate in the Court`s June 20 Order [at 2], plaintiff`s Objection fails to contain a statement of reasons and good cause showing why this case should not be scheduled for a bench trial. Indeed, plaintiff admits in its Objection that a trial court has

narrow` discretion to grant a trial upon motion after an untimely demand. (See Objection at 2). In Pacific Fisheries Corp. v. HIH Cas. & General Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001), cited by plaintiff, the Ninth Circuit expressly held that [a]n untimely request for a jury trial must be denied unless some cause beyond mere inadvertence is shown. Id. Plaintiff does not even attempt to make the requisite showing, preferring instead to concoct an argument focusing on Snell & Wilmer`s supposed (but in fact nonexistent) untimeliness. Plaintiff`s failure to comply with the terms of the Court`s June 20 Order is reason alone to deny its Objection and set this matter for a bench trial. D. The Rules Require a Bench Trial.

Even if the May 15 and June 14 Orders setting this matter for a jury trial were not the result of a clerical error, which it certainly appears they were (and plaintiff does not argue to the contrary), the Court cannot, under the Rules, hold a jury trial absent a timely request or motion from a party. Plaintiff does not even claim that it timely demanded a jury trial under Rule 38(b). Rule 39(b) provides that a jury trial may be held despite lack of a timely demand, but only upon motion. See also 9 Wright & Miller, Federal Practice and Procedure, § 2334 -4C:\Documents and Settings\RAR\Local Settings\Temporary Internet Files\Content.Outlook\U8X4KF6W\Response ofPlaintiff's Objection 7Case 2:02-cv-02405-HRH Document 373 Filed 07/12/2007 Page 4 to 8 12-07 FINAL (2).doc

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at 184 (1995) (stating that [t]he court may not grant a jury trial on its own initiative if neither side has made a request.); Swofford v. B & W, Inc., 336 F.2d 406, 409 (5th Cir. 1964) (holding that if a jury trial has been waived, a motion is necessary to invoke the court's discretion since the court may not employ Rule 39(b) of its own initiative.); Ward v. Sunrise Assisted Living Invs., Inc., 2006 U.S. Dist. LEXIS 1364 (D. Cal. 2006) (stating that Rule 39(b) requires a separate motion for relief from waiver of the right to a jury trial before court can grant such a request); Darby v. Allstate Ins. Co., 1995 U.S. Dist. LEXIS 13151 (D. Cal. 1995) (holding that where a party has failed to demand a jury trial as provided in Rule 38(b), Rule 39(b) by its express terms requires that plaintiff make a motion for relief before the court may grant a jury trial). The Ninth Circuit is clear that, even if a proper motion is made pursuant to Rule 39(b) (which is not the case here), something more than mere inadvertence must be shown, Pacific Fisheries Corp., 239 F.3d at 1002--a standard that plaintiff does not even attempt to meet. Plaintiff`s reliance on United Press Ass`ns v. Charles, 245 F.2d 21 (9th Cir. 1957) is misplaced. In that case, while the defendant failed to file a timely request for a jury trial pursuant to Rule 38(b), the defendants did submit a motion for a jury trial pursuant to Rule 39(b). The court initially denied, but seven months later granted, the motion. The court did not grant a jury trial wholly on its own initiative, but rather changed its position on a Rule 39(b) motion properly filed by the defendants. United Press does not hold that a Court may order jury trial without a proper motion, and does not invalidate the more than mere inadvertence standard of Pacific Fisheries Corp., a case that United Press predates by 44 years. III. CONCLUSION. Plaintiff failed to comply with Rule 38 and failed to fulfill the mandate in this Court`s June 20 Order. Plaintiff has provided no reason and shown no cause why a jury trial is warranted in this case. Therefore, Snell & Wilmer respectfully requests that the Court deny -5C:\Documents and Settings\RAR\Local Settings\Temporary Internet Files\Content.Outlook\U8X4KF6W\Response ofPlaintiff's Objection 7Case 2:02-cv-02405-HRH Document 373 Filed 07/12/2007 Page 5 to 8 12-07 FINAL (2).doc

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plaintiff`s Objection and that it modify the May 15 and June 14 Orders to provide for a bench trial. DATED this 12th day of July, 2007. MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A.

By:

s/ Timothy J. Thomason Gary L. Birnbaum Charles S. Price Scot L. Claus Timothy J. Thomason 2901 N. Central Avenue Suite 200 Phoenix, Arizona 85012-2705 Attorneys for Defendant Snell & Wilmer, LLP

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CERTIFICATE OF SERVICE Biltmore Associates v. Peter Thimmesch, et al. (Case No. CV `02-2405-PHX-HRH) I hereby certify that on July 12th 2007, I electronically transmitted the attached document(s) 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: Christopher R. Kaup [email protected] Robert Royal [email protected] Gregory W. Seibt [email protected] Tracy C. Morehouse [email protected] Tiffany & Bosco, P.A. Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Special Counsel for the Plaintiff Joseph E. Mais [email protected] Perkins Coie Brown & Bain, P.A. 2901 N. Central Avenue P.O. Box 400 Phoenix, AZ 85001-0400 Attorneys for Defendants Michael and Marcia O'Donnell David Rosenbaum [email protected] Maureen Beyers [email protected] Warren John Stapleton Osborn Maledon 2929 N. Central Avenue, Suite 2100 Phoenix, Arizona 85012-2794 Attorneys for Defendants Michael Cardwell and Margaret Mahoney David P. Brooks [email protected] Brooks & Affiliates, PLC 1930 N. Ardoleda, Suite 217 Mesa, Arizona 85213 Attorneys for Defendants Robert and Carla Corry

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Donald F. Behn Brian N. Spector [email protected] Jennings Strouss & Salmon, PLC 201 East Washington, Suite 1100 Phoenix, Arizona 85004 Attorneys for Defendant MP3.com, Inc. I hereby certify that on July 12th 2007, I caused the attached document to be served by first class mail on the following, who are not registered participants of the CM/ECF System: Cynthia Thimmesch 5512 N 6th Street Phoenix, AZ 85012 Defendant Pro Se Peter Thimmesch 11329 Stonehouse Place Potomac Falls, Virginia 20165-5123 Defendant Pro Se Raymond F. Gaston Betty B. Gaston 5313 E. Pinchot Ave. Phoenix, AZ 85018-8039 Defendants Pro Se Mark J. Giunta 845 North Third Avenue Phoenix, Arizona 85003-1408 Defendant Pro Se

By: s/ Cheryl LoStracco

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