Free Objection - District Court of Arizona - Arizona

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Christopher R. Kaup, Esq. State Bar No. 014820
Third Floor Camelback Esplanade II 2525 East Camelback Road PHOENIX, ARIZONA 85016B4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Counsel for Biltmore Associates, Trustee of the Visitalk.com Creditors' Trust UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA In re: BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, vs. PETER THIMMESCH and CYNTHIA THIMMESCH, husband and wife; MICHAEL O'DONNELL and MARSHA O'DONNELL, husband and wife; et al., Defendants. (Assigned to the Honorable H. Russel Holland) OBJECTION TO CONVERSION OF CASE FROM JURY TRIAL TO BENCH TRIAL CIV 02-2405-PHX-HRH

Biltmore Associates ("Biltmore" or "Plaintiff"), as the Trustee for the Visitalk Creditors' Trust, hereby objects to the possible conversion of this proceeding to a bench trial from the presently set jury trial. Biltmore respectfully requests the matter remain set for a trial by jury. Biltmore understands, through this Court's Order dated June 20, 2007, that an

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entry was made in the Court's docket stating "Jury Demand: Plaintiff" on or before October 31, 2005, prior to the date Plaintiff filed its Second Amended Complaint thirty

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days later. The Court then set this case for trial by a jury in its Order entered on May 15, 2007 (the "May 15 Order"). Defendant Snell & Wilmer ("S&W") did not object, at any time, to the May 15 Order or file a Motion for Reconsideration to it. Rather, counsel for Snell & Wilmer

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made an ex parte inquiry of court staff which led to the entry of the May 15 Order. Biltmore acknowledges that, in the Ninth Circuit, a trial court has "narrow" discretion to grant a jury trial upon motion after an untimely demand. Pacific Fisheries Corp. v. HIH Cas. & General Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001). Nevertheless, this Court had authority to sua sponte order a trial by jury. United Press Ass'ns v. Charles, 245 F.2d 21, 25 ­ 28 (9th Cir. 1957) cert. denied, 354 US 925, 77 S.Ct.

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1378, 1435, 77 S Ct 1378. Therefore, the issue presented here is not whether this Court should grant a jury trial upon an untimely jury demand. It is whether Defendant S&W is entitled to

reconsideration and reversal of an order granting a jury trial despite not having filed a timely motion to reconsider, indeed, never filing any motion, at any time, addressing the validity of that decision. Rule 59(e) reads as follows: "Any motion to alter or amend a judgment shall be

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filed no later than 10 days after entry of the judgment." (emphasis added). Rule 59(e) could not be clearer regarding the requirement that any such motion must be actually filed not later than 10 days after entry of the judgment or order (not counting intervening weekends). The 10-day deadline does not allow for even one additional day beyond the tenth day. In fact, the 10-day deadline is jurisdictional, thus divesting the trial court of

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the authority to even consider a motion for reconsideration that was not filed within the required 10-day period. Townsend v. Terminal Packaging Co., 853 F.2d 623, 624 (8th Cir. 1988)("Under Rule 59(e), [the plaintiff] had ten days from the March 4, 1997, dismissal order to file a motion to alter the judgment. This he failed to do, and therefore,

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the district court was without jurisdiction to consider such a motion.")(internal quotations omitted); see also, Goad v. Barnhart, 2004 WL 234410, *2 (D. Minn. Feb. 4, 2004); Laird v. Stilwill, 982 F.Supp. 1345, 1353 (N.D. Iowa 1997); Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415 (9th Cir. 1984). The Ninth Circuit has repeatedly cautioned that reconsideration is "an extraordinary remedy, to be used sparingly". Carroll v. Nakatani, 342 F.3d 934, 945 (9th

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Cir. 2003); see also Collins v. D.R. Horton, Inc., 252 F. Supp. 2d 936, 938 (D.Ariz. 2003)(motions for reconsideration are "disfavored"). To wit, the Ninth Circuit has

specifically instructed courts that an attempt to reargue a case is not proper on a motion for reconsideration. See American Ironworks & Erectors, Inc. v. North American Const. Corp., 248 F.3d 892 (9th Cir. 2001)(where the movants "simply reargued their case and offered no basis for withdrawal of the order, the district court did not abuse its discretion in denying the motion."); Garber v. Embry-Riddle Aeronautical Univ., 259 F. Supp. 2d

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979, 981-82 (D. Ariz. 2003). Rather, it is well-settled that a motion for reconsideration will only be granted if the moving party can prove one of the following rare occurrences: (1) "newly discovered evidence"; (2) "clear error" by the district court; or (3) "an intervening change in the controlling law." Carroll, 342 F.3d at 945 (citations omitted).

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Here, S&W never filed a motion with the Court seeking reconsideration of the May 15 Order. Even if it had done so, rather than proceeding via an ex parte

conversation with court staff regarding the issue, S&W could not argue the existence of either newly discovered evidence or an intervening change in the law. Based on the

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United Press Ass'ns decision, it is also clear this Court did not commit "clear error" by ordering a trial by jury in this matter even absent a timely jury demand. 245 F.2d at 25 ­ 28. As the Ninth Circuit observed, The identical public policy often compels the granting of a jury trial in a law case in the face of waiver by the particular parties. There are certain controversies which split a local community to the center. In such a case, the judgment of no court or series of courts will allay the passions or give semblance of impartiality or be accepted as a possible solution, unless founded upon a verdict of a jury of the vicinage. Id., at 27. In the age of Enron, Worldcom and backdating of options to corporate insiders,

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this action, which involves the "restatement of corporate history" ­ the cover up, by the company's officers and S&W, of backdating of warrants allegedly issued to certain of Visitalk's officers and other serious breaches of fiduciary duty causing the loss of over $50 million, presents precisely the type of controversy involving hundreds of members of the community that compels a jury trial to satisfy public policy. It was not "clear error" to grant a jury trial in such a case.

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The Court entered its May 15 Order providing that this case will be tried to a jury. S&W did not file a motion seeking reconsideration of that decision. This Court does not

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have authority or jurisdiction to consider S&W's verbal ex parte request to vacate that order. See, generally, Townsend v. Terminal Packaging Co., 853 F.2d at 624. WHEREFORE, Plaintiff respectfully requests that the Court preserve this action as currently scheduled for a jury trial and not convert it to a bench trial.

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RESPECTFULLY SUBMITTED this 3rd day of July, 2007.
TIFFANY & BOSCO, P.A.

By: __/s/ CRK # 014820______________ Christopher R. Kaup Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Counsel for Biltmore Associates, Trustee of the Visitalk.com Creditors' Trust

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