Free Motion to Continue - District Court of Arizona - Arizona

Formatted

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Jay M. Mann (No. 005823) Robert J. Berens (No. 012056) MANN, BERENS & WISNER, LLP 2929 North Central Avenue, Suite 1600 Phoenix, Arizona 85012 (602) 258-6200 Email: [email protected] [email protected]

Attorneys for Use-Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA THE UNITED STATES OF AMERICA FOR ) ) THE BENEFIT AND USE OF EPC CORPORATION, an Arizona corporation, ) ) ) Use-Plaintiff, ) ) ) vs. ) ) TRAVELERS CASUALTY & SURETY ) ) COMPANY OF AMERICA; et al., ) ) Defendants. ) ) )

Case No. CIV 02-2313 PHX ROS (LEAD) CIV 03-131 PHX ROS CIV 04-1360 PHX ROS (Consolidated) JOINT MOTION RE CONTINUING PRETRIAL DEADLINES AND FINAL PRETRIAL CONFERENCE

The above-captioned parties (the "Parties") hereby stipulate and agree and jointly move the Court as follows with regard to continuing the pretrial deadlines and the final pretrial conference set forth in the Court's Opinion and Order dated March 21, 2006 for the reasons set forth below. The Parties also each set forth their respective positions with regard to the date set for a jury trial in the Court's Order dated March 31, 2006. I. THE PARTIES' JOINT REQUEST FOR CONTINUING THE CURRENTLY SET PRETRIAL DEADLINES AND FINAL PRETRIAL CONFERENCE

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1.

On or about May 3, 2005, the Parties filed their Stipulation and Joint

Motion Re Motion for Partial Summary Judgment and Discovery (the "May 3rd Stipulation") pursuant to which the Parties stipulated and jointly moved the Court that they be permitted to file cross motions for partial summary judgment on various issues before the close of discovery as the Court's ruling on such motions "may obviate the need for numerous depositions and possibly lead to a settlement in this case." (May 3rd Stipulation, p. 3). On May 24, 2005, the Court granted the relief requested in the May

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3rd Stipulation. 2. On June 1, 2005, the Parties each filed their respective Motions for Partial

Summary Judgment (the "Summary Judgment Motions"). By August 29, 2005, the Parties' Summary Judgment Motions were fully briefed and pending before the Court.

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3.

On November 8, 2005, the Parties filed their Stipulated Motion Re

Modification of Pretrial Order (the "November 8th Stipulation"), pursuant to which the Parties sought to modify the discovery and pretrial deadlines pending in the case so as to allow the Parties an opportunity to engage in discovery after the Court ruled on the

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pending Summary Judgment Motions. 4. On November 9, 2005, the Court entered its Second Amended Rule 16

Scheduling Order, which provides, among other things, that "[a]ll non-expert discovery, including answers to interrogatories, production of documents, depositions, and request

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to admit shall be completed within 180 days after the Court issues its ruling on the pending [Summary Judgment Motions] or August 31, 2006, whichever is later." (Id. at pp. 2-3). The Second Amended Rule 16 Scheduling Order also provides that a "Joint

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Pretrial Order and all Motions in Limine shall be lodged and filed by October 15, 2006, or forty five days after the discovery deadline if the discovery deadline extends beyond August 31, 2006." (Id. at p. 5). 5. On March 21, 2006, the Court entered its Opinion and Order relating to the

Summary Judgment Motions (the "March 21st Order"). The March 21st Order also set various pretrial deadlines for April 21, 2006, the Final Pretrial Conference for May 26, 2006 and the trial to commence on June 13, 2006.

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6.

On March 31, 2006, the Court issued an Order ("March 31st Order")

vacating the June trial date set in the March 21st Order, and resetting the trial date to August 8, 2006. The March 31st Order directed that "all other deadlines and hearings remain in effect."

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7.

The Parties have agreed to conduct a mediation related to the claims

asserted in this case, and are currently preparing for the two-day mediation that has been scheduled for May 4 and 5, 2006. 8. The Parties jointly request that the current pretrial deadlines of April 21,

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2006, and the final pretrial conference scheduled for May 26, 2006 be extended, at the very least, to reflect the fact that the Court has rescheduled the trial date in this matter to August 8, 2006. The Parties propose that, at the very least, the deadline for filing the Joint Proposed Pretrial Order and other required pretrial memoranda be rescheduled for

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the week of June 19 ­ 23, 2006. The Parties also propose that, at the very least, the Final Pretrial Conference be rescheduled to the week of July 17 ­ 21, 2006 or a date even closer to the trial that is convenient for the Court.

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II.

THE PARTIES RESPECTIVE POSITIONS WITH REGARD TO THE AUGUST 8, 2006 TRIAL SETTING A. EPC and Standard Construction It is the position of EPC and Standard Construction that the trial of this matter can

and should go forward on the current trial setting of August 8, 2006. EPC and Standard
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believe that the parties can conduct any remaining discovery and prepare their respective cases for trial. This matter has been pending for over fours years and a further

continuance of the trial date will be a further hardship on EPC and Standard Construction. B. Travelers Casualty & Surety Company of America Travelers respectfully requests the Court vacate the August 8, 2006 trial setting to allow the parties to complete their discovery and trial preparation in accordance with their prior agreement, as pre-approved by the Court's orders, including the Second Amended Rule 16 Scheduling Order. This is a case where the parties sought pre-approval from the Court prior to presenting their cross-motions for summary judgment on key contract and damage issues. At the request of EPC, the parties presented the Court with their joint motions and stipulations to allow the parties to reserve discovery on certain issues until after the Court ruled on the motions. Travelers relied on the parties'

agreements, as approved by the Court, and withheld from conducting discovery until after the Court's ruling. This allowed Travelers to work with the other parties to schedule a two-day mediation, set for May 4 and 5, 2006. Counsel for Travelers has been working with the other parties since February 2006 on obtaining the parties consent to the mediation, and in obtaining a date the parties would agree to mediate.
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In the prior stipulation, EPC and the other parties agreed they would require 180 days to complete discovery after the Court ruled on the pending motions. The parties agreed the pretrial order would be filed on October 15, 2006, allowing about 45 days after the completion of discovery to put together a meaningful stipulated statement of facts and pretrial order. The Court gave pre-approval to this agreement by its Orders adopting the parties' scheduling requests. The Court's March 21st Order re-shaped the issues left for discovery. However,

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the Court's March 21st Order also effectively removed the opportunity to conduct discovery and have a meaningful time to prepare a joint pretrial order. EPC suggests the 180 days of discovery it agreed was needed can be compressed into a much shorter timeframe, with virtually no time after completion of discovery to prepare the pretrial

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order. Travelers disagrees and points out how in the first deposition Travelers scheduled (after receiving dates from opposing counsel) still took 5 months from the date first scheduled until the deposition was complete. Travelers' efforts to schedule the May 4-5 mediation also lasted more than one month before the four parties could agree on a date.

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With four parties in two states, and witnesses spread across Arizona and located in other states, EPC's suggestion that discovery can be accelerated is not well presented. Travelers therefore requests the Court vacate the August 8 trial setting, and reestablish the dates and deadlines EPC and the other parties agreed to, as reflected in the

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Court's Second Amended Rule 16 Scheduling Order.

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C. Beneco Enterprises, LLC Beneco respectfully requests that the Court vacate and reset the current August 8, 2006 trial date in this matter to allow the Parties to adequately prepare for trial now that the Court has ruled on the Summary Judgment Motions. The intent of the Summary Judgment Motions was to narrow the issues on which the Parties would be required to conduct discovery, not to completely dispose of the case. All of the Parties, including

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EPC and Standard, previously stipulated and moved this Court for a 180 day extension of the discovery period after the Court ruled on the Summary Judgment Motions. As a result, the Court entered its Second Amended Rule 16 Scheduling Order, which provides that the Parties shall have 180 days after the Court ruled on the Summary Judgment

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Motions to complete discovery before trial. By Beneco's calculations, the discovery period in this case should run through at least September 21, 2006, and the Parties would then have another forty-five days (or until November 6, 2006) to file a joint proposed pretrial order and other pretrial pleadings. Beneco has relied on the deadlines in the

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Second Amended Rule 16 Scheduling Order in preparing its case, and as such, requests that the Court reset the August 8, 2006 trial date and corresponding deadlines to reflect the terms of the Second Amended Rule 16 Scheduling Order.1

Furthermore, the United States Bankruptcy Court for the District of Utah (the "Bankruptcy Court") has scheduled a trial on several consolidated issues, including issues that will impact this case, for August 9-11, 2006. Both Beneco, as plaintiff, and EPC, as defendant, are parties to the Bankruptcy Court case that will be tried on August 9-11, 2006 in Salt Lake City, Utah. Accordingly, the August 8, 2006 trial in this case will likely conflict with the Bankruptcy Court trial.

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For the reasons set forth above, the Parties respectfully request that the Court enter an Order extending the pretrial deadlines and Final Pretrial Conference set for April 21, 2006 and May 26, 2006. With regard to the current trial setting of August 8, 2006, the Parties request that the Court either confirm the current trial date, or in the alternative, schedule a status conference so that the Parties may be heard on their request to reschedule the trial date to take into account those deadlines found in the Second Amended Rule 16 Scheduling Order.

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DATED this 21st day of April, 2006. MANN, BERENS & WISNER, L.L.P.

By /s/ Jay M. Mann Jay M. Mann Robert J. Berens Attorneys for Use-Plaintiff

GAONA LAW FIRM

By /s/ David F. Gaona David F. Gaona Attorney for Plaintiff Standard Construction

SNELL & WILMER, L.L.P.

By /s/ Troy J. Aramburu Troy J. Aramburu Attorneys for Beneco Enterprises, L.L.C.

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JENNINGS HAUG & CUNNINGHAM, LLP

By /s/ James L. Csontos, Esq. James L. Csontos, Esq. Attorneys for Defendant Travelers Original of the foregoing electronically filed and copy delivered this 21st day of April, 2006, to: Honorable Roslyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, AZ 85003-2158

/s/ Tiffany J. Storey
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