Free Show Cause Hearing - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CIVIL MINUTES - GENERAL Phoenix Division CIV 02-2036-PHX-MHM Year Case No Initials DATE: 8/17/2007

Title: Erchonia Medical Inc., et al vs. Smith, et al Plaintiff Defendant ============================================================================== HON: MARY H. MURGUIA Christine Boucher Deputy Clerk Attorney(s) for Plaintiff(s) Judge # 7027 Merilyn Sanchez Court Reporter/ECR Attorney(s) for Defendant(s)

Ira Schwartz Gordon Bueler Michael Cordier ============================================================================== PROCEEDINGS: X Open Court Chambers Other Order to Show Cause Hearing as to Miki Smith held. The Court notes the absence of Defendant Miki Smith. Mr. Bueler advises the Court of the steps taken to notify Mr. Smith of this hearing. Mr. Bueler provides the Court with emails between he and Mr. Smith. Mr. Bueler further advises the Court that he will be filing a Motion to Withdraw as counsel by Wednesday, August 22, 2007. Mr. Schwartz advises the Court that Plaintiff filed a statement of the case as previously ordered by the Court. Mr. Schwartz further requests the Court strike Mr. Smith's answer and enter judgment by default. The Court DIRECTS Mr. Schwartz to file a response to Defendant's Motion to Withdraw as counsel, as well as brief the issue of proceeding by default judgment at this stage of the case by Friday, August 24, 2007. The Court DIRECTS Mr. Bueler to consult with Mr. Smith and inquire whether he would consent to a bench trial rather than a jury trial. The Court further DIRECTS Mr. Bueler to provide Mr. Schwartz with a copy of the emails provided to the Court this date. THE COURT FINDS that Mr. Miki Smith was given adequate notice of this hearing and Mr. Smith willfully failed to appear. Therefore, IT IS ORDERED taking under advisement what sanction the Court will impose for Mr. Smith's willful failure to appear. IT IS FURTHER ORDERED setting this matter for Status Hearing on September 5, 2007 at 1:30 p.m., at which time Defendant's Motion to Withdraw will be discussed. The Court puts the parties on notice that the hearing time may change. IT IS FURTHER ORDERED affirming the Jury Trial currently set September 18, 2007 at 9:00 a.m.

Case 2:02-cv-02036-MHM

Document 374

Filed 08/17/2007

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CV 02-2036-PHX-MHM

August 17, 2007

The Court further agrees and FINDS that the Plaintiff will not be permitted to assert the defense of duress to the jury, but instead the defendant may defend based on the undue influence alleged which the Court previously found created a genuine issue of material fact in response to the plaintiff's breach of contract claim as set forth in the Court's summary judgment order dated December 16, 2005. Time in court: 30 mins.

Case 2:02-cv-02036-MHM

Document 374

Filed 08/17/2007

Page 2 of 2