Addington et al v. US Airline Pilots Association et al

Filing 473

ORDER denying 469 Motion for Leave to Conduct Discovery as unnecessary. FURTHER ORDERED that counsel on both sides confer forthwith and submit to the Court a joint proposed discovery plan relating to the damages phase of the case on or before May 26, 2009. If counsel are unable to agree on a joint proposed discovery plan, counsel shall submit separate proposals on or before May 26, 2009. See text of attached order for full details. Signed by Judge Neil V Wake on 5/19/09.(SJF)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Don Addington; John Bostic; Mark) Burman; Afshin Iranpour; Roger Velez;) ) Steve Wargocki, ) ) Plaintiffs, ) vs. ) US Airline Pilots Association; US) ) Airways, Inc., ) ) Defendants. __________________________________) ) Don Addington; John Bostic; Mark) Burman; Afshin Iranpour; Roger Velez;) ) Steve Wargocki, et al., ) ) Plaintiffs, ) ) vs. ) ) Steven Bradford; Paul Diorio; Robert) Frear; Mark King; Douglas Mowery; John) ) Stephan, et al., ) ) Defendants. ) No. CV 08-1633-PHX-NVW (consolidated) ORDER

CV08-1728-PHX-NVW

Before the Court is Plaintiffs' Emergency Motion for Leave to Conduct Discovery Related to the Damages Phase (doc. #469) and Defendant USAPA's Response (doc. # 470). In a previous Order of this court, trial in this case was bifurcated into two phases. (Doc. # 224.) The first phase dealt exclusively with the issue of liability and the propriety of injunctive relief. In that phase, a jury found liability and the issue of injunctive relief, tried to the bench, has been taken under advisement. The second phase relates to the causation

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and quantification of any monetary damages owed to Plaintiffs. Trial in this second phase has not yet taken place. The purpose of bifurcation was to expedite discovery, trial, and appellate review on the fundamental question whether USAPA breached its duty of fair representation. For this reason, the Court ordered as follows with respect to scheduling: "Discovery on matters for which trial has been deferred under the foregoing paragraph need not be done until after the April 28, 2009 trial." (Doc. # 252.) Plaintiff now moves for leave to conduct discovery relating to the damages phase of the case. Under the previous order of this Court, no such leave is necessary; discovery may commence immediately. That order was not altered by a subsequent order for accelerated briefing on Defendant USAPA's motion for summary judgment, made to accommodate the damages trial date scheduled for the week of August 10 or August 18, 2009. (Doc. # 454.) Plaintiffs' motion will therefore be denied. The Court notes Defendant USAPA's erroneous claim that the inception of discovery is restricted by Fed. R. Civ. P. 56(f). This argument misapprehends the form and function of the rule. Rule 56(f) allows a party opposing a motion for summary judgment to assert, via affidavit, that further factual discovery is necessary to oppose the motion. It does not restrict the progress of discovery prior to or during the summary judgment briefing schedule. The Court will now order the parties to submit a proposed discovery plan. IT IS THEREFORE ORDERED that Plaintiffs' Emergency Motion for Leave to Conduct Discovery Related to the Damages Phase (doc. # 469) is denied as unnecessary. IT IS FURTHER ORDERED that counsel on both sides confer forthwith and submit to the Court a joint proposed discovery plan relating to the damages phase of the case on or before May 26, 2009. If counsel are unable to agree on a joint proposed discovery plan, counsel shall submit separate proposals on or before May 26, 2009. DATED this 19th day of May, 2009.

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