Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 535

Cygnus Systems, Inc. v. Microsoft Corporation, et al

Doc. 53

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Daniel P. Struck, Bar #012377 Christina Retts, Bar #023798 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: [phone] Fax: [phone] [e-mail] [e-mail] Attorneys for Defendant Goss UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Petro N. Basargin, Plaintiff, v. D. Goss, Defendant. NO. CIV 05-3350-PHX-EHC (CRP) DEFENDANT GOSS' RULE 41(b) MOTION TO DISMISS FOR FAILURE TO PROSECUTE AND REQUEST TO VACATE JUNE 22, 2007 DEADLINE FOR FILING JOINT PROPOSED PRETRIAL ORDER AND MOTIONS IN LIMINE

Defendant Goss, through counsel and pursuant to Federal Rule of Civil Procedure 41(b), moves to dismiss Plaintiff's claim for failure to prosecute. On December 6, 2005, the Court issued an order stating that: At all times during the pendency of this action, Plaintiff shall immediately advise the Court of any change of address and its effective date. . . Failure to file a Notice of Change of Address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. On May 23, 2007, Defendant received an Order directing the Joint Proposed Pretrial Order and Motions in Limine to be filed on June 22, 2007. In preparation for submitting these items, Defendant sent a letter to Plaintiff's last known address1 requesting his portions no later than June 18, 2007. See Exhibit 1. In addition, Defendant attempted to set-up a conference call with Mr. Basargin for June 21, 2007. See Exhibit 2.
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As of January 2007, Plaintiff was in the custody of the Alaska Department of Corrections.
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On June 18, 2007, Defendant was notified by the Alaska Department of Corrections that Plaintiff is no longer in the custody of the Alaska Department of Corrections. Defendant's counsel spoke with Sergeant Bruning at Plaintiff's last known address, the Spring Creek Correctional Center, and was informed that Plaintiff was released from custody on February 3, 2007. Federal Rule of Civil Procedure 41(b) provides that a defendant may move for a dismissal of an action for "failure of the plaintiff to prosecute or to comply with these rules or any order of court." Here, Plaintiff has failed to comply with this Court's Order directing him to keep the Court apprised of any address change. Plaintiff has failed, for nearly six months, to notify the Court of his change of address. Plaintiff's failure has resulted in prejudice to the Defendant. Without

Plaintiff's proposed portions of the Joint Proposed Pretrial Order, Defendant is unable to prepare the appropriate Motions in Limine. In addition, without means of contacting Plaintiff, it is impossible to submit a Joint Proposed Pretrial Order. Because Plaintiff has failed to comply with this Court's Order, Defendant requests that his case be dismissed for failure to prosecute. Further, Defendant requests that the deadline for submission of the Joint Proposed Pretrial Order and Motions in Limine be vacated, until such time as the Court makes a determination on Defendant's Motion to Dismiss for Failure to Prosecute. RESPECTFULLY SUBMITTED this 19th day of June 2007. JONES, SKELTON & HOCHULI, P.L.C. By s/Christina G. Retts Daniel P. Struck Christina Retts 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant Goss ELECTRONICALLY filed this 19th day of June 2007
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COPY of the foregoing mailed this same date to Plaintiff's last known address: Petro N. Basargin, #471978 LEGAL MAIL Spring Creek Correctional Center P.O. Box 5001 Seward, Alaska 99664 Plaintiff Pro Per s/Christina G. Retts

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