United States of America v. Maricopa, County of et al

Filing 35

MOTION for Extension of Time to File Response to Motion for Summary Judgment by Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Text of Proposed Order)(Popolizio, Joseph) Modified on 11/1/2010 (LSP). CORRECTION to "Motion for Extension of Time to File Response/Reply".

United States of America v. Maricopa, County of et al

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William R. Jones, Jr., Bar #001481 John T. Masterson, Bar #007447 Joseph J. Popolizio, Bar #017434 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: [phone] Fax: [phone] w j o n e s @ j s h f i r m .c o m [e-mail] [e-mail] Attorneys for Defendants Maricopa County Sheriff's Office and Joseph M. Arpaio UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff , v. Maricopa County, Arizona; Maricopa County Sheriff's Office; and Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona, Defendants. NO. CV10-01878-PHX-GMS MOTION TO EXTEND TIME TO FILE RESPONSE TO MOTION FOR SUMMARY JUDGMENT (EXPEDITED RULING REQUESTED)

Pursuant to Local Rule 6, Joseph Arpaio and Maricopa County Sheriff's Office ("MCSO") move this Court for an Order extending the deadline by which to file a Response to the United States' Motion for Summary Judgment by ninety (90) days. Good cause, and not dilatory motive, justifies this requested extension. As the Court is aware, it granted the Motion to Continue (Dkt. 27) filed by movants' previous counsel. That Motion specifically requested that the Court afford movants time to retain new counsel and to respond to the pending Motion for Summary Judgment. Id. The Court's Order specifically instructed movants to retain new counsel by October 20, 2010.
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Movants retained new counsel before that deadline; undersigned

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counsel filed a Substitution of Counsel with Consent on October 13, 2010 (Dkt. 33), which this Court granted on October 21, 2010. (Dkt. 34) The Court's Order did not specifically provide a date by which any prospective, newly retained counsel must respond to the pending Motion for Summary Judgment. Prior counsel, however, requested a November 3, 2010 deadline by which to respond to that Motion. That requested deadline, however, is impracticable; it neither allows sufficient time for the transition of the file to new counsel, nor sufficient time for new counsel to come up to speed in this action. Undersigned counsel is in the process of acquiring the file regarding this action from movants' predecessor counsel, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ("Ogletree"). The file consists of materials kept in Ogletree's Phoenix and

Indianapolis offices. At this time, undersigned counsel does not possess the entire file, and does not expect to obtain the entire file until next week. Moreover, even if

undersigned counsel did possess the entire file, it would not have the necessary time to digest its contents, the corresponding factual and legal issues, and to prepare and timely file a substantive response to the pending Motion for Summary Judgment. In addition, undersigned counsel spoke with Assistant U.S. Attorney Matthew Colangelo regarding this requested extension. Mr. Colangelo stated that the United States may agree to an extension to respond to its Motion for Summary Judgment, but did not agree to grant an extension of any amount. The parties intend to continue to confer regarding the requested extension, as well as other issues giving rise to this action, on November 2, 2010, the day before the response is due. Although movants believe that the parties can reach an accord regarding the requested extension and other issues, it would be imprudent to wait until the eve of the response deadline to seek court intervention. Moreover, this action is in its infancy; the United States filed its Complaint on September 2, 2010. Shortly thereafter, the United States filed its Motion for Summary Judgment simultaneously with its First Amended Complaint on September 13, 2010.
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Prior counsel filed a timely Answer to the First Amended Complaint on September 28, 2010. (Dkt.29) While the United States may consider this action to be older than it actually is, the fact is that March 10, 2009, the date on which the United States informed movants that they were the subject of an investigation, is not the controlling date for the purposes of this requested extension. Upon information and belief, the United States "took no action for well over a year" and "did not initiate this lawsuit until September 2, 2010." (See Dkt. 30) This case is just shy of two (2) months old. Moreover, in Plaintiff's Opposition to Motion for Continuance filed by previous counsel, the United States argued that failure to comply with ordinary court deadlines impaired its ability to ensure that defendants are not using public funds for impermissible discrimination. (Dkt. 28) While the deadline to respond to the Motion for Summary Judgment may be considered ordinary, this particular deadline arises within the context of extraordinary circumstances. First, the undersigned counsel has just appeared in this action, following the termination of its predecessor--the result of a decision of Defendant Maricopa County, not Sheriff Arpaio or any other MCSO representative. Second, the contractual assurance of compliance with a request for information is not without limits. U.S. v. Phoenix Union High School District, 681 F.2d 1235, 1238 (1982). It must be applied with an eye toward striking a proper

accommodation between the federal interest in ascertaining Title VI compliance and movants' legitimate countervailing interests. Id. In addition, any consent found in the execution of the assurances of compliance is consent only to searches that comport with constitutional standards of reasonableness. U.S. v. Harris Methodist, 970 F.2d 94, 100 (1992) citing Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477 (1946), rev'd on other grounds, 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947). This appears to be the crux of this case and the pending Motion for Summary Judgment which must not be decided in haste. Third, the United States previously opposed any extension of the deadline
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that predecessor counsel requested, arguing that any extension undermines the expedited processing of their request for records. (Dkt. 30) In reality, despite the claim that exigent circumstances exist in obtaining information in this instance, approximately nineteen (19) months after informing movants that they were the subject of an investigation passed before the filing of this action and the motion for summary judgment. The United States would suffer no prejudice if the Court extended the deadline to respond to the Motion for Summary Judgment by ninety (90) days. Conversely, forcing movants' new counsel to respond to the Motion for Summary Judgment that raises complex legal and factual issues by November 3, 2010 would surely handicap new counsel and, thus, severely prejudice movants. All parties should desire a ruling on the Motion for Summary Judgment on the merits of this case. Under the circumstances, a satisfaction of that desire and equity require a granting of the requested ninety (90) day extension. Given the fact that movants have just retained new counsel, that newly retained counsel has not yet received the entire file, and that newly retained counsel must digest and analyze the legal and factual issues relevant to this case to respond to the Motion for Summary Judgment, a request for a ninety (90) day extension of time to respond to the United States' Motion for Summary Judgment is reasonable. Good cause exists for the Court to grant the requested ninety (90) day extension. Under these circumstances, movants Joseph Arpaio and Maricopa County Sheriff's Office respectfully request a ninety (90) day extension of time until January 4, 2011 to file a Response to the United States' Motion for Summary Judgment.

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RESPECTFULLY SUBMITTED this 29th day of October, 2010. JONES, SKELTON & HOCHULI, P.L.C.

By /s/Joseph J. Popolizio William R. Jones, Jr. John T. Masterson Joseph J. Popolizio 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Maricopa County Sheriff's Office and Joseph M. Arpaio ORIGINAL electronically filed this 29th day of October, 2010. COPY e-mailed this 29th day of October, 2010, to: Thomas E. Perez, Assistant Attorney General Dennis K. Burke, United States Attorney Roy L. Austin, Jr. Matthew Colangelo Peter S. Gray Laurie A. Gelman Admin Aminfar U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Attorneys for the United States Michael M. Walker Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Attorneys for the United States Thomas K. Irvine Cynthia R. Estrella Polsinelli Shughart, P.C. One East Washington, Suite 1200 Phoenix, Arizona 85004 Attorneys for Maricopa County /s/Joseph J. Popolizio

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