Lesofski v. Lash et al

Filing 124

ORDER granting 109 Motion for Summary Judgment; Defendant Lightener shall be dismissed from this case. Within 5 days of this Order, the Plaintiff shall refile the Second Amended Complaint. Granting request (Doc. 118), Rule 16 Scheduling Confer ence will be held telephonically with the Judge's law clerk on September 19, 2013 @ 10:00 AM. Motion for Protective Order and Motion to Hold Deposition Electronically 120 are denied as Moot. Plaintiffs deposition set on September 16, 2013, is QUASHED. Signed by Senior Judge David C Bury on 9/11/13.(SMBE)

1

WO

2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8

Edward G. Lesofski,
Plaintiff,

9
10

v.

11

Jarrod Lash, et al.,

12

Defendants.

)
)
)
)
)
)
)
)
)
)

CV 11-840 TUC DCB

ORDER

13

On June 25, 2013, this Court denied in part and granted in part a Motion for
14

Judgment on the Pleadings filed by the Arizona School of Acupuncture & Oriental Medicine
15

(the School) and a Motion to Dismiss filed by the Accreditation Commission for
16

Acupuncture & Oriental Medicine (the Commission). The Court set a deadline for the parties
17

to complete discovery by October 1, 2013, to file dispositive motions by November 1, 2013,
18

and file a pretrial order by December 1, 2013. (Order (Doc. 105) at 8.).
19

The Court directed the Plaintiff to file a Second Amended Complaint, nunc pro tunc,
20

to change the caption of the Third Claim to Fraud by Misrepresentation, the only claim
21

remaining against the Commission. The Court dismissed the Fourth Claim for bullying.
22

Since then, Defendant Don Lightener, filed a Motion for Summary Judgment, which
23

explains that the Second Amended Complaint mentions him three times: ¶ 14) names him as
24

the Academic Dean of the School and point contact for disabled students; ¶ 90) alleges he
25

never contacted the Plaintiff to work with him; and ¶ 91) alleges the Plaintiff attempted to
26

contact Lightner through email but never got a response. Defendant Lightener has attempted
27
28

1

to get the Plaintiff to voluntarily dismiss him from this action because these three allegations

2

fail to state a claim against him in the Second Amended Complaint.
Defendant Lightener has well grounded reasons for seeking summary judgment.

3
4

Plaintiff has failed to file a Response.

5

Under Rule 7.2(i) of the Rules of Practice for the United States District Court,

6

District of Arizona, a failure to file a responsive pleading may be deemed consent to the

7

motion and this Court may dispose of the motion summarily.1 “A motion for summary

8

judgment cannot be granted simply because the opposing party violated a local rule.”

9

Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995) This is so because a party may oppose

10

a motion for summary judgment without offering affidavits or any other materials in support

11

of its opposition. “‘Summary judgment may be resisted and must be denied on no other

12

grounds than that the movant has failed to meet its burden of demonstrating the absence of

13

triable issues.’” Henry v. Gill Industries Inc., 983 F.2d 943, 950 (9th Cir. 1993).

14

Here the Court has reviewed the Complaint and considered the merits of the motion

15

and the case. In light of these considerations, the Court finds that summarily granting the

16

motion is warranted, pursuant to Rule 7.2(i).

17

In reviewing the case the Court discovered that the Plaintiff has failed to file the

18

Second Amended Complaint, nunc pro tunc, as directed by the Court to correct the caption

19

for the Third Claim to be Fraud by Misrepresentation.

20

It also appears that the Plaintiff has failed to respond to the Commission’s Requests

21

for Admissions because the Commission has filed a motion asking this Court to deem the

22

Requests admitted. Plaintiff’s response to the Motion for Court Order Deeming Request for

23

Admissions Propounded to Plaintiff Admitted is due September 13, 2013. Any failure by the

24
25
26

1

27

Dismissal is proper where party fails to follow a district court's local rules. United
States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979).

28

2

1

Plaintiff to file a Response shall be deemed his consent to summarily grant the Commission’s

2

motion, pursuant to LR Civ. 7.2(i).

3

The Commission has noticed the Plaintiff’s deposition for September 16, 2013, at

4

9:00 a.m. in Phoenix, Arizona. Plaintiff has filed a Motion for a Protective Order seeking

5

to have the deposition done telephonically or by electronic means in Montana where he

6

resides. Plaintiff asserts that he has difficulty traveling because he has a service dog and that

7

he is currently undergoing cancer treatment. The limited information provided by Plaintiff

8

is insufficient for the Court to find that Plaintiff should not attend a deposition in this State

9

where he has filed suit and invoked the legal protections of this forum. (Response to Motion

10

for Protective Order (Doc. 121) at 3) (citations omitted). However, the Court is concerned

11

that depositions not be any more burdensome than necessary. The Court anticipates that the

12

School will also want to depose the Plaintiff, but that deposition has not yet been noticed.

13

The Commission has filed a motion requesting a Second Rule 16 Scheduling

14

Conference, which was held prior to the Commission’s appearance in the case. The Court

15

will grant the request for a Scheduling Conference to afford the parties an opportunity to

16

update the case management deadlines. The parties should discuss actual dates for the

17

Plaintiff’s deposition. Defendants should attempt to coordinate their depositions so that

18

Plaintiff’s travel is minimized. The parties should consider whether an electronic deposition

19

might serve their needs for purposes of filing dispositive motions, if a subsequent in-person

20

in Tucson, Arizona, deposition were conducted for purposes of trial, in the event the case is

21

not resolved by dispositive motion.

22

Accordingly,

23

IT IS ORDERED that the Motion for Summary Judgment (Doc. 109) is

24

GRANTED, and the Clerk of the Court shall dismiss Defendant Lightener from the case.

25
26
27
28

3

1

IT IS FURTHER ORDERED that within 5 days of the filing date of this Order, the

2

Plaintiff shall refile the Second Amended Complaint, with the caption of the Third Claim

3

changed to Fraud by Misrepresentation.

4
5

IT IS FURTHER ORDERED that the Plaintiff’s deposition set on September 16,
2013, is QUASHED.

6

IT IS FURTHER ORDERED that the Request for a Rule 16 Scheduling

7

Conference (Doc. 118) is GRANTED, which is set for Thursday, September 19, 2013 at

8

10:00 a.m. The conference will be held telephonically with the Judge's law clerk, Greer

9

Barkley.

10
11
12
13

Plaintiffs' counsel shall initiate the conference call with all appropriate

parties on the line to [phone].
IT IS FURTHER ORDERED that the Motion to Hold Deposition
Electronically/for Protective Order (Doc. 120) IS DENIED AS MOOT.
DATED this 11th day of September, 2013.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4