Lesofski v. Lash et al

Filing 132

ORDERED that the Court denies as moot the defendants' discovery motions: 119 , 123 , 125 , 126 & 127 . Ordered granting the 128 Motion for Extension for Response to Defendants' Discovery to November 1, 2013. Signed by Senior Judge David C Bury on 9/23/2013. (See order for complete details.)(BAR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Edward G. Lesofski,
Plaintiff,

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v.

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Jarrod Lash, et al.,

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Defendants.

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CV 11-840 TUC DCB

ORDER

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On September 12, 2013, the Court set a Second Scheduling Conference to be held
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with the Judge’s law clerk, Greer Barkley, to discuss resetting the case management
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deadlines in the case. Resetting deadlines is necessary due to the lack of discovery produced
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by the Plaintiff. Currently pending before the Court are four discovery motions filed by the
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Defendants. Both Defendants, the School and the Commission, ask the Court to deem their
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Requests for Admissions admitted because Plaintiff has failed to respond. Both Defendants
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ask the Court to compel the Plaintiff to respond to their discovery requests.
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On September 12, 2013, in the Court’s Order setting the Second Scheduling
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Conference, the Court also summarily granted a Motion for Summary Judgment filed by
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Defendant Lightener, pursuant to LR Civ 7.2(i), because Plaintiff failed to file a Response.
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The Court gave Plaintiff another 5 days to file the Second Amended Complaint to change the
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caption, nunc pro tunc, for the Third Claim to be Fraud by Misrepresentation because
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Plaintiff failed to comply with the original directive, issued by the Court on June 25, 2013,
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to make this filing The Court also noted that the Plaintiff’s response to the Commission’s
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Motion to Deem Defendant’s Requests for Admissions Admitted was due September 13,
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2013, and “[a]ny failure by the Plaintiff to file a Response shall be deemed his consent to

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summarily grant the Commission’s motion, pursuant to LR Civ. 7.2(i).” (Order (Doc. 124)

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at 3.)

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At the Scheduling Conference the Plaintiff’s attorney explained that the Plaintiff has

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been diagnosed with pancreatic cancer and is undergoing treatment, with a scan scheduled

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on October 7, 2013, which should determine his progress and future course of treatment.

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Subsequently, the Plaintiff will be in a better position to determine the specifics, including

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length of time, necessary for him to complete discovery. As to his deposition, the parties

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agree that if he is unable to come to Tucson the Defendants will conduct the deposition

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electronically in Montana for purposes of filing dispositive motions and conducting

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settlement discussions. The Defendants agree to coordinate their depositions so as to not

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duplicate questions and to conduct the depositions at the same time, especially if Plaintiff

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decides to travel to Tucson for it. In the event an electronic deposition is conducted, the

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Plaintiff agrees to a second in-person deposition for purposes of any trial. Plaintiff’s attorney

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Erin Kunzelman agrees to immediately provide Defendants with the documents which should

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have been attached to Plaintiff’s initial disclosures.

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Subsequent to the Second Scheduling Conference, the Plaintiff filed the Second

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Amended Complaint, nunc pro tunc, to correct the caption in the Third Claim and filed a

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Motion for Extension to Respond to Discovery. Plaintiff has not separately responded to the

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Defendants’ motions to deem their Requests for Admission admitted or the motions to

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compel discovery. The Plaintiff explains his failure to prosecute the case and lack of

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compliance with this Court’s orders, the Federal Rules of Civil Procedure, and the local rules

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of practice for this Court, are because:“Plaintiff is currently undergoing cancer treatment,

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making travel difficult at this time.” (Motion for Protective Order (Doc. 120) at 3), see also;

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(Motion for Extension (Doc. 128)).

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Accordingly,

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IT IS ORDERED that the Motion for Extension for Response to Defendants’

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Discovery (Doc. 128) is GRANTED until November 1, 2013.

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IT IS FURTHER ORDERED that Plaintiff shall show cause why this case should

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not be dismissed for failure to prosecute, failure to comply with the Federal Rules of Civil

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Procedure regarding discovery, the Rules of Practice of the United District Court for the

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District of Arizona, and the Court’s orders.

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IT IS FURTHER ORDERED that the Plaintiff has 14 days from the filing date of

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this Order to show cause, supported by his medical records or letter from his doctor, that he

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has been diagnosed with pancreatic cancer, when the diagnosis was made, the treatment he

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has undergone, and to explain how his condition has prevented him from responding to

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Defendants’ discovery requests.

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IT IS FURTHER ORDERED that within 10 days of the scan scheduled for October

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7, 2013, the Plaintiff shall file a Supplemental memo to show cause why this case should not

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be dismissed which must show precisely any time needed for extending discovery, which

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must include the following: 1) identify the Defendants’ discovery requests which remain

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outstanding; 2) estimate the time needed to complete this discovery; 3) identify at least five

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dates after November 1, 2013, that Plaintiff is available for deposition and specify whether

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the deposition will be conducted electronically in Montana or in-person in Tucson. Any

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asserted impediment to prosecuting this case asserted by the Plaintiff must be supported by

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medical documentation.

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IT IS FURTHER ORDERED that the Court denies as moot at this time the

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Defendants’ discovery motions (Docs. 119, 123, 125, 126, 127). Subsequent to Plaintiff’s

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filing the post-October 7, 2013, Supplemental Show Cause Memorandum, the Defendants

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may reurge and supplement their discovery motions, and Plaintiff will timely file responses,

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pursuant to the LR Civ. 7.2(c). Pursuant to LR Civ. 7.2(i), FAILURE TO FILE A

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RESPONSE SHALL BE DEEMED CONSENT TO THE GRANTING OF THE MOTION.

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If Plaintiff files any combined Responses, the document should clearly identify which

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motions are being addressed.

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IT IS FURTHER ORDERED THAT ANY FURTHER FAILURES BY THE

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PLAINTIFF TO COMPLY WITH THE FEDERAL RULES, THE LOCAL RULES, OR

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ORDERS OF THIS COURT, ESPECIALLY THOSE POSING AN IMPEDIMENT TO THE

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PROSECUTION OF THIS CASE, MAY RESULT IN SANCTIONS BEING IMPOSED

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AGAINST THE PLAINTIFF.
IT IS FURTHER ORDERED that counsel for Plaintiff shall immediately mail a
copy of this Order to the Plaintiff.
DATED this 23rd day of September, 2013.

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