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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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 September 12, 2013, the Court set a Second Scheduling Conference to be held 14 with the Judge’s law clerk, Greer Barkley, to discuss resetting the case management 15 deadlines in the case. Resetting deadlines is necessary due to the lack of discovery produced 16 by the Plaintiff. Currently pending before the Court are four discovery motions filed by the 17 Defendants. Both Defendants, the School and the Commission, ask the Court to deem their 18 Requests for Admissions admitted because Plaintiff has failed to respond. Both Defendants 19 ask the Court to compel the Plaintiff to respond to their discovery requests. 20 On September 12, 2013, in the Court’s Order setting the Second Scheduling 21 Conference, the Court also summarily granted a Motion for Summary Judgment filed by 22 Defendant Lightener, pursuant to LR Civ 7.2(i), because Plaintiff failed to file a Response. 23 The Court gave Plaintiff another 5 days to file the Second Amended Complaint to change the 24 caption, nunc pro tunc, for the Third Claim to be Fraud by Misrepresentation because 25 Plaintiff failed to comply with the original directive, issued by the Court on June 25, 2013, 26 to make this filing The Court also noted that the Plaintiff’s response to the Commission’s 27 Motion to Deem Defendant’s Requests for Admissions Admitted was due September 13, 28 1 2013, and “[a]ny failure by the Plaintiff to file a Response shall be deemed his consent to 2 summarily grant the Commission’s motion, pursuant to LR Civ. 7.2(i).” (Order (Doc. 124) 3 at 3.) 4 At the Scheduling Conference the Plaintiff’s attorney explained that the Plaintiff has 5 been diagnosed with pancreatic cancer and is undergoing treatment, with a scan scheduled 6 on October 7, 2013, which should determine his progress and future course of treatment. 7 Subsequently, the Plaintiff will be in a better position to determine the specifics, including 8 length of time, necessary for him to complete discovery. As to his deposition, the parties 9 agree that if he is unable to come to Tucson the Defendants will conduct the deposition 10 electronically in Montana for purposes of filing dispositive motions and conducting 11 settlement discussions. The Defendants agree to coordinate their depositions so as to not 12 duplicate questions and to conduct the depositions at the same time, especially if Plaintiff 13 decides to travel to Tucson for it. In the event an electronic deposition is conducted, the 14 Plaintiff agrees to a second in-person deposition for purposes of any trial. Plaintiff’s attorney 15 Erin Kunzelman agrees to immediately provide Defendants with the documents which should 16 have been attached to Plaintiff’s initial disclosures. 17 Subsequent to the Second Scheduling Conference, the Plaintiff filed the Second 18 Amended Complaint, nunc pro tunc, to correct the caption in the Third Claim and filed a 19 Motion for Extension to Respond to Discovery. Plaintiff has not separately responded to the 20 Defendants’ motions to deem their Requests for Admission admitted or the motions to 21 compel discovery. The Plaintiff explains his failure to prosecute the case and lack of 22 compliance with this Court’s orders, the Federal Rules of Civil Procedure, and the local rules 23 of practice for this Court, are because:“Plaintiff is currently undergoing cancer treatment, 24 ///// 25 ///// 26 27 28 2 1 making travel difficult at this time.” (Motion for Protective Order (Doc. 120) at 3), see also; 2 (Motion for Extension (Doc. 128)). 3 Accordingly, 4 IT IS ORDERED that the Motion for Extension for Response to Defendants’ 5 Discovery (Doc. 128) is GRANTED until November 1, 2013. 6 IT IS FURTHER ORDERED that Plaintiff shall show cause why this case should 7 not be dismissed for failure to prosecute, failure to comply with the Federal Rules of Civil 8 Procedure regarding discovery, the Rules of Practice of the United District Court for the 9 District of Arizona, and the Court’s orders. 10 IT IS FURTHER ORDERED that the Plaintiff has 14 days from the filing date of 11 this Order to show cause, supported by his medical records or letter from his doctor, that he 12 has been diagnosed with pancreatic cancer, when the diagnosis was made, the treatment he 13 has undergone, and to explain how his condition has prevented him from responding to 14 Defendants’ discovery requests. 15 IT IS FURTHER ORDERED that within 10 days of the scan scheduled for October 16 7, 2013, the Plaintiff shall file a Supplemental memo to show cause why this case should not 17 be dismissed which must show precisely any time needed for extending discovery, which 18 must include the following: 1) identify the Defendants’ discovery requests which remain 19 outstanding; 2) estimate the time needed to complete this discovery; 3) identify at least five 20 dates after November 1, 2013, that Plaintiff is available for deposition and specify whether 21 the deposition will be conducted electronically in Montana or in-person in Tucson. Any 22 asserted impediment to prosecuting this case asserted by the Plaintiff must be supported by 23 medical documentation. 24 IT IS FURTHER ORDERED that the Court denies as moot at this time the 25 Defendants’ discovery motions (Docs. 119, 123, 125, 126, 127). Subsequent to Plaintiff’s 26 filing the post-October 7, 2013, Supplemental Show Cause Memorandum, the Defendants 27 28 3 1 may reurge and supplement their discovery motions, and Plaintiff will timely file responses, 2 pursuant to the LR Civ. 7.2(c). Pursuant to LR Civ. 7.2(i), FAILURE TO FILE A 3 RESPONSE SHALL BE DEEMED CONSENT TO THE GRANTING OF THE MOTION. 4 If Plaintiff files any combined Responses, the document should clearly identify which 5 motions are being addressed. 6 IT IS FURTHER ORDERED THAT ANY FURTHER FAILURES BY THE 7 PLAINTIFF TO COMPLY WITH THE FEDERAL RULES, THE LOCAL RULES, OR 8 ORDERS OF THIS COURT, ESPECIALLY THOSE POSING AN IMPEDIMENT TO THE 9 PROSECUTION OF THIS CASE, MAY RESULT IN SANCTIONS BEING IMPOSED 10 11 12 13 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. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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