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Plaintiff’s Motion to Compel Acceptance of Lunch Invitation

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SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2003-020242 07/19/2006

CLERK OF THE COURT

JUDGE PENDLETON GAINES A. Beery

Deputy

FILED: 07/21/2006

PHYSICIANS CHOICE OF ARIZONA INC DAVID A SELDEN

v.

MICKEY MILLER, et al. DOW GLENN OSTLUND

DAVID ROSENBAUM

ROSENBAUM & ASSOCIATES PC

650 DUNDEE RD

STE 380

NORTHBROOK IL 60062

RULINGS ON PENDING MOTIONS

The Court has reviewed the pending motions. Two will be granted. The others will be deferred.

Plaintiff’s Motion to Compel Acceptance of Lunch Invitation

The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion.

Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.

The writers support the concept. Conversation has been called “the socializing

instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to “Sweet discourse, the banquet of the mind” (The Flower and the Leaf).

Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a

discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.”

Defendant’s counsel failed to respond until the motion was filed.

Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case.

The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes

what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel.

Plaintiff’s counsel replies somewhat petulantly, criticizing Defendant’s counsel’s

acceptance of the lunch invitation on the grounds that Defendant’s counsel is “now attempting to

choose the location” and saying that he “will oblige,” but Defendant’s counsel “will pay for its own meal.”

There are a number of fine restaurants within easy driving distance of both counsel’s offices, e.g., Christopher’s, Vincent’s, Morton’s, Donovan’s, Bistro 24 at the Ritz-Carlton, The

Arizona Biltmore Grill, Sam’s Café (Biltmore location), Alexi’s, Sophie’s and, if either counsel

has a membership, the Phoenix Country Club and the University Club. Counsel may select their

own venue or, if unable to agree, shall select from this list in order. The time will be noon

during a normal business day. The lunch must be conducted and concluded not later than August 18, 2006.

Each side may be represented by no more than two (2) lawyers of its own choosing, but

the principal counsel on the pending motions must personally appear.

The cost of the lunch will be paid as follows: Total cost will be calculated by the amount

of the bill including appetizers, salads, entrees and one non-alcoholic beverage per participant.

A twenty percent (20%) tip will be added to the bill (which will include tax). Each side will pay

its pro rata share according to number of participants. The Court may reapportion the cost on

application for good cause or may treat it as a taxable cost under ARS § 12-331(5).

During lunch, counsel will confer regarding the disputes identified in Plaintiff’s motion

to strike Defendant’s discovery motion and Defendant’s motions to quash, for protective order

and for commission authorizing out-of-state depositions.4 At the initiative of Plaintiff’s counsel,

a brief joint report detailing the parties’ agreements and disagreements regarding these motions

will be filed with the Court not later than one week following the lunch and, in any event, not

later than noon, Wednesday, August 23, 2006.

Defendant’s Motion to Strike Proposed Amended Complaint

To demonstrate to counsel that the Court has more on its mind than lunch, the Court has considered Defendant’s motion to strike Plaintiff’s proposed amended complaint. The motion will be granted.

Plaintiff’s proposed amended complaint is 56 pages long and has 554 separately

numbered paragraphs. It contains 19 counts. It is prolix and discursive in the extreme. It violates the Court’s order of July 22, 2005, permitting the Plaintiff to file “an agreed-upon form

of Amended Complaint to clean up housekeeping matters.” It is not the “short and plain

statement” required by Rule 8(a)(2). It is a pleading of a type specifically condemned in Anserv

Insurance Services, Inc., vs. Albrecht, 192 Ariz. 48, 49-50 (1998) (trial court should have

stricken 269-page, 1322-paragraph complaint). Most importantly, it violates the observation of

French philosopher Blaise Pascal, who concluded a long letter with an apology, saying he “had

not the leisure to make it shorter.” Since this is a 2003 case with no end in sight, Plaintiff’s

counsel has the leisure to make his complaint shorter.

ORDER

IT IS ORDERED:

1. Plaintiff’s motion to compel Defendant’s counsel’s acceptance of lunch invitation is granted on the terms and conditions set forth above.

2. The parties are directed to file the joint report referred to above.

3. Further action on the parties’ pending discovery motions is deferred pending

receipt of the joint report.

4. Defendant’s motion to strike Plaintiff’s proposed amended complaint is granted.

5. The oral argument set in this division on August 2, 2006, at 9:15 a.m. is vacated.

Plaintiff’s Motion to Compel Acceptance of Lunch Invitation.pdf

Edited by GDayMateAZ
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