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Tungjunyatham v. Johanns


January 21, 2009


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Pursuant to Local Rule 6-144 , defendant United States Department of Agriculture ("United States") requests by way of this ex parte application a four-month extension of this action's litigation deadlines. The United States explains as follows:

1. Plaintiff Tipaksorn Tungjunyatham ("plaintiff") brings Title VII claims against defendant the United States regarding her prior employment with the above federal agency. (Doc. 1; Declaration of Brian W. Enos ("Enos Decl."), para. 2).

2. The United States' present application for an extended litigation schedule is submitted based on good cause. (Enos Decl., para. 3).

3. To explain chronologically:

a. On August 6, 2008, counsel for the United States took plaintiff's deposition for seven full hours. (Enos Decl., para. 4(a)). The deposition went exceedingly slow and at the end of the day plaintiff agreed that the United States could take her deposition a second day. (Ibid.) Sometime within the next several weeks, plaintiff called the undersigned to advise him that she injured her foot and would not be able to participate in her continued deposition until it healed. (Ibid.)

b. On October 1, 2008, the parties agreed that the United States could complete Dr. Tung's deposition on December 2, 2008. (Enos Decl., para. 4(b)). That same day, the parties also filed a stipulation continuing litigation dates in a manner that could accommodate the above completed deposition date. (Ibid.) The court endorsed this stipulation by way of formal order on October 7, 2008. (Doc. 21).

c. On October 23, 2008, the United States sent plaintiff a deposition notice confirming the December 2, 2008 deposition date. (Enos Decl., para. 4(c)).

d. On November 6, 2008, the undersigned received two voicemail messages from plaintiff. (Enos Decl., para. 4(d)). Within these messages, plaintiff indicated that she was in Thailand attending to a sick relative and would not be able to return to the United States until March 2009. (Ibid.) Plaintiff also advised the undersigned that (1) in light of the above, she would not be able to attend her continued deposition on December 2, 2008 and requested that the United States agree to take it after she returned, and (2) the undersigned would need to further communicate with her via email in that she had very limited access to telephones while out of the country. (Ibid.)

e. On November 7, 2008, the United States responded to plaintiff's voicemail messages of the day before by way of email. (Enos Decl., para. 4(e), Exh. A). Within this email, the United States advised plaintiff that it would agree to her request, so long as she agreed to moving this action's "dispositive motion deadline from January 21, 2009 to May 2009. This way, all parties can make use of deposition transcripts before filing any potential motions." (Ibid.)

f. On November 9, 2008, plaintiff responded to the United States' November 7, 2009 email message by email. (Enos Decl., para. 4(f), Exh. B). Within this response, plaintiff agreed to moving the dispositive motion filing deadline, and specifically stated "[p]lease reschedule for all as much appropriate as possible." (Ibid.)

g. On January 16, 2009, the United States sent plaintiff a draft stipulation by email which incorporated the above extended dispositive motion filing deadline, as well as subsequent deadlines through trial. (Enos Decl., para. 4(g), Exh. C). Each date was tentatively moved four months from their current deadlines, so as to keep the same amount of time between each prior deadline. (Ibid.)

h. Plaintiff has not responded to the United States' email message of January 16, 2009. (Enos Decl., para. 4(h)).

Accordingly, and while the undersigned interprets the above exchange as already including plaintiff's general agreement to the above dates, he sends it to the court in the form of ex parte papers rather than a formal stipulation in an err of caution. (Ibid.)

4. In light of the above-stated good cause, defendant United States requests an extension of the above action's litigation deadlines approximately four months, and specifically set forth below:

Old Date New Date

Filing of Dispositive January 21, 2009 May 20, 2009 Motions Settlement Conference May 13, 2009 September 14, 2009 (Magistrate Judge Beck) 10:00am Judge Beck Pretrial Conference July 14, 2009 November 17, 2009

11:00am Judge Snyder

Jury Trial September 14, 2009 January 25, 2010

9:00am Judge Snyder

5. Based on the above, plaintiff is not prejudiced by this request, in that she necessitated the continued deposition due to her tending to unspecified family matters in Thailand, as well as her general agreement to the above continuances. (Enos Decl., para. 6).

6. A timely stipulation extending time cannot be reasonably obtained, in that plaintiff is out of the country and has not responded to the United States' draft stipulation sent to her last week. (Enos Decl., para. 7).

7. In light of the foregoing, the United States respectfully requests the court to extend the parties' litigation deadlines approximately four months, and as specified above. (Enos Decl., para. 7).

Respectfully submitted,

Dated: January 20, 2009

LAWRENCE G. BROWN Acting United States Attorney

BRIAN W. ENOS Assistant U.S. Attorney Attorneys for Defendant Mike Johanns




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