Guadalupe C. Coronel, Individually and as Representative of the Estate of Veronica Coronel v. Providence Imaging Consultants, P. A., and Scott Blumenfeld, M. D.

• Court: Court of Appeals of Texas
• Decided: July 23, 2015
• Docket: 08-14-00140-CV
• Status: Published

Opinion

ACCEPTED 08-14-00140-CV 08-14-00140-CV EIGHTH COURT OF APPEALS EL PASO, TEXAS 7/23/2015 10:40:33 AM DENISE PACHECO CLERK

No. 08-14-00140-CV IN THE EIGHTH JUDICIAL DISTRICT COURT OF APPEALS FILED IN 8th COURT OF APPEALS EL PASO, TEXAS EL PASO, TEXAS 7/23/2015 10:40:33 AM GUADALUPE CORONEL, INDIVIDUALLY AND AS REPRESENTATIVE DENISE PACHECO OF THE ESTATE OF VERONICA CORONEL, DECEASED Clerk

APPELLANT, v.

PROVIDENCE IMAGING CONSULTANTS, P.A. AND SCOTT BLUMENFELD, M.D.

APPELLEES.

Appealed from the 34th Judicial District Court Of El Paso County, Texas APPELLEES' MOTION TO VACATE THE SEPTEMBER 17, 2015 ORAL ARGUMENT SETTING

RAY, MCCHRISTIAN & JEANS, P.C. 5822 Cromo Drive El Paso, Texas 79912 (915) 832-7200 (915) 832-7333 Fax

DAVID S. JEANS ROBERT D. DINSMOOR State Bar No. 10597400 State Bar No. 05888250 e-mail: &cans cv--: e-mail: ci. - .corn rmjfirm.com rdinsmooKiTrnjfirm.com e-mail: rdinsmoor((irrnjfirm.com

Attorneys for Appellees TO THE HONORABLE JUSTICES OF THE EIGHTH COURT OF APPEALS:

On July 17, 2015 this Court issued notice setting the above styled and

numbered cause for oral argument on September 17, 2015 at 1:00 p.m.. See

Exhibit "A" attached hereto. Both counsel for Appellees— i.e. David S. Jeans and

Robert D. Dinsmoor— have previously been scheduled for trial in the United States

District Court, Western District of Texas, before the Honorable Frank Montalvo in

the case of Three Legged Monkey, L.P. v. The City of El Paso, Texas et. al. Cause

No. 3:14-CV-00260-FM wherein David S. Jeans and Robert D. Dinsmoor

represent The City of El Paso, Texas and the individually named city defendants

(in their representative capacities) in that case. Judge Montalvo has previously set

that case for jury trial with trial scheduled to begin at 1:00 p.m. on September 14,

2015. A copy of that order is attached as Exhibit "B". It is anticipated the trial

will last at least through the week of September 14, 2015. This motion to vacate is

timely filed within the ten day period set forth in this Court's September 17, 2015

notice setting oral argument. The facts set forth in this motion are within the

personal knowledge of the undersigned attorney. See T.R.A.P. Rule 10.2(c).

PRAYER

Wherefore, because of the unavailability of counsel for Appellees for the

scheduled September 17, 2015 oral argument in the above styled and numbered

RMJ No. 511.404 1M 440464 Page 2 cause, Appellees pray that this Court vacate the September 17, 2015 oral argument

setting and re-schedule the oral argument for a later date.

CERTIFICATE OF CONFERENCE

The undersigned hereby certifies that he has conferred with Alfonso

Melendez, counsel for Appellant, and that Appellant's counsel does not oppose

this motion.

Date: July 23, 2015 Respectfully submitted,

/s/Robert D. Dinsmoor State Bar No. 05888250 e-mail: - Counsel for Appellees

CERTIFICATE OF SERVICE

Pursuant to Texas Rule of Appellate Procedure 9.5, I certify that on the above

date a true and correct copy of the foregoing document was electronically

filed and served via the court's electronic service— as well as being sent by e-

mail— to Alfonso L. Melendez, 11335 Pellicano Dr. El Paso, TX. 79936 (e-

mail address: alforiso almfirm.com)— Attorney for Appellant.

/s/Robert D. Dinsmoor State Bar No. 05888250 e-mail: rdinsmoor urm .com Counsel for Appellees

RMJ No. 511.404 1M 440464 Page 3 EXHIBIT "A"

RMJ No. 511.404 1M 440464 Page 4 COURT OF APPEALS CHIEF JUSTICE CLERK Arm Crawford McClure EIGHTH DISTRICT OF TEXAS Denise Pacheco JUSTICES EL PASO COUNTY COURTHOUSE Yvonne T. Rodriguez 500 E. SAN ANTONIO AVE., SUITE 1203 Steven L. Hughes EL Paso, TEXAS 79901-2408 (915) 546-2240 FAX (915) 546-2252 E-MAIL: CLERICa8THCOA.TXCOURTS.GOV

July 17, 2015

Hon. Alfonso L. Melendez Hon. David S. Jeans Attorney at Law Ray, Valdez, McChristian & Jeans 11335 Pellicano 5822 Cromo, Suite 400 El Paso, TX 79936 El Paso, TX 79912 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

: Court of Appeals Number: 08-14-00140-CV Trial Court Case Number: 2014DCV0904

Style: Guadalupe C. Coronel, Individually and as Representative of the Estate of Veronica Coronel, Deceased v. Providence Imaging Consultants, P. A., and Scott Blumenfeld, M. D.

1Please take notice that the above captioned cause has been set for submission with oral argument for September 17, 2015, at 1:00 p.m., in THE COURTROOM OF THE EIGHTH COURT OF APPEALS, 500 E. SAN ANTONIO, EL PASO COUNTY COURTHOUSE, SUITE 1203, EL PASO, TEXAS.

If the case is settled or will not be argued for any reason, the clerk shall be notified at once so that the court can maintain a full docket of cases to be argued. Any motion to vacate should be filed within 10 days of this notice.

ARGUMENTS ARE LIMITED TO TWENTY MINUTES EACH SIDE, WITH TEN MINUTES ADDITIONAL REBUTTAL FOR APPELLANT(S). LEAVE OF COURT MUST BE OBTAINED FOR ADDITIONAL TIME.

The above case is scheduled to be heard before Chief Justice McClure, Justice Rodriguez and Justice Hughes. Panel is subject to change.

PLEASE ACKNOWLEDGE RECEIPT OF THIS SUBMISSION NOTICE by clicking the link below and completing he Oral Argument Acknowledgement Foi in. Once the form has been completed the same must he filed with this Court through the approved electronic filing system. http://www%txcourts1::)% )95/oa ackfonmpdf

Respectfully yours,

DENISE PACHECO, CLERK EXHIBIT "B"

RMJ No. 511.404 IM 440464 Page 5 Case 3:14-cv-00260-FM 3:14-cv-00260-FM Document Doct ent 21 21Filed Filed10/14114 10/14/14 Page Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

THREE LEGGED MONKEY, LP; 3LM, LLC; and JAMES MICHAEL ARMSTRONG,

Plaintiffs,

v. EP-14-CV-00260-FM

CITY OF EL PASO, TEXAS; DAVID BRANDT, individually and as Trustee and General Partner of Hawkins Plaza; PATRIOT PLACE LTD; EMMA ACOSTA, in her official and individual capacity as City Representative for District Three of El Paso, Texas and as a private individual; JOYCE WILSON, in her official and individual capacity as City Manager of El Paso, Texas and as a private citizen; STEVE ORTEGA, in his official and individual capacity as City Representative for District Seven of El Paso, Texas; SUSANNAH M. BYRD, in her official and individual capacity as City Representative of District Two of El Paso, Texas; EL PASO INTERNATIONAL AIRPORT; ANN MORGAN LILLY, in her official and individual capacity as Representative for District One of El Paso, Texas and as a private citizen,

Defendants.

SCHEDULING ORDER

The court has considered the appearing parties' recommendations for scheduling deadlines in the above numbered and styled cause and issues the following Scheduling Order:

1. The parties shall advise the court whether or not they consent to trial by a United States Magistrate Judge no later than November 14, 2014.

Pursuant to 28 U.S.C. § 636(c)(1), all full-time Magistrate Judges are authorized and empowered to try any civil case, jury or non-jury, with the consent of all parties to the lawsuit. Your consent to trial by a Magistrate Judge must be voluntary, and you are free to withhold your consent Case 3:14-cv-00260-FM Document 21 Filed 10/14/14 Page 2 of 4

without suffering any adverse consequences. If all parties consent to trial of this case by a Magistrate Judge, this court will enter an order referring the case to a Magistrate Judge for trial and entry of judgment. If the case has already been referred to a Magistrate Judge for pretrial matters and the parties consent to a trial before a Magistrate Judge, the trial will be before the Magistrate Judge already assigned to the case.

2. The parties asserting claims for relief shall submit a written offer of settlement to opposing parties no later than January 9, 2015. Each opposing party shall respond, in writing, on or before February 6, 2015.

3. The parties shall file all motions to amend or supplement pleadings or to join additional parties no later than December 5, 2014.

4. All parties asserting claims for relief shall FILE their designation of potential witnesses, designation of testifying experts, and list of proposed exhibits, and shall SERVE on all parties, but not file, the materials required by FED. R. Civ. P. 26(a)(2)(B) on or before January 16, 2015. Parties resisting claims for relief shall FILE their designation of potential witnesses, designation of testifying experts, and a list of proposed exhibits, and shall SERVE on all parties, but not file, the materials required by FED. R. Civ. P. 26(a)(2)(B) on or before January 29, 2015. All designations of rebuttal experts shall be filed within 30 days of receipt of the report of the opposing expert.

5. The parties shall complete discovery on or before April 14, 2015. Counsel may, by agreement, continue discovery beyond the deadline, but there will be no intervention by the court except in extraordinary circumstances. No trial date will be vacated because of information obtained in post-deadline discovery.

6. ADR is mandatory. ADR must be completed no later than May 14, 2015. The parties shall FILE a report on alternative dispute resolution in compliance with Local Rule CV-88 no later than 20 days after the alternative dispute resolution deadline.

7. The parties shall file all dispositive motions, if any, no later than June 15, 2015. Dispositive motions as defined in Local Rule CV-7(c) and responses to dispositive motions shall be limited to 20 pages in length.

8. All objections or motions under Rule 702 or Rule 703 of the Federal Rules of Evidence shall be filed with the court and served upon opposing parties no later than 60 days after after the close of discovery.

9. All transcript requests shall be made, in writing, to Nalene Benavides, Official Court Reporter, by way of regular mail or by hand delivery to Sandra Flores, Judicial Assistant. Phone requests for transcripts will NOT be accepted.

10. This case is set for a JURY TRIAL before the court on September 14, 2015 at 1:00 p.m., in Courtroom No. 422, Fourth Floor of the United States District Courthouse, 525 Magoffin

2 Case 3:14-cv-00260-FM 3:14-cv-00260-FM Document Document 21 21 Filed Filed 10/14/14 10/14/14 Page Page 33 of o4

Ave., El Paso, Texas, 79901. The parties shall file their pretrial submissions in the form set out in CV-16(e) not Local Rule CV-16(e) not later laterthan than September September 4, 2015.

If any party intends to call more than three deposition witnesses for a total of more than 45 pages of deposition testimony, then the proposed testimony shall be filed four weeks before the trial date. The other parties shall have ten days to file their proposed testimony and objections, if any.

If the parties reach a settlement or otherwise resolve the case, the parties must promptly notify the court.

Parties are encouraged to work out any scheduling conflicts and difficulties in meeting deadlines. Parties can agree to move any deadlines for paragraphs numbered one through five leave of without leave of court, court, but butmust FILE notification of any such agreement. All other deadlines mustFILE cannot be moved without leave of the court.

The court expects the parties to strictly adhere to this Order. Failure to do so will result in sanctions to any offending party. Continuances, even if agreed upon by counsel, will be granted rarely. A motion for continuance will only be considered if it is in writing and it is supported by affidavit(s) setting forth its bases.

Before filing any notice of depositions, the movant must contact any and all parties to determine if the requested deposition will be opposed.

All contested notices of depositions will be denied with prejudice unless movant strictly adheres to the following:

1. Movant serves upon respondent the complete notice of deposition(s); 2. Respondent replies in writing writing within within seven seven days days of receipt (10 days ifif served by FAX, U.S. MAIL, or PRIVATE carrier); 3 3. Parties confer about the response within within seven days of the response due date. Movant is responsible for scheduling said conference. Respondent's failure to respond or to cooperate will result in sanctions; 4. Within five days of the conference, Movant serves a proposed written specific agreement resolving the dispute, and when applicable, a specific timetable for compliance; 5. Respondent accepts or declines the proposed agreement agreement within within five days of receipt (eight days (eight days ififserved servedby byFAX, FAX, U.S. U.S. MAIL, MAIL, oror PRIVATE PRIVATE carrier) carrier) or submits a counter proposal; and 6. Steps 4 and 5 are exhausted.

All pleadings shall be filed within the applicable deadlines as set forth in the Local Rules of the United States District Court for the Western District of Texas. Parties are not entitled to an additional three (3) days as stated in Federal Rule of Civil Procedure 6(d), as amendments to the

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Local Rules have already accounted for the three-day period.'

The above procedure must be completed within the timetable set forth by the various deadlines in this Order. It does not apply to notices involving nonparties or to witnesses not employed by the parties or their counsel.

SO ORDERED.

SIGNED this 14th day of October, 2014.

FRANK MONTALVO UNITED STATES DISTRICT JUDGE

I See "Standing Order Clarifying Time Limits for Filing Responses and Replies," entered July 25, 2014.