UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

Charlottesville Division

ROY M. TERRY, JR. and ) CASE NO. 3:04CV00045

DURRETTEBRADSHAW, PLC, )
RECEIVER FOR: TERRY L. )
DOWDELL; DOWDELL, )
DUTCHER & ASSOCIATES, INC.; )
EMERGED MARKET SECURITIES, )
DE-LLC; AUTHORIZED AUTO )
SERVICES, INC.; and VAVASSEUR )
CORPORATION, )
)
Plaintiffs, )
)
v. )
)
KAREN WELLS, )
)
Defendant. ) B. WAUGH CRIGLER
_________________________________ ) U.S. MAGISTRATE JUDGE

MEMORANDUM IN SUPPORT OF RECEIVER’S MOTION

TO EXTEND TIME AND IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

Roy M. Terry, Jr. and the law firm of DurretteBradshaw PLC as duly appointed

receiver for Terry L. Dowdell; Dowdell, Dutcher & Associates, Inc.; Emerged Market

Securities, DE-LLC; Authorized Auto Services, Inc.; and Vavasseur Corporation,

(“Receiver”), in support of its motion made pursuant to Fed.R.Civ.Proc. 6(b) to enlarge

the time deadlines set forth in Court’s Scheduling Order (the “Motion”), and in opposition

to Defendant’s Motion for Summary Judgment, respectfully shows the Court as follows:

1. The Complaint was filed in this matter on June 14, 2004.

 2. The Answer in the case was filed on September 14, 2004.

3. The Court entered a Scheduling Order on November 8, 2004, scheduling the

filing of witness and exhibit lists by January 15, 2005, the end of discovery entirely by

February 4, 2005 and the filing of dispositive motions by February 10, 2005 (“Pretrial

Order”).

4. On January 14, 2005, the Receiver filed the Motion.

5. On or about January 25, 2005, the Defendant, through counsel, filed a

Memorandum in opposition to the Motion and a Motion for Summary Judgment.

ARGUMENT

The Receiver’s Motion was timely, for cause, and should be allowed.

6. Fed.R.Civ.Proc. Rule 6(b)(1) provides that when an order requires an act to

be done within a specified time, the court for cause shown may at any time in its

discretion, with or without motion or notice, order the period enlarged if the request

therefore is made before the expiration of the period of originally prescribed.

7. The Pretrial Order prescribed that the witness and exhibit lists be filed by

January 15, 2004. January 15, 2004 fell on a Saturday. Fed.R.Civ.Proc. Rule 6(a)

provides that the last day of a period prescribed by the order of the court shall be included

unless it is a Saturday, a Sunday or the act requires the filing of a paper in the court, and

the court is inaccessible.

8. The Defendant, by counsel, filed its Witness and Exhibit lists on Friday,

January 14, 2005. Defendant jumped the gun under Rule 6(a), having until Monday,

January 17, 2005 in which to file its Witness and Exhibit lists.

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 9. It is admitted that Defendant did contact the undersigned on several

occasions seeking an extension of time of the deadline to file the Witness and Exhibit lists

during the week of January 10-14, 2005. but counsel was otherwise engaged until the

afternoon of January 14, 2005. By the time the undersigned was able to review the

various communications sent by the Defendant about the requested continuance,

Defendant had already filed its Witness and Exhibit lists. The undersigned thereafter

proceeded to file the Motion (which provided broader relief than that sought by the

Defendant) believing that Defendant also desired an extension of the Pretrial Order

deadlines generally.

10. The Receiver has shown cause for extending the deadlines set forth in the

Pretrial Order. Insufficient time has been allowed to complete discovery due to the

Thanksgiving-Christmas holiday season and, apparently, because the parties imprudently

believed that the case could be settled.

The Defendant’s Summary Judgment Motion Should be Denied.

11. The Summary Judgment Motion is predicated on the notion that the

Receiver’s Motion will be denied. It is therefore premature.

12. Further, Defendant’s Summary Judgment Motion is nothing more than a

shakedown, a litigation tactic intended by Defendant as another way to put settlement

pressure on the Receiver. For this reason, it should not be allowed.

13. Moreover, Defendant’s Summary Judgment Motion puts no facts into

dispute by affidavit or other affirmative evidence but rather assumes that the Receiver has

no evidence, an assumption contrary to the presumptions afforded the non-pleading party

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under Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct.

2505 (1986)(A party is entitled to summary judgment when the pleadings and discovery

show that there are no genuine issues as to any material fact, and that the moving party is

entitled to judgment as a matter of law).

WHEREFORE, the Receiver respectfully moves the Court to allow the Motion to

extend each and every deadline set forth in the Scheduling Order by sixty (60) days; to

deny Defendant’s Summary Judgement Motion, and to award to it such other and further

relief as may be just and proper.

Respectfully submitted, this the 2nd day of February, 2004.

Roy M. Terry, Jr. and DurretteBradshaw, PLC,

Receiver
By Counsel

\s\ Douglas Scott

Douglas Scott, VSB No. 28211
John C. Smith, VSB No. 44556
DurretteBradshaw, P.C.
600 E. Main Street, 20th Floor
Richmond, Virginia 23219
(804.775.6900
2 804.775.6911

F:\D\DOWDELL RECEIVERSHIP\PLEADINGS\Wells, Karen\Memo in Support of Motion to extend time - Karen Wells.doc

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 CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that a true and correct copy of the foregoing
Memorandum was served electronically upon

R. Lee Livingston, Esquire

Tremblay & Smith, LLP
105-109 East High St.
Charlottesville, Virginia 22902

on this, the 2nd day of February, 2005.

/s/ Douglas Scott