Arvin E. Mitchell - Page 7

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          than his notarized statement asserting that the statements in the           
          motion for continuance regarding his health were true.                      
          Petitioner’s motion for continuance further stated the following:           
               Though I will try, it is unlikely I will be able to                    
               make it to trial next week.  I have waited until this                  
               time to request the continuance because I have been                    
               going beyond the call of duty to take the steps that                   
               would enable me to make it to trial, at least on a                     
               part-time basis.  Thus, up until now I fully hoped and                 
               expected to make it in to trial.                                       
               Had the Respondent not waited until just two weeks ago                 
               to contact me, Respondent would have learned of my                     
               condition, probably from my family members in that I                   
               have been sidelined by health issues and may not have                  
               been able to follow-up on any communications from                      
               Respondent.                                                            
                         *    *    *    *    *    *    *                              
               Though it may be difficult, painful and/or may require                 
               assistance from others, I should be able to respond to                 
               any fax on the same day and I should be able to                        
               overnight you anything you request.                                    
               On September 7, 2004, respondent’s counsel appeared at the             
          calendar call and presented a motion to dismiss for lack of                 
          prosecution, which the Court filed.  There was no appearance by             
          or on behalf of petitioner.  On September 7, 2004, we denied                
          petitioner’s motion for continuance and scheduled a hearing on              
          respondent’s motion to dismiss for September 9, 2004.                       
               On the afternoon of September 7, 2004, respondent’s counsel            
          faxed a letter to petitioner informing him that the Court had               
          scheduled a hearing on the motion to dismiss for September 9,               
          2004, and advising him that the Court was likely to dismiss the             
          case for lack of prosecution if he failed to appear at the                  




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