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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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