Free Response in Opposition to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Terry Goddard Attorney General Colleen M. Auer Assistant Attorney General State Bar No. 014637 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-7698 Fax: (602) 542-7670 [email protected] Attorneys For Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Stuart Othello Carter, Plaintiff, v.

No: CV04-0685-PHX-ROS (VAM) OPPOSITION TO REQUEST FOR ENTRY OF DEFAULT JUDGMENT AND

Douglas Freet, et al., Defendants. NOTICE OF JOINDER OF DEFENDANT MAUREEN MEANEY IN PENDING MOTION TO DISMISS

Defendant Meaney,1 through undersigned counsel, opposes Plaintiff's Request for Entry of Default Judgment against her and hereby notifies the Court of her joinder in Defendant Maskell's pending motion to dismiss filed March 15, 2005. /// /// ///

COII Randy Maskell. It appears that Defendant Meaney executed a waiver of service on May 1, 2005 filed May 10, 2005 (Dkt. #23). Defendant Freet is not an ADC employee. Defendants Dora Schriro, CO Chatt and CO Frisbee were dismissed from this action per the Court's August 19, 2004 Screening Order.
Document 28 Filed 08/17/2005 Page 1 of 3

1

Case 2:04-cv-00685-ROS-VAM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Plaintiff has moved for entry of default against defendant Meaney in the amount of approximately $100,000 plus interest2 for her failure to appear and defend this litigation. Defendant Meaney, a former employee of the Arizona Department of Corrections ("ADC"), apparently executed a waiver of service on May 1, 2005 without notifying ADC or the Attorney General's Office. After a reasonable investigation, undersigned counsel was able to locate defendant Meaney.3 Defendant Meaney informed counsel that she has never been sued before, did not fully understand the import of the waiver of service she signed or the need to notify ADC and the Attorney General's office of her acceptance of service. Defendant Meaney has asked the Attorney General's Office to represent her in this matter. Meaney's failure to timely appear in this action was therefore due to mistake and inadvertence and was remedied promptly upon notice of the executed waiver of service. Her failure to timely appear did not prejudice Plaintiff or unduly delay these proceedings as Defendant Maskell's motion to dismiss Plaintiff's sole remaining retaliation claim on exhaustion grounds is pending. Should the Court grant the motion, it would dispose of Plaintiff's Complaint in its entirety. And Plaintiff would have no basis for entry of a default judgment against defendant Meaney on a claim for relief that he failed to exhaust prior to suit. /// /// ///
2

Plaintiff asks for a default judgment against Meaney in the "sum certain" of $100,000 plus interest. [Request for Entry of Default at 1]. But in his supporting affidavit, he proposes a different sum certain of $100,000 plus $173.60. [Affidavit in Support of Request for Default Judgment at 1]. He submits no evidence to support his enormous judgment request other than stating (without document backup) that he has incurred a $150 filing fee and $20.00 in postage, paper and copying costs.
3

After executing the Waiver of Service, Defendant Meaney moved out of State.
Document 28 Filed 08/17/2005 Page 2 of 3

Case 2:04-cv-00685-ROS-VAM

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

For these reasons, Defendant Meaney asks the Court to deny Plaintiff's Request for Entry of Default Judgment against her and permit her to join in defendant Maskell's pending motion to dismiss. RESPECTFULLY SUBMITTED this 17th day of August, 2005. TERRY GODDARD Attorney General

s/ Colleen M. Auer Colleen M. Auer Assistant Attorney General Attorneys for Defendants

Copy mailed the same date to: Stuart Othello Carter, #038035 ASPC-Florence-North Unit 2 Post Office Box 8000 Florence, AZ 85232 s/ Colleen M. Auer Colleen M. Auer IDS05-0024/RSK:G04-21667
919381

Case 2:04-cv-00685-ROS-VAM

Document 28

3

Filed 08/17/2005

Page 3 of 3