Free Objection - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ARMANDO ROBERTO AROS III, Plaintiff, v. ROBINSON, et al., Defendants. DEFENDANTS' OBJECTION TO PLAINTIFF'S REQUEST FOR AN ENLARGMENT OF TIME TO RESPOND TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. 83; DKT. 84) No: CV04-306 PHX SRB (LOA)

Defendants1, by and through undersigned counsel, object to Plaintiff's untimely Request for Enlargement of Time. (Dkt. 83; Dkt. 84.) Defendants filed their Motion for Summary Judgment and supporting Statement of Facts on June 22, 2006. (Dkt. 50; Dkt. 51.) Plaintiff has had seven (7) months to respond to Defendants' Motion for Summary Judgment and has failed to do so and is currently in violation of the Court's previous order setting a firm response deadline. This Response is supported by the following Memorandum of Points and Authorities.

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RESPECTFULLY SUBMITTED this 7th day of February, 2007. TERRY GODDARD Attorney General

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS On March 21, 2005, Plaintiff Armando Aros, III ("Aros") filed his Third Amended Complaint (Dkt 15) after a year of filing various amended complaints or requests to file an amended complaint.2 (See Dkt. 3; Dkt. 6; Dkt. 14; Dkt. 15; Dkt. 16; Dkt. 20.) On December 21, 2006, the Court entered its Scheduling Order setting deadlines for discovery requests by February 22, 2006, and a dispositive motions deadline of June 22, 2006. (Dkt. 33.) On June 22, 2006, Defendants timely filed their Motion for Summary Judgment (Dkt. 50) and supporting Statement of Facts (Dkt. 51). On June 30, 2006, Aros filed a "Notice of Impending Motion and Declaration" (Dkt. 53), asserting that he had been preparing a Motion for Enlargement of Time to conduct discovery and to file dispositive motions. (Id. at p. 1.) In support of his preemptive motion, Aros asserted that he was awaiting the

arrival of discovery-related documents he intended to attach to his Motion for Enlargement and that his maternal aunt had these documents on her home computer. (Id. at pp. 1-2.) Aros further stated he was filing the notice so that he would not receive an adverse ruling from the Court and that he would file the motion for an enlargement no later than July 6, 2006. (Id. at p. 2.) On July 6, 2006, the Court issued its mandatory Rand Notice-Warning

Aros filed his Original Complaint on February 10, 2004. (Dkt. 1.)

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to Aros and advised him that his response to Defendants' motion was due no later than August 9, 2006. (Dkt. 54.) On July 12, 2006, Aros filed his Motion for Enlargement of Time to Conduct Discovery and File Dispositive Motions alleging that he did not engage in discovery because he was pursuing an interlocutory appeal.3 (Dkt. 55.) On July 24, 2006, prior to Defendants filing their objection to Aros' motion, the Court granted Aros' request for an extension and modified the Scheduling Order to extend the discovery deadline to August 4, 2006, and the dispositive motion deadline to October 30, 2006. (Dkt. 56.) The Court also held that Defendants acted in bad faith and were uncooperative.4 (Id.) On November 8, 2006, Defendants requested the Court to rule on their pending and unopposed Motion for Summary Judgment. (Dkt. 74.) Aros responded that he had not responded to Defendants' Motion for Summary Judgment because he was "busy apprising the Court of a discovery dispute" and that he thought that the new Scheduling Order (Dkt. 56) required the Defendants to refile or renew their request for summary judgment (Dkt. 75). On

November 29, 2006, Defendants' Motion for Summary Judgment (Dkt. 50) and their Request for a Ruling (Dkt. 74) were referred for consideration (Dkt. 79). On December 5, 2006, the Court extended Plaintiff's deadline to file his Response to Defendants' Motion for Summary Judgment to January 16, 2007. (Dkt. 80.) The Court advised Plaintiff that no further requests for extension of time would be considered or granted. (Id.) (emphasis added)

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Aros filed a Notice of Appeal on November 7, 2005. (Dkt. 26.) The Ninth Circuit Court of Appeals dismissed the appeal for lack of jurisdiction on January 17, 2006. (Dkt. 34.)

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Defendants subsequently filed a Motion to Vacate the Court's Order Regarding ReOpening Discovery and to Strike its Finding of Bad Faith on Part of Defendants. (Dkt. 57.) Defendants objected to the re-opening of discovery in that Aros failed to serve Defendants with a discovery request and failed to bring discovery disputes to the Court's attention within the allotted time period. (Id. at pp. 2-3.) While the Court denied Defendants request to modify the Scheduling Order, the Court did strike the finding of bad faith. (Dkt. 66.) Case 2:04-cv-00306-SRB Document 85 Filed 02/07/2007 Page 3 of 10

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On February 5, 2007, Aros filed his motion for enlargement requesting fifteen days to file his Response and a Cross Motion for Summary Judgment. (Dkt. 83 at p. 1.) In support of his motion, Aros asserts that on December 20, 2006 he was transferred from the Arizona State Prison Complex ("ASPC"), Meadows Complex Detention Unit to the Special Management Unit ("SMU") II. (Dkt. 83 at p. 2.) He claims that prior to his transfer he had been working "diligently" on this Reply and Cross Motion for Summary Judgment. (Id. at p. 3.) As a result of his unexplained transfer to SMU II, Aros puts forth unsupported conclusory allegations that he has been the victim of retaliatory tactics, deprived of all of his legal books/writing aids, and is unable to meaningfully access the legal resource library. (Dkt. 84 at p. 5.) He further surmises, without evidentiary support, that ADC employees were instructed to subject him to such treatment to impede his lawsuit. (Dkt. 84 at p. 6.) Aros' lawsuit has been pending for three years and this is his third request for an enlargement to respond to Defendants' June 22, 2006, Motion for Summary Judgment. Plaintiff has run out of excuses, and his current request for an enlargement (Dkt. 83; Dkt 84) should be denied. II. LEGAL ARGUMENT A. Aros Violated the Court's Order.

The Court set a deadline of January 16, 2007, for Aros to respond to Defendants' Motion for Summary Judgment. (Dkt. 80.) He failed to comply with the Court's Order or to timely seek yet another enlargement. His proffered excuse this time is poor if not disingenuous. In his current motion, in addition to his conclusory allegation of retaliation and conspiracy by ADC staff, Aros asserts that this treatment "is the product of a larger operation to interfere with this lawsuit." (Dkt. 84 at p. 4.)5 A simple examination of the following time line illustrates that Aros' presentation of facts is disingenuous.
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Aros also argues that CO III Curran took his Motion for Extension of Time for copying and failed to return it to him for 17 days. (Dkt. 84 at p. 6.) However, this argument is irrelevant to his failure to timely file a Response to Defendants' Motion for Summary Judgment. Document 85 Filed 02/07/2007 Page 4 of 10

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When Aros failed to meet the October 30, 2007, deadline for filing his Response to Defendants' Motion for Summary Judgment, he responded that he was "ready and able to respond to Defendants' prior 56(b) motion." (Dkt. Dkt. 77 at p. 1.) However, between October 30, 2006, and January 16, 2007, Aros failed to file his Response or his proposed Cross Motion, even though his movement to SMU II did not take place until December 20, 2006. Rather, Aros chose to "dedicate a considerable amount of time to documenting" his present motion and informing the Court of the reasons for failing to meet the deadline.6 (Dkt. 84 at p. 6.) Aros' allegation that he was denied legal books, writing aids, and access to the legal resource library, while housed at SMU II, is simply not accurate. In fact, the Court need look no further than the variety, volume and quality of the lawsuits filed by inmates housed at SMU II (including Security Threat Groups "STG" cases, etc...) to conclude that inmates housed there have significant access to legal materials and legal assistance and that Aros' position of a lack of legal aids or access to the legal resource library is not supported by the record. More importantly, the Court's December 5, 2006, Order was the third deadline set for Aros to file his response. (See Dkt. 54; Dkt. 56; Dkt. 80.) As such, Courts are generally reluctant to grant enlargements of time after prior extensions have been granted and ignored. (See Comments to Rule 6(b), Fed. R. Civ. P.) Therefore, Defendants request that this Court deny Aros' third request for an extension of time to file his Response to Defendants' Motion for Summary Judgment.7 (Dkt. 55; Dkt. 77; Dkt. 83.)

Rather than respond to Defendants' Motion for Summary Judgment pursuant to the Court's order, Aros spent over two months preparing his motion for another enlargement.

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While the Court has previously extended Aros' deadline on three occasions, (Dkt. 54; Dkt. 56; Dkt. 80) Aros had only requested two extensions of time (Dkt. 53; Dkt. 55). Document 54 was a notice of intent to file a Motion for Enlargement of which the Court granted the enlargement before the request was made and after the request was made. (Dkt. 54; Dkt. 56.) Document 85 Filed 02/07/2007 Page 5 of 10

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B.

Aros' Failure to Timely File a Motion for Enlargement to File His Response was Not Excusable Neglect.

Rule 6(B) applies to all rules in the Federal Rules of Civil Procedure except for those specifically carved out: 50(b) & (c)(2); 52(b),(d) & (e); 60(b); and, 74(a). Anderson v. Thompson, 144 F.R.D. 393 (E.D.Wash. 1992); Rule 6(b)(2), Fed. R. Civ. P. Rule 6(b) states: When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. Rule 6(b)(2), Fed. R. Civ. P. In testing whether the neglect is excusable, the court considers: (1) (2) Prejudice to the opponent; The length of the delay and its potential impact on the courts of the judicial proceedings; The causes for the delay, and whether those causes were within the reasonable control of the moving party; The moving party's good faith; Whether the omission reflected professional incompetence, such as an ignorance of the procedural rules; Whether the omission reflected an easily manufacture excuse that the court could not verify; Whether the moving party had failed to provide for a consequence that was readily foreseeable; and, Whether the omission constituted a complete lack of diligence.

(3)

(4) (5)

(6)

(7)

(8)

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See Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. Parnership, 507 U.S. 380 (1993). Defendants assert that Aros' neglect was not excusable: (1) Defendants will suffer prejudice if Aros' Motion for an Enlargement of Time is granted and he is allowed to respond to Defendants' Motion for Summary Judgment to the extent that this will further delay the litigation and require Defendants to engage in additional time, expense, and effort, when the case is ready for decision. (2) The length of the delay in allowing a fourth enlargement of time to file his Response will have a negative impact on the judicial proceedings. The Court previously stated that this matter has been pending since 2004 and the parties should continue to work towards resolving the matter. (Dkt. 49.) There is no basis for compromise in this lawsuit. As such, Defendants timely filed their Motion for Summary Judgment.8 (Dkt. 50.) (3) Aros' cause for delay is not supported by the record or reason as he has reasonable control over the delay. Aros asserts his delay (failure) to timely file his Motion for an Enlargement of Time was due to CO III Curran's seizure of his motion from January 4, 2007 through January 22, 2007, "as part of a calculated effort to shield other, unnamed officials from judicial scrutiny" or that she was instructed to perform this act as part of a larger effort to impede Plaintiff's lawsuit. (Dkt. 84 at pp. 5-6.) Based on the information provided to

For the Court's information, undersigned counsel has resigned from the Office of the Attorney General's Office effective February 20, 2007, and the next Assistant Attorney General assigned to this case will need to seek an enlargement of time to appropriately address Aros' Response and Cross Motion for Summary Judgment.

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undersigned, Aros simply did not properly submit his copy requests which required a re-initiation of the copy process and thereby a delay in receiving his copies until January 22, 2007. (See Dkt. 84, Exhibit A at pp. 7, 9.) (4) Aros has not shown good faith. For a year, Aros has continually made excuses for his failure to abide by Court deadlines. (Dkt. 53; Dkt. 55; Dkt. 77; Dkt. 83; Dkt. 84.) Whether Aros alleges that he is working on an appeal, advising the court of a discovery dispute, working for two months on his next motion for an enlargement, or blaming CO III Curran for seizing his documents, he has continually displayed a lack of good faith. (5) Aros has previously claimed an ignorance of procedural rules for his failures to meet deadlines. (Dkt. 53; Dkt. 55; Dkt. 77.) Now, rather than again claim an additional ignorance of the procedural rules, he blames CO III Curran for his failure to file a timely Motion for Enlargement of Time. (Dkt. 84 at p. 10.) CO III Curran is not responsible for copying documents and Aros failed to submit proper paperwork required for obtaining legal copies. (6) There is no factual support for Aros' allegation that CO III Curran seized his motion for 17 days in an effort to impede his lawsuit. This excuse is

inaccurate, unsupported, disingenuous and not excusable neglect. (7) Aros failed to provide for a consequence that was readily foreseeable. Aros should and could have anticipated a delay in receiving his copies but he waited until the last minute and then did not properly complete his copy request. (8) Aros' failure to file a timely Motion for Enlargement constituted a complete lack of diligence. A copy of his legal documents were given to him on January 22, 2007, however he choose to file his documents on February 1, 2007, which does not demonstrate due diligence on the part of Aros.

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CONCLUSION As the court previously acknowledged, this case is three years old. Aros failed to comply with the Court's Order dated December 5, 2006, requiring that his Response be filed by January 16, 2007. Aros also fails to make any showing of excusable neglect for the untimely filing of his Motion for Enlargement of Time. For the foregoing reasons, Defendants respectfully request this Court deny Aros' Motion for an Enlargement of Time and rule on Defendants' Motion for Summary Judgment filed on June 22, 2006. RESPECTFULLY SUBMITTED this 7th day of February, 2007. TERRY GODDARD Attorney General

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants

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Original and one copy filed this 7th_day of February, 2007, with: Clerk of the Court United States District Court 401 West Washington Phoenix, Arizona 85003 Copy mailed the same date to: Armando R. Aros III #95001 ASPC ­ Eyman/SMU II P.O. Box 3400 Florence, AZ 85232 Plaintiff Pro Se

s/A. Palumbo Legal Secretary to Catherine M. Bohland IDS05-0367/RM#___________
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