Free Motion to Vacate - 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 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. Defendants1, by and through undersigned counsel, respectfully requests this Court to vacate its July 24, 2006, Order (Dkt. 56) re-opening discovery and strike that portion of its Order finding that Defendants acted in bad faith. The Court's Order is not supported by the facts in this case and was entered prior to the expiration of the time within which Defendants had to respond to Plaintiff's motion. See LRCiv.7.2(c). supported by the attached Memorandum of Points and Authorities. This Motion is No: CV04-306 PHX SRB (LOA) MOTION TO VACATE COURT'S ORDER REGARDING RE-OPENING DISCOVERY AND STRIKE ITS FINDING OF BAD FAITH ON PART OF DEFENDANTS (DKT. 56)

1

Schaulin, Duarte, Schriro and Rivas. Document 57 Filed 08/04/2006 Page 1 of 15

Case 2:04-cv-00306-SRB

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 I.

RESPECTFULLY SUBMITTED this 4th day of August 2006. TERRY GODDARD Attorney General s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES FACTS A. Procedural History

After a year of filing various amended complaints, Armando Roberto Aros, III ("Aros") filed his Third Amended Complaint on March 21, 2005.2 (Dkt. 15.) On

September 12, 2005, the Court dismissed Counts I, II, and III of Aros' Third Amended Complaint. (Dkt. 19.) Aros appealed the Court's September 12, 2005 interlocutory Order to the Ninth Circuit Court of Appeals ("Ninth Circuit"). (Dkt. 23.) His opening brief and excerpts of record were due to the Ninth Circuit on December 7, 2005. See (Dkt. 55, Exhibit A.) The Ninth Circuit dismissed Aros' appeal of the Court's September 12, 2005 interlocutory Order for lack of jurisdiction on December 14, 2005. See (Dkt. 55, Exhibit B.) On December 21, 2005, the Court entered its Scheduling Order including the deadline for discovery requests to be served no later than February 22, 2006. (Dkt. 33.) The Court set the deadline for dispositive motions for June 22, 2006. (Id.) On January 23, 2006, Aros filed with the Court his First Request for Production of Documents. (Dkt. 35.) The Court struck his request for production on February 27, 2006, and advised him that he "should serve his discovery requests on the appropriate parties, not

2

Plaintiff filed his initial Complaint on February 10, 2004. (Dkt. 1.)

Case 2:04-cv-00306-SRB

Document 57

2

Filed 08/04/2006

Page 2 of 15

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

the court." See (Dkt. 37.)3 Although Aros did not serve his request on Defendants, on February 24, 2006, they voluntarily responded to his January 23, 2006, Request for Production and provided him with one hundred fifty (150) pages that were responsive to his request. (Attached hereto as Exhibit A), see also Dkt. 36.) On April 20, 2006, Defendants, believing the deposition deadline was May 31, 2004, gave Aros notice that they intended to take his deposition on May 18, 2006. The deadline for taking Plaintiff's deposition was actually March 22, 2006. (Dkt. 33 at ¶ 4.) This error occurred when undersigned counsel inadvertently looked at the scheduling order in Ramirez v. Bartos, et al., CV2005-02291, which had a deposition deadline of May 31, 2006. (Attached hereto as Exhibit B.) Aros never objected to the timeliness of his deposition either prior to or at the time of the deposition.4 In fact, Aros did not bring the deposition deadline to undersigned counsel's attention until after he had received undersigned counsel's May 31, 2006 letter, notifying him of the discovery deadline. See (Dkt. 55, Exhibit G.) On May 15, 2006, almost three months after Defendants voluntarily responded to Aros' un-served discovery request, and one month after the April 21, 2006, deadline set by the Court for bringing discovery disputes to the Court's attention (Dkt. 33, ¶ 5), Aros sent Defendants his Reply to Defendants' Discovery Responses and interrogatories directed to four Defendants and admissions directed to two Defendants. Upon review of the correct scheduling order, undersigned counsel wrote Aros and advised him that his May 15, 2006

After the Court struck Plaintiff's First Request for Production from the Court file, Plaintiff did not attempt to properly serve Defendants with his First Request for Production of Documents as the Court suggested in its Order. After the deposition, Aros and the undersigned counsel discussed his May 15, 2006, discovery requests. At this time, neither party was aware that the request was made after the deadline had passed. Believing the deadline had not passed, undersigned counsel advised Aros that given the vacation schedules of the Defendants, that his requests would not be completed in 30 days. Case 2:04-cv-00306-SRB Document 57 Filed 08/04/2006 Page 3 of 15
4

3

3

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

requests were outside the parameters of the Court's Scheduling Order. See (Dkt. 55, Exhibit G, Exhibit I.) On June 7, 2006, Defendants filed a motion to vacate the Court's scheduling order until the Court ruled on Aros' pending motions. (Dkt. 47.) The Court denied Defendants' motion stating that "this matter has been pending since 2004." (Dkt. 49, p.2.) Consistent with the Court's Scheduling Order (Dkt. 33, ¶ 6), Defendants filed their Motion for Summary Judgment (Dkt. 50) and supporting Statement of Facts (Dkt. 51) on June 22, 2006. The Court ordered Aros to respond to Defendants' Motion for Summary Judgment no later than August 9, 2006. (Dkt. 54.) Twenty days after Defendants filed their Motion for Summary Judgment (Dkt. 50), Aros, on July 12, 2006, filed a motion for an enlargement of time to conduct discovery and to file his dispositive motion. (Dkt. 55.) Undersigned counsel received Aros' motion for enlargement of discovery (Dkt. 55) on July 12, 2006.5 Defendants' had until July 27, 2006, to respond to Aros' motion for enlargement (see L.R.Civ. 7.2(c)) and intended to do so. The Court, however, ruled on Aros' request for enlargement on July 24, 2006, (Dkt. 56) without the benefit of Defendants' response or being fully advised of the applicable facts. B. Aros' Lack of Good Faith.

Aros' Request for Production of Documents filed improperly with the Court on January 23, 2006, requested his complete medical and psychiatric file. (Dkt. 55, Exhibit D, Request No. 1.) Defendants twice provided Aros with a medical authorization release form for his signature and asked that he sign and return it in order to obtain these records. (Dkt. 55, Exhibit J, pp. 1, 5.) Aros, however, refused to sign the release and instead attached an authorization for release which he created. (Id. at p. 6.) The Arizona

Department of Corrections has a specific release form they use to release an inmate's
5

Counsel was out of the office from July 14, 2006 through July 24, 2006. Document 57 Filed 08/04/2006 Page 4 of 15

Case 2:04-cv-00306-SRB

4

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

medical file. (Id. at p. 2.) Absent a signed waiver or court order, an inmate's medical file cannot be released. Therefore, because of Aros' failure to cooperate, these records were not released by ADC to undersigned counsel or tendered to him as part of discovery. Defendants filed their Motion for Summary Judgment absent medical records which were necessary to show Aros' failure to establish a requisite injury for his Eighth Amendment claim of cruel and unusual punishment. (Dkt. 50.) In addition to his failure to cooperate related to obtaining his medical records, contrary to Aros' claim that Defendants tendered only nine (9) pages of discovery (Dkt. 55, Exhibit E), Defendants tendered 150 pages of documents responsive to Aros' first unserved discovery request. (Exhibit A), see also Dkt. 36). All 150 pages tendered to Aros were relevant to his pending claim. (See Exhibit A.) C. Motion Practice by Aros.

Aros engaged in minimal motion practice from the date of the entry of the Court's Scheduling Order (Dkt. 33) to the filing of Defendants' Motion for Summary Judgment (Dkt. 50). During this six month time period, Aros filed only two motions, in addition to his discovery requests, with the court. (Dkt. 38, Dkt. 42.) On February 27, 2006, Aros filed a Motion requesting the Court rescind its prior order dismissing Counts I, II, and III. (Dkt. 38.) On March 28, 2006, Aros filed his Reply in Support of his February 27, 2006 motion. (Dkt. 42.) No other motions or appeal documents were filed between December 21, 2005 and June 22, 2006. In fact, as noted, his interlocutory appeal was dismissed prior to this time. II. LEGAL ARGUMENT A. Aros' Failure to Request Timely Discovery 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

Case 2:04-cv-00306-SRB

Document 57

5

Filed 08/04/2006

Page 5 of 15

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

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)

See Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. Parnership, 507 U.S. 380 (1993). Defendants assert that Aros' neglect was not excusable:

Case 2:04-cv-00306-SRB

Document 57

6

Filed 08/04/2006

Page 6 of 15

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

(1) Defendants will suffer prejudice if Aros is allowed to re-open discovery a month after Defendants have filed their Motion for Summary Judgment and Supporting Statement of Facts. (Dkt. 50, Dkt. 51.) This will 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 Aros to engage in additional discovery will have a negative impact on the judicial proceedings. The Court enlarged the dispositive motion deadline to October 30, 2006. (Dkt. 56.) However, in denying Defendants' prior motion to vacate the Scheduling Order (Dkt. 47) the Court reasoned that the matter had been pending since 2004 and the parties should continue to work towards resolving the matter. (Dkt. 49.) Thus, Defendants followed the Scheduling Order and filed their Motion for Summary Judgment (Dkt. 50) showing their desire to work towards resolving the matter. (3) Aros' cause for delay is poor and he had reasonable control over the delay. Aros asserts his delay (failure) to request discovery should be excused because he was engaged in appealing the Court's previous Ruling. (Dkt. 55.) The Court, in its ruling, appears to agree that Aros was confused regarding the appropriate stage in the proceedings to appeal the Court's rulings. (Dkt. 56.) However, the record is clear that Aros filed his notice of appeal on October 24, 2005. (Dkt. 25) Based on his appeal, his opening brief was due December 7, 2005. (Dkt 55, Exhibit A) His appeal was denied for lack of jurisdiction on December 14, 2005. (Dkt 55, Exhibit B). The Court's Scheduling Order was entered December 21, 2005, seven days after his appeal was dismissed. (Dkt. 33.) It is undisputed that the Aros' delay in conducting discovery cannot be

Case 2:04-cv-00306-SRB

Document 57

7

Filed 08/04/2006

Page 7 of 15

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

supported by his working on an appeal allegation.6 His appeal was no longer an issue. (4) Aros has not shown good faith. For example, Aros failed to cooperate with Defendants in signing a required ADC medical authorization for release of his records, which he requested in his production of documents motion. (Dkt. 55, Exhibit J.) Defendants twice requested Aros to sign the required ADC

medical authorization which was provided to him, however, he refused to do so and submitted his own created release form which was unacceptable to ADC. (Id.) In addition, Aros shows a lack of good faith when he is Aros claims that

disingenuous with Court about the facts of this case.

Defendants only sent him nine pages of discovery in response to his production of documents. (Dkt. 55, Exhibit E.) Defendants, on their own volition, provided Aros with 150 pages of discovery even though he failed to properly serve the Defendants with his request. (See Exhibit A.) Aros is also disingenuous in his statement to the Court that there was a quid pro quo agreement between the parties in regards to the untimely taking of his deposition. (Discussed infra in section C.) (5) Aros claims an ignorance of procedural rules. (Dkt. 55.) He states that he thought he would forfeit the right to challenge the Court's Order if he failed to pursue his appeal. (Dkt. 55 at p. 8.) This is not a valid argument because his appeal was dismissed (Dkt. 55, Exhibit B) before the Court entered the Scheduling Order (Dkt. 33). "Ignorance of court rules does not constitute excusable neglect, even if the litigant appears pro se." Swimmer v. IRS, 811 F.2d 1343, 1344 (9th Cir. 1987). Where a plaintiff appears in propria persona

Nor was Aros diligently working on his lawsuit as he filed only two motions with the Court between December 21, 2005 and June 22, 2006. (Dkt. 38, Dkt. 42.) Case 2:04-cv-00306-SRB Document 57 Filed 08/04/2006 Page 8 of 15

6

8

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

in a civil rights case, the Court must be careful to construe the pleadings liberally and afford plaintiff any benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.1988); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) ("Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel."). However, status as an inmate litigating a case pro se does not excuse failure to comply with the Federal Rules of Civil Procedure. Helmkay v. Arpaio, April 5, 2006 WL 897068, at *1(D. Ariz. Apr. 5, 2006) citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (pro se litigants held to same procedural rules as litigants represented by counsel). (6) In this instance, the Court can easily verify the excuse Aros makes as to why he failed to timely engage in conducting discovery. Aros claims that he was working on an appeal as a pro se litigant and therefore his neglect is excusable. (Dkt. 55.) Although the Court accepted Aros' argument, the facts establish that Aros' appeal was dismissed prior to the Court entering its Scheduling Order. There was no appeal to pursue. Therefore Aros' allegation that he was not able to timely engage in discovery is inaccurate and does not constitute excusable neglect. (7) Aros failed to provide for a consequence that was readily foreseeable. On February 24, 2006, Defendants voluntarily provided Aros with 150 pages of documents in response to his un-served Request for Production of Documents filed with the Court. Aros failed to timely contact the Defendants and he failed to timely bring the matter before the Court as required in the Court's

Case 2:04-cv-00306-SRB

Document 57

9

Filed 08/04/2006

Page 9 of 15

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 B.

Scheduling Order. Instead, Aros waited three months then served Defendants with a Reply to their Response to Production of Documents. At that time he also served Defendants with an untimely set of discovery in the form of interrogatories and admissions directed to Defendants. (Dkt. 55, Exhibit F.) (8) Aros' failure to request discovery constituted a complete lack of diligence. From December 21, 2006 (Court's Scheduling Order) until June 22, 2006 (dispositive motion deadline), a period of six months, Aros made two discovery requests, one not served and the other untimely. This is the extent of the requests for discovery in this case and does not demonstrate due diligence on the part of Aros in conducting discovery. (See ¶¶ 3, 6 supra.) Aros is Not Entitled to Relief Under Rule 56(f), Federal Rules of Civil Procedure.

If Aros is unable to respond to Defendants' Motion for Summary Judgment and seeks additional discovery he must follow Rule 56(f) and justify his inability to respond. See Rule 56(f), Fed. R. Civ. P. Rule 56 provides that upon proper affidavit, the Court may refuse the application for judgment or may order a continuance to permit the discovery to be had. (Id.) Where a non-moving party is still engaged in valuable discovery or for some other reason is not yet ready or able to make that showing, he or she may file an affidavit explaining why a ruling on summary judgment should be postponed, and the Court may grant a temporary reprieve if the affidavit is persuasive. (See comments following Rule 56(f), Fed. R. Civ. P.) Relief, however, under Rule 56(f) is not automatic. See Price ex rel. Price v. Western Resources, Inc., 232 F.3d 779, 783-84 (10th Cir. 2000). Before the Court postpones a movants' summary judgment ruling pending further discovery, the Rule 56(f) movant must make three showings: (1) a description of the particular discovery the movant intends to seek; (2) an explanation showing how that discovery would preclude the

Case 2:04-cv-00306-SRB

Document 57

10

Filed 08/04/2006

Page 10 of 15

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

entry of summary judgment; and, (3) a statement justifying why this discovery had not been or could not have been obtained earlier. See, In re Silicon Graphics Inc. Secs. Litig., 183 F.3d 970 (9th Cir. 1999)(affidavits must set forth the particular facts expected from discovery and specify how those facts would preclude summary judgment); Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n. 6 (9th Cir 2001)(the district court does not abuse its discretion by denying further discovery if the movant has failed diligently to pursue previous discovery); Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 46 n. 4 (1st Cir. 1999) (movant must demonstrate diligence in conducting discovery, show good cause why the requested discovery was not practicable earlier, offer plausible basis for believing that specified facts, susceptible to collection within a reasonable time frame, probably exist, and show how those facts, if adduced, will affect outcome of pending summary judgment motion). In this case, Aros fails to provide an appropriate affidavit to the Court or provide any of the required showings. (1) Aros Fails to Describe the Particular Discovery he Intends to Seek.

Aros fails to provide any description of the particular facts of the discovery he seeks. He does not state what he needs, what he hopes to find, what he has failed to receive, or what evidence he believes is necessary to prove his claim. His motion merely gives reasons as to why he asked for discovery only two times in a five month time period and both times inappropriately. He also fails to address why he never submitted a proper request. (2) Aros Fails to Provide an Explanation as to How a Particular Piece of Discovery Would Preclude the Entry of Summary Judgment.

Not knowing what Aros seeks, it is impossible to know whether that specific piece of information would prevent summary judgment from being entered against him.

Case 2:04-cv-00306-SRB

Document 57

11

Filed 08/04/2006

Page 11 of 15

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

Without this explanation, the Court is unable to determine whether it is necessary to allow for the temporary reprieve at this late stage. (3) Aros Fails to Justify Why the Discovery Was Not Obtained Earlier.

Aros cannot demonstrate diligence in conducting discovery. His first request for discovery was an improperly filed request entitled First Request for Production of Documents submitted only to this Court. (Dkt. 35) This Court struck Aros' request for production on February 27, 2006, and advised Aros that he "should serve his discovery requests on the appropriate parties, not the court." See (Dkt. 37.)7 Even though the Court struck his First Request for Production of Documents and instructed him to serve Defendants, he did not do so. Rather, Defendants, on February 24, 2006, voluntarily responded to Aros' January 23, 2006, Request for Production and provided him with one hundred fifty (150) pages of documents responsive to his request. (Exhibit A; see also Dkt. 36.) After discovery closed, Aros did not bring any discovery disputes to the Defendants' or the Court's attention. Rather, he waited an additional three months before objecting to Defendants' Response to Discovery. (Dkt. 55, Exhibit F.) Two requests for discovery in a five month period do not show diligence in conducting discovery. While Aros attempts to justify his lack of diligence in conducting discovery with an excuse that he was working on his appeal and did not have time to address discovery issues, his argument is, at best, disingenuous. The appeal, which he alleges to have been working on so diligently, was dismissed by the Ninth Circuit prior to the start of discovery. (Dkt. 55, Exhibit B) Because Aros bears the burden of demonstrating the requisite basis for relief under Rule 56(f) and has failed to carry his burden, his motion should be denied.
After the Court struck Plaintiff's First Request for Production from the Court file, Plaintiff did not attempt to properly serve Defendants with his First Request for Production of Documents as the Court suggested in its Order. Case 2:04-cv-00306-SRB Document 57 Filed 08/04/2006 Page 12 of 15
7

12

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

See Chance, 242 F.3d at 1161 n. 6; Silicon Graphics, 183 F.3d at 989 (noting that failure to comply with Rule 56(f) requirements is proper ground for denying discovery and proceeding to summary judgment). C. Defendants Acted in Good Faith.

Defendants respectfully request the Court strike its finding that Defendants acted in bad faith and engaged in uncooperative conduct. (Dkt. 56.) A Court has wide discretion in deciding what constitutes "bad faith." 10B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2742 (3d ed. 1998). Defendants did not attempt to delay litigation, refuse to abide by a court order, or fail to provide discovery. Rather, Defendants filed timely motions, complied with all court orders, and provided over 150 pages of discovery to Aros. (Exhibit A.) Defendants did not tender a copy of Aros' medical or mental health records to him because he refused to sign the appropriate medical authorization release form provided to him and necessary to release his records. (Dkt. 55, Exhibit J.) In addition, the taking of Aros' deposition beyond the deadline date was due to an inadvertent error by undersigned defense counsel who mistakenly read the scheduling order of Ramirez v. Bartos, et al., CV2005-02291, which had a deposition deadline of May 31, 2006. (See Exhibit B.) Aros did not bring the deposition deadline to undersigned counsel's attention until after he received undersigned's May 31, 2006 letter, denying his requests for additional discovery. (See Dkt. 55, Exhibit G.) Aros states he "erroneously assumed the existence of a quid pro quo arrangement that would entitle him to submit untimely interrogatories and admissions." (Dkt. 55 at p. 16, emphasis added.) His position would be viable had either party known that at the time the deposition was taken that it was outside the time parameters set by the Court. The deposition was based on a mutual mistake of fact, i.e., that the deposition was timely. It was not until undersigned counsel discovered that the discovery request was untimely and

Case 2:04-cv-00306-SRB

Document 57

13

Filed 08/04/2006

Page 13 of 15

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

brought this to Aros' attention, that the parties learned that the deposition was taken past the deadline. There was no intent to take advantage of Aros, but rather a mistake in viewing the incorrect Scheduling Order. The undersigned made an inadvertent error which is insufficient for a finding of bad faith. CONCLUSION As the court acknowledges, this case has been pending since 2004. The facts demonstrate that Aros has done virtually nothing to prosecute his lawsuit. The facts further demonstrate that the Defendants have acted in good faith with this pro se litigant. Although he filed a discovery request with the Court and was instructed by the Court to serve the requests on Defendants, he failed to do so. Defendants, acting in good faith, did not await service of his discovery requests, but utilized the Court's electronic notice and provided the documents to him. Defendants were only made aware of Aros' discovery disputes three months after the discovery deadline, and one month after the discovery dispute deadline. Aros fails to make any showing of excusable neglect or his failure to comply with Rule 56(f). For the foregoing reasons, Defendants respectfully request this Court vacate its order re-opening the time to conduct discovery and strike its finding that Defendants acted in bad faith. RESPECTFULLY SUBMITTED this 4th day of August, 2006. TERRY GODDARD Attorney General

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

Case 2:04-cv-00306-SRB

Document 57

14

Filed 08/04/2006

Page 14 of 15

1 2 3 4 5 6 7 8 9 10 11

Original and one copy filed this 4th day of August, 2006, 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/Rynning Unit P.O. Box 3100 Florence, AZ 85232 Plaintiff Pro Se s/A. Palumbo Legal Secretary to Catherine M. Bohland IDS05-0367/RM#___________
972230

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Case 2:04-cv-00306-SRB

Document 57

15

Filed 08/04/2006

Page 15 of 15