Free Motion for Judgment - District Court of Arizona - Arizona

Ov, L ILED __ LODGED
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Armando R. Aros #95001 DCT 1 7 2005
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ASPC — Tucson] Rincon Unit B DEPUT"
10006 S. Wilmot Road
P.O. Box 24403
Tucson, Arizona 85734-4403
IN THE UNITED STATES DISTRICT COURT
. FOR THE DISTRICT OF ARIZONA
ARMANDO ROBERTO AROS III, ] CV-04-306-Pl-IX-SRB (LOA)
Plaintiff )
vs ] p
CO IV ROBINSON, et al., ) MOTION QUESTING FINAL ·
Defendants ) JUDG-RENT UNDER RULE
) 54{b|, Fed. R. Civ. Proc.
Comes now Plaintilf, Armando R. Aros III, pro se, and hereby petitions this
court to make an express direction for entry of judgment as to Counts I, II and III of
his civil complaint in the above entitled matter. This request is supported by the
attached Affidavit and Memorandum of Law.
Respectfully submitted this ith day of Otis lm r , 2005 by;
mmm 0 mm., JZ/“
Armando R. Arcs III, Pro se Plaintiff
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ARMANDO ROBERTO AROS III, ] CV—04—306-PI-!X—SRB (LOA)
Plaintiff ]
vs )
Robinson, et al., ) AFFIDAVIT IN SUPPORT OF
Defendants ) MOTION U'ESTHiG FINAL
I JUDGMENT
Plaintiff, Armando R. Aros III, declares under penalty of perjury that the
following is true and correct:
1. That I am the Plaintiff in tl:1e above entitled matter. That I bring this
aftidavit in support of my Motion Requesting Final Judgment.
2. That on September 9, 2005, this court entered an order dismissing without
prejudice Counts I-III of Plaintiffs civil complaint in the above entitled
matter. That also dismissed from Plaintiffs action were defendants
Robinson, Ray Martinez, Fulton, Fansler, Conrad Luna, John Doe I, John
Doe II and Donna Clement. That I now desire this court to make an
express direction for entry of judgment as to the aforementioned counts
and defendants.
Armando R. Ares III, Pro se Plaintiff
Dated; haiabw [4 , 2ooS
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ARMANDO ROBERTO AROS III, ] CV—04-306-Pi-IX-SRB (LOA)
Plaintiff ) _
vs )
Robinson, et al., ) MEMORANDUM OF LAW IN SUPPORT
Defendants ) OF MOTION UESTING FINAL
} JUDGEMENT
Pursuant to 28 U.S.C._§_,1291, a federal court of appeals has jurisdiction to
review "final" judgments of a federal district court. However, when a district court
enters an order in any action involving multiple claims or defendants, and the court
only partially disposes of some of the claims or some of the defendants, then the
action is not terminated relative to those elements unless expressly stated so by the
court. See Fed. R. Civ. Proc., Rule 54r (b). To appeal such an order, a plaintiff must
_ frst petition the district court to amend its order to refiect that judgment is final -
and therefore appealable · relative to the disposed of claims and defendants. See C
Fed. R. App. Proc., Rule 5 (a)(3]. y
i · On September 9, 2005, this court entered an order dismissing without
prejudice Counts l—IlI of Plaintiffs complaint under 42 U.S.C.,§_1983. Also dismissed
I from Plaintiffs action were numerous defendants. See Court's Order of 09/ O9/05 at
11-12. According to the Court, these counts/ defendants were dismissed because
Plaintiff had failed to state a claim upon which relief could be granted. Id.
Presumably, Plaintiff would be entitled to amend his complaint to correct those
deficiencies. Plaintiff`, however, has no wish to do so. Rather, Plaintiff wishes to
stand on the facts of his complaint and appeal this court's partial judgment to the
federal Ninth Circuit Court of Appeals.
Pursuant to Rule 54 fb), Fed. R. Civ. Proc., this court has discretion to enter
final judgment "as to one or more but fewer than all of the claims or parties" upon a
determination that there is no just reason for delay. Here, Plaintiff has expressly
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made known his intent to stand on the merits of his allegations. He believes this
Court has misconstrued the law relative to the claims it dismissed and desires to
appeal his cause to a higher court. In light of this fact, Plaintiff would argue that
there is no just reason for delaying fmal judgment on the claims / defendants at issue.
Plaintiff would further argue that he would be unduly prejudiced should he be
forced to wait to appeal until adjudication on his one remaining claim is completed.
This is true for two reasons. First, the memories of witnesses are sure to deteriorate
with time, a reality that could adversely impact Plaintiffs case. And second, the
named defendants oould retire, move on to other employment, or otherwise become
more difficult to locate pending resolution of plaintiffs final claim.
WHEREFORE, Plaintiff respectfully requests this court to amend its order of
September 9, 2005, to reflect that its judgment as to Counts I-III and as to
defendants Robinson, Ray Martinez, Fulton, Fansler, Conrad Luna, John Doel, John
Doe Il and Donna Clement IS FINAL.
Signed xg Dated: Of-‘}¥>I¤·i’T Vi t 2005
Armando R. Aros, Pro se
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