Free Motion to Dismiss Case/Lack of Prosecution - District Court of Arizona - Arizona

1 Sid A. Horwitz—State Bar No. 05447
CARMICHAEL & POWELL, P.C.
3 7301 North 16th Street, Ste. 103 -
Phoenix, Arizona 85020-5297 =
3 Phono: (602) 861-0777 E
Attorneys for Charlie and Edie Fletcher g
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5 IN THE UNITED STATES DISTRICT COURT
6 F OR THE DISTRICT OE ARIZONA
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RODNEY ALLEN KELLEY, No. CV 04-0103-PHX—SRB (ECV)
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Plaintiff
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v. MOTION TO DISMISS ‘
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GLENN F. KELLEY, CHARLIE B. .
ii FLETCHER, EDIE FLETCHER and ;
Q Z g 2 OTHER UNKNOWN DEFENDANTS, F
g ui [Q l 2
E E E § 13 Defendants.
Q-¤ 0 ~ E ,_ _ _ E
cg g Q Eg E g Pursuant to Rules l6(f), 37(b)(2)(C) and 4l(b), Federal Rules of Civil
<.> =¤ U, g 14 Q
E] 5 Ea; Q § Procedure, Defendants Charlie and Edie Fletcher (the "Fle1;chers") move to Q
¤ e 2; @15 I
E LQ E § E dismiss Plaintiffs Complaint for the reason that Plaintiff failed to submit a
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S E g E proposed pretrial order and prosecute his case. This Motion is supported by the
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attached and incorporated Memorandum of Points and Authorities.
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MEMORANDUM OF POINTS AND AUTHORITIES
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Pursuant to Rule l6(f), if a party "fails to obey a scheduling or pretrial
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order" or if the party fails to participate in pretrial management in “g0od faith," ?
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the court may make orders in accordance with Rule 37(b)(2)(C), Fed.R.Civ.P,
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which includes dismissal of the party’s claim. According to Rule 41(b),
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Eed.R.Civ.P., when a Plaintiff fails to prosecute his claim or comply with any
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order of the court, "a defendant may move for dismissal of an action or of any
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claim against defendant?
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This Court’s November 14, 2005 Order required the tiling of a joint pre-
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ase 2:04-cv—00103—SFlB-ECV Document 69 Filed 11/13/2006 Page 1 of 3

1 trial order with the Court by June 14, 2006. Paragraph 5.l of the Order stated that
2 Defendants were responsible for initiating the drafting and submission of the
3 proposed pre-trial order in the form prescribed by the assigned trial judge. By this E
4 Court’s February 7, 2006 Order, the deadline to file the Proposed Pre-Trial Order I
5 was extended to July 14, 2006.
6 ln goed—faith and pursuant to said Court’s order, by letter dated May 20,
7 2006, Defendants Fletcher sent Plaintiff a draft Proposed Final Pre—Trial Order. I
8 Plaintiff did not respond in any manner or fashion to this letter. Plaintiff failed to
9 provide any input into the draft Proposed Final Pre—Trial Order and did not call, _
10 write, or otherwise communicate with Def`endant’s counsel concerning the same.
j Z E E 11 Almost four months after the ordered filing date, Plaintiff has still made no
gl E E E 12 attempt whatsoever to comply with the Order or prosecute his claim. Rather,
Q é g é g 13 E Plaintiff has engaged in delaying tactics, such as: requesting documents which
E? gl Ei § g 14 were unnecessary for the prosecution of his claim or out of the Court’s control .
E g é é g" 315 (Doc. #56), filing a groundless Motion for Continuance (Doc. #57) and filing an
E rg E gl 16 E unjustified Motion to Appoint Counsel (Doc. #61). All such requests and motions Q
U tx 17 were denied by this Court’s November 9, 2006 Order.
18 Although having more then sufficient time to prepare and submit his
19 portion of the proposed joint pre-trial order, Plaintiff has unreasonably failed to do
20 so. Plaintiff has also not made a good·~faith attempt to prosecute his claim. i
21 E Instead, he has engaged in a campaign of obstruction and delay in a desperate
22 attempt to frustrate both Defendants and the final resolution of this case.
23 Defendants Fletcher requests this Court to dismiss Plaintiffs Complaint
24 with prejudice.
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a%iéSt2‘?t5&ri“&‘€}ib°r>°i°b“t»ttsifr’etrnlctf° Document es Fuse 1 1/13/2006 Page 2 or e

i DATED this 13th day of November, 2006.
2 CARMICHAEL & POWELL, P.C. ;
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4 By: _ E
Std A. 0 teh Q
5 7301 North 16 Street, Ste. 103 ;
Phoenix, Arizona 85020 .
6 Attorneys for Charlie and Edie Fletcher E
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Copy og the foregoing mailed
8 this 13t day of November, 2006, to: Q
9 Rodney Allen Kelley g
No. 889477 E
10 TDC] — Ft. Stockton ~ LU
Texas Department of Criminal Justice
j 2 H Lynaugh Unit
§ 5 ES Ei 1098 South Highway 2037 _
Q EB § E2 Fort Stockton, Texas 79735 ,
< Ul S g
3 §§§§§ E3 Glenn Kelley _ _
Q o g g g é 17431 1East_Ca11ente Drive i
E E gs g 214 Fountain Hrlls Arizona 85268
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a‘é’8”2”¥l5‘zF?éi7'f0t5’i“15t3?§F¥§€‘Et5‘l?° Document eo Filed 11/13/2006 Page cs of s

Case 2:04-cv-00103-SRB-ECV

Document 69

Filed 11/13/2006

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Case 2:04-cv-00103-SRB-ECV

Document 69

Filed 11/13/2006

Page 2 of 3

Case 2:04-cv-00103-SRB-ECV

Document 69

Filed 11/13/2006

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