Free Order - 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 27 28 Before the court is Defendant Cox's Motion for Summary Judgment (doc. #70) and Defendant Robert Sesma's Motion for Summary Judgment (doc. #69). By order entered May 15, 2005 (doc. #73), Magistrate Judge Sitver extended Plaintiff's time to respond to both these motions until July 21, 2005. The same order advised Plaintiff as required by Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998), of these obligations to respond to the motions and of the consequences of failure to timely respond. By order of August 9, 2005 (doc. # 78), the court granted those motions for lack of opposition, but by order of December 19, 2005 (doc. # 93) vacated that order based on Plaintiff's assertion that he had not received copies of the motions for summary judgment (docs. # #70 and 69). The court set Plaintiff's time to respond to the motions at January 20, 2006, further stating, "The court does not contemplate extending these due dates absent extraordinary circumstances." (Doc. # 93, p. 2.) Nevertheless, Plaintiff sought on January 13, 2006 (doc. # 95), to extend his response time to undertake discovery which he had not
Document 103 Filed 02/24/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Kerry Allynn Chase, Plaintiff, vs. Brian Cox, et al., Defendants.

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No. CV 04-056 PHX NVW ORDER

Case 2:04-cv-00056-NVW-LOA

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sought within the time allowed in the case management schedule. The court denied that motion as meritless but nevertheless extended Plaintiff's time to respond to the motions for summary judgment until February 10, 2006. (Doc. # 96.) Plaintiff's time to respond to the motions, as extended twice, has expired and no response has been filed. Under LRCiv 7.2(i), "If the opposing party does not serve and file the required answering memorandum . . . such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily." Nevertheless, the court has viewed both motions for summary judgment and decides both of them on their merits. Both motions demonstrate, without rebuttal, that neither defendant Cox nor

defendant Sesma violated any legal right of the plaintiff and that both would be entitled to qualified immunity if they did. By order of June 16, 2005 (doc. # 76), Magistrate Judge Morton Sitver directed that Plaintiff shall have an additional 60 days to accomplish service on Defendant D. D. Cerda, failing which the action against Defendant Cerda may be dismissed. Eight months have passed, and no service has been accomplished on Defendant Cerda. Pursuant to the Magistrate Judge's order and Rules 4(m) and 41(a)(2), Fed. R. Civ. P., the action will be dismissed as against Defendant Cerda for failure to serve process and failure to prosecute. IT IS THEREFORE ORDERED that Defendant Brian Cox's Motion for Summary Judgment (doc. #70) is granted. IT IS FURTHER ORDERED that Defendant Robert Sesma's Motion for Summary Judgment (doc. #69) is granted. IT IS FURTHER ORDERED that this action is dismissed without prejudice as against Defendant D. D. Cerda for failure to serve process and failure to prosecute. ... ... ... ... ... -2Document 103 Filed 02/24/2006 Page 2 of 3

Case 2:04-cv-00056-NVW-LOA

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IT IS FURTHER ORDERED that the clerk enter judgment against Plaintiff and in favor of Defendants Brian Cox and Robert Sesma and that Plaintiff take nothing, that this action is dismissed without prejudice as against Defendant D. D. Cerda for failure to serve process and failure to prosecute, and that the clerk shall terminate this action. DATED this 22nd day of February 2006.

-3Case 2:04-cv-00056-NVW-LOA Document 103 Filed 02/24/2006 Page 3 of 3