Free Order on Motion for Leave to File - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Frederick M. Ellis,

) ) Plaintiff, ) ) vs. ) ) Officer Bingaman, ) ) Defendant. ) ______________________________)

CV 03-2186-PHX-EHC (MS)

ORDER

Before the Court is Defendant's Notice to the Court of Unknown Address of
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Plaintiff (Doc. # 23) and Defendant's Motion for Leave to File a Motion for Summary
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Judgment (Doc. # 24). On February 13, 2006, the Court ordered Defendant to submit
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the parties' Proposed Joint Pretrial Order within 30 days (Doc. # 22). Defendants aver
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in their Notice that they have attempted to contact Plaintiff but have been unsuccessful.
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Plaintiff submitted a change of address to the Court on November 15, 2005, after he
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had been transferred to the Arizona State Prison Complex in Winslow, Arizona.
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However, Defendant avers that Plaintiff has now been released from custody. The
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Court has obtained Plaintiff's current address.
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At the inception of Plaintiff's action, he was informed that failure to file a Notice
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of Change of Address may result in the dismissal of the action for failure to prosecute
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pursuant to Rule 41(b) of the FED. R. CIV. P. Plaintiff has not updated his address with
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the Court since his release from custody. As a result, Defendant is unable to work with
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Plaintiff to prepare and submit the Proposed Joint Pretrial Statement necessary to proceed to trial. Defendant requests leave to file a Motion for Summary Judgment. The deadline to file dispositive motions in this case was January 5, 2006. Defendant avers that he failed to file a dispositive motion because he did not receive medical release forms from Plaintiff to obtain his medical records to supplement a dispositive motion. However, Defendant never informed the Court until March 13, 2006 that Plaintiff was unreachable. Moreover, Defendant was more than capable of timely filing a motion for extension of time to file his dispositive motion, as he had on December 5, 2005. Because

Defendant's motion comes outside the prescribed time to file dispositive motions, more than good cause must be demonstrated. See FED. R. CIV. P. 6(b); Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993). Instead, Defendant would have to demonstrate excusable neglect, which he has not done. Accordingly, IT IS ORDERED that Defendant's Motion for Leave to File Motion for Summary Judgment (Doc. # 24) is DENIED; as to Defendant's Motion to Dismiss for failure to prosecute pursuant to Fed. R. Civ. P. 41(b), leave to file is granted. Plaintiff is directed to: a) file a Notice of Current Address within 15 days of the filing of this Order and b) file a Response to Defendants' Motion to Dismiss within 15 days of the filing of the Motion to Dismiss. IT IS FURTHER ORDERED setting this matter for a status hearing on April 12, 2006 at 10:00 a.m. before the Honorable Morton Sitver at the Sandra Day O'Connor U.S. Courthouse, Courtroom 303 (Judge Mathis' Courtroom), 401 W. Washington Street, Phoenix, Arizona, 85003. IT IS FURTHER ORDERED THAT Plaintiff shall attend this conference or otherwise inform the Court of his intention to proceed in this matter. Failure to attend or failure to file any of the required pleadings in conformity with this Order will subject

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Plaintiff's Complaint and action to dismissal with prejudice pursuant to FED. R. CIV. P. 41(b) for failure to prosecute. IT IS FURTHER ORDERED that the Clerk of the Court shall mail a copy of this Order to Plaintiff at the following address: Frederick Ellis, Pioneer House, 325 S. Pioneer, Mesa, Arizona, 85204.

DATED this 14th day of March, 2006.

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