Free Motion to Strike - District Court of Arizona - Arizona

1 TERRY GODDARD ATTORNEY GENERAL 2 WANDA E. HOFMANN (014805) 3 Assistant Attorney General 177 North Church Avenue, Suite 1105 4 Tucson, Arizona 85701-1114 (520) 628-6044 · Fax (520) 628-6050 5 [email protected] 6 Attorneys for Defendants 7 8 9 10 11 12 13 14 15 16 17 18 Defendants Schriro, Linderman and Sabbagh request the Court strike Plaintiff's v. STATE OF ARIZONA, et al., Defendants. KEVIN ROY, Plaintiff, No. CV03-2150-PHX-SRB (MEA) DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION TO STAY RESPONSE PENDING DECISION ON MOTION TO DISMISS FOR LACK OF JURISDICTION (MOOTNESS) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

19 Cross-Motion for Summary Judgment (dkt. 152) as untimely, or in the alternative, to stay 20 briefing on the Motion pending the Court's decision on the Defendants' Motion to 21 Dismiss for Lack of Subject-Matter Jurisdiction Due to Mootness or for Summary 22 Judgment. 23 In its December 30, 2004, scheduling order, the Court set a deadline of (See Dkt. 67.) Both parties moved for

24 April 23, 2005, to file dispositive motions.

25 summary judgment; the Court denied Plaintiff's motion and granted in part and denied in 26 part the Defendants' motion. (Dkt. 112.)

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The Defendants moved for dismissal on June 15, 2006, when it became apparent

2 that there was no longer a possibility that Roy could obtain relief for his remaining claim.1 3 See Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999) ("If there is no 4 longer a possibility that an appellant can obtain relief for his claim, that claim is moot and 5 must be dismissed for lack of jurisdiction."); see also County of Los Angeles v. Davis, 6 440 U.S. 625, 631 (1979) (case is moot when the parties have no "legally cognizable 7 interest in the final determination of the underlying questions of fact and law"). Where 8 injunctive relief is involved, as here, questions of mootness are determined in light of the 9 present circumstances. Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996). Because 10 Roy's claim is now moot, the Court lacks jurisdiction and dismissal at this time is proper. 11 See Foster v. Carson, 347 F.3d 742, 745, (9th Cir. 2003) ("Mootness is a jurisdictional 12 issue"). The Defendants' Motion to Dismiss, therefore, is properly before the Court. 13 Roy's summary-judgment motion, on the other hand, is untimely and is properly

14 stricken. The deadline for filing dispositive motions was over a year ago. (Dkt. 67.) The 15 State has already expended considerable resources in responding to Plaintiff's claims and 16 to require additional response after Plaintiff has been afforded the opportunity to press his 17 claim is not warranted under the facts or law. 18 WHEREFORE, in the interests of judicial and State economy, Defendants request

19 the Court to strike Plaintiff's Cross-Motion for Summary Judgment. In the alternative, 20 Defendants request the Court to stay the deadline to respond to Plaintiff's motion pending 21 the Court's decision on the Defendants' Motion to Dismiss for Lack of Subject-Matter 22 Jurisdiction Due to Mootness or for Summary Judgment. 23 24 25 26 Plaintiff Roy has responded to the Defendants' Motion to Dismiss and the motion is now fully briefed.
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RESPECTFULLY SUBMITTED this 8th

day of September, 2006.

TERRY GODDARD ATTORNEY GENERAL

s/Wanda Hofmann WANDA E. HOFMANN Assistant Attorney General Attorneys for Defendants

8 COPY of the foregoing mailed this 8th day of September, 2006 to: 9 Kevin M. Roy, #131699 10 ASPC-Eyman-Meadows Unit 11 P.O. Box 3300 Florence, AZ 85232-3300 12 13 s/J. Patterson Secretary, Attorney General's Office 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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