Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-7323 Facsimile No.: (602) 200-7811 E-Mail: [email protected] Attorneys for Defendants

6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 v. 11 F. Garcia, et al. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Now come Defendants, by and through counsel, and hereby submit the within Memorandum in Opposition to Plaintiff's Motion to Reconsider. Plaintiff's Motion is inappropriate, since it seeks reconsideration of the Court's Order of September 22, 2005, without establishing a basis under Fed.R.Civ.Proc. 59(e). The Memorandum of Points and Authorities is attached hereto and incorporated here with. RESPECTFULLY SUBM ITTED this 14th day of October 2005. J ONES, S KELTON & H OCHULI, P.L.C. Defendants. MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO RECONSIDER Carlos Arthur Powell CIV 03-1819 PHX-JAT (LOA) Plaintiff,

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MEMO RANDUM OF POINTS AND AUTHORITIES Plaintiff filed a Motion to Reconsider the Court's ruling concerning sanctions. Plaintiff disagrees with the Court's finding that counsel did not engage in conduct which would trigger the application of sanctions. Defendants did not respond to Plaintiff's untimely discovery because he had not perfected service prior to his Requests for Production and Interrogatories. Since the person to whom the discovery was directed was not a party at the time the discovery. Fed.R.Civ.Proc., 59(e) provides that a party may file a motion to alter or amend a judgment no later than 10 days after entry of the judgment. The rule allows the court to alter or amend a judgment upon motion made by a party. A motion to alter or amend is inappropriate when it involves reconsideration of matters properly encompassed in the decision on the merits. Generally, a court may alter or amend a judgment to incorporate an intervening change in the law, to reflect new evidence not available at the time of decision, to correct a clear legal error, or to prevent manifest injustice. Zimmerman vs. City of Oakland, 255 F.3d 734 (9 th Cir. 2001). Motions for reconsideration are not generally granted absent highly unusual circumstances. McDowell vs. Calderon, 197 F.3d 1253 (9 th Cir.1999) cert. denied, 529 U.S. 1082, 120 S.Ct. 1708, 146 L.Ed. 2d 511 (2000). It is not an opportunity for Plaintiff to get another chance to make additional arguments on the same issues. Here, Plaintiff is attempting to re-litigate the same issue he previously raised. Plaintiff wants the Court to "change its mind" to accommodate his wish that Defendants be punished for conduct he claims is preventing him from fully litigating this claim. Plaintiff does not present any new evidence, law, or argument to justify the requested relief. Courts are vested with inherent authority to sanction conduct which violates the discovery rules. See e.g. Valley Engineers, Inc. v. Electric Engineering Co., 2

Case 2:03-cv-01819-JAT

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158 F.3d 1051 (9 th Cir. 1998). In this case the Court did not choose to sanction any party, but instead provided an opportunity for the matter to be resolved by additional discovery. This is not an abuse of discretion. In any event, Plaintiff's Motion to Compel was inappropriate since he sought discovery from a person who was not a party to this proceeding. On July 22, 2004, Plaintiff sent his First Set of Interrogatories and Request for Admissions to Defendant Stella Ponce. Stella Ponce was not a party to this proceeding at that time. Once Stella Ponce is a party, then Plaintiff may seek discovery from her. Interrogatories are limited to the parties in the action. United States vs. Lot 41 Berryhill Farm Estates, 128 F.3d 1386 (10th Cir. 1997). Since Ponce was not a Defendant, the Court did not abuse its discretion in refusing to sanction Defendants. Plaintiff merely seeks to have the Court revisit its prior ruling in the hope a change will occur. He presents nothing in the way of evidence to obtain relief appropriate to a Rule 59(e) motion. WHEREFORE, Defendants respectfully request the Court deny Plaintiff's Motion to Reconsider. RESPECTFULLY SUBM ITTED this 14th day of October 2005. J ONES, S KELTON & H OCHULI, P.L.C.

18 19 20 21 22 23 24 25 26 Richard Weare, Clerk U NITED S TATES D ISTRICT C OURT 401 West Washington Phoenix, Arizona 85003 3 Case 2:03-cv-01819-JAT Document 135 Filed 10/14/2005 Page 3 of 4 ORIGINAL of the foregoing filed this 14 th day of October 2005, with: By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants

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COPY of the foregoing mailed this 14 th day of October 2005, to: The Honorable James A. Teilborg U NITED S TATES D ISTRICT C OURT 401 West Washington Phoenix, Arizona 85003 Carlos Powell, #10090-023 F EDERAL C ORRECTION I NSTITUTION P.O. Box 5300 Adelanto, CA 92301 Plaintiff Pro Se COPY of the foregoing faxed this 14 th day of October 2005, to: Office of the Pro Se Staff Attorney 602-322-7289

s/Dianne Clark

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