Free Order on Motion for Leave to File - 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 Pending before the Court are the following matters: Plaintiff's M otion for Leave to Late-File Newly Discovered Evidence Opposing Summary Judgment and to Seal New Evidence from Public Viewing [dkt. 211], Plaintiff's Objection to M agistrate Judge Sitver's O rder [dkt. 194] denying Plaintiff's M otion for an Order directing the Clerk of Court t o s end Plaintiff service packets [dkt. 203], and a Report and Recommendation [dkt. 216] recommending that the Court grant Defendant ValueOptions' M otion to Strike Plaintiff's Newly Discovered Evidence and dismiss Defendants M arshall and Crumbley. 1. Plaintiff's Motion for Leave On February 17, 2006, Plaintiff filed a M otion for Leave to Late-File Newly Discovered Evidence Opposing Summary Judgment and to Seal New Evidence from Public Viewing. [Dkt. 211]. D efendant ValueOptions filed its Second M otion for Summary Judgment [dkt. 135] on Sep t ember 2, 2005 and Plaintiff filed a M otion for Summary Value Options, Inc.; Karen Thomas Crumbley, Defendants. vs. Shannon M ichael Clark, Plaintiff, ) ) ) ) ) ) ) M arshall;) ) ) ) ) ) No. CV 03-1344-PHX-EHC (M S) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Case 2:03-cv-01344-EHC-HCE

Document 229

Filed 04/26/2006

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Judgment [dkt. 141] on September 6, 2005. Allowing Plaintiff to file new evidence would necessitate reopening the briefing related to those motions. Plaintiff has been allowed to supplement his Response to Defendant ValueOptions' Second M otion for Summary Judgment three times. [See dkts. 167, 172 & 200]. The Court denied Defendant ValueOptions' First M otion for Summary Judgment to provide Plaintiff an opportunity to present evidence supporting his claims. [Dkt. 121]. Given the op portunities already provided to Plaintiff, the Court will deny Plaintiff leave to file newly discovered evidence pending further order of Court. 2. Plaintiff's Objection On December 27, 2005, M agistrate Judge M orton Sitver issued an Order [dkt. 194] deny ing Plaintiff's M otion for an Order [dkt. 193] directing the Clerk of Court t o s end Plaintiff a fourth set of service packets for D efendants Karen M arshall and Thomas Crumbley. M agistrate Judge Sit ver did so because the docket sheet reflected that the Clerk of Court sent Plaintiff a third set of service packets on December 8, 2005. Plaintiff filed an Objection [dkt. 203] claiming that he never received the service packets mailed on December 8, 2005. The Court will, for the last time, order the Clerk of Court to send Plaintiff a set of service of packets. 3. Report and Recommendation On M arch 14, 2006, M agistrate Judge M orton Sitver issued a Report and Recommendation [dkt. 216] regarding D efendant ValueOptions' M otion to Strike [dkt. 214] and Notice [dkt. 215]. The matters addressed in the M otion to Strike and Notice are moot. Defendant ValueOptions' M otion to Strike is directed against Plaint iff's newly discovered evidence. Because the Court will deny Plaintiff leave t o file the newly discovered evidence, the M otion to Strike is moot. The Notice filed by Defendant ValueOptions claims that Plaintiff failed to serve Defendants M arshall and Crumbley as required by M agistrate Judge Sitver's Order [dkt. 180]. Based on the failure to serve, M agis t rat e Judge Sitver recommends that the Court

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dismiss Defendants M arshall and Crumbley. As discussed above, the Court will provide Plaintiff a final opportunity to serve those Defendants; it would be premature to dismiss those Defendants for failure to serve. Accordingly, IT IS ORDERED that Plaintiff's M otion for Leave to Late-File Newly Discovered Evidence Opposing Summary Judgment and to Seal New Evidence from Public Viewing [dkt. 211] is DENIED. IT IS FURTHER ORDERED that Plaintiff's Objection [dkt. 203] is GRANTED; the Order [dkt . 194] denying Plaintiff's M otion for an Order directing the Clerk of Court to send Plaintiff service packets is S ET AS IDE. IT IS FURTHER ORDERED that the Clerk of Court shall send a set of s ervice packets to Plaintiff for Defendants M arshall and Crumbley. IT IS FURTHER ORDERED that, if Plaintiff fails to return to the Clerk of Court a set of service packets, including addresses for Defendants M arshall and Crumbley, by M ay 26, 2006, Defendants M arshall and Crumbley will be dismissed without prejudice. IT IS FURTHER ORDERED that Defendant ValueO p t ions' M otion to Strike [dkt. 214] is DENIED as moot. IT IS FURTHER ORDERED that the Report and Recommendation [dkt. 216] of the M agistrate Judge is DENIED as moot. DATED this 24th day of April, 2006.

Case 2:03-cv-01344-EHC-HCE

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