Free Order on Motion to Dismiss Case/Lack of Prosecution - District Court of Arizona - Arizona

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 9 10 11 12 13 14 15 16 17 Presently before the Court are Defendants Michael Cambra (Defendant Cambra or 18 Cambra) and Joseph L. Williams' (Defendant Williams or Williams) Motions for 19 Reconsideration of the Court's Order to Enforce the Settlement Agreement (Docs. 205 & 20 209). Defendants Cambra and Williams have filed a considerable number of additional 21 Motions including the following: "Motion to Dismiss the Case for Lack of Prosecution" 22 (Doc. 197); "Notice of Motion to Dismiss and Motion for Attorney's Fees and/or Sanctions 23 and/or for the Court's Order of Contempt" (Doc. 199); Motion to Dismiss (Doc. 205); 24 "Notice of Motion of Motion of [sic] Reconsideration and Motion to Dismiss and Motion for 25 Attorney Fees and/or Sanctions and/or for the Court's Order of Contempt" (Doc. 207); 26 Motion to Dismiss (Doc. 209); and "Notice of Motion of Motion of [sic] Reconsideration and 27 Motion to Dismiss and Motion for Attorney Fees and/or Sanctions and/or for the Court's 28
Case 2:04-cv-00595-MHM Document 216 Filed 08/31/2007 Page 1 of 4

Estate of Joseph J. Studnek, by and) through its Personal Representative,) ) Joseph M. Studnek, ) ) Plaintiff, ) ) vs. ) ) Ambassador of Global Missions) ) Unlimited, and his Successor, et al., ) ) Defendants. ) )

No. CIV-04-0595-PHX-MHM ORDER

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Order of Contempt" (Doc. 211). As directed by the Court, Plaintiff has filed only a Response to Defendants' Motions for Reconsideration of the Court's Order to Enforce the Settlement Agreement (Doc. 214). The Court considers the pending Motions beginning with the Motions for Reconsideration of the Court's Order to Enforce the Settlement Agreement and issues the following Order. A motion to alter or amend the judgment under Fed.R.Civ.P. 59(e) shall be filed no later than ten days after entry of the judgment. A Rule 59(e) motion may be granted (1) to correct manifest errors of law or fact upon which the judgment is based; (2) the moving party presents newly discovered or previously unavailable evidence; (3) as necessary to prevent manifest injustice; or (4) there is an intervening change in controlling law. Turner v. Burlington Northern Santa Fe Railroad Co., 338 F.3d 1058, 1063 (9th Cir. 2003). "A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). In their similarly-argued Motions for Reconsideration of the Court's Order to Enforce the Settlement Agreement, Defendants Cambra and Williams both attempt to argue points on their own behalf as well as represent corporate entities. Neither Cambra nor Williams are attorneys. The Court has previously instructed both Cambra and Williams that a

"corporation may appear in the federal courts only through licensed counsel." Rowland v. California Men's Colony, 506 U.S. 194, 202, 113 S.Ct. 716, 721 (1993). Moreover, in December 2006, the Court directed Cambra and Williams, as the sole representatives of corporate defendants Global Missions (Williams) and El Shaddai and Second Chance (Cambra) to retain counsel as soon as possible. To date, no appearances have been made by new counsel for either Global Missions, El Shaddai, or Second Chance. Attempts by Defendants Chambra and Williams to represent Global Missions, El Shaddai, and/or Second Chance will not be considered by the Court.

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In their Motions for Reconsideration of the Court's Order to Enforce the Settlement Agreement, Defendants Cambra and Williams assert arguments about the merits of the case. For instance, both Cambra and Williams attempt to argue that Plaintiff lacks standing to maintain the lawsuit, that Plaintiff's claims should be dismissed because they are not ripe, and that Plaintiff's cause of action fails to state a claim upon which relief can be granted. As stated above, a motion for reconsideration is not the proper venue in which to raise arguments or present evidence for the first time when such arguments could have been, and in this case many of which have been albeit unsuccessfully, raised earlier in the litigation. Furthermore, the time for any such argument about Plaintiff's standing, the ripeness of Plaintiff's claims, and whether Plaintiff has stated a claim upon which relief can be granted, ended with the creation and assent to a Settlement Agreement. In his Motion for Reconsideration of the Court's Order to Enforce the Settlement Agreement, Defendant Cambra argues that the Court's Order must be modified with regard to his wife. However, Cambra will recall that he negotiated for the dismissal of his wife and community from the obligations of the Settlement Agreement. Therefore, the issue of whether Mrs. Cambra had been served became moot when Plaintiff agreed to dismiss Mrs. Cambra from the Settlement Agreement. The Settlement Agreement was drafted

accordingly. Therefore, there is no need to modify the Court's Order to Enforce the Settlement Agreement or the written Settlement Agreement. There is no evidence nor any argument to support this Court granting of Defendants' Motions for Reconsideration of the Court's Order to Enforce the Settlement Agreement. Defendants have not argued a manifest error in need of correction, newly discovered or previously unavailable evidence, a manifest injustice, or an intervening change in controlling law. A motion for reconsideration will not be granted without such a showing. Accordingly, Defendants' Motions for Reconsideration of the Court's Order to Enforce the Settlement Agreement are denied.

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Case 2:04-cv-00595-MHM

CONCLUSION For the foregoing reasons, IT IS ORDERED that Defendant Cambra and Defendant Williams' Motions for Reconsideration (Docs. 205 & 209) are denied. IT IS FURTHER ORDERED that all other outstanding motions Defendants have filed (Docs. 197, 199, 207 & 211) are denied as moot. IT IS FURTHER ORDERED that judgment is entered in Plaintiff's favor against the settling Defendants ­ Defendants Cambra, Williams, Global Missions, El Shaddai, and Second Chance ­ pursuant to the Settlement Agreement entered into by Plaintiff and the settling Defendants on September 19, 2006 before the Honorable David K. Duncan. DATED this 30th day of August, 2007.

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