Free Supplement - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602) 262-5747 Telephone (602) 262-5311 Troy P. Foster State Bar No. 017229 Justin S. Pierce State Bar No. 022646 Attorneys for Defendants

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) )

8 Luis Omar Alvarez Acuna, 9 10 vs. Plaintiff,

No. CIV 04-0550 PHX JWS KBI'S SUPPLEMENT TO ITS MOTION TO DISMISS WITH PREJUDICE

11 KBI, Inc., et al, 12 13 14 Defendants.

On September 16, 2005, Defendant KBI, Inc. ("KBI") filed a Motion to Dismiss

15 with Prejudice ("Motion"). As the basis for the Motion and as detailed there, KBI moved 16 the Court for dismissal based on Plaintiff Luis Omar Alvarez Acuna's ("Acuna") 17 repeated and willful refusals to provide KBI with discovery responses. Acuna, however, 18 remains adamant that he will not provide these responses despite several explicit orders 19 from the Court requiring him to do so. 20 Now, as with his delinquent discovery responses, Acuna has similarly failed to

21 respond in any way whatsoever to KBI's Motion. Pursuant to Local Rule of Civil 22 Procedure 7.2(c), Acuna had ten (10) days after service of KBI's Motion in which to file 23 a response. Despite the passage of over thirty (30) days, however, Acuna has neither 24 filed a response nor made any request of KBI or this Court for an extension of time in 25 which to do so. 26 Fortunately, Local Rule of Civil Procedure 7.2(i) specifically addresses the proper

27 remedy for a party's failure to file a responsive motion: 28
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[I]f the opposing party does not serve and file the required answering memoranda, or if counsel for any party fails to appear at the time and place assigned for oral argument, such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily. In light of Acuna's continued flaunting of the rules of procedure and the Court's authority, KBI respectfully requests that pursuant to LRCiv. 7.2(i) the Court deem Acuna's non-response as a consent to KBI's Motion and consequently dismiss his Complaint with prejudice. The Court has warned Acuna time and again to comply with the rules and instructions of this Court or face dismissal. Despite these warnings, Acuna not only continues his willful refusal to provide the discovery to which KBI is entitled, but has compounded his impudence by failing to respond to KBI's Motion. Dismissal of his Complaint is therefore proper. See Mahonen v. Arizona Dept. of Corrections, 2005 WL 2655272 (D. Ariz. 2005) (granting summary judgment in favor of defendants where plaintiff failed to respond and court had warned plaintiff that failure to respond would be deemed consent to defendants' motion); Wood v. Maricopa County Board of Supervisors, 2005 WL 2416376 (D. Ariz. 2005) (granting defendant's motion to dismiss where plaintiff had been warned that failure to respond would be deemed consent); Brydges v. Lewis, 18 F.3d 651, 652-653 (9th Cir. 1993) (In interpreting former Local Rule 11(i) which exactly mirrors the present language of Local Rule 7(i) the court held that "the district court has discretion to determine whether non-compliance should be deemed consent to the motion.") RESPECTFULLY SUBMITTED this 25th day of October, 2005. LEWIS AND ROCA LLP

By s/ Troy P. Foster Troy P. Foster Justin S. Pierce Attorneys for Defendants

Case 2:04-cv-00550-JWS

Document 43

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Case 2:04-cv-00550-JWS Document 43

CERTIFICATE OF SERVICE I hereby certify that on October 25, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. I hereby certify that on October 25, 2005, I served the attached document by mail on the following, who is not a registered participant of the CM/ECF System: Luis Omar Alvarez Acuna 2934 West Rose Lane Phoenix, AZ 85017 Plaintiff Pro Per Attorney for Plaintiff s/ Judi Ronnow_________

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