Free Motion for Judgment - District Court of Arizona - Arizona

1 Robert M. Cook (SBN 002628)
THE LAW OFFICES OF ROBERT M. COOK
2 Missouri Commons - Suite 185
1440 E. Missouri Avenue
3 Phoenix, Arizona 85014
Telephone: (602) 285-0288
4 Facsimile: (602) 285-0388
E—mail: robert1ncookgcDrobertmcook.com
5 Attorney for Plaintiff
6 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
7
8 ROBERT A. CUEVAS, Case No: CIV04-0476-PHX-POR
9 Plaintiff,
vs.
10 John Miranda, Former Chief of Police, MOTION FOR RULE 54(b)
K U Cit%of San Luis, Arizona; CITY OF CERTIFICATION
0 SA LUIS; City of San Luis Police
8 12 Department; Chief of Police now Eddie
S g Bejarano with the City of San Luis Police
cr-E Ly, g 13 Department; Alex Rurz, City
ur *5, gg Administrator for the CHE of San Luis,
ES ‘f’ § < M Arizona; Arizona; and D PARTMENT
{ g §§ OF HOMELAND SECURITY; and
0 ggg 15 John A. Schvvamm, Sr., then acting Port
Li g 5 X Director, - now Assistant Customs
E E § E 16 Director for United States Customs
15 ($3 rg Service in San Luis, Arizona; United
E g 17 States Customs Service; Michael
5 Freeman, Port Director for United States
U, 18 Customs Service in San Luis, Arizona;
$5 Robert Schroeder, Administrative
19 Supervisor for United States Customs
Service in San Luis, Arizona, Department
20 of Homeland Security - Division .S.
Customs and Border Protection in
21 Tucson, Arizona; Donna De La Torres,
Director, Field Operations Arizona
22 Customs Managlement Center for the
Department of omeland Security -
23 Division U.S. Customs and Border
Protection in Tucson, Arizona,
24 Defendants.
25
26
27 Plaintiff Robert A. Cuevas, by and through his undersigned attorney, hereby moves
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1 this Court for Rule 54(b) Certification of its March 24, 2005 Order and Judgment
2 dismissing, for lack of jurisdiction, the federal defendants in this matter. This Motion is
3 supported by the attached Memorandum of Points and Authorities.
4
5 MEMORANDUM OF POINTS AND AUTHORITIES
6 On March 24, 2005, this Court entered an Order and a Judgment dismissing for lack
7 of jurisdiction the Federal Defendants in this matter} The March 24, 2005, Order indicates
8 that it applies only to the Federal Defendants, however, the Judgment states that "[t]his
9 Complaint and action are hereby dismissed? This Court noted the error in its recent order
10 signed January 12, 2007. This Court advised in that order that it will await the Ninth
é 11 Circuit’s order restoring jurisdiction for the purpose of correcting the instant judgment.
E gg 12 While Appellant has moved the Ninth Circuit for such an order, Appellant urges that this
lggig 13 Court already has jurisdiction to grant Rule 54(b) certification, obviating the necessity of
5 14 the Ninth Circuit imposing a remand and delaying the oral argument set for the appeal.
g 15 Appellant contends, here and in its recent motion filed with the Ninth Circuit, that
16 this Court may, without a limited remand from the Ninth Circuit, validate a premature
gi § Oh 17 appeal by granting 54(b) certification. Kersh v. Gen. Council ofthe Assemblies of God, 804
Q 18 F.2d 546, 547 n.l (9"‘ Cir. l986)(cited in Nat’l Ass’n ofHome Builders v. Norton, 325 F.3d
19 1 165, 1 167 n.l (9"‘ Cir. 2003)); Hope v. Intn’l Brotherhood of Electrical Workers, Ninth
20 _D_i_strg;;, 785 F.2d 826, 828 (9"‘ Cir. 1986); Freeman v. Hittle, 747 F.2d 1299, 1302 (9"‘ Cir.
21 1984). Appellant seeks the expeditious resolution of the Rule 54(b) certification issue to
22 prevent iiirther delay of the appeal and allow oral argument, set in February, 2007, to go
23 forward.
24 Plaintiff respectfully requests this Court grant Rule 54(b) certification as to its March
25
26 ‘ Yuma County end other parties were dismissed prevrenery. Also, an appear is currently pending as to me
27 nsranr Order and Judgment.
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ase 2:O4—cv—OO476—PGR Document 40 Filed O1/22/2007 Page 2 of 3

1 24, 2005, Order and Judgment and modify both to reflect that there is no just reason for
2 delay and the instant action is dismissed as to all claims against all federal defendants only.
3
RESPECTFULLY SUBMITTED this 22"d day of January, 2007.
4
THE LAW OFFICES OF ROBERT M. COOK, PLLC
5
By /s/ Robert McConnell Cook, Sr.
6 Robert McConnell Cook, Sr.
Attorney for Plainif
7
8 The foregoing ECF this 22"d day
of January, 2 07; and
9
Sent via facsimile and mail this 22"d day
10 of January, 2007:
se ll Richard G. Patrick
8 Assistant U.S. Attorney
9 12 Two Renaissance Square
E § 40 N. Central Avenue, Suite 1200
cz g _§ 13 Phoenix, AZ 85004-4408
@$3 éi Facsimile: (602) 514-7760
an gg z 14
E § SQ By: /s/ Vicki L. Ruh
E lz < 15 Vicki L. Ruh
QSQ;
g ga §§ 16
E 5 17
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