Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Patrick Neal Bradberry, Plaintiff, vs. Joe Arpaio, et. al.,

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Defendants.
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No. CV 03-1518-PHX-JAT (SLV) ORDER

A. Background Plaintiff Patrick Neal Bradberry filed a pro se Complaint pursuant to 42 U.S.C. § 1983 on August 7, 2003. By order of the Court filed on May 11, 2004, Plaintiff was directed to amend his complaint (Doc. #8). Thereafter, Plaintiff was granted an extension of time within which to comply with the Court's order (Doc. #11). Plaintiff failed to do so. Plaintiff filed an interlocutory appeal with the Ninth Circuit, and then filed a "Request for Stay of Proceedings Pending Appeal of an Interlocutory Order/ or Alternatively, Request For Enlargement of Time" (Doc. #13). On September 2, 2004, Plaintiff filed a Request To Withdraw Request to Stay Proceedings Pending Appeal of Interlocutory Order/Request for 30 Day Enlargement of Time To File First Amended Complaint (Doc. #14).

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On October 18, 2004, judgment was entered and this action was dismissed for Plaintiff's failure to comply with the Court's previous order directing him to file an Amended Complaint (Doc. #15). B. Pending Motion. Pending before the Court is Plaintiff's Motion To Reconsider Erroneous Dismissal By The Clerk (Doc. #17) and Motion To Reconsider (Doc. #19). In his Motions, Plaintiff contends that the Court never ruled on his pending Motion For Extension of Time and therefore, the Court erroneously dismissed this action. C. Discussion. Because Plaintiff submitted his motion after entry of judgment, the Court must treat it either as a motion to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, or as a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. See American Ironworks & Erectors, Inc. v. North Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). A Rule 59 motion must be filed within ten days of entry of judgment. FED. R. CIV. P. 59(e). Plaintiff's motion was filed within ten days. Accordingly, the Court applies Rule 59(e). "A motion for reconsideration under Rule 59(e) `should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'" McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc, per curiam) (emphasis in original) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)), cert. denied, 529 U.S. 1082 (2000). This type of motion seeks "a substantive change of mind by the court." Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988) (quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 1983)). On May 11, 2004, the Court directed Plaintiff to amend his complaint (Doc. #8). Plaintiff failed to comply with the Court's order. The Court does not lose jurisdiction of this action because Plaintiff appealed to the Ninth Circuit. The fact that Plaintiff appealed and filed a request for stay of proceedings pending appeal does not preclude him from complying
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with the Court['s directive to file an Amended Complaint. Plaintiff failed to comply with the Court's order. Moreover, Plaintiff was provided with one opportunity to amend his Complaint and failed to do so. Accordingly, Plaintiff's Motion To Reconsider Erroneous Dismissal (Doc. #17) will be denied. Plaintiff's Motion To Reconsider (Doc. #19) will be denied as moot. IT IS THEREFORE ORDERED that the Motion To Reconsider Erroneous Dismissal By The Clerk (Doc. #17), construed as a motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, is denied. IT IS FURTHER ORDERED: that the Motion To Reconsider (Doc. #19) is denied as moot. DATED this 30th day of August, 2005.

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