Mitchell et al v. Flagstaff, City of et al

Filing 15

ORDER plaintiffs shall have to and including 11/03/11 to file their response to the motion to dismiss. The clerk shall update the docket to indicate that Lee Brooke Phillips is no longer counsel for plaintiffs. Signed by Judge Frederick J Martone on 10/13/11. (ESL)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ruth Bradburn Mitchell; Christopher Mitchell, 10 Plaintiffs, 11 vs. 12 13 14 15 City of Flagstaff; Roy Taylor, Defendants. Kenneth) ) ) ) ) ) ) ) ) ) ) ) ) CV 11-08140-PCT-FJM ORDER 16 The court has before it Counsel Lee Phillips' request for clarification of non17 representation of plaintiffs (doc. 9). We also have before us defendant City of Flagstaff's 18 motion to dismiss state law claims (doc. 4). The deadline for plaintiffs to respond to the 19 motion to dismiss was October 7, 2011. Plaintiffs have not responded. 20 This case arises out of the death of Kenneth Mitchell. Officer defendant Roy Taylor 21 responded to a disturbance call on August 25, 2010 that culminated in Officer Taylor 22 shooting and killing Kenneth Mitchell. Plaintiffs originally filed this action in the Superior 23 Court of Arizona in Coconino County on August 22, 2011 alleging three claims: (1) 24 negligence - wrongful death; (2) deprivation of constitutional rights pursuant to 42 U.S.C. 25 ยง 1983; and (3) negligent infliction of emotional distress. At the time, plaintiffs were 26 represented by Tom Shorall, Jr. and Scott Zerlaut of Shorall McGoldrick Brinkmann. The 27 Shorall firm filed a motion to withdraw as counsel in the Coconino County court on 28 1 September 9, 2011. In this motion, the Shorall firm indicated that plaintiffs would continue 2 to be represented by co-counsel, Lee Phillips. The state court granted the motion on 3 September 13, 2011. Defendants removed this action on the same day, and defendant City 4 of Flagstaff filed its motion to dismiss on September 20, 2011. 5 Lee Phillips, a criminal defense lawyer, filed a request for clarification of non- 6 representation with this court on September 30, 2011. Phillips seeks a confirmation from this 7 court whether he represents plaintiffs, and if so, time to file a motion to withdraw as counsel. 8 On October 12, 2011, Michael Pearson and Daniel Riley of Curry, Pearson & Wooten, PLC 9 entered a notice of appearance as counsel of record on behalf of plaintiffs (doc. 10). We 10 therefore clarify that Lee Phillips is not representing plaintiffs in this matter. 11 We are reluctant to rule on the motion to dismiss without first giving plaintiffs and 12 new counsel the opportunity to respond. We therefore order sua sponte an extension of time 13 for plaintiffs to file their response to defendant City of Flagstaff's motion to dismiss. 14 15 16 17 18 IT IS ORDERED THAT plaintiffs shall have to and including November 3, 2011 to file their response to the motion to dismiss. The clerk shall update the docket to indicate that Lee Brooke Phillips is no longer counsel for plaintiffs. DATED this 13th day of October, 2011. 19 20 21 22 23 24 25 26 27 28 -2-