Halloum v. Ryan et al

Filing 81

ORDER that Plaintiff's 76 Motion to Subrogate His Electronic Filing is GRANTED; from the date of entry of this order, notice and service upon plaintiff shall be by first class mail to his last known address provided to the court; the 74 Order and 75 Judgment are both VACATED; Plaintiff shall have fifteen (15) days from the date of entry of this Order to pay the $350.00 filing fee or file a response showing good cause why he cannot pay; if plaintiff fails to timely comply with this Order, the Court may dismiss this action. Plaintiff's 77 Motion to Expedite Trial Date is DENIED without prejudice to renew. Signed by Senior Judge Robert C Broomfield on 4/25/2013. (See Order for details.)(LFIG)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Ammar Dean Halloum, 13 Plaintiff, 14 vs. 15 Charles Ryan, et al., 16 Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 11-97-PHX-RCB(JFM) O R D E R 17 18 Currently pending before the court are two motions 19 simultaneously filed by plaintiff pro se, Ammar Dean Halloum. 20 In the first, plaintiff is seeking “to [s]ubrogate [h]is 21 [e]lectronic [f]iling[,]” Mot. (Doc. 76); and in the second, 22 he is seeking to “expedite the trial date.” 23 1:10-11. Mot. (Doc. 77) at For the reasons set forth below, the court grants 24 the first motion, but denies the second without prejudice to 25 renew. 26 Background In January, 2011, while confined in the Arizona State 27 Prison Complex-Tucson, plaintiff filed this pro se civil 28 rights action pursuant to 42 U.S.C. § 1983, as well as an 1 Application to Proceed In Forma Pauperis. 2 the plaintiff in forma pauperis status and assessed the 3 statutory filing fee of $350.00. 4 2011, the plaintiff informed the court that he had been 5 released from custody. 6 The Court granted Ord. (Doc. 5). On April 21, Not. (Doc. 16). Pursuant to this court’s January 27, 2011, order, 7 plaintiff was required to “pay the unpaid balance of the 8 filing fee within 120 days” of that release date. 9 (Doc. 5) at 8:11. See Ord. That order also required plaintiff, within 10 30 days of his release, to “either (1) notify the court that 11 he intends to pay the balance or (2) show good cause, in 12 writing, why he cannot.” 13 court’s order explicitly “[w]arn[ed][,]” among other things, 14 that “[f]ailure to comply” with the foregoing “may result in 15 dismissal of this action.” 16 original); and at 8:13-14. 17 Id. at 8:12-13. Further, this Id. at 8:9 (emphasis in Despite plaintiff’s failure to comply with any of those 18 requirements, this lawsuit progressed. 19 the defendants filed a summary judgment motion. 20 2012, the plaintiff filed a cross-motion for summary 21 judgment. 22 2012, the plaintiff filed a motion seeking leave to file and 23 serve electronically pursuant to this District’s Electronic 24 Case Filing Administrative Policies and Procedures Manual 25 (the ECF Manual), ¶ II.B.3. 26 the fully completed “PRO SE PARTICIPANT ELECTRONIC CASE FILES 27 REGISTRATION FORM[.]” Mot. (Doc. 58) at 4-5. 28 United States Magistrate Judge Metcalf granted that motion on And, in April, 2012, In late May, During the pendency of those motions, on June 22, Plaintiff attached to his motion -2- The Honorable 1 June 27, 2012, “remind[ing]” plaintiff of his “obligation to 2 ‘register as a user with the Clerk’s Office and as a 3 subscriber to PACER within five . . . days.’” 4 (quoting ECF Manual at ¶ II.B.3). Ord. (Doc. 59) 5 On July 2, 2012, within five days of the Magistrate 6 Judge’s order, the Clerk of the Court’s records indicate that 7 plaintiff was issued a login and password, and denoted as 8 “Registered” with the court’s CM/ECF system. CM/ECF-azd-User 9 Maintenance Information for Ammar Dean Halloum. A 10 “Registered User” is “an individual who has been issued a 11 login and password by the court to electronically file 12 documents.” 13 of his login and password, on July 2, 2012, plaintiff Halloum 14 became a “registered user” within the meaning of the ECF 15 Manual. 16 the Clerk’s Office began serving plaintiff electronically. 17 ECF Manual at 4, ¶ I(A). Thus, with the issuance Consequently, the docket shows that after that date, On October 12, 2012, this court entered an Order to Show 18 Cause (“OSC”) directing the plaintiff to pay the statutory 19 filing fee or show cause why he has not paid the balance of 20 his filing fee, which was still the full $350.00 (Doc. 73). 21 That OSC contained a separate “Warning[,]” notifying the 22 plaintiff that “[i]f [he] fails to timely comply with th[at] 23 [OSC], the Court may dismiss this action without further 24 notice.” 25 his status as a registered ECF user, plaintiff was 26 electronically served with the OSC. 27 Electronic Filing (“NEF”) attached thereto at 1. 28 Id. at 2:7-9 (citation omitted). Consistent with OSC (Doc. 73), Notice of When the plaintiff did not respond to the OSC, on -3- 1 November 28, 2012, this court dismissed the action without 2 prejudice in accordance with Fed.R.Civ.P. 41(b), and denied 3 the pending summary judgment motions as moot. 4 at 3:22-4:1, ¶¶ (2)(3). 5 that same date (Doc. 75). 6 electronically served with the dismissal order and the 7 judgment. 8 Judgment (Doc. 75), NEF attached thereto at 1. 9 in this case, was there ever a notice of failure of delivery Ord. (Doc. 74) Judgment was entered accordingly Also on that date, plaintiff was Ord. (Doc. 74), NEF attached thereto at 1; and At no time 10 as to any of the notices of electronic filing (“NEF”) 11 associated with any of the electronically filed and served 12 court orders. 13 Roughly two months later, on January 24, 2013, plaintiff 14 filed the pending motions. 15 claiming that he has not been able to access the CM/ECF 16 system and that he did not have notice of the OSC and the 17 resultant dismissal order. 18 19 Essentially, plaintiff is Discussion I. 20 Electronic Filing Because they are uncertain as to exactly what relief 21 plaintiff is seeking in his motion “to subrogate his 22 electronic filing[,]” the defendants acknowledge receipt, but 23 otherwise do not respond. 24 21. 25 wants to use electronic filing because he has not been able 26 to “successfully access the record.” 27 28 See Defs.’ Ack. (Doc. 78) at 1:20- As the court construes plaintiff’s motion, he no longer Mot. (Doc. 76) at 1:12. The record as presently constituted strongly supports plaintiff’s contention. Although it is not absolutely -4- 1 certain, evidently plaintiff tried to use the ECF system once, 2 on July 3, 2012 – one day after becoming a registered ECF 3 user. 4 that date someone, presumably plaintiff, was active on his ECF 5 account for 27 seconds. 6 Information for Ammar Dean Halloum. 7 time, plaintiff was unable to access the docket in this case. 8 Further, clearly he did not electronically file any documents 9 at that time. 10 The records of the Clerk of the Court reflect that on CM/ECF-azd-User Maintenance Evidently, in that short In fact, since becoming a registered ECF user, plaintiff 11 has never availed himself of electronic service or filing. 12 always submits a hard copy to the Clerk of the Court’s office 13 for filing and serves the defendants by mail. 14 (Doc. 63). 15 system, is consistent with plaintiff not being able to 16 “successfully access the record.” 17 1:12. 18 after July 2, 2012, the date plaintiff supposedly became a 19 registered ECF user, they have always served plaintiff by 20 mail, stating that he “is not a registered participant of the 21 CM/ECF system.” 22 He See, e.g., Mot. Proceeding in that way, rather than using the ECF See Mot. (Doc. 76) at Perhaps the defendants were aware of that, because even See. e.g., Mot. (Doc. 65) at 3:6-7. In light of the foregoing, the court sees no reason to 23 compel plaintiff to use the ECF system for filing and service. 24 The court therefore GRANTS plaintiff’s motion to “[s]ubrogate 25 his [e]lectronic [f]iling[.]” See Mot. (Doc. 76) at 1:5-6 26 (emphasis omitted). 27 deemed to be a registered user within the meaning of the ECF 28 Manual. This means that plaintiff is no longer Therefore, in this case, he cannot file and receive -5- 1 notice electronically. 2 II. 3 Trial Date On January 24, 2013, plaintiff filed a motion to expedite 4 [the] trial date[,]” claiming that he “does not know the 5 process when the Court will set the Trail [sic], and has been 6 waiting for months[.]” Mot. (Doc. 77) at 1:10-13. In 7 response, the defendants point out that this action “was 8 dismissed and Judgment was entered on November 29, 2012.”1 9 Resp. (Doc. 79) at 1:19-20 (citations omitted). Defendants 10 accurately explain that when the plaintiff failed to respond 11 to the OSC, the court dismissed this action. 12 Significantly, however, as the court construes plaintiff’s 13 reply, he did not learn of either the OSC or the resultant 14 dismissal order until the filing of defendants’ response on 15 approximately February 6, 2013 – slightly more than two 16 months after the dismissal of this action. Now, plaintiff 17 “wants to bring to the [court’s] attention” the possibility of 18 a notification “error[.]” Reply (Doc. 80) at 1:25. Plaintiff, 19 therefore, “requests . . . reinstate[ment] of his case[,]” to 20 “give him enough time to respond to the fee inquiry, or to pay 21 it.” 22 Id. at 2:2-3. When plaintiff Halloum completed the electronic 23 registration form, among other things, he “consent[ed] to 24 receive notice electronically and waiver of the right to 25 receive notice by first class mail[.]” 26 5. See Mot. (Doc. 58) at Similarly, the plaintiff “consent[ed] to electronic 27 1 28 Actually, the dismissal order and judgment both were entered on November 28, 2012. Ord. (Doc. 74) and Judgment (Doc. 75). -6- 1 service and waiver of the right to service by personal service 2 or first class mail . . . except with regard to service of a 3 summons and complaint.” Id. That form further advised the 4 plaintiff that “waiver of service and notice by first class 5 mail applies to notice of the entry of an order or judgment.” 6 Id. 7 Ordinarily, the foregoing, coupled with plaintiff 8 Halloum’s “acknowledg[ment]” that [he] . . . read and 9 underst[ood] the information” in the signed registration form, 10 would readily convince this court that when he became a 11 registered ECF user, the plaintiff waived his right to notice 12 and service by any means other than electronically. 13 (Doc. 58) at 5. This case is not typical, however. See Mot. That is 14 because at the issuance of his password and login information, 15 the ECF system allowed plaintiff to log-in and view documents 16 filed in this case, but it did not allow him to electronically 17 file any documents. Therefore, it is possible that on July 3, 18 2012, the first and only time plaintiff’s ECF account shows 19 any activity, he was trying to e-file the motion for an 20 extension of time. It also is entirely possible that because 21 plaintiff could not access his ECF account at that time, he 22 resorted to providing the court with a hard copy, which was 23 filed on July 5, 2012. See Mot. (Doc. 63) at 1. 24 Plaintiff’s inability to e-file is also in keeping with his 25 practice of always submitting hard copies of any documents for 26 filing to the court and of serving defendants via mail. Under 27 these unique circumstances, the court cannot find that 28 plaintiff Halloum necessarily had notice of either the OSC or -7- 1 the dismissal order and entry of judgment thereon. Therefore, 2 the court hereby VACATES the judgment entered on November 28, 3 2012 (Doc. 75), as well as the order entered on that same date 4 (Doc. 74). At the same time, though, because the foregoing 5 means that the summary judgment motions will, once gain, be 6 pending, the court hereby DENIES without prejudice to renew 7 plaintiff’s motion to expedite the trial (Doc. 77). 8 For the reasons set forth above, the court hereby ORDERS 9 that: 10 (1) “Plaintiff’s Motion to Subrogate His Electronic Filing” Mot. (Doc. 76) is GRANTED; 11 12 13 14 15 16 17 (2) from the date of entry of this order, notice and service upon plaintiff shall be by first class mail to his last known address provided to the court, P.O. Box 26246, Tempe, Arizona 85285; (3) the order entered on November 28, 2012 (Doc. 74) and the judgment entered on November 28, 2012 (Doc. 75) are both VACATED; (4) plaintiff shall have fifteen (15) days from the date of entry of this order in which to either pay the $350.00 filing fee or file a response showing good cause why he cannot pay the filing fee; 18 19 20 21 22 23 (5) if plaintiff fails to timely comply with this order, as directed in paragraph (3) above, the court may dismiss this action without further notice, see Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court); (6) defendants shall file a reply, if any, within fifteen (15) days after service of the responsive memorandum; and 24 . . . 25 26 27 28 -8- 1 (7) “Plaintiff’s Motion to Expedite Trial Date” (Doc. 77) is DENIED without prejudice to renew. 2 3 DATED this 25th day of April, 2013. 4 5 6 7 8 9 10 Copies to counsel of record and plaintiff pro se at P.O. Box 26246, Tempe, AZ 85285 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-

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