Ellsworth v. Kendall et al

Filing 39

ORDER denying 23 Motion for Reconsideration. Signed by Senior Judge Robert C Broomfield on 4/10/13.(TLJ)

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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 James Jackson Ellsworth, 13 Plaintiff, 14 15 16 vs. Dennis Kendall, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 11-2554-PHX-RCB O R D E R 17 18 Currently pending before the court is a “Motion for 19 Reconsideration to [sic] District Court Judge of Magistrate 20 Judge’s Order[]” filed by plaintiff pro se, James Jackson 21 Ellsworth, on January 9, 2013 (Doc. 22 did not order the filing of a response to the reconsideration 23 motion, defendants did not file one. See LRCiv 7.2(g) (“No 24 response to a motion for reconsideration . . . may be filed 25 unless ordered by the Court[.]”) As explained below, the court 26 hereby DENIES plaintiff’s motion as moot. 27 28 23). Because this court On December 18, 2012, three days prior to the scheduling order’s December 21, 2012, time frame for filing dispositive 1 motions, the defendants filed a motion for extension of time 2 in which to file such motions. 3 extension because defendant Kendall was on medical leave at 4 the time and “numerous Arizona Department of Corrections” 5 employees and Defendants’ counsel” were going to be out of 6 the office or temporarily unavailable “due to the holiday 7 season[.]” 8 the Magistrate Judge granted that motion, allowing the 9 parties “until January 22, 2013, to file dispositive 10 11 The defendants sought that Mot. (Doc. 21) at 1:22-24. On December 26, 2012, motions[.]” Ord. (Doc. 22) at 1:15-16. In Ellsworth v. Prison Health Services, Inc., 2013 WL 12 1149937 (D.Ariz. March 20, 2013) (“Ellsworth I”), another of 13 plaintiff Ellsworth’s pending lawsuits, this court detailed 14 his non-compliance with LRCiv 7.2(g)(1), which governs 15 reconsideration motions. 16 Ellsworth I, in this action plaintiff also has not made the 17 requisite showing of manifest error or new facts or legal 18 authority so as to warrant relief under that Rule. 19 7.2(g)(1) (emphasis added) (“The Court will ordinarily deny a 20 motion for reconsideration of an Order absent a showing of 21 manifest error or a showing of new facts or legal authority 22 that could not have been brought to its attention earlier 23 with reasonable diligence.”) 24 See id. at *1 - *2. As in See LRCiv Even overlooking plaintiff Ellsworth’s non-compliance 25 with LRCiv 7.2(g)(1), still, he is not entitled to 26 reconsideration because, essentially, his motion has become 27 moot. 28 entitled to reconsideration. The plaintiff advances several reasons as to why he is At this juncture, the only one -2- 1 worth noting is plaintiff’s claim that he has been prejudiced 2 due to defendants’ extension of time. 3 prejudice, plaintiff indicated that he would “be forced to 4 request an extension to file his response to defendants[’] 5 motion for summary judgment.” 6 Significantly, however, on February 25, 2013, the Magistrate 7 Judge granted plaintiff’s motion for an extension of time in 8 which to file a response to defendants’ summary judgment 9 motion. In asserting Mot. (Doc. 23) at 7. Although plaintiff requested an extension until 10 March 31, 2013, Mot. (Doc. 29) at 2-3, the Magistrate Judge 11 extended plaintiff’s filing time frame until April 5, 2013. 12 Ord. (Doc. 32) at 1:15-17. 13 court finds that plaintiff’s motion is moot. 14 Terrible Herbst, Inc., 653 F.3d 1081, 1087 (9th Cir. 2011) 15 (citations omitted) (“[I]f events subsequent to the filing of 16 the case resolve the parties’ dispute, [the court] must 17 dismiss the case as moot[.]”) In light of the foregoing, the Cf. Pitts v. 18 Accordingly, the court hereby ORDERS that: 19 (1) the “Motion for Reconsideration to [sic] District 20 Court Judge of Magistrate Judge’s Order[]” (Doc. 23) is 21 DENIED. 22 DATED this 10th day of April, 2013. 23 24 25 26 27 28 Copies to counsel of record and plaintiff pro se James Jackson Ellsworth -3-

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