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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James Jackson Ellsworth,

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Plaintiff,

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vs.
Dennis Kendall, et al.,
Defendants.

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No. CV 11-2554-PHX-RCB
O R D E R

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Currently pending before the court is a “Motion for

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Reconsideration to [sic] District Court Judge of Magistrate

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Judge’s Order[]” filed by plaintiff pro se, James Jackson

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Ellsworth, on January 9, 2013 (Doc.

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did not order the filing of a response to the reconsideration

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motion, defendants did not file one. See LRCiv 7.2(g) (“No

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response to a motion for reconsideration . . . may be filed

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unless ordered by the Court[.]”) As explained below, the court

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hereby DENIES plaintiff’s motion as moot.

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23).

Because this court

On December 18, 2012, three days prior to the scheduling
order’s December 21, 2012, time frame for filing dispositive

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motions, the defendants filed a motion for extension of time

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in which to file such motions.

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extension because defendant Kendall was on medical leave at

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the time and “numerous Arizona Department of Corrections”

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employees and Defendants’ counsel” were going to be out of

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the office or temporarily unavailable “due to the holiday

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season[.]”

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the Magistrate Judge granted that motion, allowing the

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parties “until January 22, 2013, to file dispositive

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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

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1149937 (D.Ariz. March 20, 2013) (“Ellsworth I”), another of

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plaintiff Ellsworth’s pending lawsuits, this court detailed

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his non-compliance with LRCiv 7.2(g)(1), which governs

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reconsideration motions.

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Ellsworth I, in this action plaintiff also has not made the

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requisite showing of manifest error or new facts or legal

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authority so as to warrant relief under that Rule.

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7.2(g)(1) (emphasis added) (“The Court will ordinarily deny a

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motion for reconsideration of an Order absent a showing of

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manifest error or a showing of new facts or legal authority

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that could not have been brought to its attention earlier

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with reasonable diligence.”)

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See id. at *1 - *2.

As in

See LRCiv

Even overlooking plaintiff Ellsworth’s non-compliance

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with LRCiv 7.2(g)(1), still, he is not entitled to

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reconsideration because, essentially, his motion has become

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moot.

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entitled to reconsideration.

The plaintiff advances several reasons as to why he is
At this juncture, the only one
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worth noting is plaintiff’s claim that he has been prejudiced

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due to defendants’ extension of time.

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prejudice, plaintiff indicated that he would “be forced to

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request an extension to file his response to defendants[’]

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motion for summary judgment.”

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Significantly, however, on February 25, 2013, the Magistrate

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Judge granted plaintiff’s motion for an extension of time in

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which to file a response to defendants’ summary judgment

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motion.

In asserting

Mot. (Doc. 23) at 7.

Although plaintiff requested an extension until

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March 31, 2013, Mot. (Doc. 29) at 2-3, the Magistrate Judge

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extended plaintiff’s filing time frame until April 5, 2013.

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Ord. (Doc. 32) at 1:15-17.

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court finds that plaintiff’s motion is moot.

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Terrible Herbst, Inc., 653 F.3d 1081, 1087 (9th Cir. 2011)

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(citations omitted) (“[I]f events subsequent to the filing of

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the case resolve the parties’ dispute, [the court] must

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dismiss the case as moot[.]”)

In light of the foregoing, the
Cf. Pitts v.

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Accordingly, the court hereby ORDERS that:

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(1) the “Motion for Reconsideration to [sic] District

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Court Judge of Magistrate Judge’s Order[]” (Doc. 23) is

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DENIED.

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DATED this 10th day of April, 2013.

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Copies to counsel of record and plaintiff pro se James
Jackson Ellsworth
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