Aros #95001 v. Ryan et al

Filing 24

ORDER denying #23 Plaintiff's Motion for Extension of Time in its entirety. Signed by Magistrate Judge Lawrence O Anderson on 9/7/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Armando R. Aros, III,

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Plaintiff,
vs.

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Charles Ryan, et al.,
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Defendant.
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No. CV-11-2565-PHX-SRB (LOA)
ORDER

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This matter is before the Court on Plaintiff’s Motion for Extension of Time (First
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Request). (Doc. 23) Plaintiff requests an extension of time in which to file a Third Amended
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Complaint and to file a Motion to Reconsider the Court’s August 16, 2012 Order, doc. 21.
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I. Background
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Plaintiff filed a pro se 42 U.S.C. § 1983 complaint on December 27, 2011 which was
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dismissed for failure to comply with court rules. Plaintiff was given thirty (30) days in which
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to file a First Amended Complaint. (Id.) Thereafter, Plaintiff lodged a First Amended
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Complaint on April 24, 2012, doc. 15, with a Motion for Leave to File Excess Pages for
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Civil Rights Cases, doc. 14. The Court denied Plaintiff’s Motion for Leave to File Excess
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Pages on May 9, 2012 and provided Plaintiff with thirty (30) days in which to file a second
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amended complaint. (Doc. 16)
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Plaintiff filed his Second Amended Complaint on June 19, 2012. (Doc. 19) The
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Court statutorily screened the Complaint on August 16, 2012. (Doc. 21) Plaintiff alleged
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fourteen counts against 22 defendants. (Doc. 21) The Court dismissed Counts Two through

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Twelve and Count Fourteen. (Id. at 18). Only Counts One and Thirteen remained. (Id.)

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On August 28, 2012, Plaintiff filed the pending Motion for Extension of Time. (Doc.

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23) In his Motion, Plaintiff asks both for an extension of time to file a Third Amended

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Complaint and for an extension of time to file a Motion for Reconsideration. (Id.)

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II. Discussion

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A. Motion to Amend

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At the outset, the Court notes that there is no pending Motion to Amend, but rather,

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Plaintiff has only filed a Motion for an Extension of Time. Plaintiff has already amended

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his complaint once as a matter of right when he filed his Second Amended Complaint.

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Therefore, the Court will deny Plaintiff’s Motion for an Extension of Time with respect to

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submitting a Third Amended Complaint. If Plaintiff chooses to file a Motion to Amend, he

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must do so in accordance with the Federal Rules of Civil Procedure and the Local Rules of

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Civil Procedure, including Rule 15(a)(2), Fed. R. Civ. P., which only allows a party to

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amend a pleading with the opposing party’s written consent or with leave of the Court.

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Plaintiff has not so sought.

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B. Motion for Reconsideration

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In addition to requesting a motion to extend the time to file a Third Amended

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Complaint, Plaintiff requests an extension of time to file a Motion for Reconsideration of the

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Court’s August 16, 2012 Order, doc. 21.

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A motion to reconsider must provide a valid ground for reconsideration by showing

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two elements. All Hawaii Tours Corp. v. Polunesian Cultural Ctr., 116 F.R.D. 645, 648-49

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(D. Haw. 1987), rev’d on other grounds, 855 F.2d 860 (1988). First, it must demonstrate

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some valid reason why the Court should reconsider its prior decision. Id. Second, it must set

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forth facts or law of a strongly convincing nature to induce the Court to reverse its prior

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decision. Id. Courts have distilled three (3) major grounds justifying reconsideration. They

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are: 1) an intervening change in the controlling law, 2) the availability of new evidence, and

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3) the need to correct clear error or prevent manifest injustice. Kern-Tulare Water Dist. v.

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City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in part on

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other grounds, 828 F.2d 514 (9th Cir. 1987); Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir.

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1995), cert. denied, 516 U.S. 1029 (1995); Kennedy v. Lubar, 273 F.3d 1293, 1299, fn. 6

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(10th Cir. 2001); See generally C. Wright, A. Miller & E. Cooper, Federal Practice and

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Procedure, § 4478 at 790. A motion for reconsideration is not an opportunity to present facts

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that were known to the party on the earlier motion, nor new legal theories in place of the ones

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used earlier that did not prevail. L.I. Head Start Child Dev. Servs., Inc. v. Kearse, 96

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F.Supp.2d 209, 211 - 212 (E.D.N.Y. 2000). “Nor may the party merely reiterate or

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repackage an argument previously rejected by the court; that argument is for appeal.” PAB

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Aviation, Inc. v. United States, 2000 WL 1240196, at *1 (E.D.N.Y. 2000).

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The District of Arizona’s Local Rule (“LRCiv”) 7.2(g)(1) provides that “[t]he Court

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will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest

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error or a showing of new facts or legal authority that could not have been brought to its

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attention earlier with reasonable diligence. . . .” LRCiv 7.2(g)(1). “Absent good cause shown,

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any motion for reconsideration shall be filed no later than fourteen (14) days after the date

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of the filing of the Order that is the subject of the motion.” LRCiv 7.2(g)(2).

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Here, Plaintiff has not shown good cause for extending the date of filing the Motion

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for Reconsideration. He simply states that the extension would allow him to “coincide with

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the proposed extension for the filing of the amended complaint.” (Doc. 23 at 3) While the

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Court is sympathetic to Plaintiff’s depression issues, that alone is not sufficient to extend the

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time in which to file a motion for reconsideration. In essence, Plaintiff is stating that he

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anticipates that during the process of amending his complaint, he “intends to make changes

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that will be noted in his motion to reconsider so as to better inform the Court about the legal

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questions involved.” (Doc. 23 at 4) He continues that “it makes better sense for the Court

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to review both pleadings contemporaneously so as to gain a more accurate perspective of the

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issues at stake” and that “Plaintiff will not know precisely what issues will be raised in his

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motion to reconsider until after the alterations to his current complaint are finished.” (Id. at

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4-5) This, however, as set forth above, is not the proper use of a motion for reconsideration.
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Rather, such a motion requires a “showing of manifest error or a showing of new facts or

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legal authority that could not have been brought to its attention earlier with reasonable

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diligence. . . .” LRCiv 7.2(g)(1). Because Plaintiff has not shown good cause to extend the

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time for filing his motion for reconsideration, his request will be denied.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Extension of Time, doc. 23, is DENIED

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in its entirety.
Dated this 7th day of September, 2012.

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