Burt v. Goodwill Industries of Central Arizona
Filing
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ORDER denying 40 Motion for Substitution of Judge (Doc. 40 as supplemented by Doc. 43 ). FURTHER ORDERED that Plaintiff shall respond to Defendant's pending Motion for Summary udgement (Doc. 45) by 9/5/2014. Signed by Senior Judge James A Teilborg on 8/26/2014.(TLB)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Plaintiff,
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vs.
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Goodwill Industries of Central Arizona, )
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Defendant.
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Rebecca Jean Burt,
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CV 12-2712-PHX-JAT
ORDER
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On June 16, 2014, Plaintiff filed a motion for substitution of Judge. As a result of that
motion, this Court issued the following order:
Plaintiff has filed a “motion for substitution of judge with affidavit.”
Doc. 40. Although the title says “with affidavit” the document does not
actually contain an affidavit. Further, the document starts at paragraph 3, so
it is possible some pages were not included.
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28 U.S.C. § 144 applies when a party to a proceeding believes that the
district judge “has a personal bias or prejudice either against him or in favor
of any adverse party[.]” 28 U.S.C. § 144. “Section 144 expressly conditions
relief upon the filing of a timely and legally sufficient affidavit.” United States
v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980) (citations omitted). Specifically,
the statute provides:
The affidavit shall state the facts and the reasons for the belief
that bias or prejudice exists, and shall be filed not less than ten
days before the beginning of the term at which the proceeding
is to be heard, or good cause shall be shown for failure to file it
within such time. A party may file only one such affidavit in
any case. ...
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28 U.S.C. § 144. When a party files a timely and legally sufficient affidavit
pursuant to section 144, the district judge “shall proceed no further therein, but
another judge shall be assigned to hear such proceeding.” Id.; Sibla, 624 F.2d
at 867. However, “if the motion and affidavit required by section 144 [are] not
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presented to the judge, no relief under section 144 is available.” Sibla, 624
F.2d at 868.
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As mentioned above, in this case Plaintiff failed to attach an affidavit.
Further, Plaintiff failed to show why this motion was not filed within ten days
of the case being assigned to the undersigned. The Court will give Plaintiff ten
days to supplement her motion to cure these deficiencies. If Plaintiff fails to
file the supplement, or files a supplement that does not cure the deficiencies,
the motion will be denied as procedurally defective.
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Accordingly,
IT IS ORDERED that Plaintiff has leave to file a supplement to her
motion (Doc. 40) within 10 days. Defendant’s deadline to respond shall run
from the filing of the supplement, if any.
Doc. 42.
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Thereafter, Plaintiff filed another motion for substitution of Judge. Doc. 43. As
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Defendant points out in its response (Doc. 47), the motion is still procedurally defective.
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Accordingly, it will be denied for this reason. Alternatively, it is also untimely. The Court
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finds that Plaintiff’s justifications do not excuse the untimeliness. Thus, the motion is denied
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for this alternative reason.
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Finally, the Court has considered its duties under 28 U.S.C. § 455 and finds that
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recusal is not required. For all of the foregoing reasons, the motion for substitution of judge
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will be denied.
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While this motion was pending, Defendant moved for summary judgment. Doc. 45.
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The time for Plaintiff to respond to the motion has expired, and Plaintiff has not filed a
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response. Nothing about the pendency of the motion for substitution of judge motion gave
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Plaintiff an extension of time to respond to the motion for summary judgment. Nonetheless,
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out of an abundance of caution that Plaintiff may have mistakenly believed that she did not
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have to respond to the motion for summary judgment while the motion for substitution of
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judge was pending, the Court will give Plaintiff a brief extension of this expired deadline.
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If Plaintiff fails to respond within this new deadline, the Court will dismiss this case for
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failure to prosecute and failure to comply with a Court order. See Fed. R. Civ. P. 41(b).
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Based on the foregoing,
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IT IS ORDERED that the motion for substitution of judge (Doc. 40 as supplemented
by Doc. 43) is denied.
IT IS FURTHER ORDERED that Plaintiff shall respond to Defendant’s pending
motion for summary judgment (Doc. 45) by September 5, 2014.
DATED this 26th day of August, 2014.
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