Burt v. Goodwill Industries of Central Arizona

Filing 48

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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 ) ) ) ) Plaintiff, ) ) vs. ) Goodwill Industries of Central Arizona, ) ) ) Defendant. ) ) Rebecca Jean Burt, 9 10 11 12 13 CV 12-2712-PHX-JAT ORDER 14 15 16 17 18 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. 19 20 21 22 23 24 25 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. ... 26 27 28 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 1 presented to the judge, no relief under section 144 is available.” Sibla, 624 F.2d at 868. 2 3 4 5 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. 6 7 8 9 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. 10 Thereafter, Plaintiff filed another motion for substitution of Judge. Doc. 43. As 11 Defendant points out in its response (Doc. 47), the motion is still procedurally defective. 12 Accordingly, it will be denied for this reason. Alternatively, it is also untimely. The Court 13 finds that Plaintiff’s justifications do not excuse the untimeliness. Thus, the motion is denied 14 for this alternative reason. 15 Finally, the Court has considered its duties under 28 U.S.C. § 455 and finds that 16 recusal is not required. For all of the foregoing reasons, the motion for substitution of judge 17 will be denied. 18 While this motion was pending, Defendant moved for summary judgment. Doc. 45. 19 The time for Plaintiff to respond to the motion has expired, and Plaintiff has not filed a 20 response. Nothing about the pendency of the motion for substitution of judge motion gave 21 Plaintiff an extension of time to respond to the motion for summary judgment. Nonetheless, 22 out of an abundance of caution that Plaintiff may have mistakenly believed that she did not 23 have to respond to the motion for summary judgment while the motion for substitution of 24 judge was pending, the Court will give Plaintiff a brief extension of this expired deadline. 25 If Plaintiff fails to respond within this new deadline, the Court will dismiss this case for 26 failure to prosecute and failure to comply with a Court order. See Fed. R. Civ. P. 41(b). 27 28 Based on the foregoing, -2- 1 2 3 4 5 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. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?