Dema v. Arizona Department of Economic Security et al

Filing 10

ORDER that Plaintiff's 9 Motions to Reinstate Action and to Stay Action are denied. Signed by Magistrate Judge John Z Boyle on 1/6/2015.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Victor O. Dema,

No. CV-14-01887-PHX-JZB
Plaintiff,

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v.

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ORDER

Arizona Department of Economic Security,
et al.,

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Defendants.

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Pending before the Court are Plaintiff Victor O. Dema’s Motions to Reinstate

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Dismissed Action and to Stay Proceeding. (Doc. 9.) As detailed below, the Court will

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deny Plaintiff’s Motions.

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I.

Background

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On August 25, 2014, Plaintiff filed his 233-page Complaint in this action. (Doc.

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1.) After granting Plaintiff’s Motion to Proceed In Forma Pauperis, the Court dismissed

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Plaintiff’s Complaint for failing to comply with Rule 8 of the Federal Rules of Civil

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Procedure. (Doc. 7.) In its Order, the Court allowed Plaintiff until December 10, 2014 to

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file an amended complaint and instructed the Clerk of the Court to enter judgment

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dismissing the action if Plaintiff failed to file an amended complaint by the deadline.

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Plaintiff did not file an amended complaint by the December 10, 2014 deadline.

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Accordingly, the Clerk terminated this action on December 11, 2014.

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On December 18, 2014, Plaintiff filed his pending Motions to Reinstate Dismissed

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Action and to Stay Proceeding. (Doc. 9.) Plaintiff requests the Court reinstate and stay

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the dismissed action because the “[C]ourt in its last order to amend complaint

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erroneously conceived that Plaintiff/Father was involved in state court ‘termination

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proceeding[s].’” (Doc. 9 at 1.) Plaintiff further asserts that “there is the likelihood of the

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Plaintiff’s reunification following their six years separation by above defendants which

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may require major Amendment of their complaint in order to conform to ongoing

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changes in new facts and circumstances, such as voluntary dismissal of section 1983

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injunctive and prospective relief claim.” (Id.)

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II.

Analysis

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The Court construes Plaintiff’s Motion “to Reinstate Dismissed Action” as a

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Motion filed pursuant to either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil

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Procedure. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441-42 (9th Cir. 1991). The

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Court has discretion to grant or deny a motion for reconsideration filed under Rule 59(e)

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or Rule 60(b). School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255,

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1262 (9th Cir. 1993). Reconsideration is appropriate under Rule 59(e) “if the district

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court (1) is presented with newly discovered evidence, (2) committed clear error or the

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initial decision was manifestly unjust, or (3) if there is an intervening change in

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controlling law.” Id. at 1263. Under Rule 60(b):

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the court may relieve a party . . . from a final judgment, order,
or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);

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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

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(4) the judgment is void;

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(5) the judgment has been satisfied, released or discharged; it
is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or

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(6) any other reason that justifies relief.

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Fed. R. Civ. P. 60(b).

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Here, Plaintiff fails to provide any basis for relief under Rule 59(e) or 60(b).

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Although Plaintiff asserts that there are “new circumstances” in his case—that he may be

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reunited with his child—such circumstances, even if true, do not excuse his previous

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failure to state a claim for relief under Rule 8 of the Federal Rules of Civil Procedure.

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Further, the Court dismissed this action based on Plaintiff’s failure to file an amended

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complaint by the December 10, 2014 deadline. In his pending Motion, Plaintiff fails to

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provide any justification for his failure to file an amended complaint other than his

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speculation that “new circumstances” may require amendment at some future time,

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including dismissal of Plaintiff’s 1983 claim for injunctive relief. Accordingly, the Court

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will deny Plaintiff’s Motion to Reinstate Dismissed Action. The Court will also deny

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Plaintiff’s Motion to Stay Action as moot.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motions to Reinstate Action and to Stay Action

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(Doc. 9) are denied.
Dated this 6th day of January, 2015.

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Honorable John Z. Boyle
United States Magistrate Judge

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