Danam v. Arizona Board of Education
Filing
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ORDER - IT IS ORDERED: 1. Plaintiff's motion for reconsideration (Doc. 13 ) is denied. 2. Plaintiff's motion to amend (Doc. 14 ) is denied as moot. The clerk is directed to file the lodged amended complaint (Doc. 15 ). 3. Plaintiff' s motion to adjust the case schedule (Doc. 17 ) is granted. 4. This action is stayed until April 10, 2019 pursuant to § 3932(b) of the SCRA. The stay will automatically expire on that date unless Plaintiff continues active duty service after M arch 30, 2019, and files an application for an additional stay pursuant to § 3932(d) of the SCRA. 5. Defendants' motion to dismiss (Doc. 19 ) is denied. Defendants' shall have fourteen (14) days after the stay expires to file a new motion to dismiss consistent with Local Rule 12.1 or otherwise respond to the amended complaint. (See document for complete details). Signed by Senior Judge David G Campbell on 1/11/19. (SLQ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Rafael Cezar Danam,
Plaintiff,
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ORDER
v.
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No. CV18-01493-PHX-DGC
Arizona Board of Education, as individual
members of the Arizona Board of
Education, Diane Douglas, et al.,
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Defendants.
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Pending before the Court are certain motions filed by Plaintiff, and Defendants’
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motion to dismiss the amended complaint. Oral argument has not been requested. For
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reasons stated below, the Court will deny Plaintiff’s motion for reconsideration (Doc. 13),
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deny as moot his motion to amend the complaint (Doc. 14), grant his motion to adjust the
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case schedule (Doc. 17) by staying the case for 90 days, and deny without prejudice
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Defendants’ motion to dismiss (Doc. 19) for their failure to comply with the Court’s Local
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Rules of Civil Procedure.
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I.
Background.
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In May 2018, Plaintiff filed his original complaint and sought in forma pauperis
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status. Docs. 1, 2. He filed a notice of military service two weeks later. Doc. 7. The Court
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denied the IFP application, but granted Plaintiff an extension of time to pay the filing fee
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and serve the summons and complaint. Doc. 8. Plaintiff subsequently sought orders
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requiring the U.S Marshal or the county sheriff to serve process on his behalf. Docs. 9, 11.
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The requests were denied. Docs. 10, 12.
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Plaintiff sought leave to amend and lodged a proposed amended complaint on
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November 1, 2018. Docs. 14, 15. He subsequently paid the requisite filing fee and effected
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service of process. Docs. 20, 23. Defendants moved to dismiss the amended complaint on
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November 28, 2018. Doc. 19.
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II.
Plaintiff’s Motion for Reconsideration.
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Plaintiff has filed a motion for reconsideration of the orders denying his requests for
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IFP status and alternative service. Doc. 13. Motions for reconsideration are disfavored
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and should be granted only in rare circumstances. See Ross v. Arpaio, No. CV-05-4177-
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PHX-MHM, 2008 WL 1776502, at *2 (D. Ariz. Apr. 15, 2008).
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reconsideration will be granted where the Court has overlooked matters or committed
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manifest error. See LRCiv 7.2(g)(1); Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
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2003).
A motion for
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Plaintiff has shown no manifest error in the Court’s prior rulings. Nor has he shown
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that the Court has overlooked or otherwise misapprehended matters. Rather, Plaintiff cites
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two statutes governing recusal of district judges, 28 U.S.C § 144 and § 455. Doc. 13 at 1-4.
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Section 144 applies when a party believes that the district judge “has a personal bias
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or prejudice either against him or in favor of any adverse party[.]” 28 U.S.C. § 144.
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“Section 144 expressly conditions relief upon the filing of a timely and legally sufficient
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affidavit.” United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). Because Plaintiff has
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submitted no affidavit, his request for recusal may not be granted under § 144.
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Section 455 provides that a district judge shall disqualify himself in any proceeding
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in which his “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Plaintiff
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states that he “has no direct information that would suggest that judicial discretion and
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prudence is potentially biased against [him]” or in favor of Defendants. Doc. 13 at 2.
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Recusal is not appropriate under § 455.
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Moreover, Plaintiff has paid the $400 filing fee and had the summons and amended
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complaint served on Defendants (Docs. 20, 23), rendering moot his motion for
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reconsideration of the orders denying the requests for IFP status and alternative service.
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The motion will be denied.
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III.
Plaintiff’s Motion to Amend.
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Plaintiff filed a motion to amend the complaint on November 1, 2018. Doc. 14.
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Because Defendants had not been served with or responded to the original complaint as of
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that date, Plaintiff was free to amend the complaint as a matter of course pursuant to Federal
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Rule of Civil Procedure 15(a). See Ramirez v. Cty. of San Bernardino, 806 F.3d 1002,
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1008 (9th Cir. 2015). The Court will direct the clerk to file the lodged amended complaint
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(Doc. 15), and the motion for leave to amend (Doc. 14) will be denied as moot.
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IV.
Plaintiff’s Motion to Adjust Case Schedule.
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Plaintiff has provided notice that he is on active duty in the U.S. Air Force Reserve
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until March 30, 2019. Docs. 17, 21. Plaintiff asks the Court to adjust certain case
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management deadlines pending his release from active duty. Doc. 17 at 2.
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Under the Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. § 3901 et seq.,
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the Court “may on its own motion and shall, upon application by the servicemember, stay
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the action for a period of not less than 90 days[.]” § 3932(b)(1). The purposes of a stay
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are to enable servicemembers “to devote their entire energy to the defense needs of the
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Nation” and ensure that ongoing judicial proceedings do not “adversely affect the civil
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rights of servicemembers during their military service.” § 3902; see Boone v. Lightner, 319
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U.S. 561, 575 (1943) (noting that the SCRA “is always to be liberally construed to protect
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those who have been obliged to drop their own affairs to take up the burdens of the nation”);
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Le Maistre v. Leffers, 333 U.S. 1, 6 (1948) (giving a broad construction to the SCRA in
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light of its “beneficient purpose”).
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Pursuant to § 3932(b) of the SCRA, the Court will stay this action for 90 days –
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until April 10, 2019. The stay will automatically expire unless Plaintiff continues on active
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duty service after March 30, 2019 and applies for an additional stay pursuant to § 3932(d)
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of the SCRA.
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V.
Defendants’ Motion to Dismiss.
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The amended complaint asserts various constitutional violations and defamation
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claims against individual members of the Arizona State Board of Education. Doc. 15. The
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claims appear to arise out of the Board’s investigation and subsequent revocation of
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Plaintiff’s teaching license. See id. Plaintiff seeks more than $2 million in compensatory
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and punitive damages. Id. at 11-12.
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Defendants have filed a motion to dismiss, arguing in part that the complaint fails
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to state a plausible claim for relief. Doc. 19. Local Rule of Civil Procedure 12.1 provides
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that “[n]o motion to dismiss for failure to state a claim . . . will be considered or decided
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unless the moving party includes a certification that, before filing the motion, the movant
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notified the opposing party of the issues asserted in the motion and the parties were unable
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to agree that the pleading was curable in any part by a permissible amendment[.]” LRCiv
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12.1(c). A motion to dismiss “that does not contain the required certification may be
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stricken summarily.” Id.; see Roth v. Allstate Ins. Co., No. 17-CV-00587-TUC-FRZ, 2017
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WL 9565410, at *2 & n.10 (D. Ariz. Dec. 12, 2017).
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Because Defendants’ motion to dismiss does not contain the certification required
by Local Rule 12.1(c), the motion will be denied.
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IT IS ORDERED:
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1.
Plaintiff’s motion for reconsideration (Doc. 13) is denied.
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2.
Plaintiff’s motion to amend (Doc. 14) is denied as moot. The clerk is
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directed to file the lodged amended complaint (Doc. 15).
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3.
Plaintiff’s motion to adjust the case schedule (Doc. 17) is granted.
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4.
This action is stayed until April 10, 2019 pursuant to § 3932(b) of the SCRA.
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The stay will automatically expire on that date unless Plaintiff continues
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active duty service after March 30, 2019, and files an application for an
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additional stay pursuant to § 3932(d) of the SCRA.
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5.
Defendants’ motion to dismiss (Doc. 19) is denied. Defendants’ shall have
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fourteen (14) days after the stay expires to file a new motion to dismiss
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consistent with Local Rule 12.1 or otherwise respond to the amended
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complaint.
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Dated this 11th day of January, 2019.
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