McDonald v. Phoenix, City of et al

Filing 107

ORDER - IT IS ORDERED the Motions for Reconsideration (Doc. 102 , 105 ) and Motion for Recusal (Doc. 106 ) are DENIED. See attached Order for complete details. Signed by Judge Krissa M Lanham on 11/26/2024. (NSH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kenneth McDonald,
Plaintiff,

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v.

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City of Phoenix, et al.,

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No. CV-23-01275-PHX-KML (DMF)
ORDER

Defendants.

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Plaintiff Kenneth McDonald and defendant Turiano filed separate motions for

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reconsideration. (Doc. 102, 105.) McDonald also filed a motion for recusal. (Doc. 106.)

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All three motions are denied.

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I.

Motions for Reconsideration

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A motion for reconsideration should not ask the court “to rethink what the court had

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already thought through—rightly or wrongly.” Harrington v. Cracker Barrel Old Country

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Store Inc., 713 F. Supp. 3d 568, 576 (D. Ariz. 2024) (quotation marks and citation omitted).

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McDonald seeks reconsideration of the order docketed on November 3, 2024. (Doc.

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102.) The motion argues it was inappropriate to dismiss his state-law claims based on

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McDonald’s failure to complete personal service of the notices of claim. The motion also

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argues the court should not have denied the request to file a supplemental pleading.

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The court analyzed the notice of claim requirement and concluded it barred

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McDonald’s claims against certain individual defendants. The Arizona legislature and

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Arizona courts have concluded personal service is “mandatory” and “essential.” Harris v.

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Cochise Health Sys., 160 P.3d 223, 230 (Ariz. Ct. App. 2007). Thus, the court did not have,

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and still does not have, any ability to forgive McDonald’s failure to serve notices of claim.

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Regarding the supplemental pleading, the court ruled it was unnecessary. McDonald

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has not offered any basis to revisit that conclusion. The report from the Department of

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Justice may or may not be relevant and admissible in this case, but regardless of its

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admissibility, there is no need for McDonald to file a supplemental pleading outlining its

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contents.

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Turiano’s motion for reconsideration argues the November 3, 2024, order should

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have dismissed the state-law claims against him because those claims were dismissed

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against the other defendants and Turiano joined their motions to dismiss. (Doc. 41.) The

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joinder Turiano identifies was to motions to dismiss denied on March 12, 2024. (Doc. 61).

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Turiano has not identified any joinder to the motions to dismiss addressed in the November

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3, 2024, order. In fact, Turiano filed an answer to the latest complaint instead of seeking

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dismissal. (Doc. 71.) Turiano’s motion for reconsideration is denied.

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II.

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McDonald’s motion for recusal does not identify any basis meriting recusal. See

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Liteky v. United States, 510 U.S. 540, 555 (1994) (noting “judicial rulings alone almost

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never constitute a valid basis for a bias or partiality motion”).

Motion for Recusal

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Accordingly,

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IT IS ORDERED the Motions for Reconsideration (Doc. 102, 105) and Motion for

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Recusal (Doc. 106) are DENIED.
Dated this 26th day of November, 2024.

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