Termini v. Frontier Communications of America, Inc. et al

Filing 99

ORDER denying 91 Motion to Set Aside Court's order of 2/6/09. Signed by Judge James A Teilborg on 3/23/09.(DMT, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Frontier Communications of America, Inc.) ( a / k / a Citizen's Communications) Company); Marilyn Figueroa; Geraldine) Miller; Dianna Thornton; Gail Tarson;) Kelli Brice-Donlea; Denise Baumbach;) Mohave County; City of Kingman; Lee F.) ) Jantzen; Kenneth Upton, ) ) Defendants. ) ) Nancy Termini,

No. CV 08-8042-PCT-JAT ORDER

Previously pending before this Court were motions to dismiss filed by every Defendant. The Court granted multiple extensions of time for Plaintiff to respond. In the last such extension, the Court ordered Plaintiff to respond by January 16, 2009. In this same order, the Court gave Defendants until February 17, 2009 to file a reply to Plaintiff's response. In granting Defendants this additional time, the Court assumed Plaintiff would respond on the merits to Defendants' motions. Instead, in her response filed January 9, 2009, Plaintiff agreed that all of the motions to dismiss should be granted. However, she conditioned this agreement on her own imbedded motion requesting that the Court deny both sides fees and costs.

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Thus, Plaintiff did not file a substantive response to the motions. As a result, the Court disregarded the deadline to substantively reply previously given to Defendants. Under the civil local rules, Defendants had until January 29, 2009 to reply to Plaintiff's imbedded motion to dismiss this case without awarding fees and costs to either party. No defendant replied within this deadline. On February 6, 2009, the Court granted the motions, based on Plaintiff's agreement that they should be granted, and granted Plaintiff's request that the dismissal be without fees and cost to any party. Now, Plaintiff moves to set aside the judgment arguing that she was relying that Defendants had until February 17, 2009 to reply to her response. First, as discussed above, the Court disagrees with this time calculation. Second, even if someone could assume that additional time would be allowed even though Plaintiff did not file a substantive response, the only party who could rely on such an assumption would be a Defendant who wished to challenge dismissal without fees and costs. Plaintiff has no standing to object to the Court's time calculation because she was not entitled to file anything further regarding the motions to dismiss. Although Defendants would have standing to object, no Defendant has objected to the Court's order and instead, Defendants have opposed Plaintiff's motion to set aside the judgment. Third, as the Mohave Defendants argue in their response, there are specific and narrow bases to set aside a judgment under the Federal Rules of Civil Procedure, and Plaintiff meets none of those bases. Thus, for all of these reasons, Plaintiff's motion to set aside the judgment will be denied. Accordingly, IT IS ORDERED denying Plaintiff's Motion to Set Aside Court's Order of February 6, 2009 (Doc. #91). DATED this 23rd day of March, 2009.

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