Elliott v. Bank of America
Filing
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ORDER that Plaintiff's 30 Motion to Strike is denied. It is further ordered that Plaintiff's 32 Motion for Reconsideration is denied. Signed by Judge James A Teilborg on 07/25/11. (ESL)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Bartlett Elliott,
Plaintiff,
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vs.
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Bank of America, N.A.,
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Defendant.
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No. CV 10-0251-PCT-JAT
ORDER
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Pending before the Court is Plaintiff’s Motion to Strike Defendant’s Motion for
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Summary Disposition (Dkt. 30), and Plaintiff’s Motion for Reconsideration (Dkt. 32).
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I.
BACKGROUND
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On January 25, 2010, pro se Plaintiff filed a complaint against Defendant concerning
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“United States Government ‘STIMULUS’ check(s) sent to Bartlett and Delora F. Elliott.”
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(Dkt. 1.) Plaintiff attempted to charge Defendant with theft by false pretense, embezzlement,
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and fraud, and sought damages in the amount of $1,000,000. (Id.) Defendant denied
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Plaintiff’s allegations. (Dkt. 7.)
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On July 19, 2010, the Court continued the Rule 16 conference, and ordered Plaintiff
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to show cause as to (1) why Plaintiff should not be sanctioned for failing to appear at the
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conference, and (2) why Plaintiff failed to participate in the preparation of the case
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management plan. (Dkt. 14.) At the show-cause hearing on August 23, 2010, the Court
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found that Plaintiff failed to show cause why sanctions should not be imposed, and ordered
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Defendant to submit an application for reasonable attorney’s fees. (Dkt. 18.) The Court
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ordered that any further defaults by Plaintiff would result in the Court’s dismissal of this
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action. (Id.)
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On March 4, 2011, Defendant filed a Motion for Summary Judgment. (Dkt. 23.)
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When Plaintiff failed to respond to the motion in a timely manner, Defendant filed a Motion
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for Summary Disposition 60 days later. (Dkt. 25.) The Court granted Defendant’s Motion
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for Summary Judgment, finding that there was no factual or legal basis to support Plaintiff’s
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claims, and dismissed this action with prejudice. (Dkt. 26.) Because the Court analyzed the
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Motion for Summary Judgment on its merits, the Court denied Defendant’s Motion for
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Summary Disposition as moot. (Id.) No hearing was set or conducted in connection with
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Defendant’s motions.
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II.
ANALYSIS
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For the reasons that follow, the Court will deny Plaintiff’s pending motions.
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A.
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In his one-page Motion to Strike Defendant’s Motion for Summary Disposition,
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Plaintiff states that he was unable to attend the Court’s hearing, and requests a hearing so that
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“due process can be fulfilled.” (Dkt. 30.) As noted above, the Court did not conduct a
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hearing in connection with its ruling on the uncontested Motion for Summary Judgment; it
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is unclear what hearing Plaintiff refers to in his motion. Additionally, Plaintiff does not
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explain how his failure to attend a hearing justified his failure to file a response to either
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Defendant’s Motion for Summary Judgment, or Defendant’s Motion for Summary
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Disposition. Regardless, this action has been dismissed with prejudice, and the Court will
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not conduct a hearing in order to re-open this case.
Motion to Strike
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With respect to the caption of Plaintiff’s motion, Plaintiff does not cite any basis for
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striking Defendant’s Motion for Summary Disposition, and Plaintiff fails to support his
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request with any analysis. Further, the Court denied the Motion for Summary Disposition
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as moot. Therefore, Plaintiff’s request to strike the motion must also be moot. If, instead,
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Plaintiff intended to request the Court strike Defendant’s Motion for Summary Judgment
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from the record, Plaintiff’s request is untimely. The motion has been granted, and the time
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to appeal the Court’s order dismissing this action with prejudice elapsed before Plaintiff filed
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his motion.
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Finally, to the extent that Plaintiff requests the Court reconsider (inexplicably) its
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denial of Defendant’s Motion for Summary Disposition, or (presumably) its grant of
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summary judgment, Plaintiff’s request is also untimely. The Local Rules require motions for
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reconsideration to be filed no later than 14 days after the filing of the challenged order. See
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Rules of Practice of the U.S. District Court for the District of Arizona (“LRCiv”) 7.2(g)(2).
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Plaintiff’s motion was filed more than 30 days after the Court granted summary judgment
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in favor of Defendant, and against Plaintiff. (Dkt. 26 & 27.) Therefore, Plaintiff’s motion
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is untimely.
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For the reasons set forth above, the Court will deny Plaintiff’s Motion to Strike
Defendant’s Motion for Summary Disposition.
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B.
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Plaintiff captioned his second one-page motion as a Response to Defendant’s Motion
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for Summary Disposition and a Motion for Reconsideration. (Dkt. 32.) To the extent that
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Plaintiff is attempting to file a response to Defendant’s Motion for Summary Disposition,
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that response is untimely and moot. The Court, as noted above, denied Defendant’s Motion
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for Summary Disposition as moot on May 20, 2011.
Motion for Reconsideration
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With respect to Plaintiff’s Motion for Reconsideration, Plaintiff does not identify the
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particular order that Plaintiff requests the Court reconsider, nor does Plaintiff provide any
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analysis as to why the Court should reconsider a prior order. The Local Rules require a party
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to show “manifest error,” or “new facts or legal authority” that could not have been brought
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to the Court’s attention earlier. LRCiv 7.2(g)(1). Plaintiff has not pointed out any matters
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that Plaintiff believes were overlooked or misapprehended by the Court, or any new matters.
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Instead, Plaintiff implicitly asks the Court to overlook Plaintiff’s failure to respond to
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Defendant’s motions. The Court previously warned Plaintiff that any further defaults by
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Plaintiff would result in the Court’s dismissal of this action. (Dkt. 18.) Plaintiff did not heed
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the Court’s warning, and the Court finds no reason to re-open this action.
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Regardless of the dearth of analysis, Plaintiff’s Motion for Reconsider is untimely,
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because the motion was not filed within 14 days of any order. See LRCiv 7.2(g)(2). Plaintiff
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requests “the Court’s mercy” and states that Defendant is attempting to deny Plaintiff’s right
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to due process. However, Plaintiff failed to file a response, timely or otherwise, to
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Defendant’s Motion for Summary Judgment. Further, Plaintiff did not file a response to
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Defendant’s Motion for Summary Disposition, which was filed 60 days after the filing of the
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summary judgment motion.
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Therefore, the Court will deny Plaintiff’s Motion for
Reconsideration.
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Accordingly,
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IT IS HEREBY ORDERED that Plaintiff’s Motion to Strike (Dkt. 30) is DENIED.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Reconsideration (Dkt. 32)
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is DENIED.
DATED this 25th day of July, 2011.
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