Nowak v. Isles Homeowners' Association

Filing 26

ORDER that the Clerk of Court is kindly directed to seal Plaintiff's emailand mail or electronically deliver a complete copy of Plaintiff's email and this Order to Plaintiff and counsel of record. This Order, however, is not sealed. Signed by Magistrate Judge Lawrence O Anderson on 1/18/13. (Attachments: # 1 Sealed E-Mail)(MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kirk Nowak,
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Plaintiff,
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vs.
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Isles Homeowners’ Association,
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Defendant.
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No. CV-12-8023-PCT-FJM
ORDER

The undersigned Magistrate Judge has received from pro se Plaintiff an un-

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solicited and prohibited ex parte e-mail in his chamber’s e-mailbox. Though the under-

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signed is neither the assigned trial judge nor has the case been referred to him, this Judge

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was assigned to conduct a settlement conference in May 2012 which was never held.

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Because Plaintiff’s e-mail does not reflect a copy was sent to counsel of record, the

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Court deems the letter to be an innocent but prohibited ex-parte communication with the

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Court. See Best Western Intern., Inc. v. Melbourne Hotel Investors, LLC, 2008 WL

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2945513, at *1 n. 1 (D. Ariz. July 28, 2008) (“[E]x parte communications are barred even

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if it is not clear that the lawyer intended to influence the judge.”) (citation omitted); see

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also San Carlos Apache Tribe v. Bolton ex rel. County of Maricopa, 194 Ariz. 68, 977

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P.2d 790, 794 (Ariz. 1999) (“[W]ith some exceptions, ‘all parties or their lawyers shall be

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included in communications with a judge.’” (citation omitted)). “Canon 3(B)(7) generally

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prohibits a judge from initiating, permitting, or considering communications made

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‘outside the presence of the parties concerning a pending or impending proceeding.’” San

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Carlos Apache Tribe, 194 Ariz. 68, 977 P.2d at 794; see also Church of Scientology

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Intern. v. Kolts, 846 F.Supp. 873, 877 n. 2 (C.D. Cal. 1994). Like the lawyer in San

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Carlos Apache Tribe, Plaintiff is cautioned against initiating ex parte communications

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with an adjudication judge. Id. at 796.

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Except for this Order, the e-mail will be filed under seal with no action or response

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taken by the undersigned Magistrate Judge. Plaintiff is directed to comply with Rule

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5(a)(1), Fed.R.Civ.P., regarding all future pleadings, letters, e-mails or other writings in

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this matter and to reflect such mailing or delivery on the filing or document itself. Unless

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expressly authorized by the judge or rule, all future pleadings, letters, e-mails or other

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writings in this case must not mailed or delivered to such judge.

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Accordingly,

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IT IS ORDERED that the Clerk of Court is kindly directed to seal Plaintiff’s e-

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mail and mail or electronically deliver a complete copy of Plaintiff’s email and this Order

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to Plaintiff and counsel of record. This Order, however, is not sealed.

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Dated this 18th day of January, 2013.

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