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Sons of Hell Motorcycle Club v. Arizona Department of Public Safety

United States District Court, D. Arizona

August 25, 2014

Sons of Hell Motorcycle Club, et al., Plaintiffs,
Arizona Department of Public Safety, et al., Defendants.


PAUL G. ROSENBLATT, District Judge.

Pending before the Court is Plaintiffs' Motion for Relief From Order (Doc. 27), wherein the plaintiffs seek to have the judgment dismissing their action vacated pursuant to Fed.R.Civ.P. 60(b). Having considered the motion in light of the defendants' Joint Response to Plaintiffs' Motion for Relief From Order (Doc. 28) and the plaintiffs' failure to file any reply in support of their motion, the Court finds that the motion should be denied.[1]


The plaintiffs, who consist of the Sons of Hell Motorcycle Club and fifteen individuals, filed their Civil Rights Complaint Pursuant to 42 U.S.C. ยง 1983 on July 19, 2013, through attorney Philip A. Seplow of Phoenix. The complaint alleges that the defendants, who consist of three Arizona and Coconino County law enforcement agencies or organizations and eighteen state and county law enforcement officers and seventeen of their spouses, violated several of the plaintiffs' constitutional rights on July 23, 2011 during a multiple homicide investigation.

On November 27, 2013, the defendants filed a Joint Motion to Exceed Page Limit, wherein they requested permission to file an overlength motion to dismiss this action; the defendants served their motion on Mr. Seplow. On December 9, 2013, attorney Stephen P. Stubbs of Las Vegas filed an application pursuant to LRCiv 83.1(b)(2) to appear in this action pro hac vice on behalf of the plaintiffs; the Clerk of the Court granted that application on December 9, 2013. On January 2, 2014, the Court vacated the Scheduling Conference that had been set for January 13, 2014, and granted the defendants leave to file their lodged motion to dismiss; notice of the Court's order was given to both Mr. Seplow and Mr. Stubbs. The Defendants' Joint Motion to Dismiss All Claims was filed on January 2, 2014, and notice of that filing was given to both Mr. Seplow and Mr. Stubbs. The defendants' twenty-two page motion sought the dismissal of the plaintiffs' complaint in its entirety principally pursuant to Fed.R.Civ.P. 12(b)(6).

The Court granted the defendants' motion to dismiss on June 9, 2014, pursuant to LRCiv 7.2(i) due to the plaintiffs' failure to respond in any manner to the motion.[2] The Clerk of the Court entered judgment for the defendants that same day.

On July 7, 2014, the plaintiffs, through their Las Vegas counsel, Stephen Stubbs, filed a Motion for Relief From Order, wherein they seek to have the judgment against them vacated pursuant to Fed.R.Civ.P. 60(b) so that they can now respond to the defendants' motion to dismiss. The defendants filed their Joint Response to Plaintiffs' Motion for Relief From Order on July 18, 2014. The plaintiffs have not filed any reply in support of their motion, and their time to do so pursuant to LRCiv 7.2(d) expired on July 28, 2014.


The plaintiffs seek to vacate the judgment entered against them pursuant to one or more portions of Fed.R.Civ.P. 60(b) solely on the ground that their failure to respond to the motion to dismiss was caused by Stephen Stubbs' "inexperience in Arizona and Federal judicial procedures." The Court concludes that the plaintiffs have failed to meet their burden of establishing that the judgment in this action should be vacated under any provision of Rule 60(b).

A. Failure to Discuss Co-Counsel

The Court initially notes that the plaintiffs' motion is fatally flawed from the outset because it relies solely on Mr. Stubbs' conduct while totally ignoring the fact that at the time this action was dismissed the plaintiffs were also represented by Philip Seplow, the attorney who filed this action on their behalf.[3] Nothing is said by the plaintiffs about Mr. Seplow's subsequent role in their representation or why he never responded to the motion to dismiss on their behalf. Under LRCiv 83.3, Mr. Seplow remained a counsel of record for the plaintiffs throughout the prosecution of this action, and still so remains, because their Rule 60(b) motion was filed prior to the expiration of the appeal period and because no motion seeking his withdrawal has ever been filed, much less approved by the Court.[4] The plaintiffs' inexplicable failure to raise any Rule 60(b)-related argument regarding Mr. Seplow's inaction regarding the motion to dismiss is in and of itself a sufficient basis to deny them Rule 60(b) relief.

B. Rule 60(b)(1)

Even if Mr. Seplow's presence as co-counsel was not a determinative factor into the Court's reasoning, the Court would still decline to vacate the judgment because what minimal reasoning the plaintiffs have put forth is simply unpersuasive. Although it is not clear from their motion, it appears that the plaintiffs are relying mainly on Rule 60(b)(1), which provides that "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect[.]"[5] The Court presumes from the plaintiffs' argument that they are relying on the defense of excusable neglect based on Stephen Stubbs' inexperience in litigating this type of case. Although the plaintiffs never discuss what the concept of excusable neglect entails, they state that no response was filed to the defendants' motion to dismiss because Mr. Stubbs' law practice started as a tax law-only practice and he is "now starting to work on personal injury and civil rights matters, " he "is new to Federal procedures and duties of civil procedure when a motion is filed by another party, " he "was not aware of all the technicalities of responding to a formal Motion to Dismiss, " and he "is not specifically aware of Arizona and Federal rules of procedure." The plaintiffs also state that Mr. Stubbs reasonably determined that the plaintiffs "did not need to formal[ly] oppose the Motion on the merits [because] Plaintiffs' claims were clearly outlined in the Complaint" and "a response would have entailed the same facts presented in Plaintiffs' Complaint." They further state that Mr. Stubbs "expected to argue the details in person at the hearing of Defendants' Motion to Dismiss."

Leaving aside the issue of whether the plaintiffs' response represents an admission that Mr. Stubbs was not competent to represent the plaintiffs in this action when he was granted pro hac vice admission[6], the plaintiffs have not established that his purported lack of knowledge of applicable procedural rules amounts to excusable neglect under the totality of the relevant circumstances. As the defendants correctly point out, LRCiv 83.1(b)(2), which governs Mr. Stubbs' pro hac vice admission, provides in part that "[a]ttorneys admitted to practice pro hac vice must comply with the Rules of Practice of the United States District Court for the District of Arizona." ("Local Rules"); furthermore, by signing the pro hac vice application form, Mr. Stubbs specifically certified that he would comply with the Court's Local Rules. These rules, which Mr. Stubbs clearly did not review as required, specifically provide a time period for responding to a motion to dismiss, see LRCiv 7.2(c) (fourteen days after service) and LRCiv 12.1(b) (30 days after service if a jurisdictional defense is raised in the motion), and they specifically set forth the potential consequence for failing to oppose a motion. See LRCiv 7.2(i) ("... if... counsel does not serve and file the required answering memoranda, ... such non-compliance may be deemed a consent to the... granting of the motion and the Court may dispose of the motion summarily.") The Local Rules also specifically state that even if a party requests oral argument ...

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