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Folta v. Winkle

United States District Court, D. Arizona

January 13, 2016

Shawn Michael Folta, Plaintiff,
v.
Jeffrey Van Winkle, et al., Defendants.

ORDER

Eileen S. Willett United States Magistrate Judge

Pending before the Court are a number of motions. The Court has reviewed the motions and issues its orders as set forth below.

I. DISCUSSION

A. Motions Pertaining to Service of Defendant Basso

On October 26, 2015, Plaintiff filed a “Motion for Service by Publication as to Defendant Richard Basso” (Doc. 61). On November 13, 2015, Defendants filed a “Motion to Extend the Time to Respond to Plaintiff’s Motion for Service by Publication (Doc. 61)” (Doc. 65) and a “Response in Opposition to Plaintiff’s Motion for Service by Publication [Doc. 61]” (Doc. 66). For good cause shown, Defendants Motion to Extend the Time to Respond (Doc. 65) is granted.

In his Motion (Doc. 61), Plaintiff requests to serve Defendant Basso by publication. Defendants oppose Plaintiff’s Motion because the Arizona Attorney General’s Office has obtained Defendant Basso’s home address. (Doc. 66).

Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that service may be made in any manner provided for under state law. Service by publication is permitted under Rule 4.1(n) of the Arizona Rules of Civil Procedure. Arizona law requires that prior to seeking service by publication, a plaintiff must provide an affidavit or declaration evidencing that the plaintiff exercised due diligence to locate a defendant to effect personal service. Barlage v. Valentine, 210 Ariz. 270, 273 (Ariz.Ct.App. 2005).

Plaintiff has not provided such an affidavit or declaration. Moreover, Defendants indicate that Defendant Basso’s home address is now known. Plaintiff’s “Motion for Service by Publication as to Defendant Richard Basso” (Doc. 61) is denied. Defendants’ “Motion for Leave to File Under Seal Defendant Basso’s Home Address” (Doc. 67) is granted. Defendants shall file under seal the home address of Defendant Basso by January 19, 2016. Upon receipt of the address, the Clerk of Court shall prepare and send to the U.S. Marshal a service packet for service of the Summons and Complaint upon Defendant Basso. The time for completing service is extended sixty days from the date this Order is filed.

B. Defendants’ “Motion to Strike Plaintiff’s First Amended Complaint (Doc. 60)” (Doc. 64)

In its October 2015 Order (Doc. 56), the Court granted Plaintiff’s “Motion for Leave to File Amended Complaint.” As Plaintiff submitted only a redline version of the proposed First Amended Complaint with his Motion for Leave, the Court ordered Plaintiff to file a “clean” version of the First Amended Complaint. (Id. at 4). On October 26, 2015, Plaintiff filed a “clean” version of the First Amended Complaint (Doc. 60).

On November 5, 2015, Defendants filed a “Motion to Strike Plaintiff’s First Amended Complaint (Doc. 60)” (Doc. 64). Defendants request that the Court strike Plaintiff’s First Amended Complaint on the ground that Plaintiff failed to comply with the Court’s Order (Doc. 56) by including language in the “clean” version of the First Amended Complaint that was not present in the redline version. In the alternative, Defendants request that the Court screen the First Amended Complaint pursuant to 28 U.S.C. § 1915A(a).

The Court has reviewed the additional language included in the “clean” version of the First Amended Complaint and does not find that it substantially alters the claims presented in the redline version. Accordingly, Defendants’ “Motion to Strike Plaintiff’s First Amended Complaint (Doc. 60)” (Doc. 64) is denied. The Court will screen the First Amended Complaint by separate order.

C. Defendants’ “Motion to Strike Plaintiff’s Filings (DKTS. 8, 9, 14, and 17)” (Doc. 75)

Defendants request that the Court strike the following four documents filed by Plaintiff: (i) “Declaration by Plaintiff Shawn Folta . . .” (Doc. 8); (ii) “Prisoner Civil Rights Complaint Amended by Plaintiff Shawn Folta Request to Supplement Facts in Support of Original Claim” (Doc. 9); (iii) “Declarations of Garrot Jason Deetz and Mark Sanchez in Support of Shawn Michael Folta” (Doc. 14); and (iv) “Declaration of Facts in Support of Claim” (Doc. 17). In his Response (Doc. 78), Plaintiff states that “Doc. # 8, 9, 14, 17 can be striken [sic] in violation of the court’s rules.” It appears that Plaintiff filed the documents in an attempt to disclose them to Defendants during discovery. The documents filed as Document Nos. 8, 9, 14, and 17 are deemed disclosed on Defendants; ...


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