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Folta v. Winkle

United States District Court, D. Arizona

July 27, 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 rulings as set forth below.

         I. DISCUSSION

         A. Defendants’ “Motion for Clarification of an Order (Doc. 104)” (Doc. 120)

         On November 19, 2014, the Court issued an order requiring Defendants Burke, Basso, and Contreras to answer Plaintiff’s three-count Complaint (Doc. 1). (Doc. 13). The Court granted Plaintiff’s request for leave to file a First Amended Complaint that amended Counts Two and Three and named as additional defendants Correctional Officer II Schiavo and Deputy Warden Van Winkle. (Doc. 56). Plaintiff filed his First Amended Complaint (Doc. 60), [1] and on April 13, 2016, the Court issued a screening order (Doc. 104) requiring Defendants Burke, Basso, and Contreras to answer Counts One, Two, and Three of the First Amended Complaint. The Court dismissed without prejudice Deputy Van Winkle and ordered Defendant Schiavo to answer Count Three.

         On May 19, 2016, Defendants filed a “Motion for Clarification of an Order (Doc.104)” (Doc. 120). Defendants seek clarification as to whether Defendant Basso must respond to Count One of the First Amended Complaint. The Court ordered Defendant Basso to answer the original three-count Complaint. Plaintiff’s First Amended Complaint did not materially amend Count 1. The Court’s April 13, 2016 Order (Doc.104) speaks for itself and no further clarification is needed. Moreover, as Defendant Basso has answered all three counts of the First Amended Complaint, the Motion for Clarification is now moot. (Doc. 121 at 2). Defendants’ Motion for Clarification (Doc.120) will be denied.

         B. Defendants’ “Motion to Strike Stacey [sic] Estes Scheff’s Limited Notice of Appearance (DKT. 118) and Request to Provide Guidance” (Doc. 122)

         On May 10, 2016, attorney Stacy Scheff filed a “Notice of Appearance (Limited Scope-Motion for Sanctions re: Doc 111)” (Doc. 118) (the “Limited Notice of Appearance”). The Limited Notice of Appearance states that the “Law Office of Stacy Scheff hereby enters its appearance” for Plaintiff for the “limited scope of pursuing a Motion for Sanctions against Assistant Attorney General Lucy Rand, and Defendants Contreras & Burke arising from Doc. 111, Motion for Reconsideration.”

         On May 31, 2016, Defendants filed a “Motion to Strike Stacey [sic] Estes Scheff’s Limited Notice of Appearance (DKT. 118) and Request to Provide Guidance” (Doc. 122). Defendants assert that no local or federal procedural rule allows an attorney to make a limited scope appearance in the United States District Court for the District of Arizona and move to strike the Limited Notice of Appearance. (Doc. 122).

         The Federal Rules of Civil Procedure do not expressly authorize or prohibit an attorney’s limited scope appearance in a federal action. While the Local Rules of Civil Procedure in some districts expressly authorize limited scope appearances, the Local Rules of Civil Procedure in the District of Arizona are silent as to such appearances. See, e.g., D. Kan. Civ. R. 83.5.8; D.N.H. Civ. R. 83.7.

         Rule 83(b) of the Federal Rules of Civil Procedure provides that when there is no controlling law, a “judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and the district’s local rules.” As Defendants acknowledge (Doc. 134 at 2), judges in the District of Arizona have allowed attorneys to appear in prisoner civil rights cases for the limited scope of participating in the Court’s inmate mediation program. A limited scope appearance is not inconsistent with federal law or the Federal and Local Rules of Civil Procedure. The Court therefore finds that under Rule 83(b), it may allow Ms. Scheff to appear for the limited purpose of pursuing sanctions with respect to Defendants’ Motion for Reconsideration. The Court further finds good cause to permit Ms. Scheff to make a limited scope appearance for that purpose. Accordingly, the Court will deny Defendants’ “Motion to Strike the Stacey [sic] Estes Scheff’s Limited Notice of Appearance (DKT. 118)” (Doc. 122).

         The Court will grant Defendants’ “Request to Provide Guidance” (Doc. 122) as follows: unless the Limited Notice of Appearance (Doc. 118) is amended, Ms. Scheff is allowed to participate in this matter only with respect to (i) Plaintiff’s “Notice of Intent to Seek Sanctions” (Doc. 119); (ii) Plaintiff’s “Motion for Sanctions Re: Doc 111” (Doc.125); (iii) Defendants’ “Motion to Strike Notice of Intent to Seek Sanctions . . . .” (Doc.123); and (iv) Defendants’ “Motion to Strike or Summarily Deny Motion for Sanctions(doc. 125)” (Doc. 127).

         C. Defendants’ “Motion to Strike Notice of Intent to Seek Sanctions and Exhibit (Dkts. 119, 119-1) and to Bar Motion for Sanctions” (Doc. 123)

         On May 10, 2016, Plaintiff, through his limited scope attorney, filed a “Notice of Intent to Seek Sanctions” (Doc. 119) stating that unless Defendants withdraw their Motion for Reconsideration (Doc. 111) within twenty-one days, Plaintiff will seek sanctions pursuant to Rule 11 of the Federal Rules of Procedure. Attached to the Notice is a “Motion for Sanctions re: Doc ...


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