United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Wendy Sue Walker's
(“Plaintiff”) Motion to Continue Hearing (Doc.
10). The Court now rules on this motion.
19, 2018, Plaintiff filed an Application for Leave to Proceed
In Forma Pauperis. (Doc. 2). This Court granted
Plaintiff's Application on July 23, 2018. (Doc. 6). The
Order required the Clerk of the Court to send Plaintiff a
service packet, including summons and request for waiver
forms. (Id.) The Order also included instructions
requiring Plaintiff to complete and return the service packet
to the Clerk of the Court within thirty days of the filing of
the Order. (Id.)
did not return the service packets within thirty days, as
required by the Order. (See Doc. 8). This Court
subsequently scheduled a Show Cause Hearing for September 12,
2018, at 4:00 p.m. (Id.) This hearing was scheduled
to afford Plaintiff an opportunity to show cause for her
failure to comply with the previous order. Plaintiff failed
to appear. (Id.) Because Plaintiff failed to show
cause for her failure to comply with the previous order, this
Court, after considering the factors in Henderson v.
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986), dismissed
the matter without prejudice. (Id.).
following day, September 13, 2018, Plaintiff filed a Motion
to Continue (styled as a “Motion to Reschedule
Hearing”). (Doc. 10). The Court now addresses
MOTION TO CONTINUE HEARING
is no legal mechanism by which Plaintiff may request an
extension of time or continuance for a hearing which has
already transpired. This is especially true in a case, such
as this one, where the underlying matter has already been
closed. As such, this Court finds no justification whereby it
may consider Plaintiff's motion.
MOTION TO REOPEN
this Court will liberally construe Plaintiff's motion as
a motion to reopen the case under Federal Rule of Civil
Procedure 59 (“Rule 59”). “A Rule 59 motion
should not be granted ‘unless the district court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law.'” McQuillion v. Duncan,
342 F.3d 1012, 1014 (9th Cir. 2013) (quoting McDowell v.
Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en
motion does not allege any clear error on part of this Court,
nor does it reference any change in controlling law.
Furthermore, this Court is unaware through its own
research-conducted as a result of Plaintiff's pro se
status-of any legal error or any changes in the law which
might justify reopening Plaintiff's case.
Plaintiff's motion does include, ostensibly, new
evidence. (Doc. 10). Plaintiff has included a receipt from an
automobile parts store, indicating the purchase of a radiator
cap, at approximately 10:00 AM on September 12, 2018-the date
of Plaintiff's hearing, which was scheduled at 4:00 PM.
(Id.; see Doc. 8). Plaintiff further alleges that
she was unable to attend the hearing as scheduled as a result
of “vehicle trouble” which caused her to be
unable to “make it in time to appear.” (Doc. 10).
evidence does not materially advance the merits of Plaintiff
s motion. Plaintiffs new evidence shows only that she
purchased an item from an automobile parts store on the date
of her scheduled hearing. Plaintiff has not shown how this
evidence would support her underlying claim, nor has
Plaintiff provided any justification for her failure to
comply with this Court's previous orders. As such,
Plaintiff has shown no reason, and this Court finds no
reason, why this matter should be reopened.