United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
before the Court are certain motions filed by Plaintiff, and
Defendants' motion to dismiss the amended complaint. Oral
argument has not been requested. For reasons stated below,
the Court will deny Plaintiff's motion for
reconsideration (Doc. 13), deny as moot his motion to amend
the complaint (Doc. 14), grant his motion to adjust the case
schedule (Doc. 17) by staying the case for 90 days, and deny
without prejudice Defendants' motion to dismiss (Doc. 19)
for their failure to comply with the Court's Local Rules
of Civil Procedure.
2018, Plaintiff filed his original complaint and sought in
forma pauperis status. Docs. 1, 2. He filed a notice of
military service two weeks later. Doc. 7. The Court denied
the IFP application, but granted Plaintiff an extension of
time to pay the filing fee and serve the summons and
complaint. Doc. 8. Plaintiff subsequently sought orders
requiring the U.S Marshal or the county sheriff to serve
process on his behalf. Docs. 9, 11. The requests were denied.
Docs. 10, 12.
sought leave to amend and lodged a proposed amended complaint
on November 1, 2018. Docs. 14, 15. He subsequently paid the
requisite filing fee and effected service of process. Docs.
20, 23. Defendants moved to dismiss the amended complaint on
November 28, 2018. Doc. 19.
Plaintiff's Motion for Reconsideration.
has filed a motion for reconsideration of the orders denying
his requests for IFP status and alternative service. Doc. 13.
Motions for reconsideration are disfavored and should be
granted only in rare circumstances. See Ross v.
Arpaio, No. CV-05-4177-PHX-MHM, 2008 WL 1776502, at *2
(D. Ariz. Apr. 15, 2008). A motion for reconsideration will
be granted where the Court has overlooked matters or
committed manifest error. See LRCiv 7.2(g)(1);
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
has shown no manifest error in the Court's prior rulings.
Nor has he shown that the Court has overlooked or otherwise
misapprehended matters. Rather, Plaintiff cites two statutes
governing recusal of district judges, 28 U.S.C § 144 and
§ 455. Doc. 13 at 1-4.
144 applies when a party believes that the district judge
“has a personal bias or prejudice either against him or
in favor of any adverse party[.]” 28 U.S.C. § 144.
“Section 144 expressly conditions relief upon the
filing of a timely and legally sufficient affidavit.”
United States v. Sibla, 624 F.2d 864, 867 (9th Cir.
1980). Because Plaintiff has submitted no affidavit, his
request for recusal may not be granted under § 144.
455 provides that a district judge shall disqualify himself
in any proceeding in which his “impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a).
Plaintiff states that he “has no direct information
that would suggest that judicial discretion and prudence is
potentially biased against [him]” or in favor of
Defendants. Doc. 13 at 2. Recusal is not appropriate under
Plaintiff has paid the $400 filing fee and had the summons
and amended complaint served on Defendants (Docs. 20, 23),
rendering moot his motion for reconsideration of the orders
denying the requests for IFP status and alternative service.
The motion will be denied.
Plaintiff's Motion to Amend.
filed a motion to amend the complaint on November 1, 2018.
Doc. 14. Because Defendants had not been served with or
responded to the original complaint as of that date,
Plaintiff was free to amend the complaint as a matter of
course pursuant to Federal Rule of Civil Procedure 15(a).
See Ramirez v. Cty. of San Bernardino, 806 F.3d
1002, 1008 (9th Cir. 2015). The Court will direct the clerk
to file the lodged amended complaint (Doc. 15), and the
motion for leave to amend (Doc. 14) will be denied as moot.
Plaintiff's Motion to ...