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Danam v. Arizona Board of Education

United States District Court, D. Arizona

January 11, 2019

Rafael Cezar Danam, Plaintiff,
v.
Arizona Board of Education, as individual members of the Arizona Board of Education, Diane Douglas, et al., Defendants.

          ORDER

          David G. Campbell Senior United States District Judge.

         Pending 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.

         I. Background.

         In May 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.

         Plaintiff 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.

         II. Plaintiff's Motion for Reconsideration.

         Plaintiff 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. 2003).

         Plaintiff 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.

         Section 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.

         Section 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 § 455.

         Moreover, 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.

         III. Plaintiff's Motion to Amend.

         Plaintiff 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.

         IV. Plaintiff's Motion to ...


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