Opinion
CV 11-08140-PCT-FJM
10-13-2011
Ruth Bradburn Mitchell; Kenneth Christopher Mitchell, Plaintiffs, v. City of Flagstaff; Roy Taylor,Defendants.
ORDER
The court has before it Counsel Lee Phillips' request for clarification of non-representation of plaintiffs (doc. 9). We also have before us defendant City of Flagstaff's motion to dismiss state law claims (doc. 4). The deadline for plaintiffs to respond to the motion to dismiss was October 7, 2011. Plaintiffs have not responded.
This case arises out of the death of Kenneth Mitchell. Officer defendant Roy Taylor responded to a disturbance call on August 25, 2010 that culminated in Officer Taylor shooting and killing Kenneth Mitchell. Plaintiffs originally filed this action in the Superior Court of Arizona in Coconino County on August 22, 2011 alleging three claims: (1) negligence - wrongful death; (2) deprivation of constitutional rights pursuant to 42 U.S.C. § 1983; and (3) negligent infliction of emotional distress. At the time, plaintiffs were represented by Tom Shorall, Jr. and Scott Zerlaut of Shorall McGoldrick Brinkmann. The Shorall firm filed a motion to withdraw as counsel in the Coconino County court on September 9, 2011. In this motion, the Shorall firm indicated that plaintiffs would continue to be represented by co-counsel, Lee Phillips. The state court granted the motion on September 13, 2011. Defendants removed this action on the same day, and defendant City of Flagstaff filed its motion to dismiss on September 20, 2011.
Lee Phillips, a criminal defense lawyer, filed a request for clarification of non-representation with this court on September 30, 2011. Phillips seeks a confirmation from this court whether he represents plaintiffs, and if so, time to file a motion to withdraw as counsel. On October 12, 2011, Michael Pearson and Daniel Riley of Curry, Pearson & Wooten, PLC entered a notice of appearance as counsel of record on behalf of plaintiffs (doc. 10). We therefore clarify that Lee Phillips is not representing plaintiffs in this matter.
We are reluctant to rule on the motion to dismiss without first giving plaintiffs and new counsel the opportunity to respond. We therefore order sua sponte an extension of time for plaintiffs to file their response to defendant City of Flagstaff's motion to dismiss.
IT IS ORDERED THAT plaintiffs shall have to and including November 3, 2011 to file their response to the motion to dismiss.
The clerk shall update the docket to indicate that Lee Brooke Phillips is no longer counsel for plaintiffs.
Frederick J. Martone
United States District Judge