Opinion
Nos. CR 05-0031-PHX-MHM, CV 05-3868-PHX-MHM (JCG).
May 19, 2006
ORDER
Movant has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Dkt. #24). Upon the filing of the motion, the Court sent to Movant the Notice of Assignment confirming the case number and assignment, and warning Movant to notify the Court of any address changes. The Notice of Assignment was subsequently returned in the mail (Dkt. #25). After research, Movant's new address was found to be the Northeast Ohio Correctional Institution in Youngstown, Ohio. Because Movant did not receive the initial warning regarding the need to notify the Court if he was transferred, and given that a § 2255 motion must be filed within one year from the date of judgment, the Court will provide Movant with an opportunity to correct his Motion which was filed without his signature.
A. Motion Is Not Signed
Rule 11 of the Federal Rules of Civil Procedure requires all pleadings to be signed. In addition, Rule 3.5(a) of the Local Rules of Civil Procedure specifically requires that Motions to Vacate be signed by the petitioner. The Motion filed in this action has not been signed. Accordingly, Movant will be given 30 days to file a completed and signed Certificate (as attached), certifying that Movant's signature on the Certificate shall serve as an original signature on his Motion for the purposes of Rule 11 of the Federal Rules of Civil Procedure, and Rule 3.5(a) of the Local Rules of Civil Procedure.
B. Warning of Possible Dismissal
Movant should take notice that if he fails to file the required Certificate within 30 days of the date this Order is filed, the Motion will be stricken pursuant to Rule 11(a), Fed.R.Civ.P., ("unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party"), and the action dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992).
C. Warnings 1. Address Changes
Movant must file and serve a notice of a change of address 10 days before the move is effective, if practicable. See LRCIV 83.3(d). Movant shall not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal.
2. Copies
Movant must serve Respondent, or counsel if an appearance has been entered, a copy of every document that he files. FED. R. CIV. P. 5(a). Each filing must be accompanied by a certificate stating that a copy of the filing was served. FED. R. CIV. P. 5(d). Also, Movant must submit an additional copy of every filing for use by the Court. LRCIV 5.4. The Court may strike any filing that fails to comply with these requirements.
3. Possible dismissal
Movant is warned that failure to timely comply with every provision of this Order, including these warnings, may result in dismissal of this action without further notice. See Ferdik, 963 F.2d at 1260-61 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the Court).
IT IS THEREFORE ORDERED:
(1) That within 30 days of the date this Order is filed, Movant shall file a completed and signed Certificate on the form provided with this Order, certifying that Movant's signature on the Certificate shall serve as an original signature on his Motion for the purposes of Rule 11 of the Federal Rules of Civil Procedure Rule 3.5(a) of the Local Rules of Civil Procedure.
(2) That the Clerk of the Court shall strike the Motion and enter dismissal of the civil action associated with this action without prejudice and without further notice to Movant, if within 30 days from the date this Order is filed, Movant fails to file the signed Certificate; and
(3) That the Clerk of the Court is directed to provide Movant with a copy of the Motion filed on December 1, 2005 (Dkt. #24). Movant must return the copy of the Motion with his Certificate.
CERTIFICATE OF SIGNATURE
I hereby certify that I have read the Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 filed by me on December 1, 2005, and that to the best of my knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law, (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery, and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. further certify that my signature on this document shall serve as an original signature on the above referenced Motion for the purposes of Rule 11 of the Federal Rules of Civil Procedure and LRCiv 3.5(a).
Executed on this _______ day of ____________________, 2006.
_______________________________ Movant's Signature