Opinion
No. CV-06-474-PHX-FJM.
June 16, 2006
ORDER
In our order dated May 16, 2006, we granted Christine Scattergood's motions to dismiss (docs. 3 and 8). We now have before us Gary Walsh's motion for reconsideration (doc. 14).
The order was served by mail to Walsh on May 18, 2006. Pursuant to Rules 5 and 6, Fed.R.Civ.P., and LRCiv 7.2(g), Walsh had through June 6, 2006 to move for reconsideration. Walsh untimely filed his motion on June 8, 2006 and it is accordingly denied.
Furthermore, Walsh would not have prevailed even if his motion had been timely filed. Nothing in the motion causes us to reconsider our conclusions with regard to his federal claims. And Walsh's unsworn assertion of intent to remain in Washington is insufficient to establish diversity jurisdiction; he failed to submit a sworn declaration or other evidence of his intent.
Furthermore, Walsh would not have prevailed even if he had established diversity jurisdiction because he did not assert any state law claims. Count 2 most closely resembles a state law claim but it is described as a federal law constructive fraud claim.
Finally, Walsh would not have prevailed even if his fraud claim were premised on state rather than federal law. He contends that Scattergood defrauded him by inducing him to deed his properties to her, and by making misrepresentations to the state court. These claims are vague and therefore fail to meet the Rule 9(b), Fed.R.Civ.P., heightened pleading standard for fraud claims. Moreover, the parties stipulated that Scattergood would keep the disputed properties, and a divorce decree was entered upon that stipulation. Walsh should have raised these claims during those proceedings.
For all these reasons, IT IS ORDERED DENYING plaintiff's motion for reconsideration (doc. 14).
Walsh's remedies, if any, lie in state court. We strongly advise Walsh to seek the advice of counsel. He may wish to call the Lawyer Referral Service of the Maricopa County Bar Association at 602-257-4434 for a referral.