Opinion
CV-21-00027-TUC-RM
10-06-2021
John Woolsey, Petitioner, v. United States of America, Respondent.
ORDER
Hon. Rosemary Marquez United States District Judge
Pending before the Court is Plaintiff's Motion Seeking Recission Order and Motion to Show Cause (Doc. 18) and Motion for Extension of Time (Doc. 19).
I. Motion Seeking Recission Order (Doc. 18)
In his Motion Seeking Recission Order (Doc. 18), Petitioner seeks reconsideration of the Court's August 31, 2021 Order granting the Government's Motion for Extension of Time and Denying Petitioner's Motion for Default Judgment. (Doc. 17.) In that Order, the Court granted the Government's request for an extension of time in which to respond to Petitioner's Second Amended § 2255 Motion nunc pro tunc and considered the Government's Response to Petitioner's § 2255 Motion timely. (Id.) Petitioner did not file a response to the Government's request for an extension of time prior to issuance of the Order. (See id.)
In his pending Motion, Petitioner argues that he never received a copy of the Government's Motion requesting the extension of time (Doc. 14) and that this failure to serve him with the motion violated his due process rights (Doc. 18). He seeks “recission” of the August 31, 2021 Order, an order requiring the Government to serve its motions upon him, and an order to show cause as to why Petitioner was not served with the Motion. (Id.)
LRCiv 7.2(g) sets forth the standard under which a Court reviews a Motion for Reconsideration. It states:
The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence. Any such motion shall point out with specificity the matters that the movant believes were overlooked or misapprehended by the Court, any new matters being brought to the Court's attention for the first time and the reasons they were not presented earlier, and any specific modifications being sought in the Court's Order. No. motion for reconsideration of an Order may repeat any oral or written argument made by the movant in support of or in opposition to the motion that resulted in the Order. Failure to comply with this subsection may be grounds for denial of the motion.
In the District of Arizona, motions for reconsideration will be granted when:
(1) There are material differences in fact or law from that presented to the Court and, at the time of the Court's decision, the party moving for reconsideration could not have known of the factual or legal differences through reasonable diligence;
(2) There are new material facts that happened after the Court's decision;
(3) There has been a change in the law that was decided or enacted after the Court's decision; or
(4) The movant makes a convincing showing that the Court failed to consider material facts that were presented to the Court before the Court's decision.Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 586 (D. Ariz. 2003). “Reconsideration is indicated in the face of the existence of new evidence, an intervening change in the law, or as necessary to prevent manifest injustice.” Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). Whether to grant reconsideration is within the sound discretion of the trial court. Id. A denial of a motion for reconsideration is reviewed for abuse of discretion. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000).
Although Petitioner argues that he did not receive a copy of the Government's motion requesting an extension of time prior to the issuance of the Court's order granting that motion, that fact does not affect the reasoning that the Court relied upon in granting the Government an extension of time. (See Doc. 17.) Specifically, the Court found that the public interest favors resolution of § 2255 petitions on the merits and found that the Government's delayed response was due to excusable neglect. (Id.) In light of these and other factors, the Court granted the Government an extension of time. Petitioner's Motion does not address these conclusions, nor does it assert that manifest error or manifest injustice requires reconsideration of the Court's Order. Instead, Petitioner asserts, in conclusory fashion, a violation of his due process rights, without explaining why that alleged violation mandates reconsideration of the Court's Order. Thus, Petitioner's Motion will be denied.
Parties are required to serve their pleadings upon the opposing party. Fed.R.Civ.P. 5(a)(1). The Government shall timely serve all future filings upon Petitioner. Failure to do so may result in sanctions.
II. Motion for Extension of Time (Doc. 19)
In his Motion for Extension of Time, Petitioner seeks an extension of time in which to respond to the Government's Motion for Extension of Time (Doc. 14) as well as to file a Reply to the Government's Response to the Second Amended § 2255 (Doc. 16). For the reasons set forth above, the Court will deny Petitioner's request for an extension of time in which to respond to the Government's Motion for Extension of Time, upon which the Court has already ruled. (See Doc. 17.)
In support of his request for an extension of time in which to file a Reply to the Government's Response, Petitioner states that he received the Response on September 22, 2021 and that his access to legal resources in the prison has been hindered by “Correctional Officers [appreciation] week.” (Doc. 19.) Although Petitioner requests an extension of sixty (60) days, the Court finds good cause to grant an extension of only thirty (30) days. Petitioner may request a further extension if it becomes necessary.
Accordingly, IT IS ORDERED that Petitioner's Motion Seeking Recission Order and Motion to Show Cause (Doc. 18) is denied.
IT IS FURTHER ORDERED that the Government shall comply with Federal Rule of Civil Procedure 5 by timely serving all filings upon Petitioner.
IT IS FURTHER ORDERED that Petitioner's Motion for Extension of Time (Doc. 19) is granted in part and denied in part. The Motion is granted insofar as Petitioner shall file his Reply to the Government's Response to the Second Amended § 2255 Motion within thirty (30) days from the date this Order is filed. The Motion is otherwise denied.