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Viola Romero-Wright Principal Assistant City Attorney for MICHAEL G. RANKIN City Attorney P.O. Box 27210 Tucson, AZ 85726-7210 Viola.Romero@tucsonaz.gov Telephone: (520) 791-4221 Fax: (520) 791-4188 State Bar Computer No. 15989 Attorneys for: Defendants

IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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ROY WARDEN,

13-CV-01067-TUC-DCB
Plaintiff, vs. BOB WALKUP, et al, Defendants.

MOTION TO SET ASIDE DEFAULT JUDGMENT

(Hon. Judge David C. Bury)

Pursuant to Rules 55(c) and 60(b) of the Federal Rules of Civil Procedure, Defendants Robert Walkup, Steve Kozachik, Richard Miranda, Mike Rankin,

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Antonio Riojas, Roberto Villasenor, Jeffrey Couch, and the City of Tucson ask this Court to set aside the default judgments entered in CV-13-1067-TUC-DCB, and to screen this complaint prior to allowing service and/or dismiss this complaint for failure to state a claim or res judicata for the following reasons. Rule 55(c) states [t]he court may set aside an entry of default for good

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cause

Good cause exists for this Court to set aside the default in CV-13-

1067-TUC-DCB. First, plaintiff is pro se but his complaint was not screened by
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the court prior to service. Pursuant to 28 U.S.C. 1915(e)(2)(B) the court must dismiss any complaint filed in forma pauperis if the court determines that the complaint fails to state a claim upon which relief can be granted. The Court may grant leave to proceed in forma pauperis, allow the filing of the complaint, and then determine whether to dismiss the complaint prior to service of process for failure to state a claim upon which relief may be granted. See Franklin v. Murphy,

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745 F.2d 1221, 1226-27 n.6 (9th Cir. 1984). The court did not determine whether Plaintiffs in forma pauperis complaint failed to state a claim prior to service. Second, good cause exists to set aside the defaults in this case because the Clerk did not have authority to enter the defaults. According to Rule 55(b)(1), the Clerk may enter a default judgment if the plaintiffs claim is for a sum certain

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or a sum that can be made certain by computation, and if the plaintiffs request for a default judgment is accompanied by an affidavit showing the amount due. In this case, Plaintiffs complaint, request for entry of default, and supporting affidavits, Docs. 9 to 17 in CV-13-1067-TUC-DCB, do not identify a sum certain. In fact Plaintiffs complaint asks for injunctive relief, just compensation, and

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punitive damages. (Doc. 4 in CV-13-1067-TUC-DCB, p. 16). If the plaintiffs claim is not for a sum certain, Rule 55(b)(2) provides that a default judgment may be entered only by the Court, rather than the Clerk, following a procedure that includes a hearing with prior notice to the parties if the party against whom the default is sought has appeared personally or by a representative. In this instance,

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because the plaintiffs claim and request for default judgment did not satisfy the
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requirements of Rule 55(b)(1), entry of the default judgment by the Clerk was not authorized and the judgment must be set aside. Rule 55(c) also provides that the Court may set aside a default judgment under Rule 60(b). Under Rule 60(b) the court may relieve a party from a final judgment for various reasons, including mistake or excusable neglect; if the judgment is void; opposing party misconduct; or for any other reason that justifies

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relief. In this case, Plaintiffs complaint for which default judgment was entered is virtually identical to complaints he previously filed in CV-13-283-TUC-DCB (BPV) 1 and which this Court had already dismissed. Specifically, on August 8, 2013, in CV-13-283-TUC-DCB (BPV), Judge Velasco issued a Report and

Recommendation dismissing Walkup, Kozachik, Miranda, Rankin, Riojas,

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Villasenor, Couch, the City of Tucson, and Does 1-100 because the plaintiffs complaint failed to state a claim as to all named and unnamed Defendants, except Kathleen Robinson for a May 1, 2011 incident. [See Judge Velascos Report and Recommendation, Doc. 6, CV-13-283-TUC-DCB (BPV). On August 22, 2013, Judge Bury adopted Magistrate Judge Velascos Report and

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Recommendation as to the original complaint and the first amended complaint. [See Judge Burys Order, Doc. 7, CV-13-283-DCB (BPV)]. On September 5,

In CV-13-283-TUC-DCB (BPV), Plaintiff alleged that Defendants Walkup, Kozachik, Miranda, Rankin, Riojas, Villasenor, Couch, City of Tucson and Does 1-100 violated his first amendments rights, falsely arrested him, conspired against him, and intentionally inflicted emotional distress on him on September 7, 2011, September 13, 2011, and September 13, 2013. [Docs. 1 and 8 in CV-13-283TUC-DCB (BPV)]
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2013, after plaintiff received notice of the dismissal of the complaints in the other case, plaintiff refiled and served virtually the same complaints again under the new case number CV-13-1067-TUC-DCB. The Defendants failure to respond to the complaint in this case, CV-131067-TUC-DCB, was due in large part to its mistaken belief that the complaint already had been dismissed in the virtually identical action CV-13-283-TUC-DCB

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(BPV), and this Court should grant relief from the judgment as provided under Rule 60(b)(1) and (3). Finally, plaintiff should not be rewarded for improperly refiling claims that were previously dismissed by the Court for failing to state a claim for which relief could be granted, and the default should be set aside under Rule 60(b)(6), which provides for a set aside for any reason that justifies such

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relief. DATED February 28, 2014. MICHAEL G. RANKIN City Attorney By: __s/ Viola Romero-Wright __ Viola Romero-Wright Principal Assistant City Attorney I hereby certify that on February 28, 2014, I served the attached document by mail on the following who is not a registered participant of the CM/ECF System: Roy Warden 370 S. Calle Polar Tucson, Arizona 85730 roywarden@hotmail.com Plaintiff Pro Se

By:

__s/ Viola Romero-Wright

__