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Roy Warden, Publisher Arizona Common Sense 3700 S. Calle Polar Tucson Arizona 85730 roywarden@hotmail.com

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

) ROY WARDEN, Plaintiff, In Pro Se Vs BOB WALKUP, individually and in his official capacity as Tucson City Mayor; STEVE KOZACHIK, individually and in his official capacity as Tucson City Councilman; RICHARD MIRANDA, individually and in his official capacity as Tucson City Manager; MIKE RANKIN, individually and in his official capacity as Tucson City Attorney; ANTONIO RIOJAS, individually and in his official capacity as Tucson City Employee; RO-BERTO VILLASEOR, individually and in his official capacity as Chief of the Tucson Police Department; OFFICER COUCH, individually and in his official capacity as Officer of the Tucson Police Department; UNIDENTIFIED OFFICER, individually and in his official capacity as Officer of the Tucson Police Department; THE CITY OF TUCSON; and DOES 1-100, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CIV 13-1067 TUC DCB

PLAINTIFFS OPPOSITION TO MOTION TO SET ASIDE DEFAULT JUDGMENT

ORAL ARGUMENT REQUESTED

THE HONORABLE DAVID BURY

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NOW COMES ROY WARDEN, Plaintiff in the above captioned action, with his Opposition to Defendants Motion to Set Aside Default Judgment1 for reasons set forth below:
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Defendants are apparently unaware that Default Judgment has not been entered.

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STATEMENT OF FACTS 1. On August 23, 2013 in CV 13-0283, an action which preceded Plaintiffs filing this case, Judge Bury adopted Magistrate Velascos Report and Recommendation which dismissed Plaintiffs case, without prejudice, for failure to state a cause, etc., etc., however; because the Court engaged in certain procedural irregularities, including acting in the absence of jurisdiction, CV 13-0283 is now under investigation by judicial authorities and still pending before the Court. 2. On September 5, 2013 Plaintiff, in pro se, filed his Complaint for Damages in CV 13-1067 and paid the $400.00 filing fee. 3. Some of the allegations Plaintiff sets forth in CV 13-1067 are similar in nature to some of the allegations Plaintiff made in CV 13-0283. 4. On December 16, 2013 Plaintiff filed his First Amended Complaint in CV 13-1067; subsequently, upon application, the Court Clerk issued Summons. 5. On December 23, 2013 Plaintiff had the Summons and First Amended Complaint lawfully served upon Defendants Walkup, Villaseor, Riojas, Rankin, Miranda, Kozachik, the Unidentified Officer, and the City of Tucson. 6. On December 26, 2013 Plaintiff had the Summons and First Amended Complaint lawfully served upon Defendant Jeffrey Couch. 7. Subsequently; all Defendants failed to answer or offer any response whatsoever, as required by law. 8. On January 29, 2014 Plaintiff filed his Request for Entry of Default and supporting affidavit with the Clerk of the Court, on the basis of Defendants failure to plead or otherwise defend, as provided by F.R.C.P 55(a).

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9. On January 30, 2014 the Clerk entered a Notice of Default against all Defendants, excepting Rankin, whose default was not entered until February 28, 2014 due to clerical error. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAITIFFS OPPOSITION TO MOTION TO SET ASIDE DEFAULT JUDGMENT On February 28, 2014 Defendants, who have the burden of establishing good cause to prevail on a Motion to Set Aside Default Judgment on the basis of mistake or excusable neglect, contend good cause exists to set aside Default Judgment for a variety of insufficient reasons, including, (1) the Court failed to screen Plaintiffs Complaint as required per 28 1915, and (2) the Clerk improperly entered Default Judgment against Defendants. 1. Plaintiff Is Not Subject to Screening as Per 28 1915 Defendants, who continue to advance the Bart Simpson Defense2 misstate the facts and misstate the law. Plaintiff paid his filing fees on September 5, 2013 when he filed his complaint, in pro se. Therefore; the Court altogether lacked jurisdiction to screen Plaintiffs complaint as per 28 1915, a statute which only applies to litigants who file their case in forma pauperis. 2. The Clerk Did Not Improperly Enter Default Judgment Again, Defendants advance the Bart Simpson Defense, misstate the facts and the misstate the law. Plaintiff did not apply for Default Judgment against Defendants, as alleged by Defendants; Default Judgment can only be entered by a judge after notice to Defendants. On January 29, 2014 Plaintiff applied for Entry of Default, as provided by F.R.C.P. 55(a), a requisite first step before applying for Default Judgment.
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I didnt Do It, Nobody Saw Me Do It, You Cant Prove Anything!

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The Court Clerk entered Default against all Defendants on January 30, 2014, excepting Defendant Mike Rankin, whose Entry of Default was delayed until February 28, 2014 due to a clerical error. Entry of Default, as per Rule 55(a) does not require notice to Defendants. Plaintiff has not yet applied for Default Judgment against Defendants. 3. Defendants Have Failed to Answer or Otherwise Defend. Defendants are subject to Entry of Default because Defendants have failed to answer or otherwise defend in this action. Pursuant to Rule 55 of the Federal Rules of Civil Procedure, Default Judgment is appropriate when "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules ..." Fed.R.Civ.P. 55(a). Rashidi v Alright, 818 F. Supp 1354. The Rashidi Court ruled that the failed to plead or otherwise defend portion of 55(a) requires at least some sort of some affirmative action on the part of a defendant, who has been lawfully served, to operate as bar to the satisfaction of the moving party's claim. Rashidi at 1356, citing Wickstrom v. Ebert, 101 F.R.D. 26, 33 (E.D.Wisc.1984) (emphasis added) In Rashidi, the Court did not impose Default Judgment because, even though Defendants failed to answer the complaint, they did file a motion for summary judgment which was timely, thus satisfying the second portion of the requirements of 55(a), namely or otherwise defend. It is undisputed that a motion challenging a complaint for failure to state a claim upon which relief can be granted falls squarely within the ambit of the phrase "otherwise defend." Other attacks on particulars have served to prevent default as well. See de Antonio v. Solomon, 42 F.R.D. 320 (D.C.Mass.1967) (Court denied plaintiff's motion for entry of default by finding that litigant's obligation to plead or otherwise defend was satisfied by his assertion of privilege

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against self incrimination even though allegations of complaint were not answered. Rashidi at 1356 The Rashidi Court, in view of the fact Defendants had submitted a Motion for Summary Judgment instead of an answer to complaint, conceded (t)he ambiguity of the rules makes disposition of this issue difficult, going on to state Defendants believed in good faith that filing of such a motion would toll time in which to file pleading. Id. at 1356 Thus; the Rashidi Court concluded Defendants filing for Summary Judgment minimally amounts to a good faith interpretation of the law or alternatively could be considered excusable neglect pursuant to Rule 6(b). (emphasis added) Id. at 1356 4. Defendants Cannot Claim Mistake or Excusable Neglect. Here, unlike in Rashidi, Tucson City Officials failed to make any response whatsoever, in total disregard for the law. Here, Defendants concede: they ignored the lawfully issued summons, sat on their hands and did nothing at all. And, to mask their incompetence, or arrogant belief they are not subject to the Rules of Procedure, Defendants offer the following ridiculous excuses: Its the judges fault, its the clerks fault, its Wardens fault for filing action CV 13-1067 and paying his fees! Such whines and rants are amusing, but not by any measure, a legal argument worthy of consideration by this court, entitling Defendants to relief.
SUMMARY

The Rashidi Court ruled that the failed to plead or otherwise defend portion of 55(a) requires at least some sort of some affirmative action on the part of a defendant, who has been lawfully served, to operate as bar to the satisfaction of the moving party's claim. Rashidi at 1356, citing Wickstrom v. Ebert, 101 F.R.D. 26, 33 (E.D.Wisc.1984) (emphasis added)

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Here, Defendants made no response at all. Ignorance of the law, or belief Defendants are not subject to the Rules of Procedure, is not mistake or excusable neglect as per Rashidi.
CONCLUSION

The Rules of Civil Procedure were written to secure the just, speedy, and inexpensive determination of every action and proceeding. Instead of presenting a rational legal argument, Defendants rant, rave, blame others for their own incompetence and offer the Bart Simpson Defense. Rule 55 is clear: Plaintiff is entitled to Entry of Default; Defendants are not entitled to relief.
PRAYER In the interests of justice Plaintiff prays the Court deny Defendants Motion to Set Aside Default Judgment.

RESPECTFULLY SUBMITTED this 6th day of March 2014. BY: ____________________________ Roy Warden, Plaintiff

Original and one copy filed with the Court on March 6, 2014. I hereby certify that on March 6, 2014, I served the attached document by email, on the following: Viola Romero-Wright Principal Assistant Tucson City Attorney P.O. Box 27210 Tucson, Arizona 85726-7210 Viola.romero@tucsonaz.gov BY: ____________________________ Roy Warden, Plaintiff