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WARDEN'S OPPOSITION TO TUCSON MOTION TO SET ASIDE DEFAULT JUDGMENT

WARDEN'S OPPOSITION TO TUCSON MOTION TO SET ASIDE DEFAULT JUDGMENT

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Published by Roy Warden
Warden Responds to Asinine Arguments; Says Motion is No More than a "Whine and Rant to Cover Tucson City Attorney Incompetence."
Warden Responds to Asinine Arguments; Says Motion is No More than a "Whine and Rant to Cover Tucson City Attorney Incompetence."

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Published by: Roy Warden on Mar 06, 2014
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03/06/2014

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1
Roy Warden, Publisher
1
Arizona Common Sense
2
3700 S. Calle Polar
3
Tucson Arizona 85730
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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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 Man-ager; 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 VILLASEÑOR, 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
PLAINTIFF’S 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,
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with his Opposition to Defendants’ Motion to Set Aside Default Judgment
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 for
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reasons set forth below:
 
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1
 
Defendants are apparently unaware that “Default Judgment” has
not been entered.
 
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STATEMENT OF FACTS
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1.
 
On August 23, 2013 in CV 13-0283, an action which preceded Plain-
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tiff’s
filing this case,
Judge Bury adopted Magistrate Velasco’s
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Report and Recommendation which dismissed Plaintiff’s case,
with-
17
out prejudice
, for “failure to state a cause,
 etc., etc.,
 
however;
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 because the Court engaged in certain
 procedural irregularities,
 in-
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cluding acting in the absence of jurisdiction, CV 13-0283 is now
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under investigation by judicial authorities and still pending before the
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Court.
 
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2.
 
On September 5, 2013 Plaintiff,
in pro se
, filed his Complaint for
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Damages in CV 13-1067 and paid the $400.00 filing fee.
 
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3.
 
Some of the allegations Plaintiff sets forth in CV 13-1067 are similar
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in nature to some of the allegations Plaintiff made in CV 13-0283.
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4.
 
On December 16, 2013 Plaintiff filed his First Amended Complaint
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in CV 13-1067; subsequently, upon application, the Court Clerk
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issued Summons.
 
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5.
 
On December 23, 2013 Plaintiff had the Summons and First
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Amended Complaint lawfully served upon Defendants Walkup, Vil-
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laseñor,
Riojas, Rankin, Miranda, Kozachik, the “Unidentified
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Officer,” and the City of Tucson.
 
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6.
 
On December 26, 2013 Plaintiff had the Summons and First
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Amended Complaint lawfully served upon Defendant Jeffrey Couch.
 
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7.
 
Subsequently; all Defendants failed to answer or offer any response
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whatsoever, as required by law.
 
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8.
 
On January 29, 2014 Plaintiff filed his Request for Entry of Default
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and supporting affidavit with the Clerk of the Court, on the basis of
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Defendants failure to plead or otherwise defend, as provided by
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F.R.C.P 55(a).
 
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9.
 
On January 30, 2014 the Clerk entered a Notice of Default against all
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Defendants, excepting Rankin, whose default was not entered until
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February 28, 2014 due to clerical error.
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MEMORANDUM OF POINTS AND AUTHORITIES IN
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SUPPORT OF PLAITIFF’S
OPPOSITION TO MOTION TO
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SET ASIDE DEFAULT JUDGMENT
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On February 28, 2014 Defendants, who have the burden of establishing
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“good cause” to prevail on a Motion to Set Aside Default Judgment
 on the basis
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of “mistake”
or
“excusable neglect,”
 
contend “good cause”
 exists to set aside
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Default Judgment for a variety of insufficient reasons, including, (1) the Court
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failed to screen Plaintiff’s Complaint as required per 28 § 1915, and
 (2) the
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Clerk improperly entered Default
Judgment
 against Defendants.
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1.
 
Plaintiff Is Not Subject to Screening as Per 28 §1915
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Defendants
, who continue to advance the “Bart Simpson Defense
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 misstate
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the facts and misstate the law.
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Plaintiff paid his filing fees on September 5, 2013 when he filed his com-
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 plaint,
in pro se.
Therefore; the Court altogether lacked jurisdiction to screen
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Plaintiff’s
complaint as per 28 § 1915, a statute which only applies to litigants
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who file their case
in forma pauperis
.
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2.
 
The Clerk Did Not Improperly Enter Default
Judgment
 
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Again, Defendants
advance the “Bart Simpson Defense,”
 misstate the facts
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and the misstate the law.
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Plaintiff did not apply for
Default Judgment
 against Defendants, as alleged
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 by Defendants; Default Judgment can only be entered by a judge after notice to
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Defendants.
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On January 29, 2014 Plaintiff applied for Entry of Default, as provided by
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F.R.C.P. 55(a), a requisite first step before applying for Default Judgment.
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2
 
“I didn’t Do It, Nobody Saw Me Do It, You Can’t Prove Anything!”
 

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