STEPHEN S.

EDWARDS
1 In Propria Persona
1765 N. Lemon Street
2 Mesa, AZ 85205
3
No.1 CA-CV 13-0249
STEPHEN S. EDWARDS, as Trustee
4 of the SUPER TRUST FUND, u/t/d Appeal from the Superior Court in
5 June 15, 2001, Maricopa County
No. CV2012-095984
6
Plaintiff,
7 MOTION FOR
8
v. RECONSIDERATION
MAGNUS TITLE AGENCY, L.L.C,
9 an Arizona limited liability company
10 formerly doing business as MAGUS
TITLE AGENCY OF ARIZONA,
11
INC., an Arizona corporation; DOES
12 1-10; WHITE ASSOCIATIONS 1-10;
and BLACK CORPORATIONS 1-10,
13

14 Defendants.
15

16
MOTION FOR RECONSIDERATION
17

18
NOW COMES Plaintiff/Appellant Stephen S. Edwards, individually and as
19

20
trustee for Super Trust Fund (“Edwards”), who hereby moves this Honorable Court
21
to reconsider its Memorandum Decision issued February 27, 2014 herein by stating
22
as follows:
23

24 1. The Court failed to consider material facts that were presented to the
25
Court before the Court's decision.
26

27 2. The Court made factual errors in its decision, and Edwards identifies
28
court decisions, statutes, or regulations that he believes the court has overlooked or

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that have been issued since filing of briefs. The Court also raised issues in its
2 decision without the parties having fully briefed that issue previously.
3
This Motion is supported by the attached Memorandum of Points and Authorities.
4

6
MEMORANDUM OF POINTS AND AUTHORITIES
7

8 I. PROCEDURAL AND FACTUAL BACKGROUND

9
Edwards accepts the Facts and Procedural History portion of the Court’s
10
February 27, 2014 Memorandum Decision as accurate, and realleges and
11

12 incorporates it here as if fully set forth herein.

13
Edwards would additionally state that on January 8, 2013, the Maricopa
14

15 County Superior Court ordered the case dismissed, citing that because Plaintiff had
16
not timely filed an opposition to the motion to dismiss, the Court treated its
17

18
decision as if Edwards had consented to such ruling.

19 Edwards filed not only a Rule 60(c) motion on January 18, 2013 to set aside
20
the dismissal, but also a Notice of Appeal on the entire case on March 22, 2013.
21

22 The Court also in its discretion awarded attorneys’ fees and costs on appeal
23
pursuant to A.R.S. §§12-341.
24

25 Edwards also alleges reminds this Honorable Court that he is an American

26
citizen, born in Detroit, Michigan, a professional male that has resided in the
27
metropolitan Phoenix area since 1981, and is deserving of being treated with
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honesty and integrity. He does not forfeit those privileges by filing an action pro
2 se. The operation of Local Rule 7 is in this case, were it allowed to stand, is
3
nothing but a hyper-technical application that unjustifiably deprives a litigant of his
4

5 right to assert a claim in the courts of this land.

6

7 II. THE APPLICABLE LEGAL STANDARDS

8
It appears that no published Arizona state cases set forth the standards for
9

10 motions for reconsideration. However, in Motorola, Inc. v. J.B. Rodgers Mech.

11
Contractors, Inc., 215 F.R.D. 581, 585-86 (D. Ariz. 2003), the court surveyed the
12

13 standards under the similar federal rule in Ninth Circuit jurisdictions, finding a
14
motion for reconsideration is proper if:
15
(1) There are material differences in fact or law from that presented to the
16
Court and, at the time of the Court's decision, the [movant] could not have
17 known of the factual or legal differences through reasonable diligence;
18
(2) There are new material facts that happened after the Court's decision;
19

20 (3) There has been a change in the law that was decided or enacted after
the court's decision; or
21

22 (4) The movant makes a convincing showing that the Court failed to
23
consider material facts that were presented to the Court before the Court's
decision.
24

25
Accord, Bond v. Am. Fam. Mut. Ins. Co., 2008 WL 629275 at *1 (D. Ariz. 2008)
26

27 The Arizona Court of Appeals reviews the dismissal of a complaint under

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Arizona Rule of Civil Procedure 12(b)6 de novo, Coleman v. City of Mesa, 230

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Ariz. 352, ___, 284 P.3d 863, 866 (2012), and we affirm only if a plaintiff "would
2 not be entitled to relief under any interpretation of the facts susceptible of proof."
3
Fid. Sec. Life Ins. Co. v. Ariz. Dep't of Ins., 191 Ariz. 222, 224, 954 P.2d 580, 582
4

5 (1998).
6
A pleading must comply with Arizona Rule of Civil Procedure 8 and
7

8 provide the defendants with "fair notice of the nature and basis of the claim and
9
indicate generally the type of litigation involved." Mackey v. Spangler, 81 Ariz.
10
113, 115, 301 P.2d 1026, 1027-28 (1956); see, e.g., McHenry v. Renne, 84 F.3d
11

12 1172, 1178 (9th Cir. 1996) (dismissing a complaint after determining that it was
13
difficult for the court and the defendants to determine who was being sued and
14

15 what theories were being advanced against each defendant). If the pleading does
16
not comply with Rule 8, the opposing party may move to dismiss the action under
17

18
Rule 12(b)(6) for failure to state a claim. Cullen v. Auto-Owners Ins. Co., 218 Ariz.

19 417, 419, ¶ 7, 189 P.3d 344, 346 (2008).

20
Dismissal is appropriate under Rule 12(b)(6) where the plaintiff fails to state
21

22 a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Legal
23
conclusions couched as factual allegations “are not entitled to the assumption of
24

25 truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To avoid a Rule 12(b)(6)
26
dismissal, the complaint must plead “enough facts to state a claim to relief that is
27
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). This
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plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more
2 than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
3
678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not
4

5 permit the court to infer more than the mere possibility of misconduct, the
6
complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to
7

8 relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

9
Only the extraordinary case in which dismissal is proper” for failure to state
10
a claim. United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).
11

12 A court may dismiss a complaint as a matter of law only if the complaint: (1) lacks
13
a cognizable legal theory; or (2) fails to contain sufficient facts to support a
14

15 cognizable legal claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530,
16
534 (9thCir. 1984). When ruling on a motion to dismiss, the court must assume
17

18
that the complaint’s factual allegations are true and should construe all inferences

19 from them in the non-moving party’s favor. Thompson v. Davis , 295 F.3d 890,
20
895 (9th Cir. 2002); Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
21

22 1990). Johnson v. McDonald, 197 Ariz. 155, 157, 3 P.3d 1075, 1077 (App. 1999)
23
Although conclusory allegations are insufficient to defeat a Fed. R. Civ. P. 12(b)
24

25 (6) motion, the federal rules only require that the plaintiff put the defendant on
26
notice as to what the legal claim is and the grounds upon which the claim rests.
27
Ascon Properties, Inc. v. Mobil Oil Co., 901 F.2d 696, 1155 (9thCir. 1989). The
28

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court must not look at whether the plaintiff will “ultimately prevail but whether the
2 claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes,
3
416 U.S. 232, 236 (1974). Also, in general, a court may not consider materials
4

5 outside the pleadings when resolving a motion to dismiss. Schneider v. California

6
Dep'tof Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir.1998). Instead, the court
7

8 must decide “whether or not it appears to a certainty under existing law that no
9
relief can be granted under any set of facts that might be proved in support of a
10
plaintiff's claims.” De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978)
11

12 (emphasis added).
13

14
III. THE COURT OF APPEALS OVERLOOKED DECISIONS,
15 STATUTES AND/OR REGULATIONS WHICH WOULD FAVOR
ALLOWING EDWARDS TO, AT THE VERY LEAST, FILE AN
16
AMENDED COMPLAINT AS OPPOSED TO DISMISSING THE
17 CASE.
18
Local Rule of Civil Procedure 7.2(i) provides that if “counsel does not serve
19

20 and file the required answering memoranda . . . such non-compliance may be

21
deemed a consent to the . . . granting of the motion and the Court may dispose of
22

23
the issue summarily.” LRCiv. 7.2(i). Local Rule 7.2(c) requires responsive

24 memoranda to be filed within fourteen days after a motion is served. “Failure to

25
follow a district court’s local rules is a proper ground for dismissal.” Ghazali v.
26

27 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing U.S. v. Warren, 601 F.2d 471, 474
28
(9th Cir. 1979)).

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However, “[b]efore dismissing the action, the district court is required to
2 weigh several factors: ‘(1) the public’s interest in expeditious resolution of
3
litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
4

5 [party seeking dismissal]; (4) the public policy favoring disposition of cases on
6
their merits; and (5) the availability of less drastic sanctions.’” Id. at 53 (quoting
7

8 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). While the first two
9
factors often favor the imposition of sanctions, the Court should have considered
10
and found that Edwards delay in this case has not significantly affected the public’s
11

12 interest in expeditious resolution of litigation or the Court’ s need to manage its

13
own docket. Further, the element of prejudice is essential and “delay alone,
14

15 without focus on its effects, will not justify dismissal.” Wanderer v. Johnston, 910
16
F.2d 652, 656 (9th Cir. 1990). In fact, it is not clear that Defendants even argued
17

18
any prejudice at all; they simply were in favor of application of the local rule

19 because it equated to the phrase “we win” to them. Edwards’s delay in filing his
20
opposition to Defendants’ positions (particularly since he was occupied on an
21

22 overseas trip), if this were enough to equal prejudice, prejudice would be present in
23
nearly every case where some counsel or jurist managed to accomplish one thing in
24

25 excess of the prescribed-for time, which happens to some degree on nearly every
26
litigated matter in American courts. Accordingly, Defendants have failed to
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demonstrate prejudice, and this Court should reconsider its prior Memorandum
2 Decision.
3
That proposition is magnified by the totality of the analysis of the Superior
4

5 Court in the merits of Defendants’ motions lies exclusively within the following
6
one sentence in its January 8, 2013 Dismissal: “The motions set forth good
7

8 grounds to grant the Motions to Dismiss”

9
Although Edwards has not yet requested leave to amend, to the extent it is
10
appropriate and necessary, he does so in the body of this document hereby, and the
11

12 Ninth Circuit has instructed district courts to grant leave to amend, sua sponte ,
13
when dismissing a case for failure to state a claim, “unless the court determines
14

15 that the pleading could not possibly be cured by the allegations of other facts.”
16
Lopez v. Smith , 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United
17

18
States, 58 F.3d 494, 497 (9th Cir. 1995)). Although this Court is under no specific

19 obligation to follow Ninth Circuit precedent, generally the Arizona decisions and
20
rules on dismissal for failure to state a claim follow in lockstep with federal
21

22 decisions thereon, as the State rule is patterned after the federal model. The Court
23
also overlooked this law and precedent in making its Memorandum Decision.
24

25 And as this very Court said in its February 27, 2014 Memorandum Decision,
26
Arizona’s standard …is in harmony with the federal court decisions interpreting
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the federal equivalent to Rule 60( c). (February 27, 2014 Memorandum Decision,
2 p 6)
3
A pleading must comply with Arizona Rule of Civil Procedure 8 and
4

5 provide the defendants with "fair notice of the nature and basis of the claim and
6
indicate generally the type of litigation involved." Mackey v. Spangler, 81 Ariz.
7

8 113, 115, 301 P.2d 1026, 1027-28 (1956); see, e.g., McHenry v. Renne, 84 F.3d
9
1172, 1178 (9th Cir. 1996) (dismissing a complaint after determining that it was
10
difficult for the court and the defendants to determine who was being sued and
11

12 what theories were being advanced against each defendant). If the pleading does
13
not comply with Rule 8, the opposing party may move to dismiss the action under
14

15 Rule 12(b)6 for failure to state a claim. Cullen v. Auto-Owners Ins. Co., 218 Ariz.
16
417, 419, ¶ 7, 189 P.3d 344, 346 (2008).
17

18
Edwards contends that the trial court erred in dismissing his complaint

19 because it complied with Rule 8 and included sufficient detail to apprise the
20
Defendants of the claims against them.
21

22 The Arizona Court of Appeals would do well to recognize that it has a duty
23
to ensure that pro se litigants do not lose their right to a hearing on the merits of
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25 their claim due to ignorance of technical procedural requirements. Borzeka v.

26
Heckler, 739 F.2d 444, 447 n. 2 (9th Cir.1984) (defective service of complaint by
27
pro se litigant does not warrant dismissal); Garaux v. Pulley, 739 F.2d 437, 439
28

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(9th Cir.1984). Thus, for example, pro se pleadings are liberally construed,
2 particularly where civil rights claims are involved. Christensen v. C.I.R., 786 F.2d
3
1382, 1384-85 (9th Cir.1986); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th
4

5 Cir.1985) (en banc). Plaintiff acknowledges the Court of Appeals’ proposition ,

6
that he is held to the same standards as a lawyer, but its reliance thereon overlooks
7

8 Ninth Circuit and Arizona precedent that is more on point—that pro se pleadings
9
should be liberally construed, and that a pro se litigant should be given the
10
opportunity to amend prior to the court ordering dismissal.
11

12 This Court has overlooked that Defendants should have acknowledged that
13
even if their request for Rule 12(b)(6) dismissal was granted, Edwards should be
14

15 given an opportunity to amend the Complaint, if such amendment will cure its
16
defects. Republic Nat 7 Bank of New York v. Pima County, 200 Ariz. 199, 205 U
17

18
23, 25 P.3d 1, 7 (App. 2001); Sun World Corp. v. Pennysaver, Inc., 130 Ariz. 585,

19 589, 637 P.2d 1088, 1092 (App. 1981). Edwards acknowledges that even though
20
pro se pleadings are viewed with liberality and held to less stringent standards,
21

22 unrepresented plaintiffs are not relieved of their obligation to allege sufficient facts
23
to support a cognizable claim. See Findlay v. Lewis, 171 Ariz. 454, 5 461, 831
24

25 P.2d 830, 837 (App. 1992), overruled on other grounds, 172 Ariz. 343, 837 P.2d 6
26
145 (1992); see also Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
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Under Rule 15 of the Federal Rules of Civil Procedure, the Court should
2 freely give leave to amend when justice so requires. Fed. R. Civ. P. 15(a)(2). The
3
Ninth Circuit has held that “[a] pro se litigant must be given leave to amend his or
4

5 her complaint unless it is absolutely clear that the deficiencies of the complaint
6
could not be cured by amendment.” Karim-Panahi v. Los Angeles Police Dep't,
7

8 839 F.2d 621, 623 (9th Cir. 1988) (quotation marks and citations omitted). In this
9
case, it is all but certain that Edwards can cure any deficiency.
10
There is certainly a cloud upon the title for failure of Defendants to properly
11

12 do that for which they were hired. Even if the Court doubts that Edwards
13
ultimately will succeed, the Court must afford Edwards the opportunity and grant
14

15 leave to amend.
16
It is premature for this Court to conclude to a certainty that Edwards’s
17

18
claims fail as a matter of law. He should be afforded the opportunity to organize

19 and submit the evidence that supports his claims in the manner contemplated by
20
the federal and Arizona rules. He should be allowed to engage in discovery. See
21

22 Hancock, 231 F.3d at 566; McConnell, 540 U.S. at 269. See also Fed. R. Civ. P.
23
12(d) (converting a motion to dismiss into a motion for summary judgment if
24

25 matters outside of the pleadings are presented to and not excluded by the court);
26
Dkt. 63 (Minute Order re-setting Fed. R. Civ. P. 16 scheduling conference to
27

28

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September 29, 2008 which is when the parties usually would discuss discovery
2 matters).
3
As with Rule 12(b)(6) dismissals, dismissals for failure to comply with Rule
4

5 9(b) should ordinarily be without prejudice. “[L]eave to amend should be granted

6
if it appears at all possible that the plaintiff can correct the defect.” Balistreri v.
7

8 Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir.1988) (internal quotation marks
9
omitted) (alteration in original). See also, Bly-Maagee, 236 F.3d at 1019 (when
10
dismissing for failure to comply with Rule 9(b) “leave to amend should be granted
11

12 unless the district court determines that the pleading could not possibly be cured by
13
the allegation of other facts”) (internal quotation marks omitted); Caputo v. Pfizer,
14

15 Inc., 267 F.3d 181, 191 (2nd Cir. 2001) (where the plaintiff has requested leave to
16
amend in the event the court is inclined to dismiss on Rule 9(b) grounds, “the
17

18
failure to grant leave to amend is an abuse of discretion unless the plaintiff has

19 acted in bad faith or the amendment would be futile”). See also, Eminence Capital
20
v. Aspeon, Inc., 316 F.3d 1048 (9th Cir.2003).
21

22 Taking as true Edwards’s allegations of a contractual relationship between

23
him and the Defendants, a cloud upon the title, the negligent performance of duties
24

25 of care owed by Defendants, a fiduciary duty owed to Edwards to disclose to him

26
what creditors could potentially be a cloud upon, or foreclose upon, his title to the
27
subject property of the closing; and the allegation of damages being incurred
28

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thereby, the Court overlooked that it cannot say the Edwards cannot make out a
2 cognizable claim given the opportunity to amend his Complaint. He should be
3
given that opportunity to do so, and the Memorandum Decision of this Court, upon
4

5 reconsideration, should be vacated.

6

7 VIII. CONCLUSION
8
Based on the foregoing, Edwards respectfully requests the Court reconsider
9

10 and set aside its Memorandum Decision of February 27, 2014 herein, and order
11
that the case be remanded to the trial court with directions that Plaintiff Edwards
12

13 be given an opportunity to file a First Amended Complaint, and that the

14
consequent vacating of the order of the Court in its discretion granting Defendants’
15
request for attorneys’ fees and costs on appeal would naturally follow and be done
16

17 according to law.
18

19

20 Respectfully submitted,
21

22

23
DATED: ____________________________
STEPHEN S. EDWARDS
24 In Propria Persona
25

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