Case 2:14-cv-02207-GMS Document 43 Filed 12/03/14 Page 1 of 3
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Wendell Dwayne O'Neal, Plaintiff,
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v.
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University of Phoenix Incorporated, et al.,
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No. CV-14-02207-PHX-GMS ORDER
Defendants.
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Pending before this Court are: (1) Plaintiff’s Motion for Ruling Re: Service of
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Summons, (Doc. 22); (2) Motion for Leave to Appeal in forma pauperis re: Notice of
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Interlocutory Appeal (Doc. 24); (3) Motion for U.S. Marshal Service of Subpoena, (Doc.
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28); (4) Motion for Relief from Order Doc. 30; (5) Motion for Hearing to Determine
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Sufficiency of Service (Doc. 36); and (6) Plaintiff’s Objection and Motion to Strike (Doc.
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38). For the reasons stated below all of these motions are denied.
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Defense “Counsel accepted service of the First Amended Complaint on September
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29, 2014 for all Defendants except ‘Francis’ and ‘Unknown employee’” (Doc. 7).
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Defense counsel thereafter requested, and, on October 10, 2014, the Court granted an
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extension of time for Defendants to respond to Plaintiff’s First Amended Complaint
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(Doc. 8). It was not until four days later that Plaintiff first sought an entry of default
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judgment against some of the Defendants who acknowledged service and for whom the
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Court had granted an extension of time to respond.
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Case 2:14-cv-02207-GMS Document 43 Filed 12/03/14 Page 2 of 3
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Plaintiff files most of the above motions trying to get the Court to reconsider its
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denial of default or default judgment against these corporate Defendants. Plaintiff’s
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theory appears to be that he had already accomplished service on two of the corporate
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Defendants and therefore, the Court’s extension of time to respond was only effective as
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to the individual Defendants who Plaintiff had not previously served. The Plaintiff
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therefore attempts to get the Court to determine whether or not the corporate Defendants
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had been previously served, prior to the time that they acknowledged acceptance of
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service. The Court declines to do so. Whether or not they had been previously served
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was not material to the Court’s determination to grant all Defendants a limited extension
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of time to respond. And, the Court granted the Defendants the extension before the
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Plaintiff moved for default against two of the Defendants. As a result Plaintiff’s Motion
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for Ruling Re: Service of Summons, (Doc. 22), his Motion for Leave to Appeal in forma
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pauperis re: Notice of Interlocutory Appeal (Doc. 24), his Motion for Relief from Order
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(Doc. 30), his Motion for Hearing to Determine Sufficiency of Service (Doc. 36), and his
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Objection and Motion to Strike (Doc. 38) all lack merit and are denied.
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To the extent that the Plaintiff attempts to have the Marshal’s service serve one of
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the corporate Defendants with a subpoena, the Court notes that the corporate Defendant is
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a party to this lawsuit. The appropriate way for the Plaintiff to obtain documents from
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parties is pursuant to the discovery rules of the Federal Rules of Civil Procedure Rules
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26-35, and not through the issuance of a subpoena. The Court, therefore, also denies
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Plaintiff’s Motion for U.S. Marshal Service of Subpoena, (Doc. 28).
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IT IS THEREFORE ORDERED THAT:
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1.
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The Motion for Ruling re: Service of Summons and Complaint (Doc. 22) is
denied.
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2.
The Motion for Leave to Appeal in Forma Pauperis (Doc. 24) is denied.
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3.
The Motion for U.S. Marshal Service of Subpoena (Doc. 28) is denied.
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4.
The Motion for Relief from Order (Doc. 30) is denied.
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5.
The Motion for Hearing or Conference (Doc. 36) is denied.
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Case 2:14-cv-02207-GMS Document 43 Filed 12/03/14 Page 3 of 3
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6.
The Motion to Strike Response to Motion (Doc. 38) is denied.
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Dated this 3rd day of December, 2014.
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