1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Brooke Spiecker, No. CV-23-08073-PCT-DLR
10 Plaintiff, ORDER
11 v.
12 Kaitlynn Lewis, et al.,
13 Defendants. 14 15 16 Pending before the Court is Plaintiff Brooke Spiecker’s motion to stay and motion 17 for reconsideration of the Court’s January 2, 2024, order. (Doc. 20.) The motion is fully 18 briefed. (Docs. 20, 22.) Construing Plaintiff’s motion to stay as a motion for an extension 19 of time to file a First Amended Complaint, the Court grants Plaintiff a sixty-day extension. 20 As to her motion for reconsideration, the Court denies it for the foregoing reasons. 21 I. Background 22 On January 2, 2024, ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to 23 dismiss, the Court dismissed Plaintiff’s Complaint without prejudice and with leave to 24 amend. Specifically, the Court dismissed Plaintiff’s Fifth Amendment due process claim 25 because none of the named defendants in this case are federal actors. (Doc. 19 at 4.) The 26 Court also dismissed Plaintiff’s claims that Defendants (1) inadequately investigated 27 before removing her children from her custody and (2) failed to provide adequate notice of 28 her dependency hearings. (Doc. 19 at 6–8). The Court dismissed both claims with prejudice 1 because they are collateral attacks on state court judgments and do not constitute 2 cognizable claims for relief. (Id.) The Court dismissed Plaintiff’s remaining claims without 3 prejudice, finding such claims curable through the allegation of additional facts. The Court 4 afforded Plaintiff thirty days from the order to file an amended complaint. On February 2, 5 2024, instead of filing an amended complaint, Plaintiff filed the instant motion for 6 reconsideration and motion to stay. (Doc. 20.) 7 II. Legal Standard 8 A motion for reconsideration ordinarily will be denied “absent a showing of 9 manifest error or a showing of new facts or legal authority that could not have been brought 10 to its attention earlier with reasonable diligence.” LRCiv 7.2(g); Defenders of Wildlife v. 11 Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). The motion must “point out with 12 specificity the matters the movant believes were overlooked or misapprehended by the 13 Court, any new matters being brought to the Court’s attention for the first time and the 14 reasons they were not presented earlier, and any specific modifications being sought in the 15 Court’s order.” LRCiv 7.2(g). Further, “[n]o motion for reconsideration . . . may repeat any 16 oral or written argument made by the movant in support or in opposition to the motion that 17 resulted in the Order.” Id. The Court may deny a motion for reconsideration if it fails to 18 comply with these rules. Id. “Absent good cause shown, any motion for reconsideration 19 shall be filed no later than fourteen (14) days after the date of the filing of the Order that is 20 the subject of the motion.” Id. 21 III. Discussion 22 As an initial matter, the Court notes that Plaintiff filed her motion for 23 reconsideration sixteen days past the deadline prescribed by the Court’s local rules and 24 without any showing of good cause. On this ground alone, the Court could deny Plaintiff’s 25 motion. Nevertheless, even if Plaintiff had timely filed her motion, she has not 26 demonstrated manifest error or shown new facts or legal authority justifying granting her 27 motion. 28 Plaintiff first argues the Court erred in dismissing her Fifth Amendment due process 1 claim because the incorporation doctrine extends the protections of the Fifth Amendment 2 to actions by state officials. (Doc. 20 at 2.) Not so. The Supreme Court has held that many 3 of the rights enumerated in the first eight Amendments to the Constitution are protected 4 against state action by the due process clause of the Fourteenth Amendment. Duncan v. 5 Louisiana, 391 U.S. 145, 148 (1968). This does not mean, however, that an individual can 6 assert a Fifth Amendment due process claim against state actors. “Due process of law is 7 secured against invasion by the federal [g]overnment by the Fifth Amendment and is safe- 8 guarded against state action in identical words by the Fourteenth.” Betts v. Brady, 316 U.S. 9 455, 462 (1942); see Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (finding 10 claim that defendant’s actions ran afoul the Fifth Amendment to be “plainly foreclosed by 11 the Constitution” because defendant was a local law enforcement official, and the Fifth 12 Amendment’s due process clause only applies to the federal government). The Court 13 committed no manifest error in dismissing Plaintiff’s Fifth Amendment due process claim 14 against Defendants, all of whom are state actors. 15 Plaintiff next argues that her “claims under the First and Fourteenth Amendments 16 should not be summarily dismissed, as they implicate the broader concept of due process 17 and protection against state actions that violate fundamental rights.” (Doc. 20 at 3.) But 18 none of Plaintiff’s claims were summarily dismissed. The Court explained its reasoning 19 for dismissing, either with or without prejudice, every one of Plaintiff’s claims. The Court 20 further afforded Plaintiff leave to amend the claims that could be cured through the 21 allegation of additional facts. Thus, again, no manifest error is shown. 22 Last, Plaintiff argues that the Court should have applied less stringent standards in 23 evaluating her Complaint because Plaintiff is a pro se litigant. However, in its order, the 24 Court expressly held Plaintiff’s complaint to less stringent standards than those afforded to 25 formal pleadings drafted by lawyers. (Id.at 3–4.) To the extent Plaintiff disagrees with the 26 outcome, that is an insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp., 27 689 F. Supp. 1572, 1573 (D. Haw. 1988). Accordingly, the Court denies Plaintiff’s motion 28 for reconsideration. 1 At the end of her motion, Plaintiff requests a two-month “continuance” of her case. 2 Construing this as a motion for an extension of time to file an amended complaint, the 3 Court grants Plaintiff an additional sixty days from the date of this order to file a First 4 Amended Complaint. 5 IT IS SO ORDERED Plaintiff’s motion for reconsideration (Doc. 20) is DENIED. 6 IT IS FURTHER ORDERED, construing Plaintiff’s motion to stay as a motion 7 for an extension of time to file a First Amended Complaint, the Court grants Plaintiff a 8 sixty-day extension as follows: 9 • Any First Amended Complaint must be filed within sixty (60) days of this 10 Order and must comply with Court’s January 2, 2024 Order (Doc. 19), which 11 provides that (1) Plaintiff’s Fifth Amendment claim, inadequate 12 investigation claim, and inadequate notice claim are DISMISSED and (2) 13 Plaintiff’s judicial deception claim, denial of Plaintiff’s right to make 14 medical decisions for her children claim, substantive due process claim based 15 on Defendant Powell’s non-compliance with state court orders, and 16 intentional infliction of emotional distress claim are DISMISSED 17 WITHOUT PREJUDICE. 18 • Given that the latter claims are curable, the Court will allow Plaintiff to file 19 a First Amended Complaint that contains sufficient factual allegations to 20 support them. Any First Amended Complaint must be retyped or rewritten in 21 its entirety. Further, the First Amended Complaint may not incorporate any 22 part of the prior complaint or subsequent pleadings by reference. All causes 23 of action alleged in the original complaint which are not alleged in any First 24 Amended Complaint will be waived. Hal Roach Studios v.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Brooke Spiecker, No. CV-23-08073-PCT-DLR
10 Plaintiff, ORDER
11 v.
12 Kaitlynn Lewis, et al.,
13 Defendants. 14 15 16 Pending before the Court is Plaintiff Brooke Spiecker’s motion to stay and motion 17 for reconsideration of the Court’s January 2, 2024, order. (Doc. 20.) The motion is fully 18 briefed. (Docs. 20, 22.) Construing Plaintiff’s motion to stay as a motion for an extension 19 of time to file a First Amended Complaint, the Court grants Plaintiff a sixty-day extension. 20 As to her motion for reconsideration, the Court denies it for the foregoing reasons. 21 I. Background 22 On January 2, 2024, ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to 23 dismiss, the Court dismissed Plaintiff’s Complaint without prejudice and with leave to 24 amend. Specifically, the Court dismissed Plaintiff’s Fifth Amendment due process claim 25 because none of the named defendants in this case are federal actors. (Doc. 19 at 4.) The 26 Court also dismissed Plaintiff’s claims that Defendants (1) inadequately investigated 27 before removing her children from her custody and (2) failed to provide adequate notice of 28 her dependency hearings. (Doc. 19 at 6–8). The Court dismissed both claims with prejudice 1 because they are collateral attacks on state court judgments and do not constitute 2 cognizable claims for relief. (Id.) The Court dismissed Plaintiff’s remaining claims without 3 prejudice, finding such claims curable through the allegation of additional facts. The Court 4 afforded Plaintiff thirty days from the order to file an amended complaint. On February 2, 5 2024, instead of filing an amended complaint, Plaintiff filed the instant motion for 6 reconsideration and motion to stay. (Doc. 20.) 7 II. Legal Standard 8 A motion for reconsideration ordinarily will be denied “absent a showing of 9 manifest error or a showing of new facts or legal authority that could not have been brought 10 to its attention earlier with reasonable diligence.” LRCiv 7.2(g); Defenders of Wildlife v. 11 Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). The motion must “point out with 12 specificity the matters the movant believes were overlooked or misapprehended by the 13 Court, any new matters being brought to the Court’s attention for the first time and the 14 reasons they were not presented earlier, and any specific modifications being sought in the 15 Court’s order.” LRCiv 7.2(g). Further, “[n]o motion for reconsideration . . . may repeat any 16 oral or written argument made by the movant in support or in opposition to the motion that 17 resulted in the Order.” Id. The Court may deny a motion for reconsideration if it fails to 18 comply with these rules. Id. “Absent good cause shown, any motion for reconsideration 19 shall be filed no later than fourteen (14) days after the date of the filing of the Order that is 20 the subject of the motion.” Id. 21 III. Discussion 22 As an initial matter, the Court notes that Plaintiff filed her motion for 23 reconsideration sixteen days past the deadline prescribed by the Court’s local rules and 24 without any showing of good cause. On this ground alone, the Court could deny Plaintiff’s 25 motion. Nevertheless, even if Plaintiff had timely filed her motion, she has not 26 demonstrated manifest error or shown new facts or legal authority justifying granting her 27 motion. 28 Plaintiff first argues the Court erred in dismissing her Fifth Amendment due process 1 claim because the incorporation doctrine extends the protections of the Fifth Amendment 2 to actions by state officials. (Doc. 20 at 2.) Not so. The Supreme Court has held that many 3 of the rights enumerated in the first eight Amendments to the Constitution are protected 4 against state action by the due process clause of the Fourteenth Amendment. Duncan v. 5 Louisiana, 391 U.S. 145, 148 (1968). This does not mean, however, that an individual can 6 assert a Fifth Amendment due process claim against state actors. “Due process of law is 7 secured against invasion by the federal [g]overnment by the Fifth Amendment and is safe- 8 guarded against state action in identical words by the Fourteenth.” Betts v. Brady, 316 U.S. 9 455, 462 (1942); see Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (finding 10 claim that defendant’s actions ran afoul the Fifth Amendment to be “plainly foreclosed by 11 the Constitution” because defendant was a local law enforcement official, and the Fifth 12 Amendment’s due process clause only applies to the federal government). The Court 13 committed no manifest error in dismissing Plaintiff’s Fifth Amendment due process claim 14 against Defendants, all of whom are state actors. 15 Plaintiff next argues that her “claims under the First and Fourteenth Amendments 16 should not be summarily dismissed, as they implicate the broader concept of due process 17 and protection against state actions that violate fundamental rights.” (Doc. 20 at 3.) But 18 none of Plaintiff’s claims were summarily dismissed. The Court explained its reasoning 19 for dismissing, either with or without prejudice, every one of Plaintiff’s claims. The Court 20 further afforded Plaintiff leave to amend the claims that could be cured through the 21 allegation of additional facts. Thus, again, no manifest error is shown. 22 Last, Plaintiff argues that the Court should have applied less stringent standards in 23 evaluating her Complaint because Plaintiff is a pro se litigant. However, in its order, the 24 Court expressly held Plaintiff’s complaint to less stringent standards than those afforded to 25 formal pleadings drafted by lawyers. (Id.at 3–4.) To the extent Plaintiff disagrees with the 26 outcome, that is an insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp., 27 689 F. Supp. 1572, 1573 (D. Haw. 1988). Accordingly, the Court denies Plaintiff’s motion 28 for reconsideration. 1 At the end of her motion, Plaintiff requests a two-month “continuance” of her case. 2 Construing this as a motion for an extension of time to file an amended complaint, the 3 Court grants Plaintiff an additional sixty days from the date of this order to file a First 4 Amended Complaint. 5 IT IS SO ORDERED Plaintiff’s motion for reconsideration (Doc. 20) is DENIED. 6 IT IS FURTHER ORDERED, construing Plaintiff’s motion to stay as a motion 7 for an extension of time to file a First Amended Complaint, the Court grants Plaintiff a 8 sixty-day extension as follows: 9 • Any First Amended Complaint must be filed within sixty (60) days of this 10 Order and must comply with Court’s January 2, 2024 Order (Doc. 19), which 11 provides that (1) Plaintiff’s Fifth Amendment claim, inadequate 12 investigation claim, and inadequate notice claim are DISMISSED and (2) 13 Plaintiff’s judicial deception claim, denial of Plaintiff’s right to make 14 medical decisions for her children claim, substantive due process claim based 15 on Defendant Powell’s non-compliance with state court orders, and 16 intentional infliction of emotional distress claim are DISMISSED 17 WITHOUT PREJUDICE. 18 • Given that the latter claims are curable, the Court will allow Plaintiff to file 19 a First Amended Complaint that contains sufficient factual allegations to 20 support them. Any First Amended Complaint must be retyped or rewritten in 21 its entirety. Further, the First Amended Complaint may not incorporate any 22 part of the prior complaint or subsequent pleadings by reference. All causes 23 of action alleged in the original complaint which are not alleged in any First 24 Amended Complaint will be waived. Hal Roach Studios v. Richard Feiner 25 & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) (“[A]n amended pleading 26 supersedes the original.”). Any First Amended Complaint submitted by 27 Plaintiff shall be clearly designated as a First Amended Complaint on the 28 face of the document. Additionally, any First Amended Complaint shall 1 comply with the requirements of Fed. R. Civ. P. 8(a), 10(a), and 1 1(a). 2 e The Clerk of the Court is DIRECTED to enter a judgment of dismissal, 3 without prejudice, without further order of the Court, if Plaintiff fails to file 4 a First Amended Complaint within sixty (60) days of the filing date of this 5 Order. 6 Dated this 15th day of February, 2024. 7 8 : Apues le 10 Wy 11 Ubited States Dictric Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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