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Joyce B. Spies, Pro Se

16007 N. 52nd Street
Scottsdale, Arizona 85254
spiesjb@gmail.com
(602) -690-0158
Plaintiff

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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CITY OF SCOTTSDALE, ARIZONA, )
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DAVID STANLEY, et al,
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Defendants.
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JOYCE B. SPIES,

Case No.: 2:12-cv-01020-SMM

PLAINTIFFS MEMORANDUM OF LAW
IN SUPPORT OF PLAINTIFFS RULE 58(E)
MOTION TO SET ASIDE JUDGMENT, OR,
ALTERNATIVELY RULE 60(B) MOTION
FOR RECONSIDERATION
(Assigned to Hon. Stephen McNamee)

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Plaintiff, Joyce B. Spies (Spies), appearing pro se, pursuant to Fed. R. Civ. Proc.

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Rules 58(E) and 60(b), hereby submits her Memorandum of Law in Support of Plaintiffs Rule

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58(E) Motion to Set Aside Judgment, or, Alternatively Rule 60(b) Motion for Reconsideration

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on the Judgment of Dismissal entered on January 13, 2014.

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MEMORANDUM OF LAW

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I.

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STANDARD FOR REVIEW

There are two (2) separate and distinct rules available under Fed. R. Civ. Proc.

governing motions for relief from a final judgment and include Rule 59(e) or Rule 60(b) with

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the distinction between being that a Rule 59(e) allows the filing of a motion to alter or amend a

judgment within 28 days of entry of judgment; and Rule 60(b)(6) provides relief to a party or its

legal representative from a final judgment, order, or proceeding and specifically provides for

any other reason that justifies relief but must be made within a reasonable time and must be

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used sparingly as an equitable remedy to prevent manifest injustice." See, United States v.

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Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.1993); a party must demonstrate

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"extraordinary circumstances which prevented or rendered him unable to prosecute [his case]."

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Tani, 282 F.3d at 1168 (citing Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730

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(9th Cir. 1971).

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Accordingly, as is stated Plaintiff is well within her right to provide the following facts

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and legal argument to support her right in filing Plaintiffs Rule 59(E) Motion to Set Aside

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Default Judgment, or, Alternatively a Rule 60(B) Motion for Reconsideration (Motion) and

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requests the Court to vacate, or reconsider, the Judgment of Dismissal entered on January 13,

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2014.

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II.

BACKGROUND FACTS.

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Plaintiff filed her Complaint on May 16, 2012 against Defendant for the excessive force

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used in the improper arrest which violated her Fourth and Fourteenth Amendment of Rights

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applicable to search and seizure. As a result of the actions by Defendant, Plaintiff was damaged

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by the felony charges improperly filed against her, the physical damages incurred, the resulting
loss of earning capacity and emotional stress associated from therefrom.

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The case moved forward to the discovery phase after the Court issued its Scheduling
Order on May 5, 2013. Since that time, the parties actively participated in discovery by filing

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disclosure statements and propounded discovery requests and responses pursuant to Fed. R.
Civ. Proc. Rules 26-34.
The issue before the Court arises out of the Rule 41(b) Motion to Dismiss Defendant

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filed on November 27, 2013, requesting that the case be dismissed under the applicable
provisions for lack of prosecution alleging Plaintiffs failure to cooperate in discovery.

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Accordingly, Plaintiff responded by filing her Response in Opposition to Defendants Motion to

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Dismiss [Dkt #54] and thereafter Defendant filed its Reply to Response to Motion [Dkt #57].

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The Court upon consideration and arguments made by the parties at the Final Pretrial

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Conference held on January 13, 2014, by minute entry [#63]1 the Court granted Defendants

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Motion to Dismiss With Prejudice.

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Plaintiff files her Motion requesting that the Judgment of Dismissal be vacated, or set

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aside due to the fact it did not meet the requirements and was an excessive under Rule 41(b).

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III.

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FACTS SUPPORTING THE REQUSET FOR THE COURT TO VACATE THE

ENTRY OF AN IMPROPER ORDER OF DISMISSAL UNDER F.R.C. P. RULE
41(B).

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There were many disputed facts presented to the Court sufficient to warrant the denial of
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an the Judgment of Dismissal under the provisions set forth under Rule 41(b), which state:

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The court did not issue a separate Order and the minute entry stands as an unofficial Order for
purposes of the right to appeal.

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Rule 41(b)

Involuntary Dismissal; Effect.

If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this ruleexcept one for lack of jurisdiction, improper
venue, or failure to join a party under Rule 19operates as an adjudication on
the merits.

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Based on the provisions set forth in the Rule 41(b) and the deficiencies arising

therefrom, Plaintiff brings about this Motion based on the Courts failure to consider pertinent

facts presented by both parties. Further, it is Plaintiffs position that it would be highly

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burdensome for her to relist each and every fact as alleged as there were numerous and would

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be a duplicative effort when all are set forth in the records under the applicable docket numbers

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as referenced above and for which are part of record for these purposes. However, it is, it is

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imperative that Plaintiff separate and enumerate the key facts and issues in pertinent to the

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request that the Judgment be vacated and include:

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Fact No. 1.

Plaintiff denied and showed evidence to refute Defendants claim

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that she refused to provide medical records or sign medical authorizations to which she

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was obligated to produce;

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Fact No. 2.

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Plaintiff denied and showed evidence to refute Defendants claim

that refused to provide prior employment information or sign authorizations to request

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her copies for her tax returns.
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Fact No. 3.

Plaintiff denied and provided evidence to refute Defendants

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claim that she failed to provide proper Verifications as required by the rules to her

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discovery responses

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Fact No. 4

Plaintiff denied Defendants claim the she failed to and comply

with Defendants request to provide color photographs of the injuries sustained

resulting from the subject incident involving the use of excessive force by Defendant.

Fact No. 4.

Plaintiff denies Defendants claim that she refused to provide

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complete information relating to any other arrests or and did provide what was requested

by her.

Further , Plaintiff asserts that Defendant utilized unethical tactics, both in and out of

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court, in its attempt to have the matter dismissed thereby alleviating it of the responsibility to
defend their actions. Further, equally it is assumed that the Court must have also relied on these

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false accusations in rendering the final order of dismissal as otherwise how could it justify its

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decision. The purpose and intention behind a Rule 41(b) Motion to Dismiss is to dismiss

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actions that have been inactive for long periods of time and to relieve excessive caseloads for

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judges. The issues before this Court in no way warranted the entry of final dismissal of all of

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Plaintiffs claims allowing no relief to be sought. Further, it has been clearly shown that if there

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was any sanctions to be given it should have been to Defendant for false and misleading

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representations. The real truth of the matter is that Plaintiff made every attempt possible and

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allowed within the rules to avoid the necessity for extended discovery. Particularly as can be

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shown with her request for the settlement conference at the urging of the Judge immediately

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following the hearing on September 30, 2013. Furthermore, it is she who made the first attempt
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to settle the matter in sending the letter to Defendant on August 6, 2013.

Accordingly, it can be shown from any one fact listed singularly to show that there was
no reason warranting an order of dismissal under Rule 41(B). Rather, the more appropriate

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course of action would have been in filing a Rule 37 Motion to Compel requesting a more
formal hearing on the issues.
Unfortunately to the extreme detriment to Plaintiff which arose from Defendants

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improper and false allegations that Court entered its ruling on January 13, 2014 by minute entry

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as follows:
At the time set for Final Pretrial Conference, Defendants Rule 41(b)
Motion to Dismiss (doc. 52) is argued.

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For reasons stated on the record, Defendants Rule 41(b) Motion to Dismiss
(doc. 52) is GRANTED.
This case is dismissed as to all claims and all parties.

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Defendant David Stanley being present at the hearing, Defendants Motion to

Excuse Personal Appearance (doc. 61) is DENIED as moot.

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Plaintiffs Renewed Motion to Request Judicial Settlement Conference (doc. 58)

is DENIED as moot.

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LATER: Plaintiffs Motion to Set for Trial (doc. 62) is DENIED as moot.

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IV.

LEGAL ARGUMENT

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The Court has entered its order under an improper rule and the Motion should have been
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filed as a Rule 37 Motion to Compel. However, the main issue to be discussed is Defendants

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had no legal authority to demand Plaintiff to provide medical records or sign medical releases

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for records she did not possess. Furthermore, the Court erred in making its final determination

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because under proper rules of discovery she had no obligation to produce medical records not in

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her possession and outside of those provided in earlier discovery responses. See, Ayers v.
Continental Cas. Co., 955 F. Supp. 50 - Dist. Court, WD Virginia 1996, on which plaintiff

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relies upon where Judge Stamp considered the conflicting cases as to whether a court may order

a party to provide a medical records release under Rule 34. The court found that Rule 34

requires an item in a request for production of documents to be in the possession, custody or

control of the served party and that medical records held by a physician do not meet this

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description. * * * There is no provision in Rule 34 for requesting from a party documents that

are possessed by another person. While a patient may be able to request medical records from a

physician, the records are not sufficiently within the patients control to qualify under Rule 34.

See, also, Mills v. East Gulf Coal Preparation Co., LLC, 259 F.R.D. 118, 133 (S.D. W. Va.

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2009), the court noted that Rule 34 does not contain any requirement that a party provide

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written authorization for the release of documents in the possession, custody or control of

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another person, entity or agency or permit the Court to order a party to provide such

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authorization.

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Furthermore, Plaintiff repeatedly gave verbal confirmation to Defendant that all

information relating to other medical records and providers was contained within her primary

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care physicians records previously produced. Accordingly, it is for these reasons Plaintiff still

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argues that she could not produce records she was not aware existed and further adamantly

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denies hiding records as claimed by Defendant.

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Therefore, to the extent that Plaintiff had no legal obligation to sign medical

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authorizations and her assurances that she did not have other records the proper course of action
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would have been to file a Rule 37(a) Motion to Compel if they had been able to show proper
discovery objections which in fact they could not.
Finally, the dismissal of Plaintiffs cause of action is one so serve and strips her of the
right to due process and should have been avoided at all cost but especially when it was clearly

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shown that her intentions were never to harm Defendant. The constitutional right to prevail

has likewise been argued that the dismissal of a party's complaint is a drastic sanction which

should not be invoked except in those cases where the conduct of the noncomplying party

shows a deliberate and wilful disregard of the court's authority. See, Gallo v. Henke (1982), 107

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Ill. App. 3d 21, 27, 62 Ill. Dec. 766, 436 N.E.2; See, also Fjelstad v. American Honda Motor

Co., 762 F.2d 1334, 1337 (9th Cir.1985)) stating for dismissal to be proper, the conduct to be

sanctioned must be due to " 'willfulness, fault, or bad faith.' " Id. at 946 (quoting Due process

concerns further require that there exist a relationship between the sanctioned party's

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misconduct and the matters in controversy such that the transgression "threaten[s] to interfere

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with the rightful decision of the case." Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 591 (9th

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Cir.1983); see also Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 806

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(9th Cir.1982) (holding default entry violated due process where the sanctioned party's

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deception was wholly unrelated to the merits of the controversy is inconsistent with the

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requirements of due process. Accordingly, we reverse the judgment of default and remand the

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cause for further proceedings).

Therefore based on Defendants improper and unqualified demand that Plaintiff produce

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records that she was not legally obligated to produce and request for such a severe sanction
warrants the Court to vacate or set aside the dismissal and allow the matter to move forward

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accordingly.
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V.

CONCLUSION

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Based on the foregoing, Plaintiff has provided the all the information to meet the

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standards required under Rules 59(e) and 60(b) showing why the Order of Dismissal issued on

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January 13, 2014 is not appropriate under F.R.C.P. Rules 37(a) and 41(b), and should be

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vacated or set aside to the extent that Plaintiff was denied her right to due process and the
opportunity to move the matter to trial.
DATED this ____ day of February, 2014.

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_______________________________________
JOYCE SPIES, Pro Se
Plaintiff

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CERTIFICATE OF SERVICE

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I hereby certify that on the 11th day of February, 2014, pursuant to F.R.C.P. Rule 5(b),

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I served via regular U.S. mail a true and correct copy of Plaintiffs Memorandum of Law In

Support of Rule 59(e) Motion to Set Aside Judgment, or, alternatively, Rule 60(B) Motion for

Reconsideration to:

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Lori Davis
Kenneth Flint
Scottsdale City Attorneys Office
3939 N. Drinkwater Boulevard
Scottsdale, Arizona 85251
Attorneys for City of Scottsdale

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________________________________________
JOYCE SPIES, Pro Se
Plaintiff

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