Goldwater v. Brewer

• Court: Arizona Court of Appeals
• Writing for the Court: PATRICIA A. OROZCO.
• Decision Date: 08 February 2010
• Docket Number: 1 CA-CV 10-0071
• Citation: Goldwater v. Brewer, 1 CA-CV 10-0071 (Ariz. App. Feb 08, 2010)
• Parties: EDWARD GEORGE GOLDWATER, Plaintiff/Appellant, v. JAN BREWER, CHARLES RYAN, Defendants/Appellees.

EDWARD GEORGE GOLDWATER, Plaintiff/Appellant,

v.JAN BREWER, CHARLES RYAN, Defendants/Appellees.

1 CA-CV 10-0071

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT D

Filed : Feb. 8, 2010

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication-Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. CV2009-017552

The Honorable Bethany G. Hicks, Judge

AFFIRMED

Edward Goldwater

Appellant In Propria Persona

Buckeye

Thomas C. Horne, Attorney General

By Kelley J. Morrissey, Assistant Attorney General

Attorneys for Defendants/Appellees

Phoenix

OROZCO, Judge

¶1 Edward George Goldwater (Goldwater) appeals from the dismissal of his complaint against Arizona Governor Jan Brewer(Brewer) and Arizona Department of Corrections (ADOC) Director Charles Ryan (Ryan). Finding no error of law or abuse of discretion, we affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

¶2 Goldwater is in the custody of ADOC. On May 26, 2009, he filed a complaint in Maricopa County Superior Court alleging that Ryan and Brewer had denied him an appropriate hypoglycemic diet and engaged in statewide corruption and fraud.

¶3 Specifically, Goldwater's complaint alleges that Brewer and Ryan had breached a contract to feed, house, protect and provide medical care for him. It further alleges claims of fraud and corruption, negligence per se, state constitutional violations, and civil conspiracy.

¶4 A process server served the complaint on Brewer and Ryan on June 12, 2009 and June 15, 2009, respectively. On June 19, 2009, Ryan was also served with a subpoena duces tecum, which apparently asked Ryan to respond to a request for admissions and produce the response, along with other documents, at a deposition.

¶5 Goldwater, who assumed that both defendants were served on June 12, 2009, filed a "Notice of Service of Process & Motion For Default Judgment" on July 6, 2009. Brewer and Ryan then obtained leave of court to respond to the complaint by August 3, 2009. The court also extended the deadline for Ryanto respond to Goldwater's written discovery requests. Meanwhile, Goldwater continued to move for entry of a default judgment and moved for an order to show cause regarding Brewer and Ryan's entitlement to additional time for a response and objected to the enlargement of time.

¶6 In lieu of answering Goldwater's complaint, Ryan and Brewer filed a Civil Rule 12(b)(6) motion to dismiss the complaint on August 3, 2009. Their motion attacked Goldwater's complaint on several grounds, including: (1) the failure to comply with the Arizona Revised Statutes (A.R.S.) section 31-201.01.L. and F. (2002) provisions on tort claims against the state and claims brought by felons; (2) the failure to comply with the A.R.S. § 12-821.01 (2003) notice of claim requirements; (3) the failure to comply with A.R.S. § 12-820.04 (2003); and (4) the failure to state a claim for conspiracy and fraud pursuant to the general rules of pleading under Rule 8, Ariz. R. Civ. P.

¶7 Goldwater did not respond to the motion. Instead, he filed documents relating to the alleged default, discovery issues, and alleged fraud: (1) a motion for a declaratory judgment because all the requests for admissions should be deemed admitted; (2) a writ of attachment for the arrest of Ryan and for a hearing on the motions pending by Goldwater; (3)judicial notice of fraud; and (4) replies in support of the foregoing motions.

¶8 The trial court granted the motion to dismiss in an unsigned minute entry filed on October 15, 2009. In the ruling, the court held that Ryan was not required to file responses to Goldwater's request for admissions.¹ This appeal followed on November 7, 2009. On November 25, 2009, the court signed a judgment dismissing the complaint with prejudice in accordance with the minute entry filed on October 15, 2009.² We have jurisdiction in accordance with Article 6, Section 9 of the Arizona Constitution, and A.R.S. § 12-2101.B. (2003).

DISCUSSION³

I. Entry of Default Judgment and Rulings on Motions.

¶9 Goldwater argues that the trial court exhibited fundamental unfairness in refusing to rule on his motions and enter default against Brewer and Ryan and committed plain error in ignoring his request for oral argument. He further contends that the trial court denied him access to the courts and his right to a jury trial, thereby creating structural error. Finally, Goldwater contends that the trial court exhibited bias, bad faith, and "wanton disregard for the truth." We address these issues in turn.

¶10 In reviewing the issues concerning Goldwater's motions for default, we apply the abuse of discretion standard. See Daystar Invs., L.L.C. v. Maricopa County Treasurer, 207 Ariz. 569, 572, 5 13, 88 P.3d 1181, 1184 (App. 2004). The trial court did not rule on all of Goldwater's motions because it evidently found the defense's motion to dismiss dispositive of all claimsand arguments. Upon entering judgment, the court denied all of Goldwater's motions by operation of law. Atchison, Topeka, & Santa Fe Ry. Co. v. Parr, 96 Ariz. 13, 15, 391 P.2d 575, 577 (1964) (holding that unresolved motions are deemed denied by operation of law). We find no authority that this procedure was erroneous. Moreover, having reviewed the record, we conclude that the trial court did not abuse its discretion by declining to enter a default.

¶11 Obtaining a default judgment is a two-step process. First, the default must be entered. A party may apply for entry of default when the opposing party has "failed to plead or otherwise defend." Ariz. R. Civ. P. 55(a). Next, the applying party must move or apply for a default judgment after the expiration of ten days. Id.; see Ariz. R. Civ. P. 55(b).

¶12 The default shall not take effect "if the party claimed to be in default pleads or otherwise defends as provided by these Rules prior to the expiration of ten (10) days from the filing of the application for entry of default." Ariz. R. Civ. P. 55(a)(3). If not, the default is effective at the end of the ten days after the application's filing. Ariz. R. Civ. P. 55(a)(2).

¶13 Goldwater served Brewer and Ryan with his complaint, and their responses were due on July 1, 2009 and July 6, 2009, respectively. Defense counsel filed a motion requesting a stayon June 30, 2009, on the basis that counsel would not be able to meet her ethical duties to the clients in the event the Arizona State budget was not in place by July 1, 2009. This motion did not address the substance of Goldwater's complaint. The trial court did not rule on the motion for stay. Goldwater moved for a default judgment on July 6, 2009 and filed additional motions for a default judgment on July 9, 2009, July 14, 2009, and July 20, 2009.

¶14 The trial court never entered default or a default judgment. Instead, on July 14, 2009, the court enlarged the time for a response to Goldwater's complaint to August 3, 2009, in accordance with Ryan and Brewer's request. We find no error.

¶15 Once they had filed their motion to dismiss within the extended time frame, Brewer and Ryan had no obligation to file an answer until ten days after the court ruled on their motion, see Ariz. R. Civ. P. 12(a)(3)(A), and therefore they were not in default. In any event, Goldwater's July 6, 2009 motion for a default judgment was improper and ineffective because he had failed to first secure an entry of default. See Ariz. R. Civ. P. 55(a).

¶16 Goldwater objects to the extended time frame and claims prejudice. Under Arizona Rule of Civil Procedure 6(b), the trial court has discretion to order enlargement of the period for an act required by the rules. Ariz. R. Civ. P. 6(b); accord 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1165 (3d ed. 2010) (explaining that analogous Federal Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time").

¶17 These authorities establish the trial court's discretion to extend the time in which Ryan and Brewer could respond to the complaint. Brewer and Ryan complied with the new August 3, 2009 deadline, which provided them with about one month of additional time. Goldwater fails to explain how this brief extension prejudiced him. Instead, his Opening Brief contains conclusory statements related to other issues. Accordingly, we find no abuse of discretion in the court's failure to enter default or a default judgment under these circumstances. See Edelen v. Campbell Soup Co., 265 F.R.D. 676, 681, 689 (N.D. Ga. 2010) (declining to enter a default judgment because the defendant timely defended against the plaintiff's claims by filing a motion to dismiss within the extended time period); Stanley v. Goodwin, 475 F. Supp. 2d 1026, 1033 (D. Haw. 2006) (denying a motion for entry of a default judgment because the defendants filed motions under Rule 12(b)(2), (b)(5), and (b)(6) prior to the extended deadline to respond to the plaintiff's complaint); see generally Findlay v. Lewis, 172Ariz. 343, 346-47, 837 P.2d 145, 148-49 (1992) (holding that an appellate court does not substitute its judgment for the trial court's management of its docket in determining whether to grant a request for an extension).

¶18 Goldwater further argues that a party whose default has been entered loses the right to litigate the claim. There are two problems with this argument. First, no default was ever entered. Second, even if we concluded that all the default requirements were met, Goldwater would still not be entitled to relief. A default judgment admits all well-pleaded facts. Postal Ben. Ins. Co. v. Johnson, 64 Ariz. 25, 33, 165 P.2d 173, 178 (1946). It cannot be based upon a complaint that fails to state a cause of...