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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gracie M. Reyes, 

Plaintiff, 

v. 

City of Phoenix, 

Defendant. 

No. CV-17-04741-PHX-JAT

ORDER 

 Pending before the Court is Plaintiff Gracie M. Reyes’ (“Plaintiff”) Motion to 

Reinstate Case. (Doc. 19). Plaintiff argues that the judgment of dismissal against her 

should be amended and the case reinstated pursuant to Federal Rule of Civil Procedure 

(“Rule”) 59(b) to give her the opportunity to present her claim. Plaintiff asserts that her 

failure to meet and confer with Defendant City of Phoenix (“Defendant”) pursuant to 

Rule 26(f), her failure to expeditiously initiate communications necessary to prepare the 

Joint Proposed Case Management Plan (“Joint Plan”), and her failure to provide good 

cause at the May 10, 2018 show cause hearing was due to her unfamiliarity with the 

procedures of federal litigation while proceeding pro se. Having now obtained outside 

counsel, Plaintiff argues it is in the interest of justice that the Court allows her to further 

prosecute her claims. Defendant argues that parties proceeding pro se are not exempt 

from applicable rules of procedure. Defendant asserts further that dismissal is an 

appropriate sanction for repeatedly failing to comply with Court orders and the motion to 

reinstate the case is essentially a motion to reconsider the Court’s initial decision. 
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I. Background 

 Plaintiff was employed by Defendant for over nine years. (Doc. 1 at 2). Plaintiff 

filed a complaint pro se on December 22, 2017, alleging claims of retaliation, wrongful 

termination, sex discrimination, and emotional distress against Defendant. (Doc. 1 at 2–

6). Plaintiff thereafter received a multitude of pro se materials and resources from the 

Court, including a link to: (1) the Local Rules of Practice for the District of Arizona; (2) 

the Handbook for Self-Represented Litigants; (3) Frequently Asked Questions; and (4) 

Forms for Pro Se Litigants. (Doc. 3 at 6). The Plaintiff was also given notice of the 

Volunteer Lawyers Program. (Doc. 3 at 7). 

 Plaintiff did not serve Defendant until March 21, 2018, three months after 

commencing the action. (Doc. 6). Defendant promptly answered the complaint on March 

28, 2018. (Doc. 7). This response triggered the Mandatory Initial Discovery Pilot 

(“MIDP”) under General Order 17–08, (Doc. 4), requiring initial discovery disclosures 

from both parties within 30 days of the response. (Doc. 8 at 3). 

 On March 28, 2018, pursuant to Rule 16, the Court set a scheduling conference 

(“Scheduling Conference”) for May 10, 2018. (Doc. 8). Under Rule 26(f), twenty-one 

days before the Scheduling Conference, the parties are to meet and develop a Joint Plan 

to be jointly filed not less than ten days before the Scheduling Conference. (Doc. 8 at 2–

4). Plaintiff received an Order from the Court stating it is the responsibility of Plaintiff to 

“expeditiously initiate” the communications necessary to prepare the Joint Plan. (Doc. 8 

at 4). 

 On April 27, 2018, the deadline set in the Court’s Rule 16 Order, Defendant 

mailed its MIDP responses to Plaintiff and filed notice of this with the Court. (Doc. 10). 

On April 30, 2018, Defendant filed a Rule 26(f) report pursuant to the MIDP with 

Defendant’s Proposed Discovery Plan. (Doc. 11). The plan was missing the factual and 

legal bases for Plaintiff’s claim as well as the discussion and completion of Plaintiff’s 

MIDP responses. (Doc. 11 at 1, 6). According to Defendant, Plaintiff failed to initiate 

communications to prepare the Joint Plan as required by the Court’s Rule 16 Order, and 
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ultimately failed to respond at all. (Doc. 11 at 1 n.1). 

 In the first of multiple attempts to set a date for the Rule 16 Scheduling 

Conference, Defendant called Plaintiff and left a message, and followed-up with an 

email. (Doc. 11, Ex. A). On April 12, 2017, attorney Lori Brown (“Brown”) contacted 

Defendant, purporting to represent Plaintiff, and requested all relevant documentation and 

a phone conference to discuss the case. (Doc. 11, Ex. A at 4). On April 16, 2018, Brown 

sent a follow-up email to Defendant requesting a response. (Id.) 

 On April 17, 2018, Defendant emailed Brown regarding the approaching filing 

deadline for the Joint Plan. (Doc. 11, Ex. A at 2). On April 18, 2018, Plaintiff directly 

responded to Defendant and requested a copy of the Scheduling Conference dates. (Id.) 

 Subsequently, Plaintiff emailed Defendant stating she had secured Branham Law 

Offices PC (“Branham”) as her legal representation in this case. (Doc. 11, Ex. A at 13). 

On April 23, 2018, Defendant sent an email to Branham, listing the upcoming mandatory 

deadlines under the Court’s Rule 16 Order. (Id.) On April 24, 2018, Branham responded 

to Defendant stating they were not representing Plaintiff in this matter. (Id.) Defendant 

notified Plaintiff that Branham was not representing her and requested once again to meet 

and confer regarding the Joint Plan. (Id.) 

 On April 26, 2018, in response to an email Plaintiff sent that morning, Defendant 

provided Plaintiff with the draft Joint Plan. (Doc. 11, Ex. A at 5). The email from 

Plaintiff indicated she believed communication regarding the Joint Plan was Defendant’s 

responsibility. (Doc. 11, Ex. A at 5). 

 On April 30, 2018, Defendant filed a Notice of Non-Compliance and a Request for 

Order to Show Cause because of Plaintiff’s failure to participate in a Rule 26(f) 

conference and failure to draft her portion of the Joint Plan. (Doc. 12). The Court ordered 

that on May 10, 2018, Plaintiff appear and show cause why this case should not be 

dismissed due to her failure to participate in the preparation of the Joint Plan. (Doc. 13). 

Further, the order stated that failure to respond to the pending partial motion to dismiss 

was to be deemed as consent to the motion being granted. (Id.) 
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 On May 10, 2018, the Court ruled that the Plaintiff did not show good cause for 

failing to engage with Defendant in preparing the Joint Plan and failing to respond to the 

pending partial motion to dismiss. (Doc. 16). The Court ordered dismissal of the case 

without prejudice and ordered the Clerk of Court to enter judgment accordingly. (Doc. 

16). On May 31, 2018, Plaintiff filed the Motion to Reinstate Case, currently pending 

before this Court. (Doc. 19). On June 18, 2018, Defendant responded. (Doc. 21). 

 Neither Plaintiff nor Defendant cites the appropriate standard under Rule 59(e). 

Rather, Plaintiff argues it is in the interest of justice to reinstate the case and continue its 

prosecution because of her alleged difficulties in navigating the federal litigation system 

as a pro se plaintiff. Now, having obtained legal counsel, she argues that the judicial 

leniency granted to pro se plaintiffs when considering the sufficiency of pleadings and 

equal access to the courts should be applied to excuse her failure to abide by the 

procedural rules of federal litigation. 

 In response, Defendant argues that Plaintiff’s motion would merely amount to a 

reconsideration of the initial judgement. Defendant points to a long line of cases in which 

pro se litigants are held equally accountable for failure to comply with procedural rules, 

and may be sanctioned for those failures by dismissal of the case. Notwithstanding these 

cases, Defendant argues that the “incredible difficulties” asserted by Plaintiff are 

unfounded. In fact, Defendant claims, the Court provided Plaintiff with many pro se 

resources of which she did not avail herself. 

II. Legal Standard 

Rule 26(f) requires parties to “confer as soon as practicable” and “[i]n conferring, 

the parties must consider the nature and basis of their claims and defenses and the 

possibilities for promptly settling or resolving the case.” Fed. R. Civ. P. 26(f). Also 

pursuant to this rule, the parties are required to “develop a proposed discovery plan” 

outlining the timing, form, subjects, and possible issues of discovery. Id. Rule 

37(b)(2)(A)(v) provides for “dismissing the action or proceeding in whole or in part” if a 

party fails to obey an order under Rule 26(f). Fed. R. Civ. P. 37(b)(2)(A)(v). 
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 Rule 26(a) lists the federal requirements for initial disclosures from the parties. 

The District of Arizona has a general order detailing discovery requirements under the 

MIDP. (Doc. 4). Under the MIDP, “a party seeking affirmative relief must serve its 

responses to the mandatory initial discovery no later than 30 days after the first pleading 

filed in response to its complaint.” (Doc. 4 at 3). Failure to follow this rule is a proper 

ground for dismissal. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 

 Rule 41(b) provides that upon a Plaintiff’s “fail[ure] to prosecute or comply with 

these rules or a court order, a defendant may move to dismiss the action or any claim 

against it . . . . [A] dismissal under this subdivision . . . operates as an adjudication on the 

merits.” Fed. R. Civ. P. 41(b). 

A District Court may alter or amend a judgment under Rule 59(e). In order to 

obtain the relief sought, Plaintiff must provide (1) a valid reason why the Court should 

reconsider its prior decision, and (2) strongly convincing facts or law to induce the Court 

to reverse all or part of its prior decision. Mothershed v. Elwell, No. CV 04–2594–PHX–

JAT, 2006 WL 89937, at *2 (D. Ariz. Jan. 12, 2006). Reconsideration is appropriate if 

the District Court (1) is presented with new evidence or facts not previously discoverable, 

(2) the Court committed clear error and the decision was manifestly unjust, or (3) there is 

an intervening change in the controlling law. School Dist. No. 1J, Multnomah County, 

Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). 

 Rule 59(e) motions may not be used to reexamine the initial decision or raise 

arguments that were available to the party prior to the entry of judgment. Mothershed,

2006 WL 89937, at *2. Motions for reconsideration cannot be used merely because a 

plaintiff disagrees with the Court’s decision. Dixon v. Clark, No. CV 09–2650–PHX–

SRB, 2010 WL 11515672, at *1 (D. Ariz. June 8, 2010). Furthermore, a Rule 59(e) 

motion offers an “extraordinary remedy” to be used “sparingly in the interests of finality 

and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 

877, 890 (9th Cir. 2000). 

 The pleadings of pro se litigants are to be construed liberally; however, even pro 
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se plaintiffs must comply with procedural rules. Mandell v. Am. Exp. Travel Related 

Servs. Co., Inc., 933 F.2d 1014 (9th Cir. 1991). Pro se litigants in an ordinary civil case 

should not be treated more favorably than parties with attorneys of record. Jacobsen v. 

Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). 

III. Analysis 

Plaintiff’s Rule 59(e) motion is timely; however, it fails to satisfy the Rule’s 

standards for relief. Plaintiff argues it is in the interest of justice and fairness to grant 

leniency to pro se litigants because of the challenges of navigating the legal system. 

While this argument may have merit, Plaintiff apparently failed to utilize any of the 

extensive materials or resources supplied by the Court to assist her in navigating this 

system. 

 Additionally, Defendant made repeated requests to meet and discuss the Joint Plan 

and Plaintiff was unresponsive, even though the Court’s order required Plaintiff to initiate 

these meetings. (Doc. 11 at 1 n.1). Plaintiff also failed to make any discovery disclosures, 

even after reminders from Defendant about upcoming deadlines. Plaintiff’s argument that 

she needed more time to comply with the deadlines is unpersuasive; Plaintiff waited three 

months before serving Defendant, during which time she could have been preparing her 

disclosure materials. Plaintiff failed to take any action to prosecute this case, despite 

Defendant’s noncompulsory assistance. 

 Furthermore, Plaintiff’s case does not fall into any of the categories of cases in 

which reconsideration may be appropriate. Plaintiff has not presented any new facts or 

evidence not previously discoverable. Instead, Plaintiff’s motion asks the Court to forgive 

her past actions in failing to engage with Defendant in the litigation process because she 

was proceeding without an attorney. The Court previously held a hearing in which 

Plaintiff had the opportunity to show good cause for failing to respond, at which time she 

could have raised the arguments at issue in this motion; a Rule 59(e) motion is not the 

appropriate vehicle to request reconsideration of a judgment based on previously 

available facts. 
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 Additionally, Plaintiff’s dismissal does not demonstrate clear error by the Court or 

a manifestly unjust outcome. The Court has broad authority to sanction parties who fail to 

follow procedural rules. The Court also provided extensive assistance to the Plaintiff as a 

pro se litigant to ensure that she was informed of these rules. Additionally, Defendant 

provided Plaintiff with notice of important deadlines and responsibilities throughout 

litigation. Further still, the Court provided Plaintiff the opportunity to respond and show 

cause for her failure to communicate in this case; Plaintiff was unable to demonstrate 

good cause. Plaintiff had multiple chances to rectify her conduct and chose not to do so. 

Dismissal of this case was not clear error by the Court. 

 Plaintiff argues that it is in the interest of justice to allow her to reinstate this 

matter. The cases cited by Plaintiff, however, are distinguishable from the facts of the 

case at hand. Plaintiff relies upon inapplicable cases discussing whether pro se prisoners 

have adequate access to the legal system, or the degree of leniency that should be granted 

on motions to dismiss for inadequate pleadings. White v. Lewis, 804 P.2d 805 (Riz. Ct. 

App. 1990) (citing Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978)). The issue here 

is not the adequacy of Plaintiff’s pleadings; the issue is her failure to respond and 

participate in the required procedural steps to prosecute her case. Contrary to the 

arguments made by Plaintiff, there is a long line of case law holding pro se litigants to the 

same standards as represented parties in complying with court rules and orders. See, e.g., 

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986); Jacobsen, 790 F.2d at 1364. 

 Plaintiff also cites Rule 2.2, Comment 4 of the Arizona Code of Judicial Conduct, 

which allows a judge to make reasonable accommodations for pro se litigants to allow 

them fair access to the judicial system. As an initial matter, federal district court conduct 

is governed by the Code of Conduct for United States Judges, not by the judicial code of 

a forum state. Furthermore, Plaintiff was given a litany of materials designed to assist pro 

se litigants, which she apparently failed to utilize. The Court and Defendant both 

provided reminders of required filings and deadlines to Plaintiff. A show cause hearing 

was held to give her a chance to explain why she repeatedly failed to comply. All of these 
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actions amount to reasonable accommodations. This rule does not absolve Plaintiff’s 

actions in this case. 

IV. Conclusion 

For the reasons stated above, 

IT IS ORDERED that Plaintiff’s Motion to Reinstate Case, (Doc. 19), is denied. 

The Motion for Ruling (Doc. 22) is granted to the extent that this Order resolves the 

motion to reinstate. 

 Dated this 14th day of September, 2018.