Dragonas v. Macerich, No. 2:2020cv01648 - Document 12 (D. Ariz. 2021)
Court Description: ORDER granting Defendant's Motion to Dismiss Plaintiff's Complaint (Doc. 5 ) to the extent that the Complaint is dismissed without prejudice for lack of jurisdiction and for failure to state a claim. IT IS FURTHER ORDERED denying Defendan t's request for attorney's fees pursuant to 42 U.S.C. § 2000a-3(b) without prejudice (part of Doc. 5 ). IT IS FURTHER ORDERED denying Defendant's Motion to Strike Impermissible Sur-Reply Filed by Plaintiff in Opposition to Motio n to Dismiss. (Doc. 9 .) IT IS FINALLY ORDERED allowing Plaintiff 60 days to comply with the notice requirement described herein and to file an Amended Complaint that conforms with the requirements set forth in this Order. Because the Court is giving Plaintiff leave to amend, the Clerk of the Court shall not enter judgment at this time. Signed by Judge Michael T. Liburdi on 2/3/2021. (RMW)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Bill Dragonas, Jr., 9 Plaintiff, 10 11 v. 12 Macerich, 13 No. CV-20-01648-PHX-MTL ORDER Defendant. 14 15 Before the Court are two motions from Defendant Macerich:1 a motion to dismiss 16 for lack of jurisdiction, or, alternatively, for failure to state a claim, and a motion to strike 17 Plaintiff’s sur-reply. (Docs. 5, 9.) For the following reasons, the Court grants the motion to 18 dismiss and denies the motion to strike.2 This case is dismissed without prejudice. 19 I. BACKGROUND 20 Plaintiff Bill Dragonas, Jr., is a 74-year-old Arizona resident who frequently visits 21 the Paradise Valley Mall. (Doc. 1-1 ¶ 8.) On an unspecified date, he visited the mall without 22 wearing a face mask, “as usual.” (Id. at 6.) Without “provocation or cause,” two women 23 “harassed” Plaintiff for his refusal to wear a mask. (Doc. 1-1 at 4.) Although the Complaint 24 25 26 27 28 Plaintiff refers to Defendant as “Macerich” or “Macerich Inc.” in the Complaint and as “P.V. Mall” in the Summons. (Doc. 1-1 at 2, 3.) Defendant asserts that the entity that owns the Paradise Valley Mall is Paradise Valley Mall SPE LLC, which an “indirect subsidiary of Macerich, Inc.” and the entity it presumes that Plaintiff intended to sue. (Doc. 5 at 1.) 2 Both parties have submitted legal memoranda and oral argument would not have aided the Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also LRCiv 7.2(f); Fed. R. Civ. P. 78(b). (Doc. 5 at 1.) 1 1 does not state as much, the Court understands this event to have occurred during the 2 COVID-19 pandemic. The women then “falsely” complained to mall security that Plaintiff 3 was harassing them. (Id.) Plaintiff told mall security that he was not wearing a mask 4 because of his religious beliefs (which are unspecified).3 (Id.) Mall security told Plaintiff 5 to leave and that he was banned from returning for one year. Plaintiff was not provided any 6 “due process” or hearing in connection with this decision. (Id. at 7.) 7 Plaintiff filed his Complaint, pro se, in the Maricopa County Justice Court, Dreamy 8 Draw Precinct, on July 29, 2020. (Id. at 2.) It alleges that Defendant violated “Title II of 9 the Civil Rights Act” by removing him from the mall due to his “refusal to wear a mask 10 pursuant to his religious beliefs.”4 (Id. at 8.) He seeks compensatory damages, punitive 11 damages, and injunctive relief.5 (Id.) Defendant timely removed the case to this Court 12 pursuant to 28 U.S.C. § 1441. (Doc. 1.) It then filed the pending motion to dismiss, which 13 is now fully briefed. (Docs. 5, 6, 7.) 14 II. 15 MOTION TO DISMISS A. 16 Legal Standards 1. Rule 12(b)(1) 17 Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims over 18 which it lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “When the motion to 19 dismiss attacks the allegations of the complaint as insufficient to confer subject matter 20 jurisdiction, all allegations of material fact are taken as true and construed in the light most 21 favorable to the nonmoving party.” Renteria v. United States, 452 F. Supp. 2d 910, 919 (D. 22 23 24 25 26 27 28 Plaintiff also states that religious beliefs are a specific exception to the Governor’s “mask mandate.” (Doc. 1-1 at 4.) The Court takes judicial notice of the fact that although Governor Ducey has issued various executive orders in light of the COVID-19 pandemic (see, e.g., Xponential Fitness v. Arizona, No. CV-20-01310-PHX-DJH, 2020 WL 3971908, at *2 (D. Ariz. July 14, 2020) for a partial list), he has not issued a statewide mask mandate. 4 The Complaint states at one point that under the Governor’s “decree,” masks were not required in the case of “religious belief or health reasons.” (Id. at 6.) The Complaint does not otherwise state that Plaintiff’s refusal to wear a mask was due to health reasons. 5 Title II “does not provide for a private right of action for money damages.” Ramirez v. Hart, No. C13-5873 RJB, 2014 WL 2170376, at *6 (W.D. Wash. May 23, 2014). 3 -2- 1 Ariz. 2006) (citing Fed’n. of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 2 1207 (9th Cir. 1996)). Federal courts may only hear cases as authorized by the Constitution 3 and Congress; namely, cases involving diversity of citizenship, a federal question, or cases 4 to which the United States is a party. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 5 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction, and 6 the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. 7 (citations omitted). On a motion to dismiss for lack of subject-matter jurisdiction, the 8 plaintiff has the burden to demonstrate that jurisdiction exists. Stock West, Inc. v. 9 Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). 10 2. Rule 12(b)(6) 11 To survive a motion to dismiss, a complaint must contain “a short and plain 12 statement of the claim showing that the pleader is entitled to relief” such that the defendant 13 is given “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. 14 Corp. v. Twombly, 550 U.S. 545, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2); Conley v. 15 Gibson, 355 U.S. 41, 47 (1957)). Dismissal under Rule 12(b)(6) “can be based on the lack 16 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 17 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A 18 complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can 19 prove no set of facts in support of the claim that would entitle it to relief.” Williamson v. 20 Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000). 21 The Court must accept material allegations in the Complaint as true and construe 22 them in the light most favorable to Plaintiff. North Star Int’l v. Arizona Corp. Comm’n, 23 720 F.2d 578, 580 (9th Cir. 1983). “Indeed, factual challenges to a plaintiff’s complaint 24 have no bearing on the legal sufficiency of the allegations under Rule 12(b)(6).” Lee v. City 25 of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Review of a Rule 12(b)(6) motion is 26 “limited to the content of the complaint.” North Star Int’l, 720 F.2d at 581. 27 B. 28 The Court interprets the Complaint as asserting a claim under Title II of the Civil Discussion -3- 1 Rights Act of 1964, 42 U.S.C. § 2000a (“Title II”), for an alleged denial of the benefits of 2 a public accommodation due to Plaintiff’s religious beliefs. Defendant argues that the case 3 should be dismissed for lack of subject-matter jurisdiction due to Plaintiff’s failure to 4 exhaust administrative remedies, or, alternatively, for his failure to state a claim. The Court 5 addresses these arguments in turn. 6 1. Lack of Subject-Matter Jurisdiction 7 Title II prohibits discrimination in places of public accommodation on the basis of 8 “race, color, religion, or national origin.” 42 U.S.C. § 2000a. It contains a notice provision 9 providing that a plaintiff shall not bring a civil action “before the expiration of thirty days 10 after written notice of such alleged act or practice has been given to the appropriate State 11 or local authority,” if such state has a law “prohibiting such act or practice and establishing 12 or authorizing a State or local authority to grant or seek relief from such practice.” 42 13 U.S.C. § 2000a–3(c). Accordingly, if the relevant state has an agency with the authority to 14 hear complaints of discrimination prohibited by Title II, then notification to that agency is 15 a “prerequisite for federal jurisdiction.” May v. California Hotel & Casino, Inc., No. 2:13- 16 CV-00066-GMN, 2014 WL 1494231, at *3 (D. Nev. Apr. 14, 2014). 17 Defendant argues that this case should be dismissed for lack of subject-matter 18 jurisdiction because Plaintiff “failed to exhaust his administrative remedies” under Title II. 19 (Doc. 5 at 3.) Plaintiff does not respond to this argument. (Docs. 6, 8.) The Court notes, at 20 the outset, that this argument is more properly characterized as a failure to comply with a 21 notice requirement, rather than to exhaust administrative remedies. See, e.g., Boyle v. 22 Jerome Country Club, 883 F. Supp. 1422, 1426 (D. Idaho 1995) (While a plaintiff is “not 23 required to exhaust state court remedies, it is clear that notice under the statute is a 24 jurisdictional prerequisite to filing a civil action in federal court.”); Ramirez v. Adventist 25 Med. Ctr., No. 3:17-CV-831-SI, 2017 WL 4798996, at *6 (D. Or. Oct. 24, 2017) (a Title 26 II plaintiff’s claim was “barred for failing to comply with this statutory notice 27 requirement”). 28 Here, the alleged violation occurred in Arizona. (Doc. 1-1 at 4.) The Arizona Civil -4- 1 Rights Act prohibits the denial of the “advantages, facilities or privileges” of a place of 2 public accommodation “because of race, color, religion, sex, national origin or ancestry.” 3 A.R.S. § 41-1442. See also Dawson v. Superior Court In & For Maricopa Cty., 163 Ariz. 4 223, 224–25 (Ct. App. 1990) (“In enacting the Civil Rights Act, the Arizona Legislature 5 intended to accomplish the same objectives on the state level as those on the federal level.”) 6 (citation omitted). The Arizona Civil Rights Division (ACRD), a division of the Arizona 7 Attorney General’s Office, is the designated agency to review such complaints and to 8 enforce the Arizona Civil Rights Act. See A.R.S. § 41-1401. An individual may bring a 9 civil action under the Arizona Civil Rights Act “only after the [ACRD] has had an 10 opportunity to investigate charges and, if it chooses, to instigate formal or informal 11 processes to address them.” Miles v. Vasquez, No. CV-07-1398-PHX-FJM, 2007 WL 12 3307020, at *2 (D. Ariz. Nov. 6, 2007). 13 Accordingly, Plaintiff was required to notify the ACRD of the alleged violation at 14 issue. Because the Complaint does not indicate that he did so, Plaintiff has not complied 15 with Title II’s notice requirement. See Boyle, 883 F. Supp. at 1425-26 (Section § 2000a- 16 3(c) “clearly requires” Title II plaintiffs to give prior notice to the relevant state or local 17 authorities prior to initiating suit). 18 The Court notes that Defendant’s reply indicates that on September 8, 2020—more 19 than a month after filing the present Complaint, and six days after filing his response 20 brief—Plaintiff filed a separate complaint with the ACRD.6 (Doc. 7 at 3; Doc. 7-1.) This 21 filing is insufficient because a Title II plaintiff must wait for “the expiration of thirty days 22 after written notice” before filing a lawsuit. 42 U.S.C. § 2000a–3(c). Further, as Defendant 23 points out, Plaintiff’s ACRD complaint asserts that he faced discrimination based on his 24 disability (which is not specified), as compared with his religion. (Doc. 7-1 at 2; Doc. 1-1- 25 at 7.) Title II mandates notification of “such alleged act or practice” for which the plaintiff 26 seeks relief. 42 U.S.C. § 2000a–3(c). Even had Plaintiff’s ACRD complaint been timely 27 28 6 Because Defendant brings a factual attack against subject-matter jurisdiction, the Court may look beyond the Complaint. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). -5- 1 filed, it would not have provided notice of the alleged conduct for which he complains 2 herein. For this independent reason, Plaintiff has not complied with Title II’s notice 3 provision. 4 Because Plaintiff failed to timely notify the ACRD of the alleged religious 5 discrimination at issue, this Court lacks jurisdiction to hear the Title II claim. See, e.g., 6 May, 2014 WL 1494231, at *4 (“Therefore, because Plaintiff failed to notify the 7 [appropriate agency] of the alleged discrimination in a place of public accommodation, this 8 Court lacks jurisdiction to hear the Title II claim.”); Boyle, 883 F. Supp. at 1427 (dismissing 9 case for failure to comply with Title II notice requirement because “a vital jurisdictional 10 prerequisite to this suit is absent”). Because Plaintiff may remedy this defect, dismissal 11 without prejudice is appropriate. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 12 (9th Cir. 2004) (“[B]ecause the district court lacked subject matter jurisdiction, the claims 13 should have been dismissed without prejudice.”). 14 2. Failure to State a Claim 15 Defendant next argues that Plaintiff has failed to state a Title II claim under Rule 16 12(b)(6). The Court need not reach the merits of this argument, having found that Plaintiff 17 did not comply with the notice requirement. Nonetheless, it does so particularly in light of 18 Defendant’s argument that dismissal with prejudice is appropriate because Plaintiff 19 “cannot” state a claim “under any circumstances, whether or not he cures his jurisdictional 20 defects.” (Doc. 5 at 6.) 21 Title II enacted “a sweeping prohibition of discrimination or segregation on the 22 ground of race, color, religion, or national origin at places of public accommodation whose 23 operations affect commerce.” Daniel v. Paul, 395 U.S. 298, 301 (1969). As noted, it 24 provides that “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, 25 services, facilities, privileges, advantages, and accommodations of any place of public 26 accommodation . . . without discrimination or segregation on the ground of race, color, 27 religion, or national origin.” 42 U.S.C. § 2000a(a). To state a prima facie case, a Title II 28 plaintiff must demonstrate that he: “(1) is a member of a protected class, (2) attempted to -6- 1 contract for services and afford himself or herself of the full benefits and enjoyment of a 2 public accommodation, (3) was denied the full benefits or enjoyment of a public 3 accommodation, and (4) such services were available to similarly situated persons outside 4 his or her protected class who received full benefits or were treated better.” Crumb v. 5 Orthopedic Surgery Med. Grp., No. 07-cv-6114-GHK-PLAx, 2010 WL 11509292, at *3 6 (C.D. Cal. Aug. 18, 2010), aff’d, 479 F. App’x 767 (9th Cir. 2012) (citations omitted). 7 a. Place of Public Accommodation 8 Defendant argues that the Complaint fails to state a claim because the Paradise 9 Valley Mall is not a “place of public accommodation.” (Doc. 5 at 5.) Title II defines “places 10 of public accommodation” as “establishments affecting interstate commerce or supported 11 in their activities by State action as places of public accommodation,” including: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests . . .; (2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station; (3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and (4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment. 42 U.S.C. § 2000a(b). Courts have consistently declined to expand this definition to include facilities not specifically listed. See, e.g., Ford v. Surprise Family Urgent Care Ctr., LLC, No. CV 10-1920-PHX-SRB, 2011 WL 13137866, at *2 (D. Ariz. Sept. 6, 2011) (“Despite the seemingly broad language ‘affect[ing] interstate commerce,’ courts have interpreted the definition of places of public accommodation relatively narrowly, generally adhering to the three categories outlined in the statute: lodgings, restaurants, and entertainment -7- 1 facilities.”); Touma v. Gen. Counsel of Regents, No. SACV 17-1132-VBF(KS), 2017 WL 2 10541005, at *12 n.5 (C.D. Cal. Dec. 13, 2017) (“[C]ourts have interpreted the definition 3 of places of public accommodation narrowly, generally adhering to the three categories 4 outlined in the statute—lodgings, restaurants, and entertainment facilities[.]”). 5 The Court agrees with Defendant that the mall, in itself, is not a place of public 6 accommodation under Title II.7 The “detailed” list of included establishments does not 7 include shopping centers. Jones v. Brouwer, No. CV 20-7067-MWF (PLAX), 2020 WL 8 7127125, at *3 (C.D. Cal. Oct. 16, 2020). Further, the fact that the definition includes 9 “cafeterias, lunchrooms, and any facility ‘located on the premises of any retail 10 establishment’ implies that Congress did not intend to include retail establishments as 11 such.” Id. If it had, there would have been “no need to state expressly that restaurants within 12 retail establishments are covered.” Id. (citing 42 U.S.C. 2000 § 2000a(b)(2)). Put simply, 13 “Congress could have just as easily included in § 2000a(b) all retail establishments and/or 14 all shopping centers when it enacted Title II or Congress could have subsequently amended 15 the statute to include such establishments,” but did not do so. Halton v. Great Clips, Inc., 16 94 F. Supp. 2d 856, 863 (N.D. Ohio 2000). This Court, like others before it, interprets the 17 term “places of public accommodation” “narrowly” and as excluding shopping malls. 18 Ford, 2011 WL 13137866, at *2. Plaintiff, therefore, has not stated a prima facie claim 19 under Title II. Crumb, 2010 WL 11509292, at *3. 20 This defect may potentially be cured by amendment. Although the current 21 Complaint appears to refer to the mall as a whole, it remains conceivable that the alleged 22 conduct occurred in a food court, restaurant, or “other facility principally engaged in selling 23 food for consumption on the premises,” or within an area otherwise covered under 24 § 2000a(b). See, e.g., United States v. Baird, 85 F.3d 450, 454 (9th Cir. 1996) (holding that 25 a 7-Eleven convenience store was a public accommodation under Title II as a “place of 26 entertainment” under § 2000a(b)(3) only because the specific store contained two video 27 Plaintiff asserts that a mall “is not public like a Courthouse or school - but yes it is public in that it is a business that is open to the public.” (Doc. 8 at 1.) This is not a legally sufficient characteristic under Title II. 7 28 -8- 1 game arcade machines). Further, courts must “liberally construe the ‘inartful pleading’ of 2 pro se litigants,” which “is particularly important in civil rights cases.” Eldridge v. Block, 3 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 4 (1982) (per curiam)). Dismissal with prejudice is not warranted on this basis. 5 b. Accommodation 6 Defendant also argues that Plaintiff has not stated a claim because he alleges that he 7 was denied an accommodation of his purported religious beliefs, which Title II does not 8 require. (Doc. 5 at 10.) The one case cited by Defendant is Boyle, 883 F. Supp. at 1432. In 9 that case, the district court granted summary judgment to a defendant golf course on the 10 plaintiff’s claim that, by scheduling golf tournaments on Sundays, it was discriminating 11 against him as a member of the Church of Jesus Christ of Latter-day Saints. The court 12 concluded that there was no evidence of actual religious discrimination and found 13 “persuasive evidence of a congressional intent not to require Title II public facilities to 14 reasonably accommodate the religious beliefs of patrons.” Id. 15 Defendant argues that here, similarly, the Paradise Valley Mall did not deny 16 Plaintiff entry due to his purported religious beliefs, but instead denied him an 17 accommodation of these beliefs—“namely, by refusing to excuse him from complying with 18 the applicable Maricopa County mask ordinance while visiting the Mall.” (Doc. 5 at 10.) 19 Although this argument may be meritorious at a later stage, the Court is not convinced at 20 the motion to dismiss stage. Taken in the light most favorable to Plaintiff, the Complaint 21 may be interpreted as alleging that Plaintiff was “denied the full benefits or enjoyment” of 22 the mall (which, as previously noted, is not a public accommodation). Crumb, 2010 WL 23 11509292, at *3. Further, these benefits were allegedly available to similarly situated non- 24 members of Plaintiff’s religion—whatever that may be—as required to state a prima facie 25 case under Title II. Id. Dismissal with prejudice is not appropriate on these grounds, either.8 26 8 27 28 Defendant requests, in a footnote to its reply brief, that the Court strike pages 8–10 of Plaintiff’s response, which contains confidential settlement discussions. (Doc. 7 at 5.) Although the Court declines to strike these pages from the record, it did not consider them when ruling on the present motion to dismiss. -9- 1 3. Attorney’s Fees 2 Defendant requests attorney’s fees pursuant to 42 U.S.C. § 2000a-3(b), which 3 permits the award of a “reasonable” fee to a prevailing party under this section. Plaintiff 4 does not respond to this argument in his response brief.9 (Doc. 6.) In the Ninth Circuit, a 5 district court may award attorney’s fees to a prevailing Title II defendant “on the basis of 6 its determination that [the plaintiff’s] action was ‘frivolous, unreasonable, or without 7 foundation.’” Liaosheng Zhang v. Honeywell Intern., Inc., 442 Fed. Appx. 288, 289 (9th 8 Cir. 2011). See also Christiansburg Garment Co. v. Equal Employment Opportunity 9 Comm’n, 434 U.S. 412, 422 (1978) (A civil rights plaintiff “should not be assessed his 10 opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, 11 or groundless, or that the plaintiff continued to litigate after it clearly became so.”). 12 Although the Court agrees with Defendant that Plaintiff has not stated a legally 13 cognizable claim, it declines to award attorney’s fees at this time. This case is dismissed 14 without prejudice, such that it remains conceivable that Plaintiff could state a valid claim. 15 See Davis v. Los Angeles W. Travelodge, No. CV 08-8279 CBM (CTX), 2010 WL 16 11597485, at *4 (C.D. Cal. Apr. 2, 2010) (declining to award attorney’s fees to a successful 17 Title II defendant because “Plaintiff’s action does not qualify as an exceptional case”). 18 Nonetheless, the Court admonishes Plaintiff that the Court may choose to award 19 Defendant’s attorney’s fees should it find any future iteration of this case to be frivolous, 20 unreasonable, or groundless. 21 III. MOTION TO STRIKE SUR-REPLY 22 After briefing on the Motion to Dismiss was complete, Plaintiff filed a “Sur Reply” 23 (Doc. 8), which Defendant seeks to strike. Local Rule of Civil Procedure 7.2(m) governs 24 motions to strike. It permits such a motion “if it seeks to strike any part of a filing or 25 submission on the ground that it is prohibited (or not authorized) by a statute, rule, or court 26 Plaintiff’s sur-reply states, “if a $100 paralegal can go back and forth with this attorney in federal court – then this attorney / firm are most certainly and definitely not worth their fees in general – let alone in the instant matter.” (Doc. 8 at 2.) The Court does not find this to be a helpful argument. 9 27 28 - 10 - 1 order.” LRCiv 7.2(m)(1). The decision to grant or deny a motion to strike is within the 2 Court’s discretion. Joe Hand Promotions, Inc. v. Manzo, No. 2:15-CV-00313 JWS, 2016 3 WL 5118326, at *1 (D. Ariz. Sept. 21, 2016). 4 Defendant is correct in asserting that Plaintiff improperly filed a sur-reply. “Neither 5 Federal Rule of Civil Procedure 7 nor the local rules of practice for this District provide 6 for the filing of a sur-reply, and sur-replies are not authorized by any other rules of 7 procedure absent express prior leave of the Court.” Spina v. Maricopa Cty. Dep’t of 8 Transp., No. CV05-0712-PHX-SMM, 2009 WL 890997, at *1 (D. Ariz. Apr. 1, 2009). See 9 also LRCiv 7.2 (providing for response and reply pleadings only). Nonetheless, in light of 10 Plaintiff’s pro se status, and Defendant’s citation to Plaintiff’s ACRD complaint for the 11 first time in its reply,10 the Court denies the motion to strike. The Court considered 12 Plaintiff’s sur-reply in ruling on the pending motion to dismiss. 13 IV. CONCLUSION 14 Accordingly, 15 IT IS ORDERED granting Defendant’s Motion to Dismiss Plaintiff’s Complaint 16 (Doc. 5) to the extent that the Complaint is dismissed without prejudice for lack of 17 jurisdiction and for failure to state a claim. IT IS FURTHER ORDERED denying Defendant’s request for attorney’s fees 18 19 pursuant to 42 U.S.C. § 2000a-3(b) without prejudice (part of Doc. 5). IT IS FURTHER ORDERED denying Defendant’s Motion to Strike 20 21 Impermissible Sur-Reply Filed by Plaintiff in Opposition to Motion to Dismiss. (Doc. 9.) 22 IT IS FINALLY ORDERED allowing Plaintiff 60 days to comply with the notice 23 requirement described herein and to file an Amended Complaint that conforms with the 24 requirements set forth in this Order. Because the Court is giving Plaintiff leave to amend, 25 the Clerk of the Court shall not enter judgment at this time. 26 /// 27 28 10 The Court assigns no fault to Defendant for this late argument because, as noted, Plaintiff filed the referenced ACRD complaint after filing his own response brief. (Doc. 7-1.) - 11 - 1 Dated this 3rd day of February, 2021. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -
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