Dema et al v. Halikowski, No. 2:2023cv00303 - Document 15 (D. Ariz. 2023)
Court Description: ORDER granting Defendant Halikowski's 6 Motion to Dismiss Amended Complaint without prejudice and with leave to amend within thirty (30) days from the date of entry of this Order. IT IS FURTHER ORDERED that if Plaintiffs do not file a Second Amended Complaint within thirty (30) days of the date this Order is entered, the Clerk of Court shall dismiss this action without further order of this Court. IT IS FURTHER ORDERED denying Plaintiffs' Motion to Strike (Doc. 13 ) and Motion to Oppose Removal (Doc. 8 ). Signed by Judge Susan M. Brnovich on 6/15/202. (ESG)
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Dema et al v. Halikowski 1 Doc. 15 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tariq K Dema, et al., Plaintiffs, 10 11 v. 12 John S Halikowski, 13 No. CV-23-00303-PHX-SMB ORDER Defendant. 14 15 Pending before the Court is Defendant Halikowski’s Motion to Dismiss Amended 16 Complaint (Doc. 6). The Court has reviewed Plaintiffs’ Response and Objection to 17 Defendant’s Motion to Dismiss (Doc. 10) and Defendant’s Reply (Doc. 11). Plaintiffs 18 have also filed a Motion to Oppose Removal (Doc. 8), to which Defendant has filed a 19 Response (Doc. 9), and Plaintiffs a Reply (Doc. 12). Also pending is Plaintiffs’ Motion 20 to Strike (Doc. 13), to which Defendant has filed a Response (Doc. 14). The Court will 21 grant Defendant’s Motion to Dismiss Amended Complaint and deny Plaintiffs’ Motion to 22 Oppose Removal and Motion to Strike for the reasons set forth below. 23 I. MOTION TO STRIKE 24 Plaintiffs ask this Court to strike Defendant’s Reply to the Motion to Dismiss 25 (Doc. 11) as well as Defendant’s Response to Plaintiffs’ Opposition to Removal (Doc. 9). 26 Plaintiffs claim that neither of these pleadings are authorized by Federal Rule of Civil 27 Procedure 7(a). However, Plaintiffs ignore Rule 7(b) which broadly covers procedures 28 for filing motions. A motion is simply a request to the Court for an order. Local Rule 7.2 Dockets.Justia.com 1 authorizes the filing of a response 14 days after service of the motion. Local Rule 2 7.2(e)(1) also limits any response to 17 pages, which Plaintiffs have violated by filing a 3 40-page Response to the Motion to Dismiss. Additionally, Local Rule 7.2 authorizes the 4 filing of a reply 7 days after service of the response, and a limitation not to exceed 11 5 pages. Defendant’s filings are all authorized, so Plaintiffs’ Motion to Strike will be 6 denied. In the future, all parties must be careful to adhere to the page limits in 7 Local Rule 7.2, failure to comply with the page limits could result in their pleadings 8 being stricken from the record. 9 II. MOTION TO OPPOSE REMOVAL 10 Plaintiffs filed a Complaint and Amended Complaint in state court. The Amended 11 Complaint (“AC”) was filed on November 29, 2022, alleging a claim under Title 42 12 U.S.C. § 1983 against John Halikowski, the Director of the Arizona Department of 13 Transportation (“ADOT”).1 Plaintiffs’ AC was filed in relation to a criminal restitution 14 lien that was placed on a vehicle owned by Plaintiff Tariq Dema (“TD”) and leased by 15 Plaintiff Victor Dema (“VD”). Plaintiff TD alleges that he was unable to transfer the title 16 of the vehicle to another because of the lien. Plaintiff TD also alleges that they were 17 unable to renew the registration after it expired on or about March 1, 2020. As a result, 18 he was unable to use the car for transportation, and Plaintiffs lost job opportunities and 19 enjoyment from traveling. 20 Plaintiffs allege that the restitution lien arises from criminal case number 2002- 21 015058, a case against Plaintiff VD. Plaintiffs allege that Defendant is responsible for 22 the June 9, 2021 denial of the request to have a hearing to remove the restitution lien in 23 case number RL 20-68330. Plaintiffs did not attach the order denying the hearing, but it 24 was attached to Defendant’s Reply to the Motion to Dismiss (Doc. 11). The Order 25 Denying Hearing Request was signed by Administrative Law Judge John Schulz. (Doc. 26 11-1 at 12.) “Federal courts are courts of limited jurisdiction. They possess only that power 27 28 1 Director Halikowski has since retired on January 29, 2023. -2- 1 authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 2 U.S. 375, 377 (1994). The removing party bears the burden to establish federal subject 3 matter jurisdiction. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). 4 When plaintiff chooses a state rather than federal forum, “the removal statute is strictly 5 construed against removal jurisdiction.” Id. If at any time before final judgment the 6 district court lacks subject matter jurisdiction over a case removed from state court, the 7 case must be remanded. 28 U.S.C. § 1447(c); see also Durham v. Lockheed Martin 8 Corp., 445 F.3d 1247, 1252 (9th Cir. 2006). “Where doubt regarding the right to removal 9 exists, a case should be remanded to state court.” Matheson v. Progressive Specialty Ins. 10 Co., 319 F.3d 1089, 1090 (9th Cir. 2003). 11 In the Reply to the Motion to Oppose Removal, Plaintiffs take issue with the fact 12 that the Court “fiercely compelled Plaintiffs to respond to Defendant’s motion to dismiss 13 and severely warned Plaintiffs of the repercussion of their failure to respond to the 14 motion, or else . . . .” (Doc. 12 at 2.) The Court is obligated under Ninth Circuit law to 15 issue warnings when a party is not represented by a lawyer. The warning was not 16 intended to offend Plaintiffs, but rather was issued to comply with direction from the 17 Ninth Circuit Court of Appeals. See Romero v. Evans, 175 F. App’x 130, 131–32 (9th 18 Cir. 2006) (instructing that the District Court has an obligation to warn a pro se litigant 19 that the failure to respond could result in dismissal). 20 The substance of the Motion to Oppose Removal claims that the notice of removal 21 was untimely and argues the Court should refrain from hearing the case under the 22 Younger and Pullman doctrines. 23 A. 24 Pursuant to 28 U.S.C. § 1446(b)(1), 25 The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is 26 27 28 Timeliness -3- 1 shorter. 2 Plaintiffs rely on the language “receipt by the defendant, through service or otherwise” to 3 argue that the 30 days’ time limit started on November 30, 2022. On that date, Plaintiffs 4 left a copy of the Complaint at ADOT’s Safety Risk Management Department, and at the 5 Arizona Attorney General’s Office. (Doc. 1-3 at 80.) However, the U.S. Supreme Court 6 has narrowly construed that language to mean that the receipt must be related to some 7 formal process of service. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 8 U.S. 344, 347–48 (1999). In Murphy, the defendant had receipt of the complaint by fax 9 44 days before removal but was not formally served until 30 days prior to removal. The 10 Supreme Court said the 30-day limit was not triggered until formal service occurs. Id. at 11 1322. 12 In this case, Plaintiffs are suing Defendant Halikowski in his unofficial, personal, 13 and individual capacity. That means Defendant Halikowski must be served personally. 14 Leaving the Complaint at the Arizona Attorney General’s Office or ADOT does not 15 suffice. See Jackson v. Hayakawa, 682 F.2d 1344, 1348–49 (9th Cir. 1982). Plaintiffs 16 never had Defendant Halikowski personally served. Defendant Halikowski’s counsel 17 accepted service on his behalf via letter on January 20, 2023. In Arizona, “when a 18 defendant waives service of process, service is effective from the time that a signed 19 waiver is filed with the court.” Cooke v. Masterpharm, LLC, No. CV-10-845-PHX- 20 GMS, 2010 WL 2490536, at *2 (D. Ariz. June 16, 2010). Therefore, the February 17, 21 2023 Notice of Removal is timely. 22 B. 23 “In ‘exceptional circumstances,’ the Younger abstention doctrine instructs federal 24 courts to decline to hear a case when a parallel state proceeding is ongoing.” Applied 25 Underwriters, Inc. v. Lara, 37 F.4th 579, 587–88 (9th Cir. 2022) (2023) (citing New 26 Orleans Pub. Serv., Inc. v. Council of New Orleans (NOPSI), 491 U.S. 350, 368 (1989)). 27 For this doctrine to apply there must be a qualified state proceeding that is (1) ongoing; 28 (2) implicates important state interests; and (3) provides adequate opportunity to raise Younger Doctrine -4- 1 federal claim. 2 prosecutions, certain civil enforcement proceedings, or civil proceedings that invoke the 3 state courts’ ability to perform their judicial functions. Id. This doctrine arose out of 4 concerns for comity and federalism. Additionally, “once the three Middlesex elements 5 are satisfied, the court does not automatically abstain, but abstains only if there is a 6 Younger-based reason to abstain—i.e., if the court's action would enjoin, or have the 7 practical effect of enjoining, ongoing state court proceedings.” 8 Corp. v. Roden, 495 F.3d 1143, 1149 (9th Cir. 2007). Id. at 588. A qualified state proceeding is either state criminal AmerisourceBergen 9 Here, Plaintiffs argue that this doctrine should be applied because there is an 10 ongoing civil action in state court, the claims in state court involve important state 11 interest in House Bill 2311 of Chapter 19, and the Arizona courts are able to litigate 12 constitutional challenges. (Doc. 8 at 14.) Defendant argues that there are no pending 13 proceedings affecting the State of Arizona’s interests. (Doc. 9 at 10.) Upon review of 14 the AC, there doesn’t appear to be any ongoing state proceeding. The hearing regarding 15 the criminal restitution lien was concluded in June 2021, according to the AC. 16 Additionally, the Plaintiffs are seeking damages resulting from ADOT’s actions and there 17 is no request for an injunction that would interfere with the state’s authority to oversee 18 19 20 21 22 23 24 25 26 vehicle registration and titling. Therefore, the Court finds that the Younger doctrine does not require the Court to decline to hear this case. C. Pullman Doctrine The Court next reviews the Pullman abstention doctrine, which is described as “a narrow exception to the district court's duty to decide cases properly before it. Pullman allows postponement of the exercise of federal jurisdiction when ‘a federal constitutional issue . . . might be mooted or presented in a different posture by a state court determination of pertinent state law.” Columbia Basin Apartment Ass'n v. City of Pasco, 268 F.3d 791, 801 (9th Cir. 2001) (quoting Kollsman v. City of L.A., 737 F.2d 830, 833 (9th Cir. 1984)). Plaintiffs do not explain how this doctrine would apply in this case, but 27 state “[t]his classic case dictates that the federal court should stay, but not dismiss, the 28 action while the state court resolves the issue of state law.” (Doc. 8 at 17.) However, -5- 1 Plaintiffs claims don’t revolve around interpreting state statute. That is not a necessary 2 determination to decide if Defendant acted appropriately within his authority. The Court 3 finds that the Pullman doctrine does not apply. For these reasons, Plaintiffs’ Motion to Oppose Removal is denied. 4 5 III. MOTION TO DISMISS 6 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must 7 meet the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement 8 of the claim showing that the pleader is entitled to relief,” so that the defendant has “fair 9 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 10 Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 11 355 U.S. 41, 47 (1957)). Dismissal under Rule 12(b)(6) “can be based on the lack of a 12 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 13 theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A 14 complaint that sets forth a cognizable legal theory will survive a motion to dismiss if it 15 contains sufficient factual matter, which, if accepted as true, states a claim to relief that is 16 “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 17 550 U.S. at 570). Facial plausibility exists if the pleader sets forth “factual content that 18 allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, 20 supported by mere conclusory statements, do not suffice.” Id. Plausibility does not equal 21 “probability,” but requires “more than a sheer possibility that a defendant has acted 22 unlawfully.” Id. 23 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations 24 are taken as true and construed in the light most favorable to the nonmoving party. 25 Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions 26 couched as factual allegations are not given a presumption of truthfulness, and 27 “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a 28 motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). -6- 1 A. 2 Defendant first moves to dismiss any official capacity claims because they are 3 barred by the Eleventh Amendment. Plaintiffs do not dispute this argument but point out 4 that there are no claims made against Defendant in his official capacity in the AC. 5 Defendant argues that while Plaintiffs state they are suing Defendant in his individual 6 capacity, his legal theories require that Defendant be deemed to be acting in an official 7 capacity. While that may be true, it is also true that state officers are subject to § 1983 8 liability in their personal capacity for conduct relating to their official duties. 9 Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 69 (1997). The AC is clear that their 10 intent is to sue Defendant in his individual capacity, whether they can do that or not is 11 addressed below. However, the Court will grant Defendant’s Motion to Dismiss any 12 official capacity claims to the extent they exist. Official Capacity Claims See 13 B. 14 Next, Defendant argues Plaintiffs have failed to state a plausible claim for relief 15 against him in his unofficial, individual, or personal capacity. Specifically, the AC 16 contains no allegations of Defendant having any specific knowledge or involvement in 17 any of the actions taken by ADOT. Defendant argues that he cannot be liable simply 18 because he was the Director. Plaintiffs respond that they have stated a claim for relief. Individual Capacity Claims 19 “To make out a cause of action under section 1983, plaintiffs must plead that (1) 20 the defendants acting under color of state law (2) deprived plaintiffs of rights secured by 21 the Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th 22 Cir. 1986). Plaintiffs must also show personal participation by Defendant in any alleged 23 constitutional violation. See Freeman v. Ducey, No. CV-20-00287-TUC-RM, 2021 WL 24 2317868, at *5 (D. Ariz. June 7, 2021). “A supervisor is only liable for constitutional 25 violations of his subordinates if the supervisor participated in or directed the violations, 26 or knew of the violations and failed to act to prevent them. There is no respondeat 27 superior liability under section 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 28 1989). -7- 1 In this case, Plaintiffs have not alleged any facts to show that Defendant 2 participated in any of the actions by ADOT that are the basis for these claims. Nor are 3 there any facts to show that Defendant directed the violations or knew of the violations 4 and failed to prevent them. 5 liability is based upon respondeat superior liability and vicarious liability. (Doc. 10 at 6 20.) Further, Plaintiffs state that their theory is that Defendant is liable because “he was 7 the director of ADOT during the period when his subordinates negligently and/or 8 willfully misrepresented key information that under Arizona amended law of chapter 19 9 H.B. 2311 of March 2013 and A.R.S. §13-806(H), criminal restitution lien cannot be 10 perfected on a Titled Motor Vehicle.” (Doc. 10 at 26.) These allegations or theories are 11 not sufficient to satisfy the requirement that Defendant was personally involved in the 12 constitutional violation. 13 dismissed. Plaintiffs’ Response acknowledges that their theory of Therefore, Plaintiffs claims under Section 1983 will be 14 C. 15 Defendant also moves this Court to dismiss any state claims because Plaintiffs 16 17 State Law Claims failed to comply with A.R.S. § 12-821.01, which requires that: 25 Persons who have claims against a public entity, public school or a public employee shall file claims with the person or persons authorized to accept service for the public entity, public school or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the public entity, public school or public employee to understand the basis on which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim which is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon. 26 A.R.S. § 12-821.01(A). “When a person asserts claims against a public entity and public 27 employee, the person ‘must give notice of the claim to both the employee individually 28 and to his employer.’” Harris v. Cochise Health Sys., 160 P.3d 223, 230 (Ariz. Ct. App. 18 19 20 21 22 23 24 -8- 1 2007) (quoting Crum v. Superior Court, 922 P.2d 316, 317 (Ariz. Ct. App. 1996)). 2 Arizona courts have held that plaintiffs who do not strictly comply with these 3 requirements are barred from bringing suit. See Salerno v. Espinoza, 115 P.3d 626, 628 4 (Ariz. Ct. App. 2005); see also Harris, 160 P.3d at 230. 5 First, the Court notes that there are no state law claims alleged in the AC. Yet, 6 Plaintiffs argue that their state law claims should not be dismissed. 7 Plaintiffs may attempt to assert a state law claim in any future amended complaint, the 8 Court will address this issue now. Both parties argue about compliance with the 180-day 9 requirement. Without addressing that, the Court will grant Defendant’s Motion because 10 Plaintiffs have not shown that the notice was served on Defendant individually. The 11 certificate of service attached to the Notice of Claim and signed by Plaintiff VD says that 12 it was served on ADOT. This does not satisfy notice on Defendant individually. See 13 Crick v. City of Globe, 606 F. Supp. 3d 912, 917 (D. Ariz. 2022) (delivery of a notice of 14 claim to the city police department, instead of the individual officers, did not satisfy 15 requirements of Arizona notice of claim statute); see also Spears v. Ariz. Bd. of Regents, 16 372 F. Supp. 3d 893, 920 (D. Ariz. 2019) (individual defendants dismissed because they 17 were not served the notice of claim individually, but rather to the Arizona Board of 18 Regents). 19 prohibited for failure to comply with Arizona notice of claim statute. To the extent Thus, to the extent Plaintiffs seek to make state law claims, those are 20 D. 21 Defendant moves to dismiss any request for punitive damages because there are no 22 factual assertions to support the required mental state for punitive damages. Because the 23 Court is dismissing all of the claims for the reasons stated above, there can be no punitive 24 damages and the Motion will be granted. 25 IV. 26 Punitive Damages LEAVE TO AMEND In accordance with the well-settled law in this Circuit, because “it is not 27 absolutely clear that [Plaintiffs] could not cure [the Complaint’s] deficiencies by 28 amendment,” the Court will give them the opportunity to do so. See Jackson v. Barnes, -9- 1 749 F.3d 755, 767 (9th Cir. 2014) (cleaned up). See also Lopez v. Smith, 203 F.3d 1122, 2 1131 (9th Cir. 2000) (holding that a pro se litigant must be given leave to amend “if it 3 appears at all possible that the plaintiff can correct the defect” in the complaint) (citation 4 omitted)); Fed. R. Civ. P. 15(a)(2) (leave to amend should be “freely” given “when 5 justice so requires”). Plaintiffs’ Complaint must be amended to address the deficiencies 6 identified above and should follow the form detailed in Rule 7.1 of the Local Rules of 7 Civil Procedure. Examples of different complaints demonstrating the proper form can be 8 found in the appendix of forms contained with the Federal Rules of Civil Procedure 9 (forms 11–21). Within thirty (30) days from the date of entry of this Order, Plaintiffs 10 may submit an Amended Complaint. Plaintiffs must clearly designate on the face of the 11 document that it is the “Second Amended Complaint.” The Second Amended Complaint 12 must be retyped or rewritten in its entirety and may not incorporate any part of the 13 original Complaint by reference. 14 V. CONCLUSION 15 For the reasons discussed above, 16 IT IS ORDERED granting Defendant Halikowski’s Motion to Dismiss Amended 17 Complaint (Doc. 6) without prejudice and with leave to amend within thirty (30) days 18 from the date of entry of this Order. 19 IT IS FURTHER ORDERED that if Plaintiffs do not file a Second Amended 20 Complaint within thirty (30) days of the date this Order is entered, the Clerk of Court 21 shall dismiss this action without further order of this Court. 22 23 24 IT IS FURTHER ORDERED denying Plaintiffs’ Motion to Strike (Doc. 13) and Motion to Oppose Removal (Doc. 8). Dated this 15th day of June, 2023. 25 26 27 28 - 10 -
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