Ball v. Peoria, City of et al, No. 2:2009cv00635 - Document 27 (D. Ariz. 2009)
Court Description: ORDER granting the 18 Motion to Dismiss filed by the City of Peoria; this action is dismissed in its entirety; the Clerk shall enter judgment accordingly. Signed by Magistrate Judge Lawrence O Anderson on 9/11/09.(REW, )
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Ball v. Peoria, City of et al 1 Doc. 27 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 Dennis Andrew Ball, personally and as) benefactor of the Eleanor R. Ball IrreLvg) ) Trust 5/10/01, ) ) Plaintiff, ) ) vs. ) City of Peoria, Arizona, an Arizona) municipal corporation, and Peoria Police) ) Department ) ) Defendants. ) ) No. CV-09-635-PHX-LOA ORDER 17 On March 30, 2009, Plaintiff, proceeding pro se, filed a Complaint against the 18 City of Peoria, Arizona, and its Police Department. (docket # 1) Plaintiff, apparently a citizen 19 of Illinois, invokes this Court’s diversity jurisdiction under 28 U.S.C. § 1332, alleging that the 20 amount in controversy exceeds $75,000, and the adverse parties are diverse of citizenship. On 21 April 30, 2009, the Court dismissed Plaintiff’s claims against the City of Peoria Police 22 Department. (docket # 12) The City of Peoria, the only remaining defendant, moves to dismiss 23 the Complaint pursuant to Fed.R.Civ.P. 12(b)(6). (docket # 18) Plaintiff filed a response, 24 docket # 25, to which Defendant replied, docket # 26. Accordingly, this matter is ready for 25 ruling.1 Because the parties’ briefings are adequate for resolution on the pleadings, the Court 26 27 1 28 All parties have consented to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 636(c). (docket # 23) Dockets.Justia.com 1 denies Defendant’s request for oral argument. Mahon v. Credit Bur. of Placer County, Inc., 171 2 F.3d 1197, 1200 (9th Cir. 1999). (docket # 18) For the reasons set forth below, the Court will 3 grant Defendant’s Motion to Dismiss. 4 I. Background 5 In his Complaint, Plaintiff alleges an intentional tort claim against the City of 6 Peoria, stemming from a trust that was formed on May 10, 2001 of which his mother, Eleanor 7 Ball, was trustee. (docket # 1 at 2) In early 2004, Eleanor Ball became incapacitated and 8 Morgan Stanley assumed the position of trustee. (docket # 1at 2) On March 17, 2004, 9 “Jonathan P. Schubert was appointed by the Court as a representative of Eleanor R. Ball.” (Id. 10 at 3) The “court” also appointed Southwest Fiduciary as “a guardian/conservator for the benefit 11 of Eleanor Ball.” (Id.) Schubert, who is now deceased, and Southwest Fiduciary “participated 12 at trial on October 7, 2005.” (Id.) 13 On September 21, 2005, Plaintiff “petitioned the court” to remove Morgan 14 Stanley as trustee. The petition was granted, and Plaintiff was appointed trustee. Plaintiff alleges 15 that he is also the beneficiary of the trust and that “his interest in the Trust is 100% of the Trust 16 upon the death of Eleanor R. Ball.” (Id.) Eleanor Ball died on April 28, 2006. (Id.) 17 Plaintiff claims that Southwest Fiduciary drained the assets of Eleanor Ball’s 18 trust “with the explicit agreement of John Schubert.” (Id. at 3-4) Plaintiff further alleges that 19 Schubert breached his fiduciary duty to Plaintiff and Eleanor Ball by “placing his own interests 20 above those of his client and the Plaintiff . . . .” (Id. at 4) Plaintiff claims that Schubert’s 21 conduct caused financial damage to Plaintiff by wasting the assets of the trust, which were once 22 valued in excess of $800,000.00. (Id.) Plaintiff “is still in the process of recovery and petitions 23 this Defendant to compensate [Eleanor Ball’s] estate for that which they lied and contributed 24 to at trial on October 7, 2005.” (Id.) Plaintiff claims that “Schubert conspired with others to 25 create unnecessary attorney fees and drain” Eleanor Ball’s trust. (Id. at 5) Plaintiff’s only allegations even marginally related to the City of Peoria are 26 27 28 that: Three police officers of the Peoria Police Department lied at trial regarding -2- their role in the well checks of the decedent, Eleanor R. Ball, prior to trial on October 7, 2005. The damage sustained by this unlawful conduct was to cause irreparable loss to the plaintiff causing their actions to separate him from his parent the last eight months of her life at the Encore Senior Village, Peoria, Arizona. Such unlawful conduct cannot be allowed to be sustained in a Civilized Society!” 1 2 3 4 (Id. at 4, ¶ 18) 5 Defendant seeks to dismiss the Complaint because Plaintiff failed to comply 6 with Arizona’s notice of claim statute, A.R.S. § 12-821.01. Defendant further argues that 7 Plaintiff’s allegations under Title 42 U.S.C. § 1983 fail to state claim. Because the Complaint 8 does not make any allegations under § 1983, the Court will not consider Defendant’s arguments 9 pertaining to § 1983. (docket # 1) 10 II. Governing Law 11 “[F]ederal courts sitting in diversity jurisdiction apply state substantive law 12 and federal procedural law.” Ball v. City of Peoria, 2009 WL 959550, * 1 (D.Ariz. 2009) 13 (quoting Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003); Erie R.R. Co. v. 14 Tompkins, 304 U.S. 64 (1938). Arizona’s substantive tort law applies to this federal tort action. 15 Id. (citing Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001); 16 Beesley v. Union Pacific R. Co., 430 F.Supp.2d 968, 970 (D.Ariz. 2006). 17 III. Legal Standard 18 In a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), 19 the district court considers the legal sufficiency of Plaintiff’s claims. “[A] complaint must 20 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 21 its face.’” Ashcroft v. Iqbal, __ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic 22 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads 23 factual content that allows the court to draw the reasonable inference that the defendant is liable 24 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 25 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 26 experience and common sense.” Id. at 1950. “While a complaint attacked by a Rule 12(b)(6) 27 motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide 28 -3- 1 the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a 2 formulaic recitation of a cause of action’s elements will not do. Factual allegations must be 3 enough to raise a right to relief above the speculative level on the assumption that all the 4 allegations in the complaint are true . . . .” Twombly, 550 U.S. at 555-56 (citations and emphasis 5 omitted). “[O]nce a claim has been stated adequately, it may be supported by showing any set 6 of facts consistent with the allegations in the complaint.” Id. 7 When assessing the sufficiency of the complaint, “[a]ll allegations of material 8 fact in the complaint are taken as true and construed in the light most favorable to the 9 nonmoving party.” Vignolo v. Miller, 120 F.3d 1075, 1077(9th Cir. 1997) (citing Smith v. 10 Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996)). The district court is not required to accept every 11 conclusion asserted in the complaint as true rather the court “will examine whether conclusory 12 allegations follow from the description of facts alleged by the plaintiff.” Holden v. Hagopian, 13 978 F.2d 1115, 1121 (9th Cir. 1992) (quoting Brian Clewer, Inc. v. Pan American World 14 Airways, Inc., 674 F.Supp. 782, 785 (C.D. Cal. 1986)). 15 IV. Analysis 16 17 18 19 20 21 22 23 24 25 26 27 A. Arizona’s Notice of Claim Statute Arizona Revised Statute § 12-821.01 requires a claimant to provide a notice of claim to a public entity before initiating an action for damages against it: A. Persons who have claims against a public entity or a public employee shall file claims with the person or persons authorized to accept service for the public entity 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 or public employee to understand the basis upon 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. B. For purposes of this section, a cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage. 28 -4- 1 A.R.S. § 12-821.01. These statutory requirements serve “to allow the public entity to investigate 2 and assess liability, to permit the possibility of settlement prior to litigation, and to assist the 3 public entity in financial planning and budgeting.” Falcon ex rel. Sandoval v. Maricopa County, 4 213 Ariz. 525, 527, 144 P.3d 1254, 1256 (Ariz. 2006) (quoting Martineau v. Maricopa County, 5 207 Ariz. 332, 86 P.3d 912, 915-16 (Ariz.Ct.App.2004)). The requirement of filing a notice of 6 claim is mandatory. Claims that do not comply with the notice-of-claim statute are barred and 7 no action may be maintained. A.R.S. § 12-821.01. In Deer Valley Unified School District v. 8 Houser, 214 Ariz. 293, 152 P.3d 490 (Ariz. 2007), the Arizona Supreme Court made clear that 9 it requires strict compliance with the statutory requirements of A.R.S. § 12-821.01. Deer Valley, 10 214 Ariz. at 295, 152 P.3d at 492. As discussed below, Plaintiff’s two notices of claim delivered to Defendant 11 12 City of Peoria, dated September 22, 2008 and December 19, 2008, fail to comply with A.R.S. 13 § 12-821.01 in several respects.2 (docket # 18, Exhs. A, B) A. Timeliness 14 If a notice of claim is not properly filed within the statutory time limit, a 15 16 plaintiff’s claim is barred by statute. Falcon, 213 Ariz. at 527, 144 P.3d at 1256. Defendant 17 first argues that Plaintiff’s claims must be dismissed because he did not timely serve a notice 18 of claim. Defendant contends Plaintiff’s claim accrued on October 7, 2005, the date of the 19 “trial” during which three unidentified Peoria Police Officers allegedly offered the false 20 testimony upon which Plaintiff’s claims are based. Plaintiff served two notices of claim on the 21 City of Peoria - first on September 22, 2008 and again December 19, 2008. Both notices were 22 filed more than 180 days after the October 7, 2005 trial. In his Reply, Plaintiff argues that he 23 timely served the City of Peoria a notice of claim, because the time for filing was “equitably 24 tolled until October 7, 2008.” (docket # 25 at 3) The Court need not resolve this issue because, 25 26 27 28 2 A district court may consider materials attached to Rule 12(b)(6) pleadings if they are materials of which the court may take judicial notice. Barron v. Reich, 13 F.3d 1370, 1377 & n. 2 (9th Cir. 1994). -5- 1 even if either of the notices was timely, both notices fail to meet the substantive statutory 2 requirements of A.R.S. § 12-821.01. 3 B. Facts Supporting Claims of Liability 4 Arizona Revised Statute § 12-821.01(A) requires that “the claim shall contain 5 facts sufficient to permit the public entity or public employee to understand the basis upon 6 which liability is claimed.” Id. The purpose of this statutory requirement is to allow the public 7 entity to investigate and assess the claim. Falcon, 213 Ariz. 525, 144 P.3d 1254, 1256. Both 8 notices of claim filed by Plaintiff discuss events surrounding a trust established in 2001 of 9 which Plaintiff’s mother was initially trustee. Plaintiff claims that certain individuals, who are 10 not City of Peoria employees, drained the trust. He further argues that three unidentified City 11 of Peoria Police Officers offered false testimony during a trial on October 7, 2005. Neither 12 notice of claim includes facts describing Plaintiff’s claims nor identifies the individuals who 13 allegedly caused harm to Plaintiff. Plaintiff refers to a “trial” that took place on October 7, 14 2005, but does not state where or in what court that trial took place, or otherwise describe the 15 nature of the proceeding, or the police officers’ allegedly false testimony. Plaintiff does not 16 provide the name of any City of Peoria employees involved or describe the injury Plaintiff 17 suffered. Without such rudimentary facts, the City of Peoria could not investigate and assess 18 the claim. Accordingly, the notices of claim fail to provide facts sufficient to permit the City 19 of Peoria to evaluate the claim to understand the basis of the City’s liability. Plaintiff’s action 20 is barred on this basis. 21 C. Specific Amount and Supporting Facts 22 Plaintiff’s two notices of claim also fail to include a specific amount for which 23 the claim could be settled, and lack sufficient facts to support the requested settlement amount. 24 Arizona Revised Statute § 12-821.01(A) requires that “the claim shall also contain a specific 25 amount for which the claim can be settled and the facts supporting that amount.” This language 26 instructs claimants to include a particular and certain amount of money that, if agreed to by the 27 governmental entity, will settle the claim. The attendant statutory obligation that claimants 28 present “facts supporting that amount” requires that claimants explain the amounts identified -6- 1 in the claim by providing the governmental entity with a factual foundation to permit the entity 2 to evaluate the amount claimed. This latter requirement ensures that claimants will not demand 3 unfounded amounts that constitute “quick unrealistic exaggerated demands.” Hollingsworth v. 4 City of Phoenix, 164 Ariz. 462, 466, 793 P.2d 1129, 1133 (Ariz.Ct.App.1990). Together, these 5 statutory requirements ensure that governmental entities will be able to meaningfully consider 6 a claim. Deer Valley, 214 Ariz. 293, 152 P.3d 490, 494. 7 In Deer Valley, the Arizona Supreme Court held that the claimant’s notice of 8 claim failed to state a “specific” amount for which the claim could be settled, and, therefore, 9 did not comply with A.R.S. § 12-821.01(A)’s statutory requirement. In Deer Valley, the 10 claimant provided the following information regarding her damages: loss of previous salary of 11 $68,000.00 per year and an additional $7,000.00 per year for summer school; anticipated raise 12 of $6000.00 for the upcoming school year and similar pay increases thereafter; $36,800.00 in 13 salary for the current year, economic damages anticipated to be approximately $35,000.00 per 14 year or more over the next 18 years; compensatory damages of no less than $300,000.00 for 15 emotional distress; and general damages of no less than $200,000.00 for damage to her 16 employment reputation. Deer Valley, 214 Ariz. 293, 152 P.3d 490, 492. The letter did not 17 include information to support the amounts and merely demanded payment of said amounts. Id. 18 The Arizona Supreme Court noted that claimant’s “repeated use of qualifying language[,such 19 as approximate, or more, and no less than,] makes it impossible to ascertain the precise amount 20 for which the [Defendant School] District could have settled her claim.” Id. at 493. The Court’s 21 finding only addressed whether the amount claimed was specific and did not make a finding as 22 to whether the letter provided facts supporting the amount claimed. Id at 494 n. 3. 23 In Backus v. State, 220 Ariz. 101, 203 P.3d 499, 504-505 (Ariz. 2009), the 24 Arizona Supreme Court clarified the supporting-facts requirement of A.R.S. § 12-821.01(A) 25 as it pertains to the specific amount claimed. The Court held that a “claimant complies with the 26 supporting-facts requirement of § 12-821.01(A) by providing the factual foundation that the 27 claimant regards as adequate to permit the public entity to evaluate the specific amount 28 claimed.” Id. The Court further stated that “this standard does not require a claimant to provide -7- 1 an exhaustive list of facts; as long as the claimant provides facts to support the amount claimed, 2 he has complied with the supporting-facts requirement of the statute and courts should not 3 scrutinize the claimant’s description of facts to determine ‘sufficiency’ of the factual 4 disclosure.” Id. In Backus, claimant brought a wrongful death action based on her father’s death 5 while in the custody of the Arizona Department of Corrections. Backus, 220 Ariz. 101, 203 6 P.3d 499, 501. Claimant asserted that her father was 58-years-old when he died, mortality tables 7 indicated that such a person had a life expectancy of 23.6 years, and sought damages in the 8 amount of $21,500.00 per year for a period of 23.6 years, for a total of $507,400.00. Id. The 9 Arizona Supreme Court concluded that claimant satisfied the supporting-facts requirement. Id. 10 at 505. 11 In the instant case, Plaintiff did not state a specific amount for which he would 12 settle the claim. Rather, in his September 22, 2008 notice, he demanded an amount “in excess 13 of $100,000,” which he raised to $1,000,000 in his December 19, 2008 notice of claim. (docket 14 # 18, Exhs. A, B) (emphasis added). As the Arizona Court found in Deer Valley, Plaintiff’s use 15 of qualifying language does not satisfy the specific-amount requirement. Deer Valley, 214 Ariz. 16 293, 152 P.3d 490. Moreover, Plaintiff has also not complied with the supporting-facts 17 requirement of § 12-821.01(A) because he fails to provide the factual foundation to permit the 18 public entity to reasonably evaluate the specific amount claimed. Backus, 220 Ariz. 101, 203 19 P.3d at 504-505. In fact, Plaintiff provides no facts to support the amounts claimed. Although 20 Plaintiff is not required “to provide an exhaustive list of facts[,]” he has not provided any “facts 21 to support the amount claimed,” and thus, he has not complied with the supporting-facts 22 requirement of the statute. Id. at 505. 23 In summary, Plaintiff’s claims against the City Peoria are barred for failure to 24 comply with the notice-of-claim requirements articulated in A.R.S. § 12-821.01. Nored v. City 25 of Tempe, 614 F.Supp.2d 991, 996 (D.Ariz. 2008) (citing Falcon, 213 Ariz. at 527, 144 P.3d 26 at 1256). 27 In accordance with the foregoing, 28 -8- 1 IT IS ORDERED that the Motion to Dismiss filed by Defendant the City of Peoria, 2 docket # 18, is GRANTED and that this action is dismissed in its entirety. The Clerk of Court 3 shall enter judgment accordingly. 4 Dated this 11th day of September, 2009. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-
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