Ludwig v. Arizona, State of et al, No. 2:2016cv03826 - Document 30 (D. Ariz. 2017)

Court Description: ORDER denying 12 Motion for Judgment on the Pleadings. Signed by Judge David G Campbell on 3/6/2017.(DGC, nvo)
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Ludwig v. Arizona, State of et al 1 Doc. 30 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Aaron Ludwig, Plaintiff, 10 11 ORDER v. 12 No. CV-16-03826-PHX-DGC State of Arizona and Donald Conrad, 13 Defendants. 14 15 Defendants Donald Conrad and the State of Arizona have filed a motion for 16 judgment on the pleadings under Federal Rule of Civil Procedure 12(c), asking the Court 17 to dismiss Counts 1, 2, 4, and 5 of Plaintiff Aaron Ludwig’s complaint. Doc. 12. The 18 motion is fully briefed. Docs. 19, 26. No party requests oral argument. The Court will 19 deny the motion. 20 I. Background. 21 Plaintiff was employed by the Arizona Attorney General’s Office (AGO) as an 22 Assistant Attorney General. Doc. 1, ¶ 12. In January 2015, Plaintiff was reprimanded by 23 his superior, Defendant Conrad. Id., ¶ 13. Two days later, Plaintiff was given the choice 24 of resigning his position or being fired. Id., ¶ 14. On January 30, 2015, Plaintiff resigned 25 and physically handed over his official AGO badge and credentials to Conrad. Id., ¶ 15. 26 On May 1, 2015, Plaintiff, in an attempt to help his friend retrieve a towed vehicle, 27 became involved in a dispute with the towing company’s owner. Id. ¶¶ 44-113. During 28 the dispute, Plaintiff presented his old business card to the towing company, which Dockets.Justia.com 1 identified him as “Chief of the Financial Remedies Section of the Attorney General’s 2 Office.” Id., ¶¶ 82-83, 113. Plaintiff ultimately secured the release of his friend’s 3 vehicle. Id., ¶¶ 108-10. 4 Later that day, the towing company owner called the AGO, objecting to the 5 “agent” who “laid his badge on the counter” and was “using [his] color of authority to 6 intimidate people.” Id., ¶¶ 114, 123. The owner’s call led to an investigation by the 7 AGO and resulted in Plaintiff being charged with Criminal Impersonation. Id., ¶¶ 124, 8 158. Plaintiff was served with a criminal summons on August 3, 2015. Id., ¶ 157. At the 9 urging of Plaintiff’s attorney, the Maricopa County Attorney’s Office (MCAO) 10 conducted an “investigation into the bona fides of the charge against [Plaintiff].” Id., 11 ¶ 192. On October 22, 2015, following the investigation, the charges against Plaintiff 12 were dismissed. Id., ¶¶ 194-95. 13 On April 19, 2016, Plaintiff filed a notice of claim with the authorized service 14 recipient at the AGO’s main office. Doc. 19 at 1. It is undisputed that Plaintiff did not 15 deliver a notice of claim to Defendant Conrad personally. See id.; Doc. 12 at 2. On 16 October 20, 2016, Plaintiff filed this action in Maricopa County Superior Court. Doc. 1-1 17 at 1. 18 (3) deprivation of civil rights under color of state law, (4) liability under the theory of 19 respondeat superior, (5) malicious abuse of discretion, and (6) violation of civil rights. 20 Id., ¶¶ 218-64. Defendants removed the action to this Court. Doc. 1 21 II. Plaintiff alleged six counts: (1) malicious prosecution, (2) abuse of process, Legal Standard. 22 Dismissal under Rule 12(c) is proper when “the moving party clearly establishes 23 on the face of the pleadings that no material issue of fact remains to be resolved.” Hal 24 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). 25 The Court applies the “same standard of review” in ruling on a 12(c) motion as a Rule 26 12(b)(6) motion. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 27 1989). Dismissal is appropriate if the complaint does not contain “sufficient factual 28 -2- 1 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 2 v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 3 III. Analysis. 4 A. 5 Rule 12(c) states that “after the pleadings are closed . . . a party may move for 6 judgment on the pleadings.” Fed. R. Civ. P. 12(c). Plaintiff argues that Defendants’ 7 motion is premature because Plaintiff may still be permitted to amend his complaint, and 8 thus the pleadings are not yet closed. Doc. 19 at 9. Plaintiff is incorrect. “[T]he 9 pleadings are closed for the purposes of Rule 12(c) once a complaint and answer have 10 been filed, assuming, as is the case here, that no counterclaim or cross-claim is made.” 11 Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). Defendants’ motion is not premature. 12 B. 13 Under Arizona’s notice of claim statute, “[p]ersons who have claims against a 14 public entity, public school or a public employee shall file claims with the person or 15 persons authorized to accept service for the public entity, public school or public 16 employee as set forth in the Arizona rules of civil procedure within one hundred eighty 17 days” of when the action accrues. A.R.S. § 12-821.01(A). A claimant must serve both 18 the employer and individual employee in accordance with the Arizona rules of civil 19 procedure. Id.; Harris v. Cochise Health Sys., 160 P.3d 223, 230 (Ariz. Ct. App. 2007); 20 Quade v. Arizona Bd. of Regents, No. CV-15-00610-PHX-JJT, 2015 WL 10939902, at *5 21 (D. Ariz. Sept. 14, 2015). Arizona’s Notice of Claim Statute – A.R.S. § 12-821.01. 22 Under Arizona Rule of Civil Procedure 4.1(d), the requirement for individual 23 service is met where a copy of the notice of claim is (1) delivered to the employee, either 24 in person or by mail, (2) left with a person of suitable age who is residing with the 25 employee, or (3) served on a person who is authorized to accept service on behalf of the 26 employee. Simon v. Maricopa Med. Ctr., 234 P.3d 623, 629 (Ariz. Ct. App. 2010) (citing 27 Ariz. R. Civ. P. 4.1(d)). 28 -3- 1 If a plaintiff does not comply with A.R.S. § 12-821.01, his claim is statutorily 2 barred. Falcon ex rel. Sandoval v. Maricopa Cnty., 144 P.3d 1254, 1256 (2006). Strict 3 compliance is required. “Failure to comply with the statute is not cured by actual notice 4 or substantial compliance.” Harris, 160 P.3d at 230; Simon, 234 P.3d at 630; see also 5 Baker v. City of Tempe, No. CV-07-1553-PHX-MHM, 2008 WL 2277882 (D. Ariz. May 6 30, 2008). Because A.R.S. § 12-821.01 is a procedural requirement, it is “subject to 7 waiver, estoppel, and equitable tolling.” Pritchard v. State, 788 P.2d 1178, 1181 (Ariz. 8 1990). 9 Here, it is uncontested that Plaintiff did not deliver the notice of claim to 10 Defendant Conrad in person or by mail. Doc. 12 at 2; Doc. 19 at 1-2. Thus, Plaintiff’s 11 state law claims against Defendant Conrad are barred unless Plaintiff can show that 12 Conrad was served with the notice of claim through an authorized agent, that he waived 13 his statutory right to be served, or that he should be equitably estopped from asserting the 14 defense. See Pritchard, 788 P.2d at 1181. 15 Plaintiff asserts that “[f]ormal, personal service on AGO former employees is not 16 required if the entity served has the authority, or de facto assumes the authority, to accept 17 service.” Doc. 19 at 6-7. He further asserts that the AGO is authorized to accept service 18 because Conrad “was employed by the AGO at material times, and accepting service for 19 its employees is what the AGO does.” Id. Plaintiff submits an affidavit stating that he 20 was named in a notice of claim while employed with the AGO and understood that 21 service on the AGO was tantamount to service on him. Doc. 19-1, ¶¶ 4-5, 8. He further 22 avers that he is “aware of at least two other circumstances involving attorneys in the 23 [AGO] . . . who were named in Notices of Claim and who also were not personally 24 served with Notices of Claim, but were represented by the AGO in subsequent 25 proceedings.” Id., ¶ 9. 26 In reply, Defendants provide evidence rebutting Plaintiff’s assertions about AGO’s 27 policies and practices. See Doc. 26 at 3-7. Defendants argue that “The [AGO] was not 28 -4- 1 Conrad’s agent” and “was not authorized to accept service [for Conrad] under Rule 2 4.1(d).” Id. at 3-4. 3 The Court cannot consider the extrinsic evidence submitted by either side without 4 converting this Rule 12(c) motion to a motion for summary judgment, Fed. R. Civ. P. 5 12(d), something the Court will not do given the factual disagreement between the parties 6 and the possible need for discovery before summary judgment decisions are made. 7 Because Defendants have not shown that they are entitled to judgment on the pleadings, 8 the Court will deny their Rule 12(c) motion as to Defendant Conrad. The Court will also 9 deny the motion as to the State of Arizona because it rests on dismissal of the claims 10 against Conrad. 11 The Court notes that Plaintiff has taken a directly opposite position before this 12 Court before, arguing that service of a notice of claim on the AGO was not service upon 13 him. See Taraska v. Ludwig, No. CV-12-2544-PHX-DGC, 2013 WL 655124, at *4 (D. 14 Ariz. Feb. 21, 2013) (“Ludwig contends that he is entitled to dismissal of Plaintiffs’ 15 claims because Plaintiffs failed to comply with Arizona’s notice of claim statute.”). 16 Although this inconsistency makes Plaintiff’s position on this issue doubtful, the Court 17 cannot consider extrinsic evidence in ruling on a motion for judgment on the pleadings.1 18 19 1 20 21 22 23 24 25 26 27 Plaintiff also appears to argue that service under A.R.S. § 12-821.01 is excused because Conrad would have received actual knowledge of the notice of claim during the State’s evaluation of whether it was required to indemnify him under A.R.S. § 41-621. Doc. 19 at 3, 6. But “[f]ailure to comply with [A.R.S. § 12-821.01] is not cured by actual notice or substantial compliance.” Harris, 160 P.3d at 230. The notice of claim statute clearly requires formal service under the Arizona rules of civil procedure. A.R.S. § 12821.01. To the extent Plaintiff is arguing that the AGO’s obligation to represent Conrad effectively resulted in acceptance of service by Conrad’s counsel, Arizona law provides that an attorney must be “authorized, either expressly or impliedly, to receive service of process for his client, and if such agency is to be implied, it must be implied from all circumstances accompanying the attorney’s appointment which indicate the extent of authority the client intended to confer.” Kline v. Kline, 212 P.3d 902, 908 (Ariz. Ct. App. 2009). Thus, even if § 41-621 was met and the AGO was obligated to represent Conrad in this matter, Plaintiff would still be required to show that the AGO was authorized to accept service on Conrad’s behalf. 28 -5- 1 2 3 IT IS ORDERED that Defendants’ Motion for Judgment on the Pleadings (Doc. 12) is denied. Dated this 6th day of March, 2017. 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 -6-