Skinner et al v. Pinal County et al

Filing 16

ORDER granting Defendant's 5 Motion to Dismiss City of Casa Grande Police Department as a Non-Jural Entity; party Casa Grande Police Department terminated. Signed by Judge Mary H Murguia on 5/19/09.(REW, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Ashley Skinner, et al., Plaintiffs, v. Pinal County, et al. Defendants. Varick Gipson, et al., Plaintiffs, v. Pinal County, et al. Defendants.

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No. CV09-00195-PHX-MHM No. CV09-00314-PHX-MHM (Consolidated) ORDER

Currently pending before the Court is Defendant's Motion to Dismiss City of Casa Grande Police Department as a Non-Jural Entity. (Dkt. #5) Plaintiffs oppose this motion, arguing that the Court is not bound by the numerous federal cases from this and other circuits that hold that a police department is not a jural entity that is capable of suing and being sued but rather is merely a subdivision of the political entity to which it belongs (here, the City of Casa Grande).1 (Dkt.#8 at 5) However, the Court finds the plethora of cases cited by the

The Gipson Plaintiffs (Varick Gipson, Alonzo Alexander, Avon Skinner, Brandon Dickson, Michael Burgess, and Mark Burgess) joined Plaintiff Ashley Skinner et al. in her

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City of Casa Grande persuasive. See, e.g. Gotbaum v. City of Phoenix, 2008 WL 4628675 (D. Ariz. 2008) (explaining that "[c]onsistent with its previous decision in Wilson, the Court concludes that the Phoenix Police Department is a subpart of the city of Phoenix, not a separate entity for purposes of suit."); 56 Am.Jur.2d Municipal Corporations § 787 ("Generally, the departments and subordinate entities of municipalities, counties, and towns that are not separate legal entities or bodies do not have the capacity to sue or be sued in the absence of specific statutory authority."); Jacobs v. Port Neches Police Dep't, 915 F. Supp. 842, 844 (E.D. Tex. 1996) (explaining that the sheriff's department was not a proper party to the suit because the county had not expressly "grant[ed] the servient agency with jural authority"); Wright v. Wyandotte County Sheriff's Dep't, 963 F. Supp. 1029, 1034 (D. Kan. 1997) (explaining that the Sheriff's department is merely an agency of the county and is not itself capable of being sued). The capacity to sue or be sued is determined by the law of the state where the court is located. Fed. R. Civ. P. 17(b)(2), (3). Arizona Rule of Civil Procedure 17(d) explains that "[a]ctions brought by or against a county or unincorporated city or town shall be brought in its corporate name." Thus, the proper form of a lawsuit against the City of Casa Grande's Police Department is a lawsuit that names the City of Casa Grande. The Arizona

Constitution specifically confers the right to sue or be sued on municipal corporations. A.R.S. Const. Art. 14 § 1 states that "[t]he term `corporation,' as used in this article, shall be construed to include all associations and joint stock companies having any powers or privileges of corporations not possessed by individuals or co-partnerships, and all corporations shall have the right to sue and shall be subject to be sued, in all courts, in like cases as natural persons." Plaintiffs are unable to cite any Arizona statute that confers the power to sue or be sued to a city's police department. They claim that A.R.S. § 12-820(6) and (7) defines a

Response to the Motion to Dismiss City of Casa Grande Police Department as a Non-Jural Entity. (Dkt.#15, CV09-00314) -2-

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"public entity" broadly as "this state and any political subdivision of this state" and that "state" is defined as "the state and any state agency, board, commission, or department." (Dkt.#8 at 5) However, this statute simply does not address the question of whether the City of Casa Grande Police Department is a jural entity that is capable of suing and being sued; rather, it merely confirms the banality that a political subdivision of the state is also a public entity. Applied here, it merely confirms that the police department, as a subdivision of a public entity, is also public. However, it says nothing about whether the police department is a jural entity that is capable of suing and being sued. Plaintiffs further claim that McClanahan v. Cochise College, 25 Ariz.App. 13, 540 P.2d 744 (1975) supports their argument that the police department is a jural entity. However, the McClanahan court never considered the issue and thus is inapposite to the case at bar. Plaintiffs also argue that the size and purpose of the police department mean that its alleged jural status should be "fairly implied." However, the importance or purpose of a department are not the established legal tests for determining whether it may sue or be sued; as discussed above, the test is whether specific statutory authority authorizes the political subdivision to sue and be sued. Finally, Plaintiffs attempt to argue that the Casa Grande Police Department has been sued in the past and has not claimed that it was a non-jural entity and thus should be judicially estopped from raising that argument here. However, Plaintiffs apparently were not aware that the Casa Grande Police Department did challenge its status as a non-jural entity in the very case that Plaintiffs cited. (Dkt.#9, Exh. A) Thus, Plaintiffs' estoppel argument likewise fails. It might be a closer question if the Casa Grande Police Department had itself served as a plaintiff in several law suits; however, Plaintiffs have brought no such suits to the Court's attention. Plaintiffs have already sued the City of Casa Grande. Dismissal of the Casa Grande Police Department will not deprive them of any remedy to which they are entitled.

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Accordingly, IT IS HEREBY ORDERED granting Defendant's Motion to Dismiss City of Casa Grande Police Department as a Non-Jural Entity. (Dkt.# 5) DATED this 19th day of May, 2009.

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