Donahoe et al v. Arpaio et al

Filing 572

ORDER that the Maricopa County's #514 Amended Motion for Reconsideration is denied. IT IS FURTHER ORDERED that the Wolfswinkel Plaintiffs' #565 Motion to Set Aside is granted. The Wolfswinkel plaintiffs are given leave without further order of the Court to file an amended complaint by September 7, 2012, to name Montgomery as a defendant in this action. Signed by Judge Neil V Wake on 8/28/2012. (See attached PDF for complete details.)(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gary Donahoe and
husband and wife,

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Cherie

Donahoe,

No. CV 10-02756-PHX-NVW
CONSOLIDATED WITH:

Plaintiffs,

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vs.

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Sheriff Joseph Arpaio and Ava Arpaio,
husband and wife; Andrew Thomas and
Anne Thomas, husband and wife; Lisa
Aubuchon and Peter R. Pestalozzi, wife and
husband; Deputy Chief David Hendershott
and Anna Hendershott, husband and wife;
Peter Spaw and Jane Doe Spaw, husband
and wife; Maricopa County, a municipal
entity; Jon Does I-X; Jane Does I-X; Black
Corporations I-V; and White Partnerships IV,

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Defendants.

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Sandra Wilson and Paul Wilson, husband
and wife,

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CV 10-02758-PHX-NVW

Plaintiffs,

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vs.

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Sheriff Joseph Arpaio and Ava Arpaio,
husband and wife; et al.,

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Defendants.

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Conley D. Wolfswinkel, a single man;
Brandon D. Wolswinkel, a single man;
Ashton A. Wolfswinkel, a single man;
Vanderbilt Farms, LLC, an Arizona limited
liability company; ABCDW, LLC, an
Arizona limited liability company; Stone
Canyon, LLC, an Arizona limited liability
company; Vistoso Partners, LLC, an
Arizona limited liability company; and W
Harquahala, LLC, an Arizona limited
liability company;

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Plaintiffs,
vs.
Sheriff Joseph Arpaio and Ava Arpaio,
husband and wife; et al.,
Defendants.

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Mary Rose Wilcox and Earl Wilcox, wife
and husband,

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vs.
Sheriff Joseph Arpaio and Ava Arpaio,
husband and wife; et al.,
Defendants.
Donald T. Stapley, Jr. and Kathleen
Stapley, husband and wife,

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CV 11-00902-PHX-NVW
ORDER

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CV 11-00473-PHX-NVW

Plaintiffs,

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CV 11-00116-PHX-NVW

Plaintiffs,
vs.
Sheriff Joseph Arpaio and Ava Arpaio,
husband and wife; et al.,
Defendants.

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Before the Court is Maricopa County’s Amended Motion for Reconsideration and

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Modification of May 31, 2012 (Doc. 514) and the Wolfswinkel Plaintiffs’ Motion to Set

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Aside the Court’s May 26, 2011 Order Dismissing William Montgomery as a Party-

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Defendant (Doc. 565). The County seeks a modification of this Court’s May 31 order

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which required Maricopa County to produce documents in the possession of the

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Maricopa County Attorney’s office that are responsive to discovery requests from the

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Wolfswinkel plaintiffs. The County Attorney, Bill Montgomery, has taken the position

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that he is not required to produce the documents under his control to the County, and that

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as a non-party to this suit, he is not compelled to cooperate with the Wolfswinkel

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plaintiffs’ discovery requests. Nonetheless, after he was served with a subpoena for the

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documents by the County’s attorney, Montgomery complied with the subpoena and

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produce the requested documents.

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effectively moot.

Accordingly, the motion for reconsideration is

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Nonetheless, it is likely that the County Attorney’s office will need to cooperate in

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this litigation because the former County Attorney, Andrew Thomas, is a defendant

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related to actions he took in his capacity as County Attorney and documents in the

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County Attorney’s office will likely need to be produced in discovery. The Wolfswinkel

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plaintiffs initially named Montgomery as a defendant in this action in his official capacity

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as County Attorney (Doc. 1 in CV11-0116).

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complaint on the basis that he did not take office until after the alleged wrongdoing

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underlying the complaint occurred (Doc. 18 in CV11-0116).

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Montgomery’s motion to dismiss (Doc. 55 in CV10-2756), the Wolfswinkel plaintiffs

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acknowledged that they did not seek any relief against Montgomery personally, but that

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in order to recover damages for actions taken by Thomas in his official capacity as

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County Attorney, they were suing Montgomery in his official capacity to hold the County

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responsible for the actions of Thomas, the former office holder.

Montgomery moved to dismiss the

In their response to

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The Court granted Montgomery’s motion to dismiss on the basis that naming

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Montgomery was redundant to naming the County (Doc. 70 in CV10-2756). However,

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because Montgomery has asserted that as a non-party, he is not required to cooperate

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with the discovery obligations under the Federal Rules of Civil Procedures, the efficiency

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of dismissing Montgomery is no longer present. The Court has no doubt that all of

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Maricopa County’s officers are responsible for complying with the County’s discovery
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obligations under the Federal Rules of Civil Procedure.

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Attorney bear the County’s responsibility and will render the County liable for sanctions

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for not meeting that responsibility. The Court will therefore grant the Wolfswinkel

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Plaintiffs’ Motion to Set Aside the Court’s May 26, 2011 Order Dismissing William

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Montgomery as a Party-Defendant (Doc. 565) and give the Wolfswinkel plaintiffs leave

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to amend their complaint to name Montgomery as a defendant in this action, thus

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avoiding this conflict. The further amended complaint must be served upon the County

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Attorney, and any challenge to the further amended complaint other than challenges

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concerning process will be summarily denied.

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Officers like the County

IT IS ORDERED that Maricopa County’s Amended Motion for Reconsideration
and Modification of May 31, 2012 (Doc. 514) is denied.

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IT IF FURTHER ORDERED that the Wolfswinkel Plaintiffs’ Motion to Set Aside

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the Court’s May 26, 2011 Order Dismissing William Montgomery as a Party-Defendant

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(Doc. 565) is granted. The Wolfswinkel plaintiffs are given leave without further order

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of the Court to file an amended complaint by September 7, 2012, to name Montgomery

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as a defendant in this action. The further amended complaint must be served upon the

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County Attorney, and any challenge to the further amended complaint other than

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challenges concerning process will be summarily denied.

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Dated this 28th day of August, 2012.

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