Rodriquez v. Phoenix, City of et al

Filing 8

ORDER denying 4 Motion to Dismiss Party. Signed by Judge David G Campbell on 1/18/2012.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Frank Rodriguez, surviving father of Daniel
Frank Rodriguez, individually and as copersonal representative of the Estate of
Daniel Frank Rodriguez,

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No. CV11-02073-PHX-DGC
ORDER

Plaintiffs,
vs.
City of Phoenix, et al.,

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Defendants.

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Defendant City of Phoenix (“the City”) moves to dismiss Plaintiff’s claims against

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it. Doc. 4. The motion has been fully briefed. Docs. 4, 5, 6. For the following reasons,

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the Court will deny the motion.1

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I.

Background.

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This action stems from Daniel Rodriguez’s death following an altercation with

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Phoenix Police Department Officer Richard Chrisman on October 5, 2010. Plaintiff is

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Rodriguez’s father. On October 4, 2011, he filed a complaint on behalf of himself and as

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“co-personal representative” of Rodriguez’s estate. Doc. 1-1, at 4. The complaint raises

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claims against the City for wrongful death, failure to train or supervise, and loss of

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familial association.

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Plaintiffs’ request for oral argument (Doc. 5) is denied because the issues are
fully briefed and argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b).

Before Plaintiff filed his complaint, Rodriguez’s mother, Elvira Fernandez, filed a

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nearly identical lawsuit in this court. Doc. 4-1. That case is currently pending before
Judge Martone. CV11-02001-FJM. Her complaint also raises claims, both individually
and as “co-personal representative” of Rodriguez’s estate, against the City for wrongful
death, failure to train or supervise, and loss of familial association.
II.

Discussion.
The City initially raises two grounds for dismissal: that Plaintiff’s claims are

barred because of the pending action before Judge Martone, and that Plaintiff’s claims
fail to meet the pleading standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Doc. 4.

Plaintiff responds that his wrongful death and survival claims should be

consolidated, not dismissed, and that his claims satisfy Iqbal’s pleading standards.
Doc. 5. In its reply, the City agrees with Plaintiff’s request to consolidate and notes that
Elvira Fernandez does not object to this arrangement. Doc. 6, at 1-2, n.1. It asks this
Court to consolidate the case before Judge Martone with this case, join Elvira Fernandez
as a required plaintiff for the survival claim, and order Plaintiff and Fernandez to elect
one statutory plaintiff for the wrongful death claim and file an amended complaint. Id.
at 4. The City does not pursue its pleading argument, noting that “[b]ecause Plaintiffs
will have the opportunity to amend, there is no reason to continue litigating whether the
allegations in the original complaint sufficiently state a claim upon which relief can be
granted.” Id. at 4, n.4.
The Local Rules of Civil Procedure for the District of Arizona provide that a
motion to consolidate “shall contain the captions of all the cases sought to be
consolidated, be filed in each case and shall be heard by the District Judge assigned the
lowest case number.” LRCiv 42.1(b). If the parties so desire, they must file a motion to
consolidate in Judge Martone’s court because that case has been assigned the lower case
number.

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IT IS ORDERED that Defendant City of Phoenix’s motion to dismiss (Doc. 4) is
denied.
Dated this 18th day of January, 2012.

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