Diaz et al v. Arizona, State of et al

Filing 51

ORDER granting 12 , 15 , 18 , 19 defendants' Motions to Dismiss; because our analysis applies equally to defendant Gabriel Esqueda, it is further ORDERED DISMISSING all claims against him. The clerk shall enter final judgment. Signed by Judge Frederick J Martone on 4/11/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joseph Anthony Diaz; Luis Ramon)
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Campas,
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Plaintiffs,
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vs.
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State of Arizona, et al.,
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Defendants.
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No. CV 11-02337-PHX-FJM
ORDER

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We have before us defendants' motions to dismiss (docs. 12, 15, 18, 19), plaintiffs'

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responses (docs. 37, 38, 39, 40), errata to plaintiffs' response (doc. 41), and defendants'

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replies (docs. 44, 46, 47, 48).

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The State of Arizona, Earl Vance Wilcox, Mary Rose Wilcox, and John Montano

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("state defendants") move to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P. (Doc. 12).

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Maricopa County, Earl Vance Wilcox, and Mary Rose Wilcox ("county defendants") move

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to dismiss and join in the state defendants' motion and defendant Richard M. Romley's

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motion to dismiss. (Doc. 15). Defendants Top Rank Inc., Bruce Trampler, and Bob Arum

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("Top Rank defendants") move to dismiss pursuant to Rule 12(b)(6) and join in the state

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defendants' motion. (Doc. 18). Romley moves to dismiss and joins in the state defendants'

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and county defendants' motions. (Doc. 19).

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I
Plaintiff Luis Ramon Campas is a boxer and plaintiff Joseph Diaz is his trainer.

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Defendant Top Rank Inc. is a boxing promotion company; Bob Arum is the founder and

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CEO, Bruce Trampler is a matchmaker, and Peter McKinn was a promoter. At the time of

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the alleged actions, defendant Earl Vance Wilcox was a special assistant to former governor

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Janet Napolitano. His wife, Mary Rose Wilcox, was a member of the Maricopa County

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Board of Supervisors and Chairwoman of the Arizona State Boxing Commission ("ASBC").

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John Montano was an employee of the ASBC. Richard Romley was the acting Maricopa

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County Attorney.

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Plaintiffs claim McKinn issued them a bad check for $5,000 in May 2004. They

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complained and allegedly began uncovering conspiracy and a pattern of fraud in the Arizona

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"Boxing Establishment," which led to retaliation by the state and county defendants. In June

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2005, the ASBC denied Diaz's application for a boxing trainer license. The Superior Court

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of Arizona in Maricopa County affirmed the Commission's decision. In late 2005, Campas'

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boxing license was revoked. It was reinstated March 6, 2006. Diaz's license was reinstated

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April 22, 2010.

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On November 30, 2006, plaintiffs filed a complaint in this court, alleging that various

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private individuals and public employees conspired to deprive them of their livelihoods.

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Diaz v. Top Rank, Inc., No. CV 06-02871-PHX-NVW (doc. 1). All of plaintiffs' claims were

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dismissed in 2007.

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Defendant McKinn allegedly prepared a forged receipt, which purported to show Diaz

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had received the $5,000 owed to him. He also allegedly had defendant Gabriel Esqueda

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swear to and sign a false affidavit stating Esqueda had paid Diaz. In July 2005, all charges

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against McKinn relating to the bad check were dismissed. The investigation of McKinn was

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reopened in June 2009 and he was charged with five felonies in September 2009. In 2010,

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Romley transferred his case to Gila County, where McKinn pled guilty to three amended

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counts. Plaintiffs claim the conspiracy among all parties continued through McKinn's

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sentencing in May 2011.

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II
Plaintiffs filed their complaint in state court on September 30, 2011. Defendants
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removed this action on November 28, 2011.

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appropriate because they bring this action pursuant to 42 U.S.C. § 1983 and the First, Fourth,

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Fifth, and Fourteenth Amendments to the United States Constitution. Because at least one

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plaintiff and some defendants are Arizona residents, we have subject matter jurisdiction only

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if a claim arises under federal law. 28 U.S.C. § 1331. Plaintiffs did not move to remand, and

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no defendant has challenged subject matter jurisdiction, but we have an independent

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obligation to determine whether subject matter jurisdiction exists. Arbaugh v. Y&H Corp.,

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546 U.S. 500, 514, 126 S. Ct. 1235, 1244 (2006).

Plaintiffs claim federal jurisdiction is

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Plaintiffs' 51-page shot-gun complaint contains twenty causes of action.1 The only

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possible bases for claims under § 1983 are the charge of conspiracy in count 8 and

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"Conspiracy against Rights" and "Deprivation of Rights Under Color of Law" in count 15,

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entitled "Substantive Due Process." We have jurisdiction over these claims because they

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arguably arise under federal law, and supplemental jurisdiction over plaintiffs' remaining

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state law claims.
III

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When considering a motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., "a

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court must construe the complaint in the light most favorable to the plaintiff and must accept

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all well-pleaded factual allegations as true." Shwarz v. United States, 234 F.3d 428, 435 (9th

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Cir. 2000). On the other hand, a court is "not bound to accept as true a legal conclusion

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couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.

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1955, 1965 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944

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(1986)). "Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

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1937, 1949 (2009). The complaint must contain "enough facts to state a claim to relief that

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is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. at 1974. "A claim has facial

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Plaintiffs' causes of action are numbered 1-16 and 18-21. For ease of reference, we
cite to them as they are numbered in the complaint.
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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S.

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at 678, 129 S. Ct. at 1949. Dismissal under Rule 12(b)(6) may be "based on the lack of a

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cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal

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theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). "A claim may

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be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of

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limitations only when 'the running of the statute is apparent on the face of the complaint.'"

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Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010).

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IV

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Section 1983 does not contain its own statute of limitations. Instead, federal courts

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borrow the forum state's personal injury statute of limitations. Wallace v. Kato, 549 U.S.

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384, 387, 127 S. Ct. 1091, 1094 (2007). "In Arizona, the courts apply a two-year statute of

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limitations to § 1983 claims." TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).

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Federal law determines when a civil rights claim accrues. "Under federal law, a claim

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accrues when the plaintiff knows or has reason to know of the injury which is the basis of the

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action." Id.

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The conspiracy among defendants was allegedly undertaken "to revoke the

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professional licenses [and] to maliciously fail to prosecute McKinn." (Doc. 1, ex. 1 ¶ 307).

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In 2005, plaintiffs' licenses were revoked and charges against McKinn were dismissed.

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Plaintiffs knew of these events when they occurred; therefore, their cause of action accrued

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in 2005. Their claim of conspiracy in count 8 is barred by the statute of limitations.

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Plaintiffs' due process and deprivation of rights claims, also apparently based on the

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revocation of licenses, are barred by the statute of limitations as well.

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V

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The state claims are subject to the discovery rule, under which "a cause of action does

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not accrue until the plaintiff knows or with reasonable diligence should know the facts

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underlying the cause." Doe v. Roe, 191 Ariz. 313, 322, 955 P.2d 951, 960 (1998). "A

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plaintiff need not know all the facts underlying a cause of action to trigger accrual." Id. at
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323, 955 P.2d at 961. In Arizona, "[a]ll actions against any public entity or public employee

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shall be brought within one year after the cause of action accrues and not afterward." A.R.S.

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§ 12-821. All of plaintiffs' claims accrued more than one year before filing of the complaint.

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As a result, all claims against the public entities or employees are time barred.

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Claims against the private defendants are time barred as well, beginning with count

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1, which alleges theft. We treat this as a claim for conversion. There is a 2-year limit to

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bring an action for taking away the goods of another or detaining and converting the personal

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property of another. A.R.S. § 12-542. No facts are pled alleging the private defendants took

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any action to obtain services or property of plaintiffs after 2005. As a result, plaintiffs' claim

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is barred.

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A.R.S. § 12-543(3) provides a 3-year statute of limitations for fraud. Plaintiffs' third

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claim alleges that all defendants were aware of false statements used in the ASBC hearings

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as well as in courts, and they relied upon those documents to effect dismissal in a criminal

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case and to justify actions by the ASBC. (Doc. 1, ex. 1 at 34). In 2005, the ASBC hearing

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occurred, the result was affirmed by the Superior Court, and charges were dropped against

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McKinn. All of these actions occurred more than three years before plaintiffs filed their

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complaint. The claim for fraud is dismissed.

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A.R.S. § 12-541(1) contains a 1-year limitation for defamation. Count 7 does not

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plead the statements which allegedly defamed plaintiffs. It merely contends that defendants

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released false and defamatory statements to the media. Even after an exhaustive search of

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the lengthy complaint, we find no facts about media releases. Plaintiffs allege that defendant

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Montano sent letters to various state boxing commissions, but even if these letters were

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defamatory, they were apparently sent soon after Diaz and Campas lost their licenses in

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2005. This claim is dismissed.

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Under A.R.S. § 12-542, there is a 2-year statute of limitations for injuries done to the

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person or property of another. A.R.S. § 12-542 applies to abuse of process claims. See

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Hatch v. Reliance Ins. Co., 758 F.2d 409, 414-15 (9th Cir. 1985); Thompson v. Paul, 657 F.

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Supp. 2d 1113, 1126 n.15 (D. Ariz. 2009). This cause of action (count 11) is based on denial
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of plaintiffs' licenses, which occurred in 2005. Accordingly, the claim is barred by the statute

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of limitations.

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Count 12, vindictive and/or selective prosecution, claims all defendants failed to

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prosecute McKinn based on an impermissible motive, but prosecuted others similarly

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situated. The decision "whether and when to prosecute" is part of a prosecutor's duties as

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advocate for the State. Imbler v. Pachtman, 424 U.S. 409, 431 n.33, 96 S. Ct. 984, 995 n.33

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(1976). In performing this function, a prosecutor has absolute immunity from a civil suit for

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damages under § 1983. Id. at 431, 96 S. Ct. at 995. Defendant Romley is therefore immune

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from suit for his decisions regarding McKinn's prosecution. The statute of limitations bars

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a claim against the remaining public defendants. Any claim against private defendants fails

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to meet the test of facial plausibility.

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A.R.S. § 12-542(1)'s 2-year limit for "injuries done to the person of another" also

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applies to a claim for intentional infliction of emotional distress (count 13). To survive

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dismissal on statute of limitations grounds, this claim must be based on actions which

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occurred after September 30, 2009. The only facts pled after this date were the transfer of

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McKinn's case, his guilty plea, and his sentencing. Plaintiffs completely fail to show how

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any of these events could form the basis of a claim for intentional infliction of emotional

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distress. The claim is pled in generic terms and does nothing more than recite the elements

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of the cause of action. "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment]

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to relief' requires more than labels and conclusions, and a formulaic recitation of the elements

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of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65.

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Plaintiffs again fail to state a cause of action. Any amendment would be futile.

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In order to state a claim for tortious interference with contractual relations or business

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expectancies (count 14), the plaintiffs must show that defendants induced or otherwise

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purposely caused a third party not to perform a contract or enter into or continue a business

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relation. Restatement (First) of Torts § 766 (1939). A.R.S. § 12-542's 2-year statute of

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limitations governs plaintiffs' tortious interference claim.

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Manufacturing Co. of Ariz., Inc., 138 Ariz. 240, 243-44, 673 P.2d 984, 987-88 (Ct. App.
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Clark v. AiResearch

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1983).

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expectancies. Because the licenses were denied in 2005, the time to bring this claim has long

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since expired.

Plaintiffs plead that denial of their licenses interfered with their business

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The claim for negligence, count 20, alleges "emotional and physical damages." (Doc.

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1, ex. 1 ¶ 376). Once again, the 2-year statute of limitations in A.R.S. § 12-542(1) applies.

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Plaintiffs contend that defendants failed to properly establish policies and procedures

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"governing the investigation, processing, handling, and management of civil and/or criminal

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investigations and prosecutions in their control." (Doc. 1, ex. ¶ 375). Under this generic

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allegation, McKinn's second case, which continued through 2011, is the only possible ground

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for a negligence claim that is not time barred. As discussed above, Romley has prosecutorial

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immunity. Plaintiffs have not pled that any other public party was involved in McKinn's

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transfer or sentencing, and therefore a negligence claim is barred by A.R.S. § 12-821.

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Plaintiffs' claim against private defendants here lacks facial plausibility, is completely

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unsubstantiated by any specific factual allegations, and is therefore dismissed.

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VI

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Plaintiffs contend that the statute of limitations should be tolled because of defendants'

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fraudulent concealment. The doctrine of fraudulent concealment is invoked only if the

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plaintiff pleads and proves facts showing that defendants "affirmatively misled" them, and

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that plaintiffs "had neither actual nor constructive knowledge of the facts giving rise to [their]

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claim despite [their] diligence in trying to uncover those facts." Conmar Corp. v. Mitsui &

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Co. (U.S.A.), Inc., 858 F.2d 499, 502 (9th Cir. 1988).

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particularity the circumstances of the concealment and the facts supporting [their] due

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diligence." Id. Plaintiffs could not have lacked knowledge about the forged receipt and

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falsified affidavit. Plaintiffs clearly knew of the facts constituting their cause of action many

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years ago, as evidenced by their filing of a substantially similar lawsuit in 2006. In addition,

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even if defendants had denied wrongdoing, a "failure to 'own up' does not constitute active

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concealment." Grimmett v. Brown, 75 F.3d 506, 515 (9th Cir. 1996). Whether or not the

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receipt and affidavit were forged has always been within the direct personal knowledge of
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Plaintiffs "must plead with

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plaintiffs. Fraudulent concealment does not toll the statute of limitations here.

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VII

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Plaintiffs allege state constitutional violations against state defendants, county

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defendants, and Romley in counts 5, 6, and 15. Their claims include deprivation of due

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process, civil rights, and equal protection, and violations of free speech and the right to

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privacy. Section 1983 does not protect against violations of state law or state constitutional

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rights. Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981). State defendants contend that

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Arizona has not enacted a state counterpart to § 1983 and no published case creates a

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damages remedy for violations of state constitutional rights. (Doc. 12 at 12). The existence

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of such claims is unresolved. See Howell v. Hodap, 221 Ariz. 543, 548, 212 P.3d 881, 886

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(Ct. App. 2009) (whether a private right of action under Art. 2, § 8 (right to privacy) exists

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is an unresolved question of law). Plaintiffs fail to respond to defendants' contention that

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their Arizona constitutional claims are not viable. They have failed to show that their claims

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are based on cognizable legal theories. Therefore, we dismiss these claims.
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None of plaintiffs' other claims state a cause of action. The majority of the remaining

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claims allege criminal violations (count 2, perjury; count 4, forgery; count 9, criminal

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conspiracy; count 15, obstruction; count 18, obstructing a criminal prosecution; count 19,

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tampering with evidence; count 21, fraudulent scheme). There is no private cause of action

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for these claims.

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Plaintiffs' claim for conflict of interest, count 10, purports to state a claim under a

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statute which does not exist. Assuming they intend to cite A.R.S. § 38-501 et seq., they fail

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to state a claim. "[T]o violate the conflict of interest statute, a public official must have a

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non-speculative, non-remote pecuniary or proprietary interest in the decision at issue."

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Hughes v. Jorgenson, 203 Ariz. 71, 74, 50 P.3d 821, 824 (2002). No non-speculative, direct

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interest has been shown here.

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"In Arizona, both civil conspiracy and aiding and abetting are derivative torts for

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which a plaintiff may recover only if it has adequately pled an independent primary tort."
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AGA Shareholders, LLC v. CSK Auto, Inc., 589 F. Supp. 2d 1175, 1191-92 (D. Ariz. 2008).

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Because plaintiffs have not adequately pled an independent primary tort, counts 8 and 16 fail

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to state a claim for relief.

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XI

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IT IS ORDERED GRANTING defendants' motions to dismiss (docs. 12, 15, 18, 19).

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Because our analysis applies equally to defendant Gabriel Esqueda, it is further

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ORDERED DISMISSING all claims against him. The clerk shall enter final judgment.
DATED this 11th day of April, 2012.

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