Bryant et al v. Goodyear, City of et al

Filing 108

ORDER denying 85 MOTION for Reconsideration re 81 Order or alternatively RULE 60(b) MOTION for Relief Reinstating Some State Claims Against Newman, McLaughlin and granting in part and denying in part the 90 MOTION to Stay Discovery an d Dispositive Motion Deadline as follows: Defendants' Motion to Stay this case is denied. IT IS ORDERED amending the Court's Scheduling Order (Doc. 23 ) as follows: IT IS ORDERED that all discovery, including depositions of parties, wi tnesses, and experts, answers to interrogatories, and supplements to interrogatories must be completed by October 30, 2013. IT IS FURTHER ORDERED that all dispositive motions shall be filed no later than December 6, 2013. Such motions must be, in all respects, in full compliance with the Civil Local Rules. (See document for further details). Signed by Senior Judge James A Teilborg on 8/6/13. (LAD)

1

WO

2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9
10

David Bryant and Andrea Bryant,
individually and as husband and wife,

11

NO. CV-12-00319-PHX-JAT

Plaintiffs,

12

vs.

13
14
15
16
17

The City of Goodyear; William R. Newman,
Jr. and Jane Doe Newman, husband and
wife; Mark Brown and Jane Doe Brown,
husband and wife; Ralph McLaughlin and
Jane Doe McLaughlin, husband and wife;
and Jeff Rogers and Jane Doe Rogers,
husband and wife,

18

Defendants.

19
20
21
22
23
24
25

Pending before the Court are: (1) Defendants’ Motion to Stay Discovery and
Dispositive Motion Deadline (Doc. 90) and (2) Plaintiffs’ Motion for Reconsideration of
the Court’s May 6, 2013 Order or alternatively Rule 60(b) Motion for Relief Reinstating
Some State Claims Against Newman, McLaughlin (Doc. 85). The Court now rules on the
Motions.
I.

Background

26

On February 15, 2012, Plaintiffs filed a complaint against Defendants (Doc. 1). On

27

June 5, 2012, Plaintiffs filed an amended complaint against Defendants (Doc. 6). On June

28

7, 2012, the Amended Complaint was served on all Defendants, except for Defendant

1

Brown, who waived service on June 13, 2012. (Doc. 7-15). On September 14, 2012,

2

Defendants filed a Motion to Dismiss (Doc. 30) and a Motion for Summary Judgment

3

(Doc. 31). On May 6, 2013, the Court granted Defendants’ motion for summary judgment

4

in part and denied it in part and granted Defendants’ motion to dismiss Plaintiffs’

5

amended complaint. (Doc. 81). In that Order, the Court gave Plaintiffs leave to amend

6

their Amended Complaint and extended the discovery deadline to August 1, 2013 and the

7

dispositive motion deadline to August 30, 2013. (Id.).

8

On May 28, 2013, Plaintiffs filed a Second Amended Complaint. On June 19,

9

2013, Defendants moved to dismiss twenty-three of the twenty-five counts of the Second

10

Amended Complaint. (Doc. 89).

11

II.

12

Defendants seek a stay of the discovery and dispositive motions deadlines until the

13

Court has ruled on their Motion to Dismiss the Second Amended Complaint. Plaintiffs

14

object to a stay and an open-ended discovery extension and argue that further delay in the

15

case would be unfair.

Defendants’ Motion to Stay Discovery and Dispositive Motion Deadline

16

Defendants’ request that this case be stayed is denied. However, in order to give

17

the Court time to analyze Defendants’ Motion to Dismiss, which has only been fully

18

briefed since August 1, 2013, the Court will extend the discovery and dispositive motion

19

deadlines as follows: all discovery, including depositions of parties, witnesses, and

20

experts, answers to interrogatories, and supplements to interrogatories must be completed

21

by October 30, 2013 and all dispositive motions shall be filed no later than December 6,

22
23
24

2013. Such motions must be, in all respects, in full compliance with the Civil Local Rules.
III.

Plaintiff’s Motion for Reconsideration of the Court’s May 6, 2013
Order or alternatively Rule 60(b) Motion for Relief Reinstating Some
State Claims Against Newman, McLaughlin

25

Plaintiffs seek reconsideration of part of the Court’s May 6, 2013 Order. In their

26

Motion for Summary Judgment, Defendants argued that Plaintiffs’ state law claims should

27

be dismissed against Defendants Newman and Brown because Plaintiffs failed to properly

28

comply with Arizona’s Notice of Claim Statute, Arizona Revised Statutes section 122

1

821.01(A). In its May 6, 2013 Order, the Court granted Defendants’ Motion for Summary

2

Judgment on that argument because Plaintiffs filed their complaint prior to serving their

3

Notice of Claim on Defendants Newman and Brown. The Court specifically found:

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

Plaintiffs filed their original complaint on February 15,
2012. Plaintiffs served their notice of claim on Defendants
Newman and McLaughlin on March 6, 2012. Plaintiffs argue
that “[t]he original complaint in this matter was filed on
February 15, 2012 as a placeholder to avoid potential statute
of limitations issues while the Bryants finalized their Notice of
Claim.” (Doc. 40 at 3). In Reply, Defendants argue that
section 12-821.01 requires that the claim be submitted and
rejected before a lawsuit is filed.
Indeed, “[b]efore initiating an action for damages
against a public entity, a claimant must provide a notice of
claim to the entity in compliance with Arizona Revised
Statutes (A.R.S.) section 12–821.01 (2003).” Deer Valley
Unified School Dist. No. 97 v. Houser, 152 P.3d 490,
491 (Ariz. 2007). “The statutory requirements serve several
important functions: They ‘allow the public entity to
investigate and assess liability, . . . permit the possibility of
settlement prior to litigation, and . . . assist the public entity in
financial planning and budgeting.’” Id. at 492 (internal
citations omitted) (alterations in original).
Compliance with the notice provision of §
12–821.01(A) is a mandatory and essential
prerequisite to such an action. Failure to comply
with the statute is not cured by actual notice or
substantial compliance.
Rather, plaintiff’s
failure bars any claim against the entity or
employee.
Harris v. Cochise Health Systems, 160 P.3d 223, 230 (Ariz.
Ct. App. 2007) (internal quotations and citations omitted)
(emphasis in original).
Accordingly, because Plaintiffs filed suit before serving
their notice of claim, Plaintiffs did not comply with Arizona
Revised Statutes section 12-821.01 and, thus, their state law
claims are barred. See Andress v. City of Chandler, 115, 7
P.3d 121, 124 (Ariz. Ct. App. 2000) (finding that allowing
3

1
2
3
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

plaintiff to file their lawsuit before serving public entities or
their employee defendants with a notice of claim “would
clearly defeat the pre-litigation notification and settlement
purposes of the notice of claim statute”); Arizona Dep’t. of
Revenue v. Dougherty, 29 P.3d 862, 867 (Ariz. 2001) (stating
that “the general claim statute requires exhaustion before
action by making clear that no action may be maintained
against a public entity without first filing a notice of claim.”)
(internal citation omitted).FN1
FN1 The following unpublished opinions from
the Arizona Court of Appeals have all reached
the same conclusion: Goldwater v. Parzych, No.
CA-CV 07-0060, 2007 WL 5471738, at *2
(Ariz. Ct. App. Oct. 23, 2007) (holding that
where notice of claim was served after Plaintiff
filed his complaint, Plaintiff’s notice of claim
was untimely as a matter of law and barred by
section 12-821.01 because “Arizona courts have
interpreted the claims statute, in accordance with
the purpose of the statute, to require that a notice
of claim must be filed and rejected by the public
entity or public employee before a lawsuit can
be filed.”) (internal citation omitted) (emphasis
in original); Desert Heritage Ltd. Partnership v.
City of Tucson, No. CA-CV 2009-0176, 2010
WL 1931682, at *5 (Ariz. Ct. App. May 13,
2010) (reasoning that reading of section 12821.01 that would require parties to file claim
notices after litigation had begun would
“render[] meaningless the purpose of § 12821.01”); Smith v. Johnston, Nos. 2 CA-CV
2007-0145, 2 CA CV 2007-0061, 2008 WL
4292735, at *3 (Ariz. Ct. App. Sept. 19, 2008)
(finding that “permitting a plaintiff to use his
complaint as a notice of claim would wholly
defeat the [purposes of the] statute”) (internal
citation omitted).
Although the Court is not permitted to
rely on these opinions under the Arizona Rules
of Civil Procedure, the Court adopts the
underlying reasoning in those opinions as an
accurate statement of Arizona law.
4

1
Accordingly, the state law claims as asserted against
Defendants McLaughlin and Newman for malicious
prosecution, defamation, abuse of process, false light/invasion
of privacy, intentional infliction of emotional distress,
negligent infliction of emotional distress, negligence per se,
and negligence are dismissed.

2
3
4
5
6

(Doc. 81 at 8-9).

7

Plaintiffs argue that the Court should reconsider its ruling because the “basis for

8

the Court’s ruling only arose in Defendants’ Reply [and] Plaintiffs had no opportunity to

9

provide all applicable facts.” (Doc. 85 at 2).

10

While Plaintiffs overstate the extent to which Defendants’ argument was raised for

11

the first time in reply, the exact nuance of Defendants’ argument that the Court’s ruling

12

was based on was raised by Defendants as a reply to an argument Plaintiffs made in their

13

response. Accordingly, the Court will consider Plaintiffs’ arguments that the Court erred

14
15
16
17
18
19
20
21
22

in finding that they did not properly comply with Arizona Revised Statutes section 12821.01(A).
Plaintiffs argue that they complied with Arizona Revised Statutes section 12821.01(A) because they did not serve their original complaint and only served their
amended complaint after their notice of claim was denied. Plaintiffs argue that the plain
language of Arizona Revised Statutes section 12-821.01(A) does not require that the
notice of claim be served and disallowed before a complaint is filed. Plaintiffs further
argue that, by filing an amended complaint after the notice of claim was denied, the
amended complaint superseded the original complaint and, thus, this lawsuit was not
“filed” until the amended complaint was filed. Plaintiffs also argue that the legislative

23

intent and purpose of the statute were met in this case because Defendants were given

24

more than 60 days to consider the Bryant’s demand, investigate, budget if necessary, and

25

settle with the Bryants prior to engaging in any litigation.

26

In Response, Defendants argue that Arizona case law has interpreted the Notice of

27

Claim statute as requiring that a notice of claim be served and disallowed before a lawsuit

28
5

1

is filed.

2

Plaintiffs’ original complaint and the amended complaint and, regardless of any

3

difference, this case was filed before the notice of claim was served and disallowed as

4

required by Arizona case law.

Defendants further argue that there is no substantive difference between

5

In Reply, Plaintiffs argue that this case is exceptional and they should not be held

6

to the requirement that a claim must be filed and disallowed before a lawsuit may be

7

maintained.

8
9
10
11
12

As noted above, Plaintiffs argue that, by filing an amended complaint after the
notice of claim was denied, the amended complaint superseded the original complaint and,
thus, this lawsuit was not “filed” until the amended complaint was filed. While it is true
that, under federal law, the amended complaint superseded the original complaint, an
amended complaint does not change the filing date of the lawsuit. To hold otherwise
would mean that every time an amended complaint is filed, the Court would have to do a

13
14
15
16
17

new statute of limitations analysis for claims asserted in the original complaint and
reasserted in the amended complaint. Plaintiff has cited to no case law, and the Court can
find no case law, where the filing date of the lawsuit is recalculated based on the filing of
an amended complaint. Moreover, Plaintiffs’ argument that the date of the lawsuit is
recalculated based on the filing of an amended complaint is belied by their argument that

18

they filed their original complaint as a placeholder to avoid potential statute of limitations

19

issues. Accordingly, the date of the filing of the original complaint is the day this lawsuit

20

was filed.

21

Plaintiffs’ argument that the Arizona notice of claim statute does not by its terms

22

require that the notice of claim be served and disallowed before a lawsuit may be filed is

23

similarly unpersuasive.

24

numerous Arizona cases, including Arizona Supreme Court cases, have interpreted

25

Arizona’s notice of claim statute as requiring a claim to be filed and disallowed before a

26

lawsuit may be filed. Even if this Court were to disagree with that interpretation, this

27

Court cannot replace its own opinion for that of the opinion of the Arizona Supreme Court

28

interpreting an Arizona statute.

As discussed at length in the Court’s May 6, 2013 Order,

6

1

Although Plaintiff argues that this case should be an exception to the general rule

2

that a notice of claim must be served and disallowed before a lawsuit is filed because it

3

does not implicate the policy reasons behind requiring a notice of claim to be served and

4

disallowed before filing a lawsuit, as noted in the Court’s May 6, 2013 Order, Arizona

5

courts have been clear that “[f]ailure to comply with the statute is not cured by actual

6

notice or substantial compliance. Rather, plaintiff’s failure bars any claim against the

7

entity or employee.” Harris v. Cochise Health Systems, 160 P.3d 223, 230 (Ariz. Ct. App.

8

2007) (internal quotations and citations omitted) (emphasis in original). Accordingly,

9
10
11
12

Plaintiffs are not entitled to a special exception to the requirements of Arizona Revised
Statutes section 12-821.01(A) in this case.
IV.

Conclusion

Based on the foregoing,
IT IS ORDERED that Defendants’ Motion to Stay Discovery and Dispositive

13
14
15
16
17

Motion Deadline (Doc. 90) is granted in part and denied in part as follows: Defendants’
Motion to Stay this case is denied. IT IS ORDERED amending the Court’s Scheduling
Order (Doc. 23) as follows: IT IS ORDERED that all discovery, including depositions
of parties, witnesses, and experts, answers to interrogatories, and supplements to
interrogatories must be completed by October 30, 2013. IT IS FURTHER ORDERED

18

that all dispositive motions shall be filed no later than December 6, 2013. Such motions

19

must be, in all respects, in full compliance with the Civil Local Rules.

20

IT IS FURTHER ORDERED that Plaintiff’s Motion for Reconsideration of the

21

Court’s May 6, 2013 Order or alternatively Rule 60(b) Motion for Relief Reinstating

22

Some State Claims Against Newman, McLaughlin (Doc. 85) is denied.

23

Dated this 6th day of August, 2013.

24
25
26
27
28
7