Sodaro v. Arizona Supreme Court et al

Filing 9

ORDER, Defendants' Motion to Dismiss for Lack of Subject-Matter Jurisdiction 4 is granted, with prejudice as to these claims against these Defendants; the Clerk shall not enter judgment for Defendants at this time, as the Court is granting Pla intiff leave to amend to add possible other Defendants/claims; Plaintiff may file an Amended Complaint within 20 days; if Plaintiff does not file an Amended Complaint within 20 days, the Clerk shall dismiss the case with prejudice and enter judgment for Defendants; Defendants' Motion to Extend Time for Compliance with Rules 16 and 26 5 is denied as moot; if Plaintiff chooses to amend her Complaint, the Rule 16 and 26 deadlines will be addressed when this Court sets a Rule 16 scheduling conference. Signed by Judge James A Teilborg on 7/19/12. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jennifer Prager Sodaro,

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Plaintiff,
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vs.
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The Supreme Court of Arizona; the)
Committee on Character and Fitness of the)
Supreme Court of Arizona,
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Defendants.
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No. CV-12-0371-PHX-JAT
ORDER

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Pending before the Court is Defendants’ Motion to Dismiss for Lack of SubjectMatter Jurisdiction. (Doc. 4). The Court now rules on the Motion.
BACKGROUND1

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I.

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Plaintiff has been an Arizona citizen since 1999 and a licensed Illinois attorney since

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1986. (Doc. 1 at 5). In five of the seven years preceding 2011, Plaintiff engaged in legal

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practice on behalf of clients who were not Arizona residents and had no connection to

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Arizona (except for one case before the Internal Revenue Service). Id. at 9-10. In 2011,

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Plaintiff applied for admission to the State Bar of Arizona pursuant to Arizona Supreme

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All facts set forth in the Background section of this Order are as alleged by Plaintiff.
See Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (On a motion to dismiss, “[a]ll
allegations of material fact are taken as true and construed in the light most favorable to the
nonmoving party.”) (internal quotation and citation omitted).

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Court Rule 34(f).

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Pursuant to Arizona Supreme Court Rule 34(f), to be admitted to the Arizona State

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Bar by Motion, Plaintiff “must have been primarily engaged in the active practice of law in

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one or more states, territories, or the District of Columbia for five of the seven years

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immediately preceding the date upon which the application is filed.” Ariz. R. Sup. Ct.

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34(f)(C); see also Ariz. R. Sup. Ct. 34(f)(3)(a-c) (defining “active practice of law”).

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The Arizona Supreme Court Committee on Character and Fitness, which was

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responsible for processing Plaintiff’s application, denied the application on the basis that

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Plaintiff’s prior legal work did not meet the definition for active practice as required by Rule

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34(f). (Doc. 1 at 10). Plaintiff alleges that Defendants’ definition of “the active practice of

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law” is unconstitutional, and seeks injunctive relief in the form of admission to the State Bar

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of Arizona. (Doc. 1 at 2). Defendants now move to dismiss Plaintiff’s Complaint because the

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Eleventh Amendment immunizes them from Plaintiff’s suit.

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II.

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The Eleventh Amendment bars suit against a state unless Congress has abrogated

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state sovereign immunity or the state has waived it. Holley v. California Dep’t of

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Corrections, 599 F.3d 1108, 1111 (9th Cir. 2010). This protection extends to the agencies

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and departments of a state. Id.

LEGAL STANDARD AND ANALYSIS

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“The Arizona Supreme Court . . . is an ‘arm of the state’ for Eleventh Amendment

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purposes.” Lucas v. Arizona Supreme Court Fiduciary Certification Program, 457 F. App’x

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689, 690, 2011 WL 5289774 (9th Cir. 2011); see also Greater Los Angeles Council on

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Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987) (“[A] suit against the Superior

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Court is a suit against the State, barred by the eleventh amendment.”). The Committee on

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Character and Fitness (the “Committee”) is created pursuant to Arizona Supreme Court Rule

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33. See Ariz. R. Sup. Ct. 33.

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The Committee’s duty to determine the fitness of applicants to the State Bar is an

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activity of the Arizona Supreme Court, and the Committee has no power beyond that granted

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to it by the Arizona Supreme Court. Accordingly, it is likewise entitled to Eleventh
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Amendment protection. Cf. Lucas v. Arizona Supreme Court Fiduciary Certification

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Program, 09-CV-2599-PHX-NVW, 2010 WL 2573557 (D. Ariz. June 23, 2010), aff’d, 457

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F. App’x 689 (9th Cir. 2011) (holding that the fiduciary licensure program of the Arizona

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Supreme Court was an arm of the state).

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Here, Plaintiff does not argue that the Arizona Supreme Court or the Arizona Supreme

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Court Committee on Character on Fitness have waived their immunity, or that Congress has

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abrogated such immunity. Therefore, the Eleventh Amendment bars Plaintiff from suing

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these Defendants in federal court, and Defendants’ Motion to Dismiss is granted.

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III.

LEAVE TO AMEND

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Leave to amend should be freely given “when justice so requires.” Fed.R.Civ.P.

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15(a)(2). Defendant argues that allowing Plaintiff leave to amend would likely be futile.

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(Doc. 8 at 2-3). In this case, Plaintiff has not amended the Complaint as a matter of right

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pursuant to Rule 15 of the Federal Rules of Civil Procedure. Defendants filed their motion

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to dismiss on March 12, 2012 (Doc. 14). Because the 21-day time frame to file an

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amendment following a motion to dismiss has expired, Plaintiff has lost the right to amend

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the Complaint once as a matter of course. Fed. R. Civ. Proc. 15(a)(1).

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However, the Ninth Circuit has instructed district courts to grant leave to amend when

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dismissing a case for failure to state a claim, “unless the court determines that the pleading

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could not possibly be cured by the allegations of other facts.” Lopez v. Smith, 203 F.3d 1122,

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1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). There

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is a “longstanding rule that ‘[l]eave to amend should be granted if it appears at all possible

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that the plaintiff can correct the defect.’” Id. at 1129 (quoting Balistreri v. Pac. Police Dep’t,

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901 F.2d 696, 701 (9th Cir. 1990)). Because the Court is not prepared to say that Plaintiff

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could not allege some set of facts that would state a claim upon which relief can be granted

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against some set of Defendants, the Court will grant Plaintiff leave to amend.

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IV.

CONCLUSION

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Accordingly,

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IT IS ORDERED that Defendants’ Motion to Dismiss for Lack of Subject-Matter
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Jurisdiction (Doc. 4) is granted, with prejudice as to these claims against these Defendants.

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The Clerk of the Court shall not enter judgment for Defendants at this time, as the Court is

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granting Plaintiff leave to amend to add possible other Defendants/claims.

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IT IS FURTHER ORDERED that Plaintiff may file an Amended Complaint within

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twenty (20) days of the date of this Order. If Plaintiff does not file an Amended Complaint

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within twenty days, the Clerk of the Court shall dismiss the case with prejudice and enter

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judgment for Defendants.

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IT IS FINALLY ORDERED that Defendants’ Motion to Extend Time for

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Compliance with Rules 16 and 26 (Doc. 5) is denied as moot. If Plaintiff chooses to amend

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her Complaint, the Rule 16 and 26 deadlines will be addressed when this Court sets a Rule

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16 scheduling conference as permitted by LRCiv. 16.2.

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DATED this 19th day of July, 2012.

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