National Association for the Advancement of Multijurisdiction Practice et al v. Arizona Supreme Court et al

Filing 35

ORDER, Defendants' Motion to Dismiss 19 is denied as moot; Plaintiffs' Motion to Amend 21 is granted; Plaintiffs are directed to file and serve the Second Amended Complaint within 14 days; Defendants' Motion to Stay 29 is denied; Defendants' Motion for Extension of Time 31 is granted; Defendants shall have to and including 1/18/13 in which to respond to Plaintiffs' Motion for Summary Judgment 28 . Signed by Judge G Murray Snow on 12/18/12. (REW)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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National Association for the Advancement
of Multijurisdiction Practice; Allison
Girvin; and Mark Anderson,

No. CV-12-01724-PHX-GMS
ORDER

Plaintiffs,

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v.

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Arizona Supreme Court; Hon. Rebecca
White Berch, Chief Justice; Hon. W. Scot
Bales, Vice Chief Justice; Hon. John
Pelandar; Hon. Robert M. Brutinel,

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Defendants.

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Pending before the Court are Defendants’ Motion to Dismiss (Doc. 19), Plaintiffs’
Motion to Amend (Doc. 21), Defendants’ Motion to Stay Plaintiffs’ First Motion for
Summary Judgment (Doc. 29) and Defendants’ Motion for Extension of Time (Doc. 31).
For the reasons discussed below, Defendants’ Motion to Dismiss is denied as moot,
Plaintiffs’ Motion to Amend is granted, Defendants’ Motion to Stay is denied and
Defendants’ Motion for Extension of Time is granted.
I.

Motion to Amend
Under Rule 15(a)(2), if a party has already amended its pleading once, any

subsequent amendments may be made only with the opposing party’s written consent or
the court’s leave. Fed. R. Civ. P. 15(a)(2). However, “[t]he court should freely give leave
when justice so requires.” Id.; see also Universal Mortg. Co. v. Prudential Ins. Co., 799

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F.2d 458, 459 (9th Cir. 1986). Leave to amend should be denied only if “the proposed
amendment either lacks merit or would not serve any purpose because to grant it would
be futile in saving the plaintiff’s suit.”
Defendants contend that leave to amend should be denied because the amendment
would be futile in saving Plaintiffs’ suit. (Doc. 22 at 4.) However, Plaintiffs’ proposed
Second Amended Complaint appears to add at least one claim that would not be
dismissed by Defendants’ pending Motion to Dismiss. (Doc. 21-1 at ¶¶ 73–76.) Plaintiffs
allege that Defendants retaliated against Plaintiff Allison Girvin for exercising her First
Amendment right to petition the courts for redress by failing her by one point on the July
2012 Arizona Bar Exam. (Id.) Defendants argue that this does not state a claim and that
this is a false allegation. (Doc. 22 at 8.) However, state actions designed to retaliate
against the exercise of First Amendment rights are actionable under § 1983. Soranno’s
Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Defendants’ counsel’s
declaration that these allegations are false do not cause this proposed claim to fail. As
such, Plaintiffs’ proposed amendment is not entirely futile. The Court therefore grants
Plaintiffs leave to file their Second Amended Complaint.
Defendants’ Motion to Dismiss is dismissed without prejudice to Defendants filing
another Motion to Dismiss Plaintiffs’ Second Amended Complaint. Furthermore,
Defendants’ Motion to Stay is denied. Defendants are ordered to respond to Plaintiffs’
Motion for Summary Judgment.
IT IS THEREFORE ORDERED:
1.

Defendants’ Motion to Dismiss (Doc. 19) is DENIED AS MOOT.

2.

Plaintiffs’ Motion to Amend (Doc. 21) is GRANTED.

Plaintiffs are

directed to file and serve the Second Amended Complaint within fourteen (14) days of
the date of this Order.
3.

Defendants’ Motion to Stay (Doc. 29) is DENIED.

4.

Defendants’ Motion for Extension of Time (Doc. 31) is GRANTED.

Defendants shall have to and including January 18, 2013, in which to respond to

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Plaintiffs’ Motion for Summary Judgment (Doc. 28).
Dated this 18th day of December, 2012.

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