Maloney v. Kropp

Filing 27

ORDER that Defendant's motion for a judgment on the pleadings 12 is granted, and the complaint 1 is dismissed with prejudice. The Clerk shall terminate this action. Signed by Judge David G Campbell on 2/8/13. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Maloney,

No. CV-12-02054-PHX-DGC
Plaintiff,

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v.

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ORDER

Lois M. Kropp,
Defendant.

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On December 10, 2012, Defendant Lois M. Kropp filed a motion for judgment on

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the pleadings. Doc. 18. The motion has been fully briefed. Docs. 14, 18. For the

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reasons that follow, the Court will grant Defendant’s motion with prejudice.

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Plaintiff alleges that Defendant and her daughter made false reports about him to

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the police. Based on those reports, he brings a claim for defamation, negligence, and

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civil conspiracy.

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I.

Legal Standard.

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A motion for judgment on the pleadings pursuant to Federal Rule of Civil

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Procedure 12(c) “is properly granted when, taking all the allegations in the non-moving

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party’s pleadings as true, the moving party is entitled to judgment as a matter of law.”

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Fajardo v. County of L.A., 179 F.3d 698, 699 (9th Cir. 1998); see Elvig v. Calvin

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Presbyterian Church, 375 F.3d 951, 955 (9th Cir. 2004) (stating that in ruling on a

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Rule 12(c) motion the court must accept as true all allegations in the plaintiff’s complaint

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and treat as false the allegations in the defendant’s answer that contradict the plaintiff’s

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allegations). In other words, dismissal pursuant to Rule 12(c) is inappropriate if the facts

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as pled would entitle the plaintiff to a remedy. Merchants Home Delivery Serv., Inc. v.

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Hall & Co., 50 F.3d 1486, 1488 (9th Cir.1995).

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II.

Analysis.

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A.

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In Arizona, defamation claims based on police reports are barred as a matter of

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law. See Ledvina v. Cerasani, 146 P.3d 70 (Ariz. Ct. App. 2007) (“putative crime

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victims are entitled to absolute immunity when they complain to the police.”). The only

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conduct underlying Plaintiff’s defamation claim, which the Court must accept as true, is

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Defendant’s false report to the police. Because reports to the police are afforded absolute

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Defamation.

immunity, the Court will dismiss the defamation claim.

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B.

Negligence.

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The complaint does little more than recite the elements of a negligence claim.

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Doc. 1 at 4-5. Plaintiff does not explain what duty Defendant owed him, how that duty

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was breached, or any causal connection between Defendant’s conduct and any resulting

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injury. See Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007) (identifying the elements of

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a negligence claim). In his response, Plaintiff cites the Arizona statute criminalizing false

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police reports (Doc. 14 at 7), but he does not explain how that statue gives rise to a duty.

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The Court will dismiss the negligence claim.1

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C.

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In Arizona, a claim for civil conspiracy requires that two or more individuals agree

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to accomplish an “underlying tort.” Wells Fargo Bank v. Arizona Laborers, Teamsters

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and Cement Masons Local No. 395 Pension Trust Fund, 38 P.3d 12, 36 (Ariz. 2002).

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Having dismissed Plaintiff’s other two claims above, the Court finds no underlying tort

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upon which Plaintiff might base his claim for civil conspiracy. Accordingly, the Court

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will dismiss the claim.

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Civil Conspiracy.

A similar negligence claim brought by Plaintiff against Defendant’s daughter was
dismissed for similar reasons in Maloney v. Blair, No. CV 12-01955-PHX-JAT, 2012
WL 6101998 (D. Ariz. Dec. 7, 2012).

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III.

Dismissal with Prejudice.

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Plaintiff seeks leave to amend the complaint to add additional details regarding the

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police report. Doc. 14 at 8. No additional details about the report can overcome absolute

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immunity. Nor can any additional facts establish that Defendant owed Plaintiff a duty

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with respect to reports made to the police.

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amendment would be futile and will dismiss all claims with prejudice. See Doe v. Fed.

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Dist. Court, 467 F. App’x 725, 728 (9th Cir. 2012) (finding no abuse of discretion where

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a district court dismissed a pro se complaint when “the district court had good reason to

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believe that further amendments would be futile and prejudice the defendants.”).

Accordingly, the Court finds that any

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IT IS ORDERED that Defendant’s motion for a judgment on the pleadings

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(Doc. 12) is granted, and the complaint (Doc. 1) is dismissed with prejudice. The

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Clerk shall terminate this action.

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Dated this 8th day of February, 2013.

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