Maerki v. Anderson et al

Filing 35

ORDER, Defendants' Motions to Dismiss 18 , 19 , 20 are granted; Plaintiff's Motions to Strike 23 , 24 are denied; the Clerk is directed to terminate this action and enter judgment accordingly. Signed by Judge G Murray Snow on 12/5/13.(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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No. CV-13-01466-PHX-GMS

Kent Maerki,

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ORDER

Plaintiff,

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v.

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Arthur Anderson; Edward O. Burke; Dennis
I. Wilenchik; Thomas E. Lordan; Rob
Somers; Carole Downs; Shannon Downs;
Joseph M. Arpaio,

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Defendants.

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Pending before the Court are Defendants Arthur Anderson and Edward O Burke’s

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Motion to Dismiss (Doc. 18), Defendant Sheriff Joseph M. Arpaio’s Motion to Dismiss

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(Doc. 19), and Defendants Dennis I. Wilenchik, Thomas E. Lordan, Rob Somers, Carole

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Downs, and Shannon Downs’ Motion to Dismiss (Doc. 20). Also pending are Plaintiff’s

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Motions to Strike Anderson and Burke’s Motion to Dismiss (Doc. 23) and Motion to

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Strike Defendants Wilenchik, Lordan, Somers, Downs, and Downs’ Motion to Dismiss

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(Doc. 24). For the following reasons, Defendants’ Motions to Dismiss are granted and

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Plaintiff’s Motions to Strike are denied.

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BACKGROUND

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This case arises from an action alleging trade secret violations brought against

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Plaintiff by Smartcomm License Services, L.L.C., and Smartcomm, L.L.C. in Maricopa

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County Superior Court (the “underlying action”). Smartcomm filed the underlying action

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against Maerki on November 15, 2010 and the action, CV 2010-032209, is ongoing at the

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time of this Order. Maerki asserts that in the course of litigating the underlying action,

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Defendants conspired to deprive him of a variety of constitutional rights. He brings the

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present action against Maricopa County Superior Court Judge Arthur Anderson, the judge

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in the underlying case, Maricopa County Sheriff Joseph Arpaio, Edward O. Burke, the

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Special Master appointed in the underlying action, Dennis I. Wilenchik, Thomas E.

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Lordan, and Rob Somers, three attorneys for the Plaintiff companies in the underlying

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action, and Carole Downs and Shannon Downs, two Smartcomm employees. (Doc. 4

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(“Amended Complaint”).) Plaintiff claims that Defendants have conspired to deprive him

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of due process in the underlying action by pursuing improper discovery, limiting his

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ability to speak, and arresting him pursuant to a contempt order. Plaintiff asserts a variety

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of constitutional claims against defendants under 42 U.S.C. § 1983. These claims include

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alleged violations of Plaintiff’s Fourth, Fifth, and Fourteenth Amendment rights. Plaintiff

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seeks damages. Defendants now move to dismiss Plaintiff’s Amended Complaint. (Docs.

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18, 19, 20.) In response, Plaintiff moves to strike two of these Motions to Dismiss (Doc.

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23, 24.)
ANALYSIS

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I.

Legal Standard

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Rule 12(b)(6) is designed to “test the legal sufficiency of a claim.” Navarro v.

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Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive dismissal for failure to state a claim

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pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than

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“labels and conclusions” or a “formulaic recitation of the elements of a cause of action”;

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it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “a

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complaint need not contain detailed factual allegations . . . it must plead ‘enough facts to

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state a claim to relief that is plausible on its face.’” Clemens v. DaimlerChrysler Corp.,

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534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Plausibility

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requires “more than a sheer possibility that a defendant has acted unlawfully.” Twombly,

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550 U.S. at 555. Accordingly, a plaintiff must do more than employ “labels,”

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“conclusions,” or a “formulaic recitation of the elements of a cause of action.” Id.

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When analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll

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allegations of material fact are taken as true and construed in the light most favorable to

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the nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However,

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legal conclusions couched as factual allegations are not given a presumption of

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truthfulness, and “conclusory allegations of law and unwarranted inferences are not

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sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.

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1998).

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II.

Defendants Anderson and Burke

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Defendants Maricopa Superior Court Judge Arthur Anderson and Edward O.

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Burke, appointed as a special master in the underlying action, move to dismiss all claims

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against them on the grounds of absolute judicial immunity or due to the failure to state a

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claim. (Doc. 18.) Plaintiff alleges that Defendants Anderson and Burke engaged in

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assorted misconduct in their roles as Judge and special master in the underlying action.

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Plaintiff’s allegations against Anderson solely concern acts that are clearly judicial in

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nature. These allegations appear to include that Judge Anderson made rulings during the

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underlying action that Plaintiff found to be improper, that he appointed a criminal defense

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attorney for Plaintiff during the course of that action without Plaintiff’s permission, and

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that Anderson permitted discovery that Plaintiff argues violated his constitutional rights.

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(Doc. 4 at 7–8.) These are all acts normally performed by a judge and occurred when

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Judge Anderson acted in his judicial capacity. As such, the allegations against Anderson

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involve judicial action and are barred by absolute judicial immunity. Stump v. Sparkman,

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435 U.S. 349, 362 (1978). Such immunity applies even in the event that a judge is

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accused of acting maliciously or corruptly. Pierson v. Ray, 386 U.S. 547 (1967).

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Plaintiff further alleges that, in his capacity as special master, Burke persuaded

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Judge Anderson to sign the Show Cause Order before Anderson had the opportunity for

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thorough review, thus leading to Anderson’s allegedly improper ruling regarding that

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order. (Doc. 4 at 7–8.) This allegation, without any further detail, fails to establish a

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cognizable constitutional claim against Burke. Thus, all claims against Defendants

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Anderson and Burke are dismissed.

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Plaintiff moves to strike Anderson and Burke’s Motion to Dismiss on the grounds

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that the Arizona Attorney General lacked standing to file the Motion to Dismiss on behalf

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of Anderson and Burke because Plaintiff is suing Anderson and Burke in their individual

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capacity. (Doc. 23.) However, Plaintiff provides no valid basis for these claims and the

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Motion to Strike is denied.

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III.

Defendant Arpaio

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Defendant Maricopa County Sheriff Joseph M. Arpaio moves to dismiss on the

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grounds that Plaintiff has failed to plead any cognizable claims against him. Plaintiff does

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not allege that Sheriff Arpaio personally participated in any aspect of the underlying

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action. Instead, it appears that a deputy within Sheriff Arpaio’s department arrested

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Plaintiff in compliance with Judge Anderson’s contempt order during the underlying

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action. (Doc. 19 at 3–4.) Plaintiff concedes that Sheriff Arpaio was not personally

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involved in this arrest or otherwise directly involved with any scheme to deprive Plaintiff

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of any rights. (Doc. 25 at 1.)

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A supervisor is only liable for violations of his subordinates under Section 1983 if

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he “participated in or directed the violations, or knew of the violations and failed to act to

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prevent them.”

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respondeat superior liability under the statute. Plaintiff alleges no facts to suggest that

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Sheriff Arpaio directed the deputy to arrest Plaintiff or even knew of the allegedly

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improper arrest. Plaintiff thus fails to state a claim against Sheriff Arpaio and all such

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claims are dismissed.

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IV.

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). There is no

The Private Defendants

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Defendants Dennis I. Wilenchik, Thomas E. Lordan, Rob Somers, Carole Downs,

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and Shannon Downs (the “Private Defendants”), move to dismiss all claims against them

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on the grounds that Plaintiff fails to plead any facts to demonstrate that they engaged in

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state action, and thus may be liable under 42 U.S.C. § 1983. (Doc. 20.) Plaintiff alleges

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that Defendants Wilenchik and Lordan are outside counsel for Smartcomm in the

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underlying action, Defendant Somers is internal counsel for Smartcomm in that action,

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and both Defendants Carole and Shannon downs are employees of Smartcomm. (Doc. 4

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at 3–4.) In his Amended Complaint, Plaintiff concedes that these defendants are private

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actors, but states that they were “acting in concert as joint participants with state officials

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in the seizure of the Plaintiff’s property” and thus “sufficient grounds exist to

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characterize them as being clothed as ‘state actors.’” (Doc. 4 at 8.) Plaintiff notes

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throughout his Amended Complaint that the Private Defendants were in a conspiracy

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with the government defendants and “participated in the conspiracy by aiding and

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abetting the principle conspirators under color of state law and have become state actors

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in the process.” (Id. at 11.) However, Plaintiff pleads no facts to establish such a

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conspiracy.

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The only specific allegation Plaintiff asserts against any of the Private Defendants

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is that Defendant Wilenchik, along with a number of the government defendants,

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“persuaded [Judge Anderson] to sign a Show Cause Order . . . without his thorough

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review,” thus causing him to overlook provisions of the order making Plaintiff’s hard

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drives discoverable in the action. (Id. at 7–8.) This allegation, without any additional

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facts, does not rise to the level of a plausible constitutional violation. Apart from this

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allegation, Plaintiff pleads no facts regarding the alleged conspiracy or joint action

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between the Private Defendants and government defendants. In his Response, Plaintiff

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notes assorted allegations made in his Amended Complaint against Defendant Anderson,

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but these allegations do not connect such alleged conduct to any conduct by the Private

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Defendants. (Doc. 29 at 4–7.) As such, Plaintiff fails to state any cognizable claims

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against the Private Defendants and all such claims are dismissed.

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Plaintiff moves to strike the Private Defendants’ Motion to Dismiss on the grounds

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that the Wilenchik & Bartness law firm representing the Private Defendants in this action

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lacks standing to file a Motion to Dismiss as a Private Corporation. (Doc. 24.) This

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argument is without any basis in the law and the Motion to Strike is denied.

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V.

Dismissal of Amended Complaint Without Leave to Amend

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“Leave to amend need not be given if a complaint, as amended, is subject to

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dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989).

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The Court's discretion to deny leave to amend is particularly broad where Plaintiff has

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previously been permitted to amend his complaint. Sisseton–Wahpeton Sioux Tribe v.

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United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated failure to cure deficiencies is

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one of the factors to be considered in deciding whether justice requires granting leave to

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amend. Moore, 885 F.2d at 538.

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The Court has already provided Plaintiff the opportunity to amend his complaint

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and finds that a further opportunity to amend would be futile. Therefore, the Court, in its

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discretion, will dismiss Plaintiff's Amended Complaint without leave to amend.

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THEREFORE IT IS ORDERED that Defendants’ Motions to Dismiss (Docs. 18,

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IT IS FURTHER ORDERED that Plaintiff’s Motions to Strike (Docs. 23, 24)

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are denied. The Clerk of Court is directed to terminate this action and enter judgment

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accordingly.

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Dated this 5th day of December, 2013.

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