Labate v. Bush et al

Filing 51

ORDER - IT IS ORDERED: 1. Defendants' motions to dismiss (Docs. 13 , 14 , 15 , 16 , 42 , 47 ) are granted. 2. Plaintiff's motions for sanctions and to strike (Docs. 35 , 37 , 43 ) are denied. 3. Plaintiff's motion to quash D efendant Janice K. Brewer's motion to dismiss (Doc. 38 ) is denied. 4. Plaintiff's motion to change judge (Doc. 39 ) is denied. 5. The Rule 16 Case Management Conference set for February 14, 2014 at 4:30 p.m. is vacated. 6. The Clerk is directed to terminate this action. (See document for full details). Signed by Judge David G Campbell on 1/14/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Pasquale Labate,

No. CV-13-02366-PHX-DGC
Plaintiff,

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v.

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ORDER

George W Bush, et al.,

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Defendants.

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Defendant Janice Brewer has filed a motion to dismiss pursuant to Rule 12(b)(1),

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or, in the alternative, Rule 12(b)(6). Doc. 16. Plaintiff has filed a motion to quash

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Defendant Brewer’s motion to dismiss. Doc. 38.

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Defendant Planned Parenthood of Arizona, Inc. (“Planned Parenthood”) and

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Defendant Planned Parenthood Federation of America, Inc. (“PPFA”) have filed a motion

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to dismiss pursuant to Rule 8(a), or, in the alternative, Rule 12(b)(1) or 12(b)(6).

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Doc. 14. Plaintiff has moved to quash the motion to dismiss filed by Planned Parenthood

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and PPFA. Docs. 36, 37, 44, 45. Plaintiff also moves for sanctions against Planned

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Parenthood’s attorneys, Lawrence J. Rosenfield and Laura Lawless. Id.

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Defendant City of Tucson has filed a motion to dismiss pursuant to Rule 12(b)(6).

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Doc. 15. Plaintiff has moved to strike the City of Tucson’s motion to dismiss and has

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also moved for sanctions against the City’s attorneys. Doc. 35.

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Defendant City of Bisbee has filed a motion to dismiss pursuant to Rule 12(b)(1),

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or, in the alternative, Rule 12(b)(6). Doc. 42. Plaintiff has moved to strike the City of

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Bisbee’s motion to dismiss. Doc. 43. Plaintiff has also moved for sanctions against the

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City’s lawyer, John MacKinnon, and for an award of costs incurred by Plaintiff to bring

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this action against the City. Id.
Defendants Thomas J. Olmsted and John Ehrich have filed a motion to dismiss

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pursuant to Rule 12(b)(1), or, in the alternative, Rule 12(b)(6). Doc. 13.

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Defendants George W. Bush, former President of the United States of America,

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and Barack Obama, President of the United States of America (“Federal Defendants”)

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have file a motion to dismiss pursuant to Rule 12(b)(1). Doc. 47.
Plaintiff also moves to change the judge presiding over this action pursuant to

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Rule 42(f) of the Arizona Rules of Civil Procedure. Doc. 39.

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I.

Background.

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Plaintiff’s complaint is based on his objections to same-sex marriage, abortion,

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and capital punishment. See Doc. 1. Plaintiff’s complaint is nearly a word-for-word

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copy of another complaint that he filed on February 29, 2012 in this Court in case No.

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CV12-0421-PHX-DGC. Plaintiff has pled no new facts or legal theories. He has made

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no substantive alterations to the February 2012 pleadings in this new filing. He has

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named five additional Defendants – Governor Janice Brewer, Pope Francis, the City of

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Tuscon, the City of Bisbee, and Frank Pavone – and he has excluded Thomas Horne from

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the list of Defendants. On May 18, 2012, the Court granted all motions to dismiss the

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2012 complaint. See Labate v. Bush, CV12-0421-PHX-DGC, 2012 WL 1831531 (D.

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Ariz. May 18, 2012).

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II.

Defendants’ Motions to Dismiss.

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Defendants move to dismiss Plaintiff’s complaint on the same grounds as the

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Court relied upon in dismissing Plaintiff’s February 2012 complaint. The Court will

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grant Defendants’ motions to dismiss and deny Plaintiff’s various motions to quash for

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sanctions for reasons set forth in its May 2012 order. Id.

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III.

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Plaintiff’s Motion for a New Judge.
Plaintiff has filed a motion to change the judge presiding over this action pursuant

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to Rule 42(f) of the Arizona Rules of Civil Procedure. Doc. 39. The Arizona Rules of

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Civil Procedure do not apply in this Court, and the Federal Rules of Civil Procedure have

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no counterpart to Rule 42(f). Plaintiff’s motion will be denied.

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IV.

Leave to Amend.

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The Court will also adopt the reasoning of its May 2012 order and deny Plaintiff

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leave to amend his complaint. As before, Plaintiff’s complaint presents one of the rare

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cases where it is clear that deficiencies of the complaint cannot be cured by amendment.

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IT IS ORDERED:

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1.

Defendants’ motions to dismiss (Docs. 13, 14, 15, 16, 42, 47) are granted.

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2.

Plaintiff’s motions for sanctions and to strike (Docs. 35, 37, 43) are denied.

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3.

Plaintiff’s motion to quash Defendant Janice K. Brewer’s motion to dismiss
(Doc. 38) is denied.

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4.

Plaintiff’s motion to change judge (Doc. 39) is denied.

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5.

The Rule 16 Case Management Conference set for February 14, 2014 at
4:30 p.m. is vacated.

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6.

The Clerk is directed to terminate this action.

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Dated this 14th day of January, 2014.

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