Drake et al v. Eloy, City of et al
Filing
21
ORDER granting in part and denying in part 9 Motion to Dismiss Party. Signed by Judge David G Campbell on 7/14/2014.(DGC, nvo)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Kendall Drake, et al.,
Plaintiffs,
10
11
ORDER
v.
12
No. CV-14-00670-PHX-DGC
Eloy, City of, et al.,
13
Defendants.
14
15
Defendant David Crane has filed a motion to dismiss pursuant to Rule 12(b)(5) of
16
the Federal Rules of Civil Procedure. Doc. 9. The motion is fully briefed. For the
17
reasons that follow, the Court will grant the motion in part and deny it in part.
18
I.
Background.
19
Plaintiffs Kendall Drake and Greg Hunter filed this action in Pinal County
20
Superior Court in March 2014. Doc. 1-1. Defendants removed the case to federal court
21
on April 1, 2014. Doc. 1. Plaintiffs assert claims for constructive discharge, violation of
22
the Public Employee Disclosure of Information Act, violation of the “Arizona
23
Constitutional Right to Free Speech,” violation of First Amendment rights under 42
24
U.S.C. § 1983, deprivation of liberty interest under § 1983, defamation, libel, slander,
25
and “false light invasion of privacy.” Doc. 1-1. ¶¶ 287-341.
26
Crane claims that he was not properly served with a Notice of Claim as required
27
by A.R.S. § 12-821.01(A). Doc. 9 at 2. Plaintiffs assert that service was effectuated on
28
Defendant William Pitman, chief of the Eloy Police Department, who Plaintiffs claim
1
told the process server that he was authorized to accept service for Crane. Doc. 16 at 3.
2
Plaintiffs present a signature sheet submitted by the process server showing that Pitman
3
signed on behalf of Crane. Doc. 16-1 at 5. Crane claims that Pitman was not authorized
4
to accept service on his behalf and that he had no knowledge of Pitman’s representations
5
to that effect. Doc. 17 at 4.
6
II.
Legal Standard.
7
A.R.S. § 12-821.01 provides that persons with “claims against a public entity or a
8
public employee shall file claims with the person or persons authorized to accept service
9
for the public entity or public employee as set forth in the Arizona rules of civil
10
procedure within one hundred eighty days after the cause of action accrues.” “When a
11
person asserts claims against a public entity and public employee, the person ‘must give
12
notice of the claim to both the employee individually and to his employer.’” Harris v.
13
Cochise Health Sys., 160 P.3d 223, 230 (Ariz. Ct. App. 2007) (citing Crum v. Superior
14
Court, 922 P.2d 316, 317 (Ariz. Ct. App. 1996)).
Pursuant to Ariz. R. Civ. P. 4.1, service upon an individual must be made as
15
16
follows:
[B]y delivering a copy of the summons and of the pleading to
that individual personally or by leaving copies thereof at that
individual’s dwelling house or usual place of abode with
some person of suitable age and discretion then residing
therein or by delivering a copy of the summons and of the
pleading to an agent authorized by appointment or by law to
receive service of process.
17
18
19
20
21
22
23
24
25
26
27
28
Ariz. R. Civ. P. 4.1(d); see Fed. R. Civ. P. 4(e)(2). “‘[T]he purpose of process is to give
the party to whom it is addressed actual notice of the proceedings against him, and that he
is answerable to the claim of the plaintiff.’” Scott v. G.A.C. Fin. Corp., 486 P.2d 786,
787 (Ariz. 1971); see Melton v. Superior Court, 739 P.2d 1357, 1359 (Ariz. Ct. App.
1987) (quoting Marks v. LaBerge, 703 P.2d 559, 562 (Ariz. Ct. App. 1985)).
III.
Analysis.
Crane argues that he was not served in any manner permissible under Rule 4.1(d).
Doc. 9 at 3. Plaintiffs contend that because Defendant Pitman told the process server he
-2-
1
was authorized to accept service on behalf of Crane, “[t]he process server’s signed
2
certificates of service provide ‘a prima facie case as to the facts of service[.]’” Doc. 16
3
at 4. As support for his position, Crane cites Strickler v. Arpaio, No. CV-12-344-PHX-
4
GMS, 2012 U.S. Dist. LEXIS 117727, at *5 (D. Ariz. Aug. 21, 2012), where the court
5
found that the defendant, a Maricopa County Sheriff’s deputy, was not properly served
6
with a notice of claim. There, the process server attested that “the receptionist at the
7
MSCO’s administrative office agreed to accept service” on the deputy defendant’s behalf.
8
Id. The court found that the fact that the deputy was employed by MSCO “does not give
9
the MSCO actual or apparent agency authority to accept notices of claim on his behalf.”
10
Id. (noting that “apparent authority exists where ‘the principal has intentionally or
11
inadvertently induced third persons to believe that such a person was its agent’”) (internal
12
citation omitted).
13
The Court is persuaded by this authority. Simply because Crane is employed by
14
the City of Eloy and Pitman is his supervisor does not give Pitman actual or apparent
15
agency authority to accept service on Crane’s behalf. Plaintiffs have not alleged that
16
Crane represented that Pitman had authority to accept service on his behalf. Plaintiffs do
17
not dispute that Crane was not served face-to-face. Absent evidence that Crane was
18
served in a manner prescribed by Rule 4.1(d) or that Crane gave Pitman actual or
19
apparent authority to accept service on his behalf, the Court cannot conclude that Crane
20
was properly served.
21
Plaintiffs argue that even if Crane was not properly served, he has waived the
22
defense. Doc. 16 at 6. Plaintiffs claim that Defendants submitted the claim to a claims
23
adjuster and investigated the claims for several months. Id. at 7. Plaintiffs argue that
24
Crane should have raised his challenge to service earlier rather than participate in the
25
adjustment of claims. Id. at 8. The Court does not agree. “Waiver may be found when a
26
government entity has taken substantial action to litigate the merits of the claim that
27
would not have been necessary had the entity promptly raised the defense.” Jones v.
28
Cochise Cnty., 187 P.3d 97, 104 (Ariz. Ct. App. 2008). This action was filed in March
-3-
1
2014 and removed to this Court one month later. The Court cannot conclude that
2
investigation of the claims and removal to federal court constitute “substantial action to
3
litigate the merits of the claim.”
4
Finally, Plaintiffs argue that even if their state law claims against Crane are
5
dismissed, their federal claims must stand. Doc. 16 at 9. Crane does not dispute this and
6
the Court agrees. Arizona’s notice of claim requirements do not apply to actions brought
7
pursuant to § 1983. Morgan v. City of Phoenix, 785 P.2d 101, 104 (Ariz. Ct. App. 1989).
8
Crane provides no other basis upon which the Court can dismiss Plaintiffs’ federal
9
claims.
10
11
12
13
The Court will therefore dismiss only Plaintiffs’ state law claims against
Defendant Crane.
IT IS ORDERED that Defendant Crane’s motion to dismiss (Doc. 9) is granted
in part and denied in part as set forth above.
Dated this 14th day of July, 2014.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?