Webb v. Tempe, City of

Filing 25

ORDER - IT IS ORDERED: 1. Defendant's motion to dismiss (Doc. 15 ) is granted. 2. Plaintiff's motion for relief (Doc. 18 ) is denied. 3. The Clerk is directed to terminate this action. (See document for further details). Signed by Judge David G Campbell on 4/4/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gale-Lawrence; Webb,

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Plaintiff,

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ORDER

v.

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No. CV-16-03136-PHX-DGC

City of Tempe,

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Defendant.

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Plaintiff, “Gale-Lawrence; Webb,” filed a complaint against Defendant City of

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Tempe seeking monetary relief for an alleged violation of Plaintiff’s rights under the

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Thirteenth and Fourteenth Amendments to the United States Constitution.

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Defendant has filed a motion to dismiss pursuant to Rule 12(b)(7) of the Federal Rules of

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Civil Procedure. Doc. 15. The motion is fully briefed (Docs. 15, 19, 20), and neither

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party has requested oral argument. For the reasons set forth below, the Court will grant

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Defendant’s motion to dismiss without prejudice.1

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I.

Doc. 1.

Background.

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Plaintiff resides in a single family home on a fenced lot in Tempe, Arizona.

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Doc. 1, ¶ 2. The lot is bordered by Cairo Drive, two single family homes, and a public

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alley. Id. Plaintiff has received several notices stating that he has violated Tempe City

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Plaintiff also argues that Defendant violated 18 C.F.R. § 242. Doc. 1, ¶ 1. This
provision refers to conservation of power and water resources. If Plaintiffs meant to refer
to 18 U.S.C. § 242, this is a criminal provision that does not provide Plaintiff with a civil
right of action.

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Code Sections 29-2 and 21-3.b.8, and requesting that he take certain ameliorative action.

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Doc. 1 at 6-13 (Exhibits 1-7). Section 29-2 requires “all persons to keep the sidewalks in

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front of the premises owned, occupied or controlled by them and the land that lies

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between the back of the curb and the right-of-way on the side of the street on which

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their premises are located in good repair and free and clear of all grass, weeds and

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rubbish.”

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actionable nuisance:

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Section 21-3.b.8 similarly provides that the following constitutes an

Any landscaping, visible from public property, that is substantially dead,
damaged, or characterized by uncontrolled growth, or presents a
deteriorated or slum-like appearance; uncultivated plants, weeds, tall
grass, uncultivated shrubs or growth (whether growing or otherwise)
higher than twelve (12) inches; or any dead trees, bushes, shrubs or
portions thereof, including stumps; or any palm or similar type tree having
dead or dry fronds descending downward from the base of the lowest
living frond more than eight (8) feet or dry fronds longer than five (5) feet
and closer than eight (8) feet to the ground. 2

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Plaintiff appears to have violated the identified sections of the Tempe City Code

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by failing to remove weeds and debris from the alley adjacent to his home and overgrown

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weeds and plants from his property. Id. Plaintiff alleges that, in response to threats of

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civil citations and criminal charges, he spent seventeen hours working in his yard and the

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adjacent alley to comply with the ordinances, resulting in a left leg joint stress that

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limited his ability to walk. Id., ¶ 8. He argues that this amounts to involuntary servitude

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or slavery in violation of the Constitution. Id. Plaintiff alleges that a $185.00 fine was

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added to his water and utility bill in response to his violation of the relevant sections of

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the Tempe City Code. Id., ¶ 13. He seeks removal of the $185.00 fee and any related

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It is not clear from Plaintiff’s complaint whether he is also challenging Section
29-47 of the Tempe City Code, which provides: “Any tree or shrub which overhangs or
is within the public right-of-way which in the opinion of the Public Works Director
endangers the life, health, safety or property of the public shall be declared a public
nuisance and the Public Works Director shall remove or trim such tree or shrub.”
Whether or not Plaintiff is challenging this statute, the Court’s Rule 19 analysis will not
change.
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record, as well as compensatory and punitive damages for “emotional distress, improper

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cost, legal cost, and wasted time.” Id., ¶¶ 13, 15.

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II.

Analysis.

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Defendant asks the Court to dismiss Plaintiff’s claim pursuant to Rule 12(b)(7) for

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failure to join the State of Arizona as a party. Doc. 15 at 1. In the alternative, Defendant

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asks the Court to order Plaintiff to join the State of Arizona and stay the case until

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Plaintiff has done so. Id. Rule 12(b)(7) allows dismissal of an action for failure to join a

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necessary and indispensable party under Rule 19. Rule 19 provides:

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a three-step process for determining whether the court should dismiss an
action for failure to join a purportedly indispensable party. First, the court
must determine whether the absent party is “necessary[.]” . . . If the absent
party is “necessary,” the court must determine whether joinder is “feasible.”
Finally, if joinder is not “feasible,” the court must decide whether the
absent party is “indispensable,” i.e., whether in “equity and good
conscience” the action can continue without the party.

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United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999) (citations omitted); see also
Paiute-Shoshone Indians of Bishop Cmty. of Bishop Colony, Cal. v. City of Los Angeles,
637 F.3d 993, 997 (9th Cir. 2011). Defendant contends that the State of Arizona is a
required party because, absent joinder, Defendant “will be subjected to a substantial risk
of inconsistent obligations.”

Doc. 15 at 4.

Neither party addresses the issues of

feasibility or indispensability.3
A.

Required Party.

Rule 19 defines a person or entity as a “required” party if he is subject to service
of process and his joinder will not deprive the court of subject matter jurisdiction.
Additionally, at least one of the following conditions must be met:

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Although neither party raised the issue of the feasibility of joining the State of
Arizona, the Court may “consider sua sponte the absence of a required person and
dismiss for failure to join.” Republic of Philippines v. Pimentel, 553 U.S. 851, 861
(2008).

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(A) in that person’s absence, the court cannot accord complete relief among
existing parties; or
(B) that person claims an interest relating to the subject of the action and is
so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to
protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of
the interest.

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Fed. R. Civ. P. 19(a).
Defendant argues that the State of Arizona, by statute, has mandated that “all cities
pass an ordinance requiring those in control of property to remove weeds and rubbish
from the adjacent alley. [Defendant] will be subject to substantial risk of inconsistent
obligations and losing state share revenue if the State of Arizona is not joined as a party.”
Doc. 15 at 2. Arizona statutes provide that: “The governing body of a city or town, by
ordinance, shall compel the owner, lessee or occupant of property to remove from the
property and its contiguous sidewalks, streets and alleys any rubbish, trash, weeds or
other accumulation of filth, debris or dilapidated buildings that constitute a hazard to
public health and safety.” A.R.S. § 9-499 (emphasis added). If the governing body of a
county, city, or town acts in a way that violates state law, the state may withhold and
redistribute state shared monies that would otherwise go to that county, city, or town.
A.R.S. § 41-194.01. As a result, if this Court finds the Tempe City Code provisions
invalid, but does not address A.R.S. § 9-499, Defendant must decide whether to comply
with this Court’s order or state law. The former decision carries a risk of losing state
funding, while the latter exposes Defendant to possible findings of contempt. As a result,
the Court agrees that the failure to join the State of Arizona exposes Defendant to a
substantial risk of inconsistent obligations.

Fed. R. Civ. P. 19(a)(1)(B)(ii); see also

Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. California, 547 F.3d

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962, 976 (9th Cir. 2008) (finding that inconsistent obligations occur “when a party is

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unable to comply with one court’s order without breaching another court’s order”)

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(citation omitted).

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B.

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Joinder of an entity is not feasible if that entity enjoys immunity from suit

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pursuant to the Eleventh Amendment. See Dawavendewa v. Salt River Project Agr. Imp.

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& Power Dist., 276 F.3d 1150, 1159 (9th Cir. 2002); Cyanotech Corp. v. U.S.

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Nutraceuticals, LLC, No. CIV. 12-00352 JMS, 2013 WL 504862, at *8 (D. Haw. Feb. 7,

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2013); A123 Sys., Inc. v. Hydro-Quebec, 626 F.3d 1213, 1220 (Fed. Cir. 2010); Thomas

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Feasible Party.

v. FAG Bearings Corp., 50 F.3d 502, 505 (8th Cir. 1995).

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The Eleventh Amendment provides that “[t]he Judicial power of the United States

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shall not be construed to extend to any suit in law or equity, commenced or prosecuted

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against one of the United States by Citizens of another State, or by Citizens or Subjects of

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any Foreign State.” “The Eleventh Amendment has been authoritatively construed to

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deprive federal courts of jurisdiction over suits by private parties against unconsenting

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States.” Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 952 (9th Cir. 2008). The

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Eleventh Amendment protects unconsenting states “from suits brought in federal courts

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by her own citizens as well as by citizens of another state.” Pennhurst State Sch. &

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Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citation omitted). Thus, if the State of

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Arizona were joined pursuant to Rule 19, it would be subjected to a suit for damages in

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federal court by one of its own citizens, in apparent violation of the Eleventh

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Amendment.

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A state may waive sovereign immunity, but there is no evidence that Arizona has

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waived immunity here. Congress may also abrogate state sovereign immunity when,

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acting pursuant to a valid exercise of power, it unequivocally expresses its intent to do so.

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Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996). The Court’s task of

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determining whether Congress has abrogated Arizona’s sovereign immunity in this case

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is complicated by the fact that Plaintiff has not clearly stated the authority under which he

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brings his Thirteenth and Fourteenth Amendment claims.

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Thirteenth Amendment and section 5 of the Fourteenth Amendment, Congress has the

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power to create civil remedies and criminal punishments to prevent or redress violations

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of those Amendments. See United States v. Nelson, 277 F.3d 164, 184 (2d Cir. 2002);

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Tennessee v. Lane, 541 U.S. 509, 518 (2004). But neither party has identified any such

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relevant Congressional action. Because Plaintiff has not brought his claims pursuant to a

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federal statue which has clearly abrogated state sovereign immunity, the Court will not

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find abrogation here.4

Under section 2 of the

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Additionally, the Ex Parte Young doctrine “permits actions for prospective non-

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monetary relief against state or tribal officials in their official capacity to enjoin them

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from violating federal law, without the presence of the immune State or tribe.” Salt River

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Project Agr. Imp. & Power Dist. v. Lee, 672 F.3d 1176, 1181 (9th Cir. 2012). But

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Plaintiff is seeking damages, not prospective relief.5 As such, the Ex Parte Young

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exception does not apply.

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Because the Court has seen no evidence that the sovereign immunity of Arizona

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has been waived for purposes of this case, and cannot conclude that an exception to

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immunity applies, the Court concludes that sovereign immunity prevents the State from

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being joined pursuant to Rule 19.

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C.

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When a necessary entity cannot be joined as a party, the Court must determine

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whether the entity is indispensable. Fed. R. Civ. P. 19(b). This is a context-specific

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determination. Pimentel, 553 U.S. at 862-63 (“the determination whether to proceed will

Indispensable Party.

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Notably, “[t]he Supreme Court has held that Congress did not abrogate the
States’ Eleventh Amendment immunity in enacting [42 U.S.C.] § 1983.” Phiffer v.
Oregon, 586 F. App’x 425 (9th Cir. 2014) (citing Kentucky v. Graham, 473 U.S. 159,
169 n.17 (1985)).
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Ex Parte Young also requires that the suit be brought against an officer of the
state, not the state itself. See Merideth v. Burlington N. & Santa Fe Ry. Co, No. CV-0830-BLG-RFC-CSO, 2008 WL 4560720, at *4 (D. Mont. Oct. 10, 2008). Because
Plaintiff is seeking damages, the Court need not consider whether a state officer could be
sued in his official capacity in place of the State of Arizona.
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turn upon factors that are case specific, which is consistent with a Rule based on

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equitable considerations”). The central consideration is “whether, in equity and good

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conscience, the action should proceed among the existing parties or should be dismissed.”

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Fed. R. Civ. P. 19(b). The Court should consider the following factors: “(1) the prejudice

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to any party or to the absent party; (2) whether relief can be shaped to lessen prejudice;

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(3) whether an adequate remedy, even if not complete, can be awarded without the absent

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party; and (4) whether there exists an alternative forum.” Dawavendewa, 276 F.3d at

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1161-62; Fed. R. Civ. P. 19(b).

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Importantly, “[i]f the necessary party is immune from suit, there may be ‘very

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little need for balancing Rule 19(b) factors because immunity itself may be viewed as the

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compelling factor.’” Kescoli v. Babbitt, 101 F.3d 1304, 1311 (9th Cir. 1996) (citation

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omitted); Delano Farms Co. v. California Table Grape Comm’n., No. 1:07CV1610

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OWWSMS, 2010 WL 2952358, at *5 (E.D. Cal. July 26, 2010); cf. Dawavendewa, 276

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F.3d at 1162 (9th Cir. 2002) (noting that the Ninth Circuit still consistently applies the

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four factor balancing test when “the necessary party enjoys sovereign immunity from

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suit, [even though] some courts have noted that there may be very little need for

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balancing Rule 19(b) factors because immunity itself may be viewed as one of those

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interests compelling by themselves, which requires dismissing the suit”) (citations and

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quotation marks omitted).

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1.

Prejudice.

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When a necessary party cannot be joined, Rule 19(b) instructs the Court to

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consider the impact of continuing the suit absent the necessary party. Paiute-Shoshone

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Indians, 637 F.3d at 1001. This consideration encompasses possible prejudice to the

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absent party and to any existing party. Id. “As examples of interests a defendant might

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have, the [Supreme] Court observed that a defendant ‘may properly wish to avoid

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multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares

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with another.’” Id. (quoting Provident Tradesmens Bank & Trust Co. v. Patterson, 390

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U.S. 102, 110 (1968)). The Court has already determined that resolution of Plaintiff’s

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claim in his favor will likely result in inconsistent obligations for Defendant. There does

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not appear to be any way to shape relief that would lessen the prejudice Defendant would

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suffer from inconsistent obligations.

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Plaintiff appears to concede that A.R.S. § 9-499 requires Defendant to enact and

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enforce the city ordinances at issue here, arguing that the state statute itself is also

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unconstitutional. Doc. 19, ¶¶ 3, 4. Plaintiff argues that Defendant has an independent

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obligation to challenge the Arizona statute and thus resolve any inconsistencies between

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Arizona state law and the Constitution. Id. By seeking joinder of the State of Arizona,

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Defendant attempted to avoid any possible inconsistencies, but Arizona’s sovereign

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immunity prevents it from being joined.
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Adequate Remedy.

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“Adequacy refers to the ‘public stake in settling disputes by wholes, whenever

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possible.’” Pimentel, 553 U.S. at 870-71 (quoting Provident Tradesmens Bank, 390 U.S.

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at 111). Resolution of Plaintiff’s claim against Defendant, without consideration of the

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constitutionality of A.R.S. § 9-499, would not settle this dispute.

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A.R.S. § 9-499 would still be unanswered, as would the validity of every local action

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undertaken pursuant to that state statute. As a result, continuance of this suit without the

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State of Arizona likely would lead to incomplete, inconsistent, and inefficient settlement

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of the issues raised by this case. Provident Tradesmens Bank, 390 U.S. at 111.

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3.

The validity of

Alternative Forum.

State immunity from suit applies in both federal and state courts. As a result,

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Plaintiff does not have an alternative forum in which to bring his claims.

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dismissing a claim when the plaintiff has no alternative remedy may be a harsh result,

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courts do so when a necessary party cannot be joined because of sovereign immunity.

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See Pimentel, 553 U.S. at 872 (“Dismissal under Rule 19(b) will mean, in some

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instances, that plaintiffs will be left without a forum for definitive resolution of their

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claims. But that result is contemplated under the doctrine of foreign sovereign

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immunity.”); Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1025 (9th Cir. 2002)

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While

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(“we have regularly held that the tribal interest in immunity overcomes the lack of an

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alternative remedy or forum for the plaintiffs”); Wilbur v. Locke, 423 F.3d 1101, 1115

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(9th Cir. 2005), abrogated on different grounds by Levin v. Commerce Energy, Inc., 560

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U.S. 413 (2010).

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As discussed, the necessary party’s sovereign immunity is often considered a

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compelling factor supporting dismissal of a claim under Rule 19(b). While continuation

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of the suit would not likely prejudice the interests of the State of Arizona, the Court notes

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that Plaintiff’s claim is essentially one against the State. Arizona has ordered local

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governing bodies to “compel the owner, lessee or occupant of property to remove from

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the property and its contiguous sidewalks, streets and alleys any rubbish, trash, weeds or

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other accumulation of filth, debris or dilapidated buildings that constitute a hazard to

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public health and safety.” A.R.S. § 9-499. Defendant’s contested actions were allegedly

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taken to comply with this state mandate. Thus, the ultimate issue appears to be the

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constitutionality of A.R.S. § 9-499. Society has “consciously opted,” however, to shield

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states from suit without congressional or state consent. Wichita & Affiliated Tribes of

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Oklahoma v. Hodel, 788 F.2d 765, 777 (D.C. Cir. 1986). Plaintiff’s inability to seek

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monetary relief for an alleged harm caused by the State does not weigh heavily in favor

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of continuing this suit, as Plaintiff may not seek such relief directly from Arizona, and

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does not outweigh the interests protected by sovereign immunity.

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III.

Plaintiff’s Motion for Relief.

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Plaintiff has also brought a motion for relief from violation of constitutional rights

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and compensation for damages incurred. Doc. 18 at 1. This motion is little more than a

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recitation of Plaintiff’s complaint and seeks no additional relief or action from the Court.

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The Court will deny Plaintiff’s motion.

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IT IS ORDERED:

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Defendant’s motion to dismiss (Doc. 15) is granted.

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2.

Plaintiff’s motion for relief (Doc. 18) is denied.

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3.

The Clerk is directed to terminate this action.

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Dated this 4th day of April, 2017.

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