Lankford v. Taylor et al

Filing 64

ORDER that Count Seven of the complaint, as it pertains to Defendant Griego, is dismissed for lack of jurisdiction. Signed by Judge Dominic W Lanza on 1/10/2020. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kirk Lankford,
Plaintiff,

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ORDER

v.

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No. CV-17-02797-PHX-DWL (JZB)

Joseph Taylor, et al.,

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Defendants.

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On September 23, 2019, the Court issued an order that granted in part, and denied

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in part, Defendants’ motion for summary judgment. (Doc. 58.) With respect to Count

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Seven of the complaint—Plaintiff’s claim under Article 2, Section 6 of the Arizona

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Constitution—the Court noted that the claim as to Defendant Griego was likely improper

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because the Arizona Supreme Court has never held that a private right of action for

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damages exists under that provision and because federal courts may decline, in any event,

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to exercise supplemental jurisdiction over novel issues of state law. (Id. at 16-17.)

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Nevertheless, the Court afforded the parties an opportunity to submit supplemental

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briefing. (Id.)

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Defendant Griego has now submitted a supplemental brief arguing the Court should

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“decline to exercise supplemental jurisdiction over Count Seven and dismiss it with

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prejudice.” (Doc. 60 at 2.) Plaintiff did not submit a supplemental brief after receiving

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several extensions. (Docs. 61, 63.)

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The Court agrees with Defendant Griego that it should decline to exercise

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supplemental jurisdiction over Count Seven due to the novelty of the state-law claim.

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Thus, Count Seven will be dismissed as it pertains to Defendant Griego. However, the

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Court disagrees with Defendant Griego that the dismissal should be “with prejudice.” A

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dismissal for lack of jurisdiction is always without prejudice. Freeman v. Oakland Unified

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Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999) (“Dismissals for lack of jurisdiction should

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be without prejudice so that a plaintiff may reassert his claims in a competent court.”)

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(quotation marks and ellipsis omitted); Fed. R. Civ. P. 41(b) (dismissal for lack of

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jurisdiction is not “an adjudication on the merits”).

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Accordingly, IT IS ORDERED that Count Seven of the complaint, as it pertains to
Defendant Griego, is dismissed for lack of jurisdiction.1

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Dated this 10th day of January, 2020.

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The Court previously withdrew the reference to the magistrate judge with respect to
Defendants’ motion for summary judgment (Doc. 58 at 20) and this order constitutes a
continuation of the Court’s summary judgment ruling.
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