Cooke et al v. Colorado City, Town of et al

Filing 475

ORDER denying 467 Defendant Hildale's Motion for Leave to File Motion to Dismiss Counts 6, 8 and 9. (see attached Order for details). Signed by Senior Judge James A Teilborg on 10/17/2013.(TLB)

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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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RONALD COOKE AND JINJER COOKE, )
husband and wife,
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Plaintiffs,
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THE STATE OF ARIZONA ex rel.
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TERRY GODDARD, the Attorney General; )
and THE CIVIL RIGHTS DIVISION OF
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THE ARIZONA DEPARTMENT OF LAW, )
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Plaintiff-Intervenor,
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vs.
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TOWN OF COLORADO CITY, ARIZONA; )
CITY OF HILDALE, UTAH; HILDALE)
COLORADO CITY UTILITIES (Hildale- )
Colorado City Power, Water, Sewer and
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Gas Department); TWIN CITY WATER
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AUTHORITY, INC., a Utah non-profit
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corporation; TWIN CITY POWER; et al,
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Defendants.
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No: CV-10-08105-PCT-JAT

ORDER

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Pending before the Court is Defendant Hildale’s motion to leave to file a motion to
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dismiss Counts 6, 8, and 9 on subject matter jurisdiction grounds. More specifically, Hildale
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claims that Plaintiffs failed to comply with Utah’s notice of claim statutes. See Doc. 467.
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The Court has reviewed the proposed motion to dismiss currently lodged at Doc. 468.
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The Motion does not establish that it is timely. See e.g. Farber v. City of Mesa, 2010 WL
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749934, *3 (D. Ariz. 2010) (“As the Arizona Courts have made clear, ... a defendant waives the
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notice of claim defense ... when the defendant has taken substantial action to litigate the merits
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of the claim that would not have been necessary had the entity promptly raised the defense.”

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(internal citations and quotations omitted)); Davis v. Garcia, - - - F.Supp.2d - - - , 2013 WL

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3087561, *13 (D. Utah 2013) (noting that the State can be estopped from asserting the Utah

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notice of claim defense in certain circumstances). Additionally, the motion fails to establish that

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the Utah notice of claim statute even applies to Counts 6, 8, and 9. See e.g. Gressett v. Central

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Arizona Water Conservation Dist. 2012 WL 3028347, *4 (D. Ariz. 2012) (noting that the

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Arizona notice of claim statute does not apply to claims arising under federal law).

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As a result of the foregoing, the Court will deny the motion for leave to file because: 1)

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the motion does not establish that this defense has not been waived by the failure to raise it in

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the three year period this case has been pending, and 2) the motion does not establish that the

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defense applies to claims that do not arise under Utah law. Therefore,

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IT IS ORDERED that the motion for leave to file (Doc. 467) is denied.

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DATED this 17th day of October, 2013.

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