Foust et al v. Page, City of et al

Filing 112

ORDER denying 101 Motion for Reconsideration. Signed by Judge David G Campbell on 7/8/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shannon E. Foust, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-12-08115-PCT-DGC

Page, City of, et al.,

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Defendants.

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Plaintiffs have filed a motion for reconsideration of the Court’s May 6, 2014 order

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granting in part Defendant’s motion for summary judgment. Doc. 101. Defendants have

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responded to the motion, per the Court’s request. Doc. 108. For the reasons stated below,

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the motion will be denied.1

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I.

Background.

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In its May 6, 2014 order, the Court dismissed the claims brought by Brynn and

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Shannon Foust under 42 U.S.C. § 1983. Doc. 99 at 5-6. Although the Ninth Circuit has

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recognized that “adult and minor children ha[ve] a cognizable liberty interest in their

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relationship with their father,” Smith v. City of Fontana, 818 F.2d 1411, 1419 (9th Cir.

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1987), the Court found that Plaintiffs had not alleged that Decedent’s death deprived

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them of their father’s love, comfort and support. Doc. 99 at 5-6. Rather, the Complaint

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alleged only § 1983 claims on the Decedent’s behalf. Because such claims are personal

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The request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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to the Decedent, and the Decedent’s estate is not a plaintiff in the case, these claims were

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dismissed.

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II.

Analysis.

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In their motion for reconsideration, Plaintiffs claim that they did, in fact, allege

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deprivation of their relationship with their father, and that the Court’s order was therefore

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erroneous. Doc. 101. Specifically, Plaintiffs point to the notice of claim letter that was

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attached to the Complaint, in which they describe their expectation that they would

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continue to have the love, support, comfort, and protection of their father in the future,

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and how his untimely death deprived them of that relationship and caused emotional

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harm. Doc. 1 at 28. Plaintiffs also note that in the Complaint’s Prayer for Relief they

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sought damages to compensate for their “loss of the due process and liberty interest in the

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companionship of their father.” Id. at 11. Finally, they argue that Defendants had actual

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notice that their § 1983 claims were for loss of Decedent’s “love, comfort and support”

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because Defendants’ counsel asked Plaintiffs questions about the nature of their

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relationship with their father during their depositions. Doc. 101 at 3.

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In response, Defendants note that the notice of claim letter is not a “written

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instrument” within the meaning of Rule 10(c) of the Federal Rules of Civil Procedure and

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its substance cannot, therefore, be considered part of the pleading. Doc. 108 at 2. They

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further assert that the notice of claim letter was only cited in the Complaint to show

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compliance with Arizona’s notice of claim statute, and that Plaintiffs never incorporated

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by reference or even referred to any of the letter’s substance. Id. at 4-5. Finally,

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Defendants dismiss Plaintiffs’ argument that they were on actual notice of the nature of

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the § 1983 claim, and note that information about the nature of the relationship between

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the Decedent and his daughters is also relevant to Plaintiffs’ remaining wrongful death

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claim. Id. at 5-6.

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A.

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Under Rule 10(c), “[a] statement in a pleading may be adopted by reference

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elsewhere in the same pleading or in any other pleading or motion. A copy of a written

Notice of Claim.

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instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”

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“A ‘written instrument’ within the meaning of Rule 10(c) ‘is a document

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evidencing legal rights or duties or giving formal expression to a legal act or agreement,

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such as a deed, will, bond, lease, insurance policy or security agreement.’” DeMarco v.

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DepoTech Corp., 149 F. Supp. 2d 1212, 1220 (S.D. Cal. 2001) (citing Murphy v.

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Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108, 1115 (W.D.N.Y. 1996); Black’s

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Law Dictionary 801, 1612 (6th ed.1990)). The notice of claim was a letter sent to

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Defendants in compliance with A.R.S. § 12-821.01(a), an Arizona statute requiring

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advance written notice that a person intends to assert a claim against a public entity or

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public employee. The notice of claim is intended to put the recipient on notice of the

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claims to be asserted. It does not memorialize legal rights or duties or give formal

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expression to a legal act or agreement, and is unlike executed agreements, contracts,

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deeds, leases, or policies. Plaintiffs have cited no case law that would indicate that a

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notice of claim fits the description of a written instrument under Rule 10(c), and the case

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law Plaintiff does cite involves documents that clearly fit the definition of written

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instrument. See, e.g., Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426,

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429-30 (9th Cir. 1978) (considering the contents of a promissory note attached to a

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complaint).

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Further, although Rule 10(c) provides that “[a] statement in a pleading may be

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adopted by reference elsewhere in the same pleading,” there is no indication in the

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Complaint that Plaintiffs meant to adopt any of the statements in the notice of claim as

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allegations of their Complaint. The Complaint only refers to the attached notice of claim

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in stating that Plaintiffs complied with the Arizona statute. Doc. 1, ¶ 10. Plaintiffs never

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reference any of the statements within the notice of claim, nor do they “incorporate by

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reference” the attachment.

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Even where a party does explicitly attempt to incorporate statements by reference,

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the party must still plead the claim with sufficient specificity that the claim is

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recognizable. It is “not this Court's obligation to attempt to ascertain what arguments

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from other [documents] Plaintiffs may be trying to [make].” D’Agnese v. Novartis

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Pharm. Corp., 952 F. Supp. 2d 880, 886 (D. Ariz. 2013), appeal dismissed (Oct. 18,

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2013) (citing Orr v. Bank of Am., 285 F.3d 764, 775 (9th Cir. 2002), and Indep. Towers

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of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)). Specifically in regard to

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exhibits attached to a complaint, “plaintiff[s] [are] cautioned that it is not the duty of the

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court to wade through [their] exhibits to determine whether or not [they have] claims

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cognizable under section 1983.” Pogue v. Yates, 107CV-01577OWW-SMSPC, 2008 WL

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220138 (E.D. Cal. Jan. 25, 2008).

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In summary, the notice of claim is not a “written instrument” within the meaning

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of Rule 10(c) and Plaintiffs made no attempt to incorporate the substance of the notice

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into the allegations of the Complaint. Statements in the notice of claim therefore are not

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allegations of the Complaint for purposes of stating claims against Defendants.

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B.

Prayer for Relief.

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Plaintiffs also argue that they prayed for “an amount sufficient to compensate

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Plaintiffs . . . for their loss of the due process and liberty interest in the companionship of

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their father and husband,” and that this is proper pleading of a § 1983 claim under the

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rule stated in Smith v. City of Fontana. Doc. 101 at 3.

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A prayer for relief is required by Rule 8(a)(3). It is separate from Rule 8(a)(2)’s

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requirement of a statement of the claim, and does not itself form any part of a plaintiff’s

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actual claims. Laird v. Integrated Res., Inc., 897 F.2d 826, 841-42 n.69 (5th Cir. 1990);

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Pension Benefit Guar. Corp. v. E. Dayton Tool & Die Co., 14 F.3d 1122 (6th Cir. 1994);

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Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002); Schoonover v. Schoonover, 172

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F.2d 526, 530 (10th Cir. 1949); Greene v. Bowen, 639 F. Supp. 554, 562 (C.D. Cal.

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1986), remanded on other grounds, 844 F.2d 791 (9th Cir. 1988); Charles v. Front Royal

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Volunteer Fire & Rescue Dep’t., Inc., 5:13CV00120, 2014 WL 1906835 (W.D. Va. May

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13, 2014); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

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§ 1255 (2d ed. 1990). Plaintiffs cite no authority that a prayer for relief or demand for

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damages can or should be interpreted as part of the substantive complaint.

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Further, the Court is unpersuaded by Plaintiffs’ argument that Defendants had

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actual notice that their § 1983 claim was for the loss of their relationship with their father.

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Information about the nature of the relationship between the Decedent and his daughters

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may well have been sought for other purposes, including Plaintiffs’ wrongful death claim,

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and did not necessarily reflect knowledge of an unpled § 1983 claim.

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IT IS ORDERED that Plaintiff’s motion to reconsider (Doc. 101) is denied.

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Dated this 8th day of July, 2014.

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