Elliott v. Arizona Department of Motor Vehicles

Filing 11

ORDER that Plaintiff's Motion to Strike Defendant's Motion to Dismiss (Doc. 8 ) is denied. IT IS FURTHER ORDERED that Defendant's Motion to Dismiss (Doc. 7 ) is granted. The Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 3/18/2013.(KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bartlett Elliott, No. CV-12-08153-PCT-JAT Plaintiff, 10 11 v. 12 ORDER Arizona Department of Motor Vehicles, 13 Defendant. 14 Pending before the Court are: (1) Defendant’s Motion to Dismiss (Doc. 7) and (2) 15 Plaintiff’s Motion to Strike Defendant’s Motion to Dismiss (Doc. 8). The Court now 16 rules on the Motions. 17 On July 31, 2012, Plaintiff filed a Complaint in this Court. In his Complaint, 18 Plaintiff alleges that he is unable to obtain a driver’s license in the State of New Mexico 19 based on motor vehicle citations he received in the State of Arizona. (Doc. 1). Plaintiff 20 alleges that this is a violation of his rights “under the U.S. Constitution, Bill of Rights, 21 and Declaration of Independence.” (Id. at 2). Plaintiff alleges that, while he recognizes 22 that driving is a privilege, he has the right to purchase groceries and other necessities of 23 life and he cannot do so without a license to drive. (Id.). Plaintiff alleges that he seeks to 24 learn what the “State of Arizona’s Motor Vehicle Division [has] to do with New 25 Mexico’s Motor Vehicle Division.” (Id.). Plaintiff states that, to him, “that is invading 26 [his] constitutional rights. (Id.). 27 As relief, Plaintiff seeks $1,000,000.00 “for this dictatorial license invasion of 28 another state’s motor vehicle[] provisions (authority), and for the ensuing mental anguish 1 and loss of use.” (Id. at 3). 2 Defendant now moves to dismiss Plaintiff’s Complaint pursuant to Federal Rule of 3 Civil Procedure 12(b)(6). Plaintiff did not file a Response to the Motion to Dismiss, but 4 rather filed a “Motion to Strike” the Motion to Dismiss. The Motion to Strike simply 5 responds to the arguments in the Motion to Dismiss and does not provide any basis for 6 the Court to strike the Motion to Dismiss. Accordingly, Plaintiff’s Motion to Strike is 7 denied. The Court will nonetheless consider the Motion to Strike (Doc. 8) and the Reply 8 in Support of the Motion to Strike (Doc. 10) to be Plaintiff’s response to the Motion to 9 Dismiss. 10 Defendant moves to dismiss because it is a non-jural entity that does not have the 11 capacity to sue or be sued. “Governmental entities have no inherent power and possess 12 only those powers and duties delegated to them by their enabling statutes. Thus, a 13 governmental entity may be sued only if the legislature has so provided.” Braillard v. 14 Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010) (internal citation omitted). 15 Defendant argues that no Arizona statute confers the power on the Arizona Department 16 of Transportation or the Motor Vehicles Division of the Arizona Department of 17 Transportation to sue or be sued. 18 Accordingly, Defendant Arizona Department of Motor Vehicles will be dismissed 19 because it is a non-jural entity. Plaintiff did not respond to this argument. 20 Defendant further argues that, even if Plaintiff named the State of Arizona as a 21 Defendant, Plaintiff’s claims fail because the Eleventh Amendment bars such a suit, 22 Plaintiff has not pled any cause of action that would subject the State to suit pursuant to 23 28 U.S.C. section 1983, and Plaintiff has not complied with Arizona’s Notice of Claim 24 requirements pursuant to Arizona Revised Statutes section 12-821.01. 25 In response, Plaintiff argues that “[u]nder the U.S. Constitution, Plaintiff has the 26 right to life, liberty, and pursuit of happiness, that being allowed to navigate (drive a 27 vehicle) to obtain the necessities of life.” (Doc. 8). 28 The Court may dismiss a complaint for failure to state a claim under Federal Rule -2- 1 of Civil Procedure 12(b)(6) for two reasons: (1) lack of a cognizable legal theory; or (2) 2 insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police 3 Dep’t, 901 F.2d 696, 699 (9th Cir.1990). To survive a 12(b)(6) motion for failure to state 4 a claim, a complaint must meet the requirements of Federal Rule of Civil Procedure 5 8(a)(2). In this case, Plaintiff has failed to articulate any cognizable legal theory. As 6 such, Plaintiff has failed to state a claim upon which relief can be granted and the Court 7 will not address Defendant’s other arguments. 8 Plaintiff has not requested leave to amend and has not amended as a matter of 9 right pursuant to Federal Rule of Civil Procedure 15. See Lacey v. Maricopa County, 693 10 F.3d 896, 926-27 (9th Cir. 2012) (citing prior precedent that courts must grant leave to 11 amend sua sponte unless a pleading could not possibly be cured by the allegation of other 12 facts and that, under the old version of Federal Rule of Civil Procedure 15, parties had 13 leave to amend as of right even upon dismissal prior to the filing of an answer, then 14 noting that under the current version of Rule 15 “parties have 21 days from both 15 responsive pleadings and motions to dismiss to amend as of right, so the situation has 16 changed.”) (internal citations omitted). Further, the Court finds that granting Plaintiff 17 leave to amend would be futile. 18 Based on the foregoing, 19 IT IS ORDERED that Plaintiff’s Motion to Strike Defendant’s Motion to Dismiss 20 21 22 23 (Doc. 8) is denied. IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc. 7) is granted. The Clerk of the Court shall enter judgment accordingly. Dated this 18th day of March, 2013. 24 25 26 27 28 -3-

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