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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bartlett Elliott,

No. CV-12-08153-PCT-JAT
Plaintiff,

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v.

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ORDER

Arizona Department of Motor Vehicles,

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Defendant.

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Pending before the Court are: (1) Defendant’s Motion to Dismiss (Doc. 7) and (2)

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Plaintiff’s Motion to Strike Defendant’s Motion to Dismiss (Doc. 8). The Court now

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rules on the Motions.

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On July 31, 2012, Plaintiff filed a Complaint in this Court. In his Complaint,

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Plaintiff alleges that he is unable to obtain a driver’s license in the State of New Mexico

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based on motor vehicle citations he received in the State of Arizona. (Doc. 1). Plaintiff

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alleges that this is a violation of his rights “under the U.S. Constitution, Bill of Rights,

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and Declaration of Independence.” (Id. at 2). Plaintiff alleges that, while he recognizes

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that driving is a privilege, he has the right to purchase groceries and other necessities of

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life and he cannot do so without a license to drive. (Id.). Plaintiff alleges that he seeks to

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learn what the “State of Arizona’s Motor Vehicle Division [has] to do with New

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Mexico’s Motor Vehicle Division.” (Id.). Plaintiff states that, to him, “that is invading

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[his] constitutional rights. (Id.).

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As relief, Plaintiff seeks $1,000,000.00 “for this dictatorial license invasion of

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another state’s motor vehicle[] provisions (authority), and for the ensuing mental anguish

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and loss of use.” (Id. at 3).

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Defendant now moves to dismiss Plaintiff’s Complaint pursuant to Federal Rule of

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Civil Procedure 12(b)(6). Plaintiff did not file a Response to the Motion to Dismiss, but

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rather filed a “Motion to Strike” the Motion to Dismiss. The Motion to Strike simply

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responds to the arguments in the Motion to Dismiss and does not provide any basis for

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the Court to strike the Motion to Dismiss. Accordingly, Plaintiff’s Motion to Strike is

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denied. The Court will nonetheless consider the Motion to Strike (Doc. 8) and the Reply

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in Support of the Motion to Strike (Doc. 10) to be Plaintiff’s response to the Motion to

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Dismiss.

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Defendant moves to dismiss because it is a non-jural entity that does not have the

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capacity to sue or be sued. “Governmental entities have no inherent power and possess

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only those powers and duties delegated to them by their enabling statutes. Thus, a

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governmental entity may be sued only if the legislature has so provided.” Braillard v.

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Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010) (internal citation omitted).

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Defendant argues that no Arizona statute confers the power on the Arizona Department

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of Transportation or the Motor Vehicles Division of the Arizona Department of

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Transportation to sue or be sued.

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Accordingly, Defendant Arizona Department of Motor Vehicles will be dismissed

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because it is a non-jural entity.

Plaintiff did not respond to this argument.

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Defendant further argues that, even if Plaintiff named the State of Arizona as a

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Defendant, Plaintiff’s claims fail because the Eleventh Amendment bars such a suit,

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Plaintiff has not pled any cause of action that would subject the State to suit pursuant to

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28 U.S.C. section 1983, and Plaintiff has not complied with Arizona’s Notice of Claim

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requirements pursuant to Arizona Revised Statutes section 12-821.01.

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In response, Plaintiff argues that “[u]nder the U.S. Constitution, Plaintiff has the

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right to life, liberty, and pursuit of happiness, that being allowed to navigate (drive a

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vehicle) to obtain the necessities of life.” (Doc. 8).

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The Court may dismiss a complaint for failure to state a claim under Federal Rule

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of Civil Procedure 12(b)(6) for two reasons: (1) lack of a cognizable legal theory; or (2)

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insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police

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Dep’t, 901 F.2d 696, 699 (9th Cir.1990). To survive a 12(b)(6) motion for failure to state

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a claim, a complaint must meet the requirements of Federal Rule of Civil Procedure

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8(a)(2). In this case, Plaintiff has failed to articulate any cognizable legal theory. As

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such, Plaintiff has failed to state a claim upon which relief can be granted and the Court

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will not address Defendant’s other arguments.

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Plaintiff has not requested leave to amend and has not amended as a matter of

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right pursuant to Federal Rule of Civil Procedure 15. See Lacey v. Maricopa County, 693

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F.3d 896, 926-27 (9th Cir. 2012) (citing prior precedent that courts must grant leave to

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amend sua sponte unless a pleading could not possibly be cured by the allegation of other

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facts and that, under the old version of Federal Rule of Civil Procedure 15, parties had

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leave to amend as of right even upon dismissal prior to the filing of an answer, then

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noting that under the current version of Rule 15 “parties have 21 days from both

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responsive pleadings and motions to dismiss to amend as of right, so the situation has

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changed.”) (internal citations omitted). Further, the Court finds that granting Plaintiff

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leave to amend would be futile.

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s Motion to Strike Defendant’s Motion to Dismiss

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(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.

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