Mohiuddin v. Stern
| Decision Date | 26 April 2022 |
| Docket Number | CV-22-00038-PHX-DGC |
| Parties | Mehmood Mohiuddin, Plaintiff, v. Richard Joel Stern, individually and as City Attorney for the City of Apache Junction; City of Apache Junction; James Johnson; Bambi Johnson; John Insalaco; and Susan Insalaco, Defendants. |
| Court | U.S. District Court — District of Arizona |
Defendants James and Bambi Johnson and John and Susan Insalaco have filed motions to dismiss Plaintiff Mohiuddin's claims against them under Arizona's anti-SLAPP statute. Docs 27, 28. The statute targets lawsuits intended to discourage persons from engaging in free speech in the petitioning of government. See A.R.S. § 12-752; Doc. 28-1 at 2 (SLAPP stands for “strategic lawsuits against public participation”). Courts must dismiss such lawsuits unless the plaintiff can show that the petitioning activities of the defendant lacked any reasonable factual support or arguable basis in law and caused the plaintiff injury. § 12-752(A). Motions to dismiss based on the statute are to be filed early in a lawsuit and resolved promptly. Id.; § 12-752(C). Defendants' motions were filed on March 28, 2022, and are fully briefed. Docs. 27, 28, 33, 34, 35. The Court held oral argument on April 20, 2022, and will now grant the motions.
Plaintiff owns The Hitching Post Saloon in Apache Junction, Arizona. Doc. 10 ¶ 8. In 2015, Plaintiff began hosting bull-riding shows on Thursday and Saturday evenings in an arena built to the north of the saloon. Id. ¶ 9. Defendant Johnson lives nearby. Id. ¶ 15; Doc. 27 at 2. Defendant Insalaco is the former mayor of Apache Junction. See Doc. 10 ¶ 5. Plaintiff is Pakistani-American and alleges that Defendants Johnson and Insalaco engaged in a racially-motivated campaign to “run him out of town.” Id. ¶¶ 10-14. He alleges that Defendant Johnson encouraged his neighbors to make baseless noise complaints about the bull-riding shows to the Apache Junction Police Department, and that Defendant Insalaco “attended City Council meetings to advocate for Mr. Johnson and his neighbors.” Id. ¶¶ 16-18.
Based in part on these actions, Plaintiff alleges that criminal nuisance charges were brought against him personally. Id. ¶ 21.[1] The charges were filed by the Pinal County Attorney's Office on referral from Apache Junction, and Plaintiff was convicted of criminal public nuisance in the Apache Junction Justice Court. On appeal, the Pinal County Superior Court reversed the conviction. Doc. 34-1 at 2. The court found that the prosecution had failed to show that the claimed nuisance interfered with the enjoyment of life or property by a “considerable number of people, ” as required by Arizona law, because the prosecution presented evidence of the effects of the bull-riding shows on only five households. Id. at 3. The court also found that the prosecution had not proved that Plaintiff individually, as opposed to the enterprise he owns, caused the excessive noise. Id. at 5 & n.1.
After the reversal of his conviction, Plaintiff filed this lawsuit for malicious prosecution under 42 U.S.C. § 1983 against Defendants Joel Stern and the City of Apache Junction (Count I), and for malicious prosecution under Arizona law against all Defendants (Count II). See Doc. 10. This is the second civil suit based on neighbor noise complaints. In 2018, Plaintiff's saloon brought suit in Arizona state court against Defendants Johnson, Insalaco, and others for defamation, tortious interference with prospective economic advantage, and other claims. See Doc. 27 at 21-31. The state court dismissed the claims on the basis of the anti-SLAPP statute with the exception of claims for defamation, conspiracy to defame, and conspiracy to tortiously interfere insofar as they were based on alleged false and derogatory comments about Plaintiff. Id. at 34. The state court eventually dismissed the rest of the case for lack of prosecution. Id. at 37.
Arizona's anti-SLAPP statute protects the “[e]xercise of the right of petition.” A.R.S. § 12-752(A). That right is defined as written or oral statements that fall within the constitutional protection of free speech and are (a) made before or submitted to a legislative or executive body or any other governmental proceeding; (b) made in connection with an issue that is under consideration or review by a legislative body or any other governmental proceeding; and (c) made for the purpose of influencing a governmental action, decision, or result. A.R.S. § 12-751(1). If a legal action is based on conduct that meets this definition, the statute states that a court “shall” grant a motion to dismiss unless the plaintiff shows that “the moving party's exercise of the right of petition did not contain any reasonable factual support or any arguable basis in law and that the moving party's acts caused actual compensable injury to the responding party.” A.R.S. § 12-752(B). Thus, in a motion under the statute, the moving defendant must show that the lawsuit involves the exercise of the right of petition and the burden then shifts to the plaintiff to show that the exercise of the right involved no reasonable factual support or arguable basis in law and caused the plaintiff compensable injury. See Tennenbaum v. Ariz. City Sanitary Dist., 799 F.Supp.2d 1083, 1086 (D. Ariz. 2011).
Defendants Johnson and Insalaco, whom the Court will refer to as “Defendants, ” move to dismiss the only claim against them - malicious prosecution as charged in Count II of Plaintiff's amended complaint. Doc. 10. Count I and the remainder of Count II against Defendant Stern and the City are not challenged and will remain in this case.
Defendants bear the burden of showing that their challenged actions constituted the “[e]xercise of the right of petition” as defined in the statute. See A.R.S. § 12-751(1). Defendant Insalaco asserts that petitioning the government for redress of grievances is a fundamental First Amendment right and that noise complaints to law enforcement are absolutely privileged. Doc. 28 at 5 (citing Ruiz v. Hull, 957 P.2d 984 (Ariz. 1998); Ledvina v. Cerasani, 146 P.3d 70 (Ariz.Ct.App. 2006)). Defendant Johnson asserts that noise complaints to law enforcement are protected as “attempts to influence the passage or enforcement of laws.” Doc. 27 at 7 (citing E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135 (1961)).
Defendants both rely on a recent decision of the Arizona Court of Appeals in a similar case, BLKIII, LLC v. Skelton, 2022 WL 480946 (Ariz.Ct.App. 2022). Docs. 27 at 6-7, 28 at 6-7. The plaintiff in BLK was a business that regularly featured live music. The business brought a defamation case against neighbors who lived nearby, alleging that they conspired to “intentionally destroy” the business by making false noise complaints to law enforcement and soliciting help from city council members to have its use permit revoked. 2022 WL 480946, at *1. Affirming the trial court's dismissal of the case under the anti-SLAPP statute, the court of appeals held that “reports to the police and statements made to city council members” fall within the statute's “broad definition” of “governmental proceeding.” Id. at *4, *5.[2]
Plaintiff's response does not dispute that Defendants exercised their right of petition within the meaning of the anti-SLAPP statute. Doc. 33 at 3. The Court finds that Defendants have met their burden on this issue.
The statute defines “[e]xercise of the right to petition” as having two components: (a) “a written or oral statement that falls within the constitutional protection of free speech, ” and (b) that is made “to a legislative or executive body, ” “in connection with an issue that is under consideration, ” and “for the purpose of influencing a government action.” A.R.S. § 12-751(1)(a)-(c).
The first requirement is satisfied. The conduct Plaintiff complains of - making and encouraging noise complaints to law enforcement and the city council (Doc. 10 ¶¶ 16-18) - enjoys First Amendment protection. “The right to petition for redress of grievances is one of the fundamental rights guaranteed by the First Amendment.” Ruiz v. Hall, 957 P.2d 984, 1000 (Ariz. 1998) (citing United Mine Workers of Am. v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967)). Plaintiff makes no argument and cites no authority to the contrary. Doc. 33 at 3.
The second requirement is also satisfied. Complaints made to a city council are made to a legislative body, Riedel v. Fuentes, No. 1 CA-CV 18-0171, 2019 WL 1220773, at *4 (Ariz.Ct.App. Mar. 14, 2019), complaints made to law enforcement are made to an executive body, BLK, 2022 WL 480946, at *5, and whether The Hitching Post Saloon was complying with noise ordinances or committing a public nuisance was “under consideration” by these executive and legislative bodies, as shown by the ultimate decision to bring public nuisance charges. See Riedel, 2019 WL 1220773, at *2 (). And the fact that Defendants' actions were taken for the purpose of “influencing a government action” is undisputed - indeed, it is Plaintiff's central thesis that Defendants influenced the government to charge him with criminal nuisance. See A.R.S. § 12-751(1)(c); Doc. 10 ¶ 16; Doc. 27 at 8; Doc. 28 at 7. As BLK held, “reports to the police and statements made to city council members . . . fall within the scope of A.R.S. § 12-752's protection.” 2022 WL 480496 at *4.
During oral argument, Plaintiff's counsel claimed that Plaintiff is not suing on the basis of Defendants' noise complaints to police or comments to...
To continue reading
Request your trial