Nored v. City of Tempe

• Decision Date: 26 June 2008
• Docket Number: No. CV 08-00008 PHX MEA.,CV 08-00008 PHX MEA.
• Citation: 614 F.Supp.2d 991
• Parties: Candace NORED, Justin Nored, Plaintiffs, v. CITY OF TEMPE, Andrew Mazoff, Defendants.
• Court: U.S. District Court — District of Arizona

614 F.Supp.2d 991

Candace NORED, Justin Nored, Plaintiffs, v. CITY OF TEMPE, Andrew Mazoff, Defendants.

No. CV 08-00008 PHX MEA.

United States District Court, D. Arizona.

June 26, 2008.

Margaret F. Dean, Campbell Yost Clare & Norell PC, Mark Andrew Fredenberg, Fredenberg & Gullette PLC, Phoenix, AZ, for Plaintiffs.

Clarence Edward Matherson, Jr., Andrew Bryce Ching, Joseph I. Vigil, Tempe City Attorneys Office, Tempe, AZ, for Defendants.

ORDER

MARK E. ASPEY, United States Magistrate Judge.

All of the parties have consented to the exercise of magistrate judge jurisdiction over this matter, including the entry of final judgment. Before the Court is Defendant Mazoff's motion [Docket No. 13] to dismiss Plaintiff's state law claims against him.

I. Procedural History

Plaintiffs, who are represented by counsel, filed a complaint in the Maricopa County Superior Court on November 30, 2007.

Plaintiffs' complaint alleges that, on February 9, 2007, Defendant Mazoff, a City of Tempe police officer, was sent to Ms. Nored's apartment. Defendant Mazoff was sent to the apartment to do a "welfare check." The complaint alleges Defendant Mazoff, acting within the scope and course of employment, entered Ms. Nored's home without cause or her permission and that he physically assaulted her by, inter alia, forcing her to the ground. The complaint alleges Justin Nored, a minor child, witnessed the mistreatment of his mother.

As a result of the altercation with Defendant Mazoff, Plaintiff was arrested and charged with aggravated assault on Defendant Mazoff and with resisting arrest. Plaintiff was taken into custody and released after approximately 18 hours. The complaint further alleges Ms. Nored, who was pregnant at the time, did not receive appropriate medical care while in Defendants' custody. The complaint alleges Ms. Nored's pregnancy was terminated as a result of the injuries sustained by Ms. Nored at the time of her arrest and her treatment while in custody. The complaint states the criminal charges filed against Ms. Nored were later dismissed.

On or about August 6, 2007, Plaintiffs' counsel served the City Clerk for the City of Tempe with a "Notice of Claim" regarding the incident occurring on February 9, 2007. Defendants do not contest that Defendant Mazoff was no longer an employee of the City of Tempe on the date the notice of claim was served on the City of Tempe by Plaintiffs.

The complaint filed in state court on November 30, 2008, alleges both state law and federal law causes of action. On January 3, 2008, Defendant City of Tempe was served with the complaint and Defendant removed the matter to federal court. Defendant City of Tempe filed an answer to the complaint on January 4, 2008. Service of the complaint on Defendant Mazoff was effectuated by publication on or about March 26, 2008. See Docket No. 12, Exh. 8.

Seven of the eight causes of action stated in the complaint are based on state common law. The complaint states causes of action against Defendants based on trespass by false imprisonment and false arrest (Count I); assault and battery (Count II); abuse of process and malicious prosecution (Count III); negligent infliction of emotional distress (Count IV); intentional infliction of emotional distress, physical assault, denial of medical care (Count V); defamation (Count VI); violation of Plaintiffs' civil rights, pursuant to 42 U.S.C. § 1983 (Count VII); and negligent hiring, training, retention, monitoring, supervision, discipline, entrustment and investigation (Count VIII).

The complaint alleges Defendant Mazoff is liable to Plaintiffs for his actions in both his individual and official capacities and alleges Defendant Mazoff acted within the course and scope of his duties as an agent of Defendant City of Tempe. Plaintiffs further allege respondeat superior as a basis for the Defendant City of Tempe's liability to Plaintiffs for the actions of Defendant Mazoff and other City of Tempe employees with regard to Plaintiffs' state law claims. The complaint seeks general, special, compensatory, punitive, and exemplary damages.

On April 15, 2008, Defendant Mazoff filed a motion to dismiss Counts I through VI and Count VIII as against him, pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. See Docket No. 13. Defendant Mazoff contends Plaintiffs' state-law based claims against him are barred because Plaintiffs did not comply with Arizona's "notice of claim" statute, Arizona Revised Statutes § 12-821.01, by serving him personally with a notice of claim prior to filing suit. Id. at 3. Defendant Mazoff has not filed an answer to the complaint other than the motion to dismiss Plaintiffs' state-law based claims.¹

Plaintiffs contend the statute does not require dismissal of Plaintiffs' state claims against Defendant Mazoff. Plaintiffs argue that notice of Plaintiffs' claims was effectively supplied to Defendant Mazoff by notification to his employer, Defendant City of Tempe. Plaintiffs alternatively argue that the statute does not apply to the claims against Defendant Mazoff because he was no longer employed by Defendant City of Tempe at the time the notice of claim was served. See Docket No. 20.

On May 9, 2008, Defendant Mazoff filed a reply in support of his motion to dismiss the state law claims against him. In his reply Defendant contends "[a]ctual notice and substantial compliance are insufficient to meet the requirements of the notice of claim statute." See Docket No. 23 at 7.

II. Discussion

The relevant Arizona statute provides, inter alia:

A. Persons who have claims against a public entity or a public employee shall file claims with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the public entity or public employee to understand the basis upon which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim which is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.

* * *

E. A claim against a public entity or public employee filed pursuant to this section is deemed denied sixty days after the filing of the claim unless the claimant is advised of the denial in writing before the expiration of sixty days.

Ariz.Rev.Stat. Ann. § 12-821.01 (2003 & Supp.2007). State law further requires that any legal suit predicated on a tort claim against a public entity or public employee must be brought within one year of the date the claim accrues. See id. § 12-821.²

Defendant Mazoff asserts that Plaintiffs' failure to comply with a specific requirement of the statute, i.e., the failure to serve him individually as a "public employee," bars any state law claim against him. Plaintiffs allow they did not serve a notice of claim on Defendant Mazoff individually. Plaintiffs argue that they substantively complied with the requirements of the statute or, alternatively, that individual service on Defendant Mazoff was not required because he was not a "public employee" at the time of service of the notice of claim.

Both Plaintiffs and Defendant have attached documents and information to their pleadings. Attached to Defendant's motion is a copy of the notice of claim served by Plaintiffs on Defendant City of Tempe. Plaintiffs attach to their response to the motion to dismiss, inter alia, correspondence with Defendant City of Tempe regarding Plaintiffs' attempts to locate Defendant Mazoff and an affidavit signed by an investigator and security consultant regarding the difficulty of serving police officers with legal notice. See Docket No. 20.

Defendant Mazoff's motion is brought pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, which requires dismissal for failure to state a claim for relief.³ Rule 12(b)(6) bars consideration of matters outside the pleadings, with certain exceptions.⁴ See Hal Roach Studios, Inc. v Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1990). When deciding a Rule 12(b)(6) motion, the Court may not look beyond the complaint "`to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss.'" Mason v. Arizona, 260 F.Supp.2d 807, 814 (D.Ariz.2003), quoting Schneider v. California Dep't of Corr., 151 F.3d 1194, 1197 (9th Cir.1998). Rule 12(c) requires that, when matters outside the complaint are considered by the Court on a motion to dismiss, the motion should be treated as one for summary judgment. See San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir.1998).

As explained more fully, infra, the Court concludes the statute does not allow for substantial compliance with its substantive provisions and that Defendant Mazoff was a "public employee" upon whom separate service of a notice of claim was required. The parties do not disagree about the fact that Defendant Mazoff was not individually served with a separate notice of claim by Plaintiffs within the time stated in the state notice of claim statute. Accordingly, because it is not necessary to consider the materials attached to the pleadings on the motion to dismiss to resolve the motion, the motion is resolved pursuant to Rule 12(b)(6) and the Court will not convert the matter to one seeking summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure.

When a federal court exercises pendent jurisdiction over state law claims the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a state court. See, e.g., Redner v. Citrus County, 710 F.Supp. 318, 321 (M.D.Fla.1989). Cf. Felder v. Casey, 487 U.S. 131, 151, 108 S.Ct. 2302, 2313, 101 L.Ed.2d 123 (...