Vargas v. Snowflake Unified School District No. 5 et al

MOTION to Dismiss for Failure to State a Claim

D. Ariz.April 17, 2017

SME:sme 2940045.1 4/14/2017 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GUST ROSENFELD P.L.C. One East Washington Street, Suite 1600 Phoenix, Arizona 85004-2553 Telephone: 602-257-7422 Facsimile: 602-340-1538 Robert D. Haws - 012743 rhaws@gustlaw.com Shelby M. Exposito - 029546 smexposito@gustlaw.com Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Oscar Vargas, Plaintiff, v. Snowflake Unified School District No. 5; Hollis Merrill; XYZ Entity; John Doe, Defendants. No. CV 17-08035 PCT-JAT MOTION TO DISMISS FIRST AMENDED COMPLAINT (Oral Argument Requested) Defendants Snowflake Unified School District No. 5 (“District”) and Hollis Merrill (“Merrill”) seek dismissal of Plaintiff’s First Amended Complaint (doc. 11) for untimely service of process, lack of personal jurisdiction, and failure to state a claim upon which relief could be granted. Plaintiff’s amendments have not cured the flaws related to service of process or personal jurisdiction, nor have they corrected many of the deficiencies in his original complaint. This motion is supported by the following memorandum of points and authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. Plaintiff Failed to Timely Serve His Complaint Plaintiff’s modified pleading does not cure the fact that he failed to timely serve his complaint on either Defendant. His response to Defendants’ first motion to dismiss Case 3:17-cv-08035-JAT Document 12 Filed 04/17/17 Page 1 of 9 SME:sme 2940045.1 4/14/2017 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 asserted that Defendants did “not cite the proper rule” and were violating “principles against ex post facto laws.” (Doc. 5 at 2:3-6.) Plaintiff’s arguments about his time for service, however, are directly contrary to the applicable authority. In September 2016, the Arizona Supreme Court “abrogated” the “current provisions of the Arizona Rules of Civil Procedure” effective January 1, 2017. See Order, In re Arizona Rules of Civil Procedure (All), No. R-16-0010 (Ariz. Sept. 2, 2016), http://www.azcourts.gov/Portals/20/2016%20Rules/R-16-0010.pdf. In other words, the Court gave notice that it would abolish and repeal the Rules as of the effective date. See Black’s Law Dictionary (abrogate) (10th ed. 2014). The Court further ordered that “the proposed amended Arizona Rules of Civil Procedure . . . are hereby adopted, effective January 1, 2017, and shall apply . . . in all other actions pending on January 1, 2017[.]” Id. The Court expressly considered whether to apply the amendments to pending cases, and determined they generally should so apply. The Court published its Order abrogating the Rules in September 2016, before Plaintiff filed his initial complaint in the Superior Court of Arizona. He was fully aware of the fact that the Rules would change in January and that the changes would apply to his pending case. He filed his complaint on October 18, 2016. (Doc. 1-1 at 2.) He failed to serve Merrill until February 9, 2017 (114 days later) and has not served the District. (Doc. 5-1 at 2.) Plaintiff has shown no cause why he could not have served Defendants within 90 days, when the District holds public meetings at least once a month, nor has he even attempted to argue that there is a legitimate basis for extending his deadline for service. II. Plaintiff Failed to Properly Serve His Complaint on the District Plaintiff’s attempt to serve the District was ineffective. His certificates of service show that his process server only delivered the complaint and summons to 3 board Case 3:17-cv-08035-JAT Document 12 Filed 04/17/17 Page 2 of 9 SME:sme 2940045.1 4/14/2017 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 members. (Doc. 5-1 at 3-5.) The board consists of 5 members, however. See January 12, 2017 Minutes, § IV, attached as Exhibit A. To properly serve an Arizona school district, all board members or the board’s elected clerk must be served. See Atkins v. Creighton Elementary Sch. Dist., 584 F. App’x 432, 433 (9th Cir. 2014); Batty v. Glendale Union High Sch. Dist. No. 205, 221 Ariz. 592, 596, 212 P.3d 930, 934 (App. 2009); Rule 4.1(h)(4)(B), Ariz. R. Civ. P. Since the District did not elect a clerk, all 5 board members had to be served for service of process to be effective. Plaintiff cannot show excusable neglect for his failure to properly serve his complaint. The procedure to properly serve a school district has been well-established for at least 8 years. See Batty, 221 Ariz. 592, 212 P.3d 930. In the face of Plaintiff’s improper service of process, this action must be dismissed pursuant to Rule 12(b)(5), Fed. R. Civ. P. III. The Court Lacks Personal Jurisdiction Because he has not timely served either Defendant, or properly served the District, the Court has no personal jurisdiction over Defendants. “A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), amended, 807 F.2d 1514 (9th Cir. 1987). “It is the plaintiff’s burden to establish the court’s personal jurisdiction over a defendant.” Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001). Plaintiff has not met his burden here. The only relevant evidence proffered (the certificates of service) unequivocally show that the District was not properly and timely served. They also show that Defendant Merrill was not timely served. The Court has not acquired “the power to enforce a judgment” against Defendants. SEC v. Ross, 504 F.3d 1130, 1138 Case 3:17-cv-08035-JAT Document 12 Filed 04/17/17 Page 3 of 9 SME:sme 2940045.1 4/14/2017 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (9th Cir. 2007). Plaintiff’s amended complaint must be dismissed pursuant to Rule 12(b)(2), Fed. R. Civ. P. IV. Plaintiff’s Complaint Does Not State a Claim upon Which Relief Could Be Granted Even if Plaintiff’s complaint is not dismissed for his lack of timely service of process and lack of personal jurisdiction, many of its claims fail to state plausible claims for relief and must be dismissed on this basis. a. Plaintiff’s Title VII claim for age discrimination is not valid. Title VII does not provide a cause of action for age discrimination. See 42 U.S.C. § 2000e-2(a). This portion of Count 3 fails to state a cognizable legal theory and must be dismissed. b. Plaintiff’s state law claims are untimely. Plaintiff’s amended complaint continues to assert a cause of action for intentional infliction of emotional distress, despite the fact that this claim is clearly untimely. Plaintiff pleads that he was fired in May 2015. (Doc. 11 ¶ 33.) He filed this action on October 18, 2016, more than 1 year and 5 months later. Arizona courts “have held that A.R.S. § 12-821 is an unambiguous statute and must be interpreted according to its plain meaning.” Cook v. Town of Pinetop-Lakeside, 232 Ariz. 173, 175, 303 P.3d 67, 69 (App. 2013). The meaning of this statute could not be clearer. “All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward.” A.R.S. § 12-821. “The ‘all actions’ language does not lend itself to a limited interpretation that excludes some claims against a public entity.” Cook, 232 Ariz. at 175, 303 P.3d at 69. The Arizona Court of Appeals has specifically applied this one-year statute of limitations to a claim for intentional infliction of emotional distress. See Watkins v. Arpaio, 239 Ariz. 168, 173, 367 P.3d 72, Case 3:17-cv-08035-JAT Document 12 Filed 04/17/17 Page 4 of 9 SME:sme 2940045.1 4/14/2017 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 (App. 2016) (“the victim of a tort by a public entity or employee in Arizona has but one year to sue after he or she knows of injury caused by the tortious act”). Plaintiff has not shown, nor could he, that any exception exists which would allow him to assert this claim more than one year after it accrued, at the latest, at the time of his termination. Count 6 must be dismissed as untimely and barred by the statute of limitations. His similarly untimely claims under the Arizona Civil Rights Act (“ACRA”) must also be dismissed. In his motion to amend, he notes that he “would like more clarification” on the merits of his argument that estoppel should apply, but any clarification of his claims must come from him, not the Court. (Doc. 9 at 2:22.) Plaintiff has failed to provide any “clarification” in his amended complaint which would allow these claims to proceed. Arizona law bars any ACRA action filed “more than one year after the charge to which the action relates has been filed.” A.R.S. § 41-1481(D). Plaintiff fails to plead the date that he filed his charge of discrimination, but records from the Equal Employment Opportunity Commission (“EEOC”) may be considered in ruling on Defendant’s motion because his complaint “necessarily relies” on the EEOC’s records, they are the records of an administrative body, and they are properly subject to judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001); see also Lacayo v. Donahoe, No. 14-CV-04077-JSC, 2015 WL 993448, at *9 (N.D. Cal. Mar. 4, 2015) (“it is well established that courts may consider the administrative record of a plaintiff’s claims before the EEOC as judicially noticeable matters of public record”). The EEOC’s records show that Plaintiff filed his charge on April 13, 2015, more than 1 year and 6 months before he filed his complaint. See Charge Transmittal (“Date of Receipt”), attached as Exhibit B. He acknowledged in his response to Defendant’s first motion to dismiss that he did not file his complaint within one year of filing his Case 3:17-cv-08035-JAT Document 12 Filed 04/17/17 Page 5 of 9 SME:sme 2940045.1 4/14/2017 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 charge. (Doc. 5 at 2:15-19.) The equitable estoppel argument he raised in that response and his motion to amend was not supported by any factual allegations, and his amended complaint is similarly devoid of any facts which could suggest that Defendant prevented Plaintiff from timely filing suit. See Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002) (equitable estoppel “focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit”). Accordingly, Plaintiff’s ACRA claims in Counts 1 and 2 must be dismissed with prejudice. c. Plaintiff fails to allege a policy or custom sufficient to support liability under 42 U.S.C. § 1981 or § 1983. To succeed on his § 1981 and § 1983 claims, a plaintiff must establish that the District “had a deliberate policy, custom, or practice that was the ‘moving force’ behind the constitutional violation he suffered.” Galen v. Cnty. of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007); see also Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1215 (9th Cir. 1996) (amendment to § 1981 “preserves the ‘policy or custom’ requirement”). “A plaintiff must also demonstrate that the custom or policy was adhered to with ‘deliberate indifference to the constitutional rights’” of the plaintiff. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (quotation omitted). Count 1 (§ 1981) and Count 4 (§ 1983) fail to state claims for relief. Plaintiff has not pled that any policy or custom existed, nor has he pled facts suggesting deliberate indifference. Since “Plaintiff’s complaint is based on conclusory allegations and generalities,” and “there is no allegation of a specific policy implemented by the Defendants,” his claims cannot survive. Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012). The closest Plaintiff has come to alleging a policy is the allegation that he heard “a co-worker” say he planned to replace employees with “members of the LDS church.” Case 3:17-cv-08035-JAT Document 12 Filed 04/17/17 Page 6 of 9 SME:sme 2940045.1 4/14/2017 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (Doc. 11 ¶ 24.) Plaintiff does not, however, allege that the governing board ever promulgated a policy or adopted a practice of hiring based on religious affiliation. Only the governing board of a school district can hire and fire employees. See A.R.S. § 15- 502(A). Plaintiff does not allege that his co-worker had supervisory authority or the ability to make policies contrary to the school board, nor could he, in the face of contrary state law. Plaintiff has no allegations of a race-based policy, custom, or practice by the board. The District cannot be vicariously liable for its employees’ actions under § 1981 or § 1983 and Plaintiff has failed to show that it had a specific policy, custom, or practice which was the moving force behind his alleged constitutional violations. d. Plaintiff did have protected liberty or property interests. In his § 1983 claim, Plaintiff asserts he was denied rights under the Due Process clause of the Fourteenth Amendment. (Doc. 11 ¶ 81.) “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). But Plaintiff has failed to identify any liberty or property interest protected by procedural due process. A deprivation of liberty occurs when the government, in dismissing an employee, publishes charges which stigmatize a person. Portman v. Cty. of Santa Clara, 995 F.2d 898, 907 (9th Cir. 1993). Plaintiff’s complaint fails to contain any allegations that the District stigmatized him upon his termination. “It stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another.” Roth, 408 U.S. at 575. “A government employee has a constitutionally protected property interest in continued employment when the employee has a legitimate claim of entitlement to the job.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). Plaintiff has Case 3:17-cv-08035-JAT Document 12 Filed 04/17/17 Page 7 of 9 SME:sme 2940045.1 4/14/2017 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 not alleged that he had a protected property interest in his job, and Arizona law clearly shows that he could not have a property interest. Other than tenured teachers and administrators, Arizona school district employees do not have property rights in their job. See Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 184 Ariz. 419, 429, 909 P.2d 486, 496 (App. 1995). “If under state law, employment is at- will, then the claimant has no property interest in the job.” Portman, 995 F.2d at 904. Even if Plaintiff had pled a specific policy and deliberate indifference, he did not have a liberty or property interest protected by the Due Process clause and could not assert a due process claim. This portion of Count 4 must be dismissed. V. Conclusion Plaintiff has failed to timely serve all Defendants and failed to properly serve the District, and his time for service of process has expired. Because he has failed to effectively serve them, the Court has no jurisdiction over Defendants. Further, he fails to state a claim upon which relief could be granted. Since the flaws in his complaint and untimely service could not be cured, dismissal with prejudice is appropriate. Defendants respectfully request the Court to dismiss Plaintiff’s amended complaint in its entirety. RESPECTFULLY SUBMITTED this 17th day of April, 2017. GUST ROSENFELD P.L.C. By /s/ Robert D. Haws - 012743 Robert D. Haws Shelby M. Exposito Attorneys for Defendants CERTIFICATE OF SERVICE Case 3:17-cv-08035-JAT Document 12 Filed 04/17/17 Page 8 of 9 SME:sme 2940045.1 4/14/2017 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I hereby certify that on April 17, 2017, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF system for filing. Copy mailed to the following: Eduardo H. Coronado Kai M. Henderson Coronado Law Firm PLLC 4700 W. White Mountain Blvd. Lakeside, AZ 85929 Attorneys for Plaintiff /s/ Pauletta J. Seitz Case 3:17-cv-08035-JAT Document 12 Filed 04/17/17 Page 9 of 9 Exhibit A Case 3:17-cv-08035-JAT Document 12-1 Filed 04/17/17 Page 1 of 6 SNOWFLAKE UNIFIED SCHOOL DISTRICT NO. 5 Snowflake, Arizona January 12, 2017 Minutes I. Call to Order Cory Johnson called the meeting to order at 5:02 p.m. II. Pledge of Allegiance Shane Brimhall led the pledge. III. Prayer Roy Owens offered a prayer. IV. Roll Call of Members Members present: Cory Johnson, Charles Foote, Shea Flake Members excused: Carole Owens, Carol Palmer V. Statement of Welcome Cory Johnson welcomed the public. Organization Meeting Shea Flake nominated Cory Johnson as Board President, Charles Foote seconded the motion. The motion passed unanimously. Cory Johnson nominated Shea Flake as Board Vice President. Charles Foote seconded the motion. Motion passed unanimously. VI. Call to the Public None VII. Reports Superintendent Mr. Merrell recognized Michael Eilertsen as the State Winner of the Samsung Solve for Tomorrow Award. The Solve for Tomorrow Award is designed to raise enthusiasm for STEAM subjects and inspire creative problem solving among the leaders of tomorrow. A teacher from each state was chosen as the State Winner. State winners received a Samsun laptop to create a video showcasing their solution to show how STEAM can be applied to help your local community. Winners also received at $25,000 award in technology for their school. Mr. Merrell recognized the passing of Emma Lou Green. Mrs. Green retired in 2004 after working 31 years as a Special Education Aide at Snowflake Junior High. Mr. Merrell recognized the retirement of Mr. Glen Stuart. Mr. Stuart started teaching art at Snowflake High School in 1984. Before coming to our district, Mr. Stuart taught at the Sanders School District. He was with them for 10 years. He also coached cross country, track, and wrestling with the Snowflake School District. His teaching career spans 42 years. Case 3:17-cv-08035-JAT Document 12-1 Filed 04/17/17 Page 2 of 6 Governing Board Meeting January 12, 2017 Page 2 Mr. Foote shared a few memories of Mr. Stuart. Mr. Foote said Mr. Stuart was the most normal art teacher he knew. Our district has been blessed to have him teach and mold our students. Mr. Titus recognized Mr. Stuart as a best friend to all, a man who could interpret almost any language. Mr. Stuart’s retirement is like losing a security blanket. VIII. Approval of Agenda Order Motion made by Shea Flake and seconded by Cory Johnson to approve the order of the agenda. Motion passed unanimously. IX. Consent Agenda Motion made by Shea Flake and seconded by Cory Johnson to approve the Consent Agenda. Motion passed unanimously. X. General Functions A. Credit/Debit Card System Discussion and possible approval of district credit/debit card system. Mr. Ollerton explained that board approval is needed to set up the use of a district credit/debit card system. Motion made by Cody Johnson to approve a district credit/debit card system. Charles Foote seconded the motion. Motion passed unanimously. B. I.F.B for Transportation Discussion and possible approval to send out invitation to bid for Transportation Services. Motion made by Shea Flake to approve the invitation to bid. Charles Foote seconded the motion. Motion passed unanimously. C. Revision to Recruitment and Retention Policy Discussion and possible approval to revise the Recruitment, Retention Policy, and Transfer Incentives/Stipends. Motion made by Charles Foote to approve the revision of the Recruitment, Retention policy. Shea Flake seconded the motion. Motion passed unanimously. Case 3:17-cv-08035-JAT Document 12-1 Filed 04/17/17 Page 3 of 6 Governing Board Meeting January 12, 2017 Page 3 XI. Adjournment Motion made by Shea Flake and seconded by Cory Johnson to adjourn. Motion passed unanimously. Time: 5:34 p.m. I certify that these minutes were approved by the Governing Board of Snowflake Unified School District No. 5 at a legally convened meeting held on February 9, 2017 _______________________________________ Tohna L. Rogers Secretary to the Governing Board Case 3:17-cv-08035-JAT Document 12-1 Filed 04/17/17 Page 4 of 6 Exhibit B Case 3:17-cv-08035-JAT Document 12-1 Filed 04/17/17 Page 5 of 6 EEOC Form 212.A 3/95) U.S. Equal Employment Opportunity Commission TO: Arizona Attorney General's Office, Civil Rights Date June 18, 2015 Division EEOC Charge No. 1275 West Washington Street 540-2015-01889 do Attorney General Phoenix, AZ 85007 FEPA Charge No. CHARGE TRANSMITTAL SUBJECT: Oscar Vargas V. SNOWFLAKE UNIFIED SCHOOL DISTRICT Charging Party Transmitted herewith is a charge of employment discrimination initially received Respondent by the: on Apr 13, 2015 OM EEOC LII Name of FEPA Date of Receipt by the EEOC. by the FEPA. investigate the charge. waives will investigate the charge initially o acknowledge the receipt of the charge will initially investigate the charge. x Pursuant to the worksharing agreement, this charge is to be initially investigated Eli Pursuant to the worksharing agreement. this charge is to be initially investigated fJ The workshanng agreement does not determine which agency is to initially EEOC requests a waiver FEPA No waiver requested 11 FEPA Please complete the bottom portion of this form and, where appropriate, to indicate whether the Agency Typed Name and Title of EEOC or FEPA Official Rayford 0. Irvin, District Director Signature/Initials ) C.Q' i , 0 "irw."".."'s ( K / Oscar Vargas v. SNOWFLAKE UNIFIED SCHOOL DISTRICT Charging Party TO WHOM IT MAY CONCERN: Respondent Agency's intention to nitially ,nvestigate the charge. Agency's intention not to initially Investigate the charge. waiver of initial investigation by the receiving agency. this Agency's intention to dismiss/close/not docket the charge for the This will acknowledge receipt of the referenced charge and indicate this This will acknowledge receipt of the referenced charge and indicate this This will acknowledge receipt of the referenced charge and request a This will acknowledge receipt of the referenced charge and indicate following reasons: Typed Name and Title of EEOC or FEPA Official Karen Hartman-Tellez, Director Signature/Initials TO: Phoenix District Office Date 3300 North Central Ave EEOC Charge No. Suite 690 540-2015-01889 Phoenix, AZ 85012 FEPA Charge No. Case 3:17-cv-08035-JAT Document 12-1 Filed 04/17/17 Page 6 of 6