Farnsworth v. Flagstaff, City of

• Court: District Court, D. Arizona
• Decided: February 3, 2020
• Docket: 3:19-cv-08287
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Joseph Farnsworth, et al., No. CV-19-08287-PCT-JAT

10 Plaintiffs, ORDER

11 v.

12 City of Flagstaff, et al.,

13 Defendants. 14 15 Pending before the Court is Defendant City of Flagstaff’s (“Defendant Flagstaff”) 16 Motion to Dismiss Plaintiffs’ Complaint (Doc. 1-3).1 (Doc. 18). The Motion has been 17 fully briefed. (Docs. 18, 27, 29). The Court now rules on the Motion (Doc. 18). 18 I. BACKGROUND 19 The following facts are either undisputed or recounted in the light most favorable 20 to Plaintiffs. See Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th 21 Cir. 1998). Plaintiffs, Joseph Farnsworth (“Farnsworth”) and his wife, Patricia Buchanan, 22 (collectively, “Plaintiffs”) are residents of Flagstaff, Arizona. (See Doc. 1-3 at 2). 23 Plaintiffs claim that the community they live in requested that the Flagstaff City Council 24 adopt an ordinance forbidding the feeding of wild animals. (Id. at 4–5). The Flagstaff 25 City Council adopted such an ordinance on September 17, 2013. See Flagstaff, Ariz., City 26 Code § 2013-20 (“No Feeding Ordinance”). Plaintiffs contend that the No Feeding 27 Ordinance “was enacted to specifically target” Farnsworth. (Doc. 1-3 at 5–6). Plaintiffs 28 1 All other defendants answered. (Doc. 16). 1 also assert that the Flagstaff City Council unlawfully delegated enforcement power to 2 Defendant Arizona Game and Fish Commission (“Game and Fish”). (Id. at 7–10). 3 Farnsworth received a citation for violation of the No Feeding Ordinance on 4 November 6, 2017. (Id. at 6). Farnsworth pleaded nolo contendere and paid the 5 associated fine. (Id.). Plaintiffs then claim from July to October 2018 Farnsworth was 6 cited for violations of the No Feeding Ordinance and that these citations are currently 7 being prosecuted in Flagstaff Municipal Court. (Id. at 6–7); see, e.g., State v. Farnsworth, 8 No. CR2018-001683 (Flagstaff, Ariz. Mun. Ct. filed June 8, 2018). Plaintiffs also allege 9 that Farnworth’s due process rights have been violated because he has requested 10 documents he asserts are relevant to the criminal matter that have not been disclosed. 11 (Doc. 1-3 at 11–12). Plaintiffs further claim that Defendant Game and Fish Officer Colby 12 Walton killed an elk in front of Farnsworth, which caused Farnsworth severe emotional 13 distress. (Id. at 17). 14 Plaintiffs filed the Complaint (Doc. 1-3) in Coconino Superior Court on August 8, 15 2019, and it was removed to this Court pursuant to 28 U.S.C. § 1441. (Doc. 1). Plaintiffs 16 seek relief against Defendant Flagstaff through the following causes of action: (1) the 17 Civil Rights Act of 1871, 42 U.S.C. § 1983, (2) declaratory judgment under Ariz. Rev. 18 Stat. Ann. § 12-1831, (3) intentional infliction of emotional distress under Arizona 19 common law, and (4) special action under Arizona law. (Doc. 1-3 at 14–18). Defendant 20 Flagstaff has moved to dismiss each claim under Federal Rule of Civil Procedure 21 12(b)(6). (Doc. 18). 22 II. LEGAL STANDARD 23 Federal Rule of Civil Procedure 12(b)(6) mandates dismissal where a plaintiff fails 24 “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive 25 a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, 26 accepted as true, to state a claim to relief that is plausible on its face.” Zixiang Li v. 27 Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (internal quotation marks omitted) (quoting 28 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 1 “A claim is facially plausible ‘when the plaintiff pleads factual content that allows 2 the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.’” Id. (quoting Iqbal, 556 U.S. at 678). “The plausibility standard requires more 4 than the sheer possibility or conceivability that a defendant has acted unlawfully.” Id. 5 (quoting Iqbal, 556 U.S. at 678). “Where a complaint pleads facts that are merely 6 consistent with a defendant’s liability, it stops short of the line between possibility and 7 plausibility of entitlement to relief.” Id. (quoting Iqbal, 556 U.S. at 678). “[T]he 8 complaint must provide ‘more than labels and conclusions, and a formulaic recitation of 9 the elements of a cause of action will not do.’” In re Rigel Pharm., Inc. Sec. Litig., 697 10 F.3d 869, 875 (9th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 11 (2007)). “In evaluating a Rule 12(b)(6) motion, the court accepts the complaint’s well- 12 pleaded factual allegations as true and draws all reasonable inferences in the light most 13 favorable to the plaintiff.” Adams v. U.S. Forest Serv., 671 F.3d 1138, 1142–43 (9th Cir. 14 2012). “However, the trial court does not have to accept as true conclusory allegations in 15 a complaint or legal claims asserted in the form of factual allegations.” In re Tracht Gut, 16 LLC, 836 F.3d 1146, 1150–51 (9th Cir. 2016) (citing Bell Atl. Corp., 550 U.S. at 555– 17 56). 18 III. ANALYSIS 19 Defendant Flagstaff has moved to dismiss under the following theories: (1) each of 20 Plaintiffs’ claims brought under state law are barred by the statute of limitations, 21 (2) Plaintiffs did not adequately plead their intentional infliction of emotional distress 22 claim against Defendant Flagstaff, (3) Plaintiffs did not adequately plead a claim under 23 § 1983 against Defendant Flagstaff, and (4) that Plaintiffs’ request for special action 24 relief cannot be asserted in federal court under the Erie Doctrine. (Doc. 18). 25 /// 26 /// 27 /// 28 /// 1 a. Section 1983 2 Defendant Flagstaff contends that Plaintiffs have failed to state a claim under 42 3 U.S.C. § 1983 against it. (Doc. 18 at 5–6). Section 1983 provides, 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 5 subjects, or causes to be subjected, any citizen of the United States or other 6 person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be 7 liable to the party injured in an action at law, suit in equity, or other proper 8 proceeding for redress . . . . 9 A municipality, such as Defendant Flagstaff, “may therefore be sued directly if it is 10 alleged to have caused a constitutional tort through ‘a policy statement, ordinance, 11 regulation, or decision officially adopted and promulgated by that body’s officers.’” City 12 of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (plurality) (quoting Monell v. Dep’t 13 of Soc. Servs., 436 U.S. 658, 690 (1978)); see Gravelet-Blondin v. Shelton, 728 F.3d 14 1086, 1096 (9th Cir. 2013). Plaintiffs claim that Defendant Flagstaff’s enactment and 15 enforcement of the No Feeding Ordinance violate their constitutional rights. (Doc. 1-3 at 16 14–16). 17 Section 1983 may not be construed as “a font of tort law to be superimposed upon 18 whatever systems may already be administered by the States.” Paul v. Davis, 424 U.S. 19 693, 701 (1976). Rather, § 1983 provides a cause of action “only [for] those acts which 20 deprived a person of some right secured by the Constitution or laws of the United States.” 21 Id. at 700. A plaintiff seeking relief under § 1983 for a constitutional violation must cite a 22 “specific constitutional guarantee safeguarding the interest he asserts has been invaded.” 23 Id. at 700–01; see also Albright v. Oliver, 510 U.S. 266, 271 (1994) (plurality opinion) 24 (“The first step in any [§ 1983] claim is to identify the specific constitutional right 25 allegedly infringed.”); Fratzke v. Mont. Fish, Wildlife, & Parks, 716 F. App’x 687, 688 26 (9th Cir. 2018) (holding that a plaintiff must allege “that the defendant acted under color 27 of state law and for the purpose of denying the plaintiff a specific constitutional right” to 28 state a § 1983 claim). 1 Here, Plaintiffs assert that Defendant Flagstaff violated Farnsworth’s 2 constitutional rights because the No Feeding Ordinance “was passed for the sake of 3 harassment at the behest of neighbors who were frustrated with Mr. Farnsworth’s feeding 4 of local wildlife.” (Doc. 27 at 8; see also Doc. 1-3 at 4–5, 14–15). Plaintiffs contend that 5 Defendant Flagstaff has violated the Fourth Amendment as well as the Equal Protection 6 Clause and Due Process Clause of the Fourteenth Amendment. (See Doc. 1-3 at 14–15). 7 Plaintiffs did not allege a violation of any specific fundamental constitutional right 8 that the No Feeding Ordinance violates nor do they allege that the No Feeding Ordinance 9 creates a suspect classification. Therefore, the No Feeding Ordinance must only survive 10 rational basis review. See Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of 11 Psychology, 228 F.3d 1043, 1050 (9th Cir. 2000). Plaintiffs have the burden of pleading 12 that the No Feeding Ordinance cannot conceivably bear a rational relationship to a 13 legitimate state interest. Id. at 1050–51. 14 Plaintiffs appear to suggest that the No Feeding Ordinance is unconstitutional 15 because “there was no need for the No Feeding Ordinance” and it does not have a 16 legitimate purpose. (Doc. 27 at 8; see Doc. 1-3 at 9, 13). However, whether a law is 17 needed is not relevant to rational basis review. See Romero-Ochoa v. Holder, 712 F.3d 18 1328, 1331 (9th Cir. 2013) (stating that the only inquiry under rational basis review is 19 “whether there are ‘plausible reasons for [legislative] action,’” and thus, rational basis 20 review is not “a license for courts to judge the wisdom, fairness, or logic of legislative 21 choices” (first quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980); then quoting 22 F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993))). And, Plaintiffs’ conclusory 23 statement that the No Feeding Ordinance does not have a legitimate purpose, (Doc. 1-3 at 24 9), is not supported by any specific allegations. Indeed, all of the factual allegations 25 within Plaintiffs’ Complaint (Doc. 1-3) specifically included under their § 1983 claim 26 involve enforcement of the No Feeding Ordinance by Defendant Game and Fish, not 27 28 1 enactment of the No Feeding Ordinance.2 Finally, Plaintiffs’ allegation that the No 2 Feeding Ordinance was passed for an improper motive in targeting Farnsworth is not 3 relevant to determining the constitutionality of the No Feeding Ordinance under rational 4 basis review. Surf & Sand, LLC v. City of Capitola, 377 F. App’x 662, 665 (9th Cir. 5 2010). 6 In short, Plaintiffs have not properly alleged that the No Feeding Ordinance is 7 unconstitutional because they do not articulate in the Complaint (Doc. 1-3) why it is 8 inconceivable that the No Feeding Ordinance was not a legitimate exercise of Defendant 9 Flagstaff’s governmental authority. In fact, the No Feeding Ordinance’s stated purpose is 10 to advance public safety.3 See Flagstaff, Ariz., City Code § 2013-20. Consequently, the 11 Court finds that it is conceivable that the No Feeding Ordinance was enacted for the 12 legitimate purpose of advancing public safety. Ledezma-Cosino v. Sessions, 857 F.3d 13 1042, 1048 (9th Cir. 2017) (en banc); Ctr. for Bio-Ethical Reform, Inc. v. City & County 14 of Honolulu, 455 F.3d 910, 922 (9th Cir. 2006). The Complaint (Doc. 1-3) also does not 15 contain factual allegations regarding how the No Feeding Ordinance is not rationally 16 related to advancing public safety. The Court reiterates that, under rational basis review, 17 the No Feeding Ordinance need not “actually advance its stated purposes” and that the 18 Court may only “look to see whether the government could have had a legitimate reason 19 for acting as it did.” Nat’l Ass’n for Advancement of Psychoanalysis, 228 F.3d at 1050. 20 Accordingly, Plaintiffs have simply failed to properly allege that the No Feeding 21 Ordinance does not survive rational basis review. 22 2 In response to the Motion to Dismiss (Doc. 18), Plaintiffs assert that Defendant 23 Flagstaff is a principal of Defendant Game and Fish, and thus, Defendant Flagstaff is liable for any constitutional violations that Defendant Game and Fish or its officers 24 allegedly wrought on Plaintiffs. (Doc. 27 at 6–8). Plaintiffs did not include this agency theory in the Complaint (Doc. 1-3). Plaintiffs cannot supplement the Complaint (Doc. 1- 25 3) with additional allegations within their Response to the Motion to Dismiss (Doc. 27). Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 26 3 The Court, sua sponte, takes judicial notice of the No Feeding Ordinance. See Fed. R. 27 Evid. 201; Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (“[C]ity ordinances fall within the category of ‘common knowledge’ 28 and are therefore proper subjects for judicial notice.” (citation omitted)); Helicopters for Agric. v. County of Napa, 384 F. Supp. 3d 1035, 1040 n.1 (N.D. Cal. 2019). 1 Plaintiffs also allege that Defendant Flagstaff did not disclose certain materials 2 relating to Farnsworth’s criminal case. (See Doc. 1-3 at 7, 12). Plaintiffs assert that this 3 failure to disclose violates the Due Process Clause of the Fourteenth Amendment. See 4 Brady v. Maryland, 373 U.S. 83, 87 (1963). However, Plaintiffs again failed to plead 5 sufficient factual allegations to support this assertion. 6 First, Plaintiffs do not allege what entity is prosecuting Farnsworth’s alleged 7 violations of the No Feeding Ordinance. Therefore, it is unclear if Defendant Flagstaff 8 had the duty of a prosecuting entity under the Due Process Clause to disclose the 9 documents Farnsworth requested in the criminal matter. See id. Second, Plaintiffs do not 10 allege that the materials Farnsworth requested from Defendant Flagstaff are exculpatory. 11 The Due Process Clause requires the prosecution to disclose exculpatory, not inculpatory, 12 evidence. See id.; Berkley v. Miller, No. EDCV 13-1745-JGB MAN, 2014 WL 2042249, 13 at *7–8 (C.D. Cal. Apr. 2, 2014), report and recommendation adopted, No. EDCV 13- 14 1745-JGB MAN, 2014 WL 2048167 (C.D. Cal. May 15, 2014). Thus, even if it is 15 Defendant Flagstaff that is prosecuting Farnsworth, Plaintiffs do not allege any specific 16 facts indicating that the documents the prosecuting entity failed to disclose are 17 exculpatory. Instead, Plaintiffs’ allegation that there was a Brady violation is a legal 18 conclusion masquerading as a factual allegation. In short, Plaintiffs have failed to allege 19 sufficient facts to establish a constitutional violation by Defendant Flagstaff under Brady, 20 373 U.S. 83.4 21 22 23

24 4 Even if the Court were to entertain Plaintiffs’ claim that Farnsworth’s due process rights have been violated in the criminal matter, it would be inappropriate for the Court to insert 25 itself into a pending criminal matter. Our federalist system of government recognizes “that the National Government will fare best if the States and their institutions are left 26 free to perform their separate functions in their separate ways.” Younger v. Harris, 401 U.S. 37, 44 (1971). This duty of comity is at its height where the government is enforcing 27 its criminal laws and typically will only be overcome where “it plainly appears” relying upon the state court “would not afford adequate protection.” Id. at 44–45. Plaintiffs have 28 not alleged that the state judiciary will not afford Farnsworth adequate protection. 1 Accordingly, Plaintiffs’ § 1983 claim must be dismissed because they have failed 2 to adequately allege that Defendant Flagstaff has deprived Plaintiffs of any of their 3 federal constitutional or statutory rights.5 4 b. Declaratory Relief 5 Plaintiffs seek declaratory relief under Ariz. Rev. Stat. Ann. § 12-1831. (Doc. 1-3 6 at 16–17). Plaintiffs assert they are entitled to declaratory relief against Defendant 7 Flagstaff because “the No Feeding Ordinance is unconstitutional under the Arizona and 8 Federal Constitutions.” (Id. at 16).6 As discussed supra Section III.a, Plaintiffs have not 9 sufficiently alleged that the No Feeding Ordinance violates the United States Constitution 10 nor have Plaintiffs adequately alleged that Defendant Flagstaff has violated any specific 11 federal constitutional right. Plaintiffs claim Defendant Flagstaff violated the due process 12 clause of the Arizona Constitution. (Doc. 1-3 at 4); see Ariz. Const. art. 2, § 4. But, 13 Plaintiffs do not articulate any facts in support of this assertion. As such, Plaintiffs’ 14 barebone, conclusory allegation of a due process violation under the Arizona Constitution 15

16 5 Although the Court has dismissed Plaintiffs’ § 1983 claim, the Court may still hear Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367(a). Section 1367(a) provides, “in 17 any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in 18 the action within such original jurisdiction that they form part of the same case or controversy.” Therefore, § 1367(a) grants United States district courts jurisdiction over 19 supplemental claims where the claim arises out of the same case or controversy as another claim that the court does have subject matter jurisdiction over. Plaintiffs have 20 asserted a § 1983 claim against the other named defendants. None of these defendants moved to dismiss, and thus, the § 1983 claim Plaintiffs assert against them provide the 21 Court with subject matter jurisdiction under 28 U.S.C. § 1331 (federal question). The remaining state law claims against Defendant Flagstaff arise out of the same transaction 22 or occurrence as the § 1983 claim against the other named defendants in this action because that § 1983 claim and the state law claims each arise from the enactment and 23 enforcement of the No Feeding Ordinance. (Doc. 1-3 at 14–18). Therefore, the Court has supplemental jurisdiction over the state law claims Plaintiffs assert against Defendant 24 Flagstaff.

25 6 Plaintiffs request that the Court also declare that Defendant Game and Fish Officer Luke Apfel’s watching of Plaintiffs’ property “is unlawful harassment.” (Doc. 1-3 at 16). 26 This claim is not asserted against Defendant Flagstaff. Although Plaintiffs have raised a theory that Defendant Game and Fish, and presumably its officials, are acting as agents of 27 Defendant Flagstaff in response to the Motion to Dismiss (Doc. 18), (see Doc. 27 at 6–7), the Court cannot consider this claim because it was not alleged in the Complaint (Doc. 1- 28 3). Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 1 is not sufficient to overcome the Motion to Dismiss (Doc. 18). See In re Tracht Gut, LLC, 2 836 F.3d at 1150.7 3 The Court also notes that it was difficult to determine “which factual allegations, 4 to the extent they are pled, support” their claim for declaratory relief. Gonsalves- 5 Carvalhal v. Aurora Bank, FSB, No. 14-CV-151-SCJ-LTW, 2014 WL 12544828, at *2 6 (N.D. Ga. July 21, 2014), report and recommendation adopted, No. 1-14-CV-151-SCJ, 7 2014 WL 12551211 (N.D. Ga. Aug. 14, 2014); see Carney v. Kaufman, No. 2:14-CV- 8 00565-RFB, 2015 WL 995160, at *4 (D. Nev. Mar. 6, 2015). Although the Court is 9 cognizant that Plaintiffs did not originally file in federal court, going forward, Plaintiffs 10 should strive to include relevant factual allegations within the section of their complaint 11 asserting a particular cause of action—not simply strewn throughout the complaint.8 The 12 Court will not sift through Plaintiffs’ Complaint (Doc. 1-3) and piece together their 13 claims for them. See Carney, 2015 WL 995160, at *4; Gonsalves-Carvalhal, 2014 WL 14 12544828, at *2. Accordingly, Plaintiffs’ claim seeking declaratory relief against 15 Defendant Flagstaff under § 12-1831 is dismissed. 16 c. Special Action Relief 17 Plaintiffs claim that they are entitled to special action relief because “the No 18 Feeding Ordinance is preempted by state law[] and may not validly be enforced by Game 19 and Fish.” (Doc. 1-3 at 17–18). Arizona law condenses many writs, such as the writ of 20 mandamus, into one claim called a special action. See State ex rel. Neely v. Rodriguez, 21 796 P.2d 876, 878 (Ariz. 1990). Plaintiffs seek special action relief in the form of a court

22 7 The Court recognizes that Defendant Flagstaff did not seek dismissal of the declaratory relief claim under this rationale. However, the declaratory relief claim is substantially 23 congruent with the § 1983 claim, and thus, the Court raises this issue sua sponte. See Giorgis v. Ogden, No. CV-09-1174-PHX-FJM, 2009 WL 3571355, at *3 (D. Ariz. Oct. 24 26, 2009); see also Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (stating district court can dismiss a claim sua sponte, without notice, where the plaintiff 25 “cannot possibly win relief”). Plaintiffs vaguely reference that Defendant Flagstaff has violated Plaintiffs’ rights under article 2, section 4 of the Arizona Constitution. As noted, 26 that conclusory allegation is not sufficient to state a claim for declaratory relief.

27 8 Plaintiffs may also consider using cross-references so that the Court and each defendant can readily identify which of the preceding paragraphs are relevant to a particular cause 28 of action. 1 order “prohibit[ing] enforcement of the No Feeding Ordinance by Game and Fish.” 2 (Doc. 1-3 at 18). 3 Plaintiffs only seek special action relief against Defendant Game and Fish, not 4 Defendant Flagstaff. While Plaintiffs assert, in response to the Motion to Dismiss 5 (Doc. 18), that Defendant Flagstaff is a principal of Defendant Game and Fish, 6 (Doc. 27 at 6–8), Plaintiffs did not include this agency theory in the Complaint (Doc. 1- 7 3). Plaintiffs cannot supplement the Complaint (Doc. 1-3) with additional allegations 8 within their Response to the Motion to Dismiss (Doc. 27). Schneider v. Cal. Dep’t of 9 Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). Plaintiffs also failed to clearly allege their 10 special action claim against Defendant Flagstaff. A plaintiff must articulate which 11 defendants it is asserting each cause of action against, and thus, Plaintiffs’ special action 12 claim against Defendant Flagstaff fails for this reason as well. Windsor v. San Quentin 13 State Prison, No. C 10-0368 RS (PR), 2010 WL 2634953, at *1 (N.D. Cal. June 29, 14 2010); see also Gonsalves-Carvalhal, 2014 WL 12544828, at *2. Plaintiffs have failed to 15 state a special action claim against Defendant Flagstaff.9 16 d. Intentional Infliction of Emotional Distress 17 Defendant Flagstaff argues that Plaintiffs’ intentional infliction of emotional 18 distress (“IIED”) claim must be dismissed for failure to state a claim. (Doc. 18 at 4–5). A 19 plaintiff must show three elements to establish an IIED claim under Arizona law: 20 first, the conduct by the defendant must be “extreme” and “outrageous”; second, the defendant must either intend to cause emotional distress or 21 recklessly disregard the near certainty that such distress will result from his 22

23 9 As noted above, Defendant Flagstaff argues that Plaintiffs’ special action claim must be dismissed under the Erie Doctrine. (See Doc. 18 at 6–7); see also Erie R.R. v. Tompkins, 24 304 U.S. 64 (1938). However, the Court notes that the Erie Doctrine applies to procedural law not substantive law. See Hanna v. Plumer, 380 U.S. 460, 471 (1965); cf. 25 Abendano v. Town of Hayden, No. CV-14-01104-PHX-DGC, 2014 WL 3926806, at *2 (D. Ariz. Aug. 12, 2014) (denying motion to dismiss claim seeking special action relief). 26 But, it does appear that the Court does not have jurisdiction to issue a writ against a state entity or state official based on a violation of state law, such as Plaintiffs’ claim that the 27 No Feeding Ordinance is preempted by state law. Katie A. ex rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1155 (9th Cir. 2007); Voting Rights Def. Project v. Padilla, No. 28 C 16-02739 WHA, 2016 WL 3092079, at *3 (N.D. Cal. June 2, 2016). 1 conduct; and third, severe emotional distress must indeed occur as a result of defendant’s conduct. 2 3 Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987); see Reel Precision, Inc. v. FedEx 4 Ground Package Sys., Inc., No. CV-15-02660-PHX-NVW, 2016 WL 4194533, at *3–5 5 (D. Ariz. Aug. 9, 2016) (dismissing IIED claim where plaintiff failed to sufficiently 6 allege extreme and outrageous conduct). 7 In response to the Motion to Dismiss (Doc. 18), Plaintiffs assert that Defendant 8 Flagstaff targeted Farnsworth with the No Feeding Ordinance, which they claim 9 constitutes extreme and outrageous conduct sufficient to survive the Motion to Dismiss 10 (Doc. 18). (Doc. 27 at 6–7). However, the Complaint only references the alleged killing 11 of an elk by Defendant Game and Fish Officer Walton in Plaintiffs’ presence as the basis 12 for Plaintiffs’ IIED claim. (Doc. 1-3 at 17). In fact, Defendant Flagstaff is not mentioned 13 in the allegations setting out Plaintiffs’ IIED claim. (Id.). 14 Accordingly, Plaintiffs have not alleged an IIED claim against Defendant 15 Flagstaff. Plaintiffs’ IIED claim involves conduct only by Defendant Game and Fish 16 Officer Walton. (Doc. 1-3 at 17). Plaintiffs must allege specific facts for each cause of 17 action against each defendant.10 Carney, 2015 WL 995160, at *4; Windsor, 2010 WL 18 2634953, at *1. Plaintiffs’ IIED claim fails against Defendant Flagstaff for this reason 19 alone. 20 Alternatively, even if the Court liberally construes Plaintiffs’ Complaint (Doc. 1- 21 3), it still fails to articulate an IIED claim against Defendant Flagstaff. Plaintiffs did not 22 adequately plead sufficient factual allegations for each of the three elements of an IIED 23 claim. 24 First, Plaintiffs fail to allege that Defendant Flagstaff engaged in extreme and 25 outrageous conduct. Conduct is only extreme and outrageous when it is “at the very

26 10 To the extent Plaintiffs argue they have asserted a respondeat superior claim against Defendant Flagstaff for the actions of Defendant Game and Fish Officer Walton, 27 (Doc. 27 at 6–7), that claim fails because it was not articulated in the Complaint (Doc. 1- 3). Schneider, 151 F.3d at 1197 n.1 (“[A] court may not look beyond the complaint to a 28 plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss.”). 1 extreme edge of the spectrum of possible conduct.” Watts v. Golden Age Nursing Home, 2 619 P.2d 1032, 1035 (Ariz. 1980) (in division). It is not enough for conduct to be 3 “unjustifiable,” it must “rise to the level of ‘atrocious’ and ‘beyond all possible bounds of 4 decency.’” Nelson v. Phx. Resort Corp., 888 P.2d 1375, 1386 (Ariz. Ct. App. 1994). The 5 offending conduct “must completely violate human dignity. . . . The conduct must strike 6 to the very core of one’s being, threatening to shatter the frame upon which one’s 7 emotional fabric is hung.” Pankratz v. Willis, 744 P.2d 1182, 1189 (Ariz. Ct. App. 1987) 8 (citation omitted). An IIED claim cannot survive a motion to dismiss unless “reasonable 9 minds could differ in determining whether [the] conduct is sufficiently extreme or 10 outrageous.” Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d 559, 563–64 (Ariz. Ct. 11 App. 1995) (affirming dismissal of IIED claim where defendant’s conduct was not 12 extreme and outrageous because defendant “had a legitimate business purpose”). 13 Plaintiffs assert, in the Response to the Motion to Dismiss, that they have alleged 14 sufficient facts throughout the Complaint (Doc. 1-3) to state an IIED claim against 15 Defendant Flagstaff. (Doc. 27 at 6–7). More specifically, Plaintiffs claim that Defendant 16 Flagstaff enacted the No Feeding Ordinance to target Farnsworth in response to his 17 neighbors’ complaints, which constitutes extreme and outrageous conduct according to 18 Plaintiffs. (Doc. 27 at 6–7; see also Doc. 1-3 at 5 (alleging that Defendant Flagstaff 19 enacted the No Feeding Ordinance to target Farnsworth)). 20 That conduct cannot form the basis of an IIED claim because it simply does not 21 rise to the level of completely violating human dignity or threatening to shatter one’s 22 emotional fabric. Plaintiffs have not properly alleged that the No Feeding Ordinance was 23 not a legitimate exercise of Defendant Flagstaff’s governmental authority, as discussed 24 supra Sections III.a, III.b, III.c. Accordingly, the Court must presume that the No 25 Feeding Ordinance was a legitimate exercise of Defendant Flagstaff’s governmental 26 authority. See In re Tracht Gut, LLC, 836 F.3d at 1150; Nat’l Ass’n for Advancement of 27 Psychoanalysis, 228 F.3d at 1050; Ramirez v. Health Partners of S. Ariz., 972 P.2d 658, 28 668 ¶ 34 (Ariz. Ct. App. 1998). 1 Defendant Flagstaff’s legitimate exercise of its governmental authority is not 2 atrocious conduct that is beyond all possible bounds of decency, even if it was targeted at 3 Farnsworth. See Mintz, 905 P.2d at 563–64; see also Restatement (Second) of Torts § 46 4 cmt. g (Am. Law Inst. 1965) (“The actor is never liable . . . where he has done no more 5 than to insist upon his legal rights in a permissible way, even though he is well aware that 6 such insistence is certain to cause emotional distress.”); cf. Rayes v. United States, 967 F. 7 Supp. 1162, 1163, 1165 (D. Ariz. 1997) (finding that harassment, in enforcement of tax 8 laws, without more, is not extreme and outrageous conduct); Reyes v. Yakima Health 9 Dist., 419 P.3d 819, 825–26 ¶¶ 21–24 (Wash. 2018) (reasoning that government official’s 10 legitimate invocation of governmental authority could not form the basis of an IIED 11 claim (citing Restatement (Second) of Torts § 46 cmt. g)). And the fact that Plaintiffs 12 allege that the No Feeding Ordinance is unjustifiable, (Doc. 1-3 at 5–6, 11–13), is not 13 sufficient to establish extreme and outrageous conduct. See Nelson, 888 P.2d at 1386. 14 Plaintiffs have failed to state facts supporting their allegation of extreme and outrageous 15 conduct. 16 Plaintiffs also did not allege that Defendant Flagstaff intended to or recklessly did 17 cause Plaintiffs emotional distress. In fact, Plaintiffs claim the No Feeding Ordinance was 18 passed in response to neighborhood complaints about Farnsworth. (Doc. 1-3 at 4–5). 19 Therefore, even taking Plaintiffs’ allegations as true, an obvious alternative explanation 20 to Plaintiffs’ claim is that Defendant Flagstaff was simply responding to these 21 complaints. See Iqbal, 556 U.S. at 682. This explanation renders Plaintiffs’ claim that 22 Defendant Flagstaff intended to or recklessly did cause Plaintiffs emotional distress 23 implausible. See id. At any rate, Plaintiffs allege that the severe emotional distress 24 Farnsworth suffered is a result of the actions of a Game and Fish officer not Defendant 25 Flagstaff. (Doc. 1-3 at 17). Plaintiffs did not sufficiently allege that Defendant Flagstaff 26 intended to or recklessly did cause Plaintiffs’ emotional distress. 27 Finally, Plaintiffs allege no specific facts illustrating that Plaintiffs actually 28 suffered severe emotional distress. Plaintiffs simply allege that Farnsworth has 1 “suffer[ed] severe emotional distress.” (Id.). The Court may not give a presumption of 2 truthfulness to legal conclusions couched as factual allegations. In re Tracht Gut, LLC, 3 836 F.3d at 1150. Conclusory allegations of law cannot overcome a motion to dismiss. 4 See id. As such, Plaintiffs did not properly allege severe emotional distress. 5 Plaintiffs failed to adequately plead all three elements of an IIED claim against 6 Defendant Flagstaff. Accordingly, the Court dismisses the IIED claim. 7 e. Statute of Limitations 8 Defendant Flagstaff argues that the state law claims—Plaintiffs’ IIED claim, 9 declaratory relief claim, and special action claim—are each barred by the statute of 10 limitations, Ariz. Rev. Stat. Ann. § 12-821. (Doc. 18 at 3). Section 12-821 provides, “[a]ll 11 actions against any public entity or public employee shall be brought within one year 12 after the cause of action accrues.” It appears Plaintiffs do not take issue with Defendant 13 Flagstaff’s assertion that the one-year statute of limitation applies. (See Doc. 27 at 3–4). 14 Defendant Flagstaff argues that the state law claims accrued, at the latest, on 15 November 6, 2017, when Farnsworth was first cited for violating the No Feeding 16 Ordinance, well over a year before Plaintiffs filed their Complaint on August 8, 2019. 17 (Doc. 18 at 3; see also Doc. 1-3 at 6). Plaintiffs respond that the date of accrual is a fact 18 question that cannot be determined on a motion to dismiss. (Doc. 27 at 3–5). 19 A cause of action begins to accrue when the plaintiff knew or with the exercise of 20 reasonable diligence should have known that it has been injured by the defendant. See 21 Viniegra v. Town of Parker Mun. Prop. Corp., 383 P.3d 665, 670 ¶ 15 (Ariz. Ct. App. 22 2016) (citing § 12-821), depublished in part on other grounds, 421 P.3d 652 (Ariz. 23 2017). This determination is a question of fact. Logerquist v. Danforth, 932 P.2d 281, 287 24 (Ariz. Ct. App. 1996). 25 Here, Plaintiffs’ allegations raise a question of fact as to the accrual date of their 26 state law causes of action. Plaintiffs assert that they did not know that Farnsworth was 27 being specifically targeted by Defendant Flagstaff until he was cited, en masse, in 28 October 2018. (Doc. 27 at 3–5). The Court must take all well-pleaded factual allegations 1 as true at this stage of litigation. Adams, 671 F.3d at 1142–43. Plaintiffs filed the 2 Complaint (Doc. 1-3) in Coconino Superior Court on August 8, 2019, which is within the 3 one-year statute of limitations if the Court accepts the claims’ accrual date was in 4 October 2018 as Plaintiffs allege. (Doc. 1-3 at 6, 18; see Doc. 27 at 4–5). As such, the 5 Court rejects Defendant Flagstaff’s argument that Plaintiffs’ state law claims must be 6 dismissed with prejudice as time-barred at this stage of the case.11 7 IV. LEAVE TO AMEND 8 In their Response (Doc. 27), Plaintiffs request leave to amend. (Id. at 9–10). A 9 court “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 10 15(a)(2). When a plaintiff requests leave to amend, a court should consider the following 11 factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of 12 amendment; and (5) whether plaintiff has previously amended its complaint.” W. 13 Shoshone Nat’l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991) (citation omitted). 14 The Court finds that it is not clear that Plaintiffs’ claims are futile. Plaintiffs have 15 yet to amend the Complaint (Doc. 1-3), and there has been no showing of undue delay or 16 potential prejudice to Defendant Flagstaff. Considering the liberal policy in favor of 17 amendments embodied in Rule 15(a), the Court grants Plaintiffs leave to amend. See, 18 e.g., Mark H. v. Lemahieu, 513 F.3d 922, 939–40 (9th Cir. 2008) (noting that Rule 15(a) 19 embodies a “policy favoring liberal amendment” (quoting Verizon Del., Inc. v. Covad 20 Comm’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004))). Plaintiffs may file an amended 21 complaint within thirty (30) days of this Order or their claims will be dismissed with 22 prejudice as to Defendant Flagstaff. 23 V. CONCLUSION 24 Based on the foregoing, 25 IT IS ORDERED that Defendant Flagstaff’s Motion to Dismiss (Doc. 18) is 26 GRANTED. 27

28 11 This ruling is without prejudice to Defendant Flagstaff re-asserting this argument at a later time if the facts would support raising the argument again. 1 IT IS FURTHER ORDERED that Plaintiffs’ request for leave to amend the □□ Complaint (Doc. 1-3) is GRANTED. Plaintiffs may file an amended complaint within || thirty (30) days of the date of this Order. If Plaintiffs do not file their amended complaint 4|| within thirty (30) days of this Order, then the Clerk of Court will dismiss the claims against Defendant Flagstaff and terminate Defendant Flagstaff from this case with 6 || prejudice. In accordance with District of Arizona Local Rule of Civil Procedure 15.1(a), || an amended complaint “must indicate in what respect it differs from the pleading which it 8 || amends, by bracketing or striking through the text to be deleted and underlining the text to be added.” LRCiv 15.1(a). 10 IT IS FURTHER ORDERED, given that an amended complaint supersedes an original complaint, see Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015), that each defendant named in the amended complaint shall file an 13} answer—or other responsive pleading, if still timely—within fourteen (14) days from the date Plaintiffs file an amended complaint should Plaintiffs decide to do so. Fed. R. Civ. P. || 15(a)(3). Any defendant not re-named in the amended complaint shall be deemed to be dismissed. 17 Dated this 3rd day of February, 2020. 18 19 i C 20 _ James A. Teil Org Senior United States District Judge 22 23 24 25 26 27 28

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