G & G Closed Circuit Events LLC v. Mayer

• Court: District Court, D. Arizona
• Decided: October 21, 2024
• Docket: 2:24-cv-00887
• Status: Unknown

Opinion

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

9 G & G Closed Circuit Events LLC, No. CV-24-00887-PHX-ROS

10 Plaintiff, ORDER

11 v.

12 William Benjamin Mayer, et al.,

13 Defendants. 14 15 Before the Court is Plaintiff’s Motion to Strike portions of Defendants’ Answer 16 (Doc. 22, “Mot.”). Defendants have filed a response (Doc. 27, “Resp.”), to which Plaintiff 17 has replied (Doc. 28, “Reply”). For the reasons set forth below, Plaintiff’s Motion will be 18 granted in part and denied in part. 19 I. Background 20 On April 18, 2024, Plaintiff filed suit alleging Defendants violated federal 21 commercial piracy laws. (Doc. 1, “Compl.”). Defendants filed an Answer containing 22 numerous allegations labeled as “Affirmative Defenses.” (Doc. 19, “Answer” at 5, 6 ¶¶ 1- 23 9). Also within the Answer are three requests for Rule 11 sanctions against Plaintiff and 24 its counsel. (Id. at 4 ¶¶ 31, 37; 6 ¶ 3) (“Defendants assert that they are entitled to recover 25 sanctions against Plaintiff and its counsel pursuant Rule 11, 28 U.S.C. § 1927, and the 26 Court’s inherent powers.”). Plaintiff moves to strike the requests for Rule 11 sanctions and 27 the affirmative defenses. Defendants oppose the Motion, arguing it is wasteful and 28 “unnecessarily increases attorney’s fees.” 1 II. Legal Standard 2 Federal Rule of Civil Procedure Rule 12(f) authorizes the Court to “strike from a 3 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 4 matter.” Fed. R. Civ. P. 12(f). “The purpose of a motion to strike ‘is to avoid the 5 expenditure of time and money that must arise from litigating spurious issues by dispensing 6 with those issues prior to trial[.]’” Martinez v. Alltran Fin. LP, No. CV-18-04815-PHX- 7 DLR, 2019 WL 1777300 (D. Ariz. April 23, 2019) (quoting Sidney-Vinstein v. A.H. Robins 8 Co., 697 F.2d 880, 885 (9th Cir. 1983)). Courts have discretion to grant or deny a motion 9 to strike. Sunburst Mins. LLC v. Emerald Copper Corp., 300 F.Supp.3d 1056, 1059 (D. 10 Ariz. 2018). When ruling on a motion to strike, “the court should view the pleading in the 11 light most favorable to the nonmoving party.” Hale v. Norcold Inc., No. CV-18-03597- 12 PHX-SPL, 2019 WL 3556882, *4 (D. Ariz. Aug. 5, 2019). 13 “Motions to strike are generally disfavored because they are often used as delaying 14 tactics and because of the limited importance of pleadings in federal practice.” Contrina 15 v. Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. Mar. 19, 2015) (internal 16 quotation and citation omitted). Accordingly, courts generally will not grant a motion to 17 strike unless the movant can show that the defense has “no possible relationship to the 18 controversy, may confuse the issues, or otherwise prejudice a party.” Id. “Motions to 19 strike are rarely granted in the absence of a showing of prejudice to the moving party.” 20 Ollier v. Sweetwater Union High Sch. Dist., 735 F. Supp. 2d 1222, 1224 (S.D. Cal. 2010), 21 aff’d, 768 F.3d 843 (9th Cir. 2014). 22 III. Discussion 23 Plaintiff moves to strike the following portions of Defendants’ Answer: (1) the 24 references to, and request for, Rule 11 sanctions, and (2) the paragraphs labeled 25 “Affirmative Defenses.” For the reasons discussed below, the Court will strike the Rule 26 11 references, but not the affirmative defenses. 27 A. Rule 11 Sanctions 28 Plaintiff asserts Defendants’ references to Rule 11 “violate Rule 11 itself.” 1 (Mot. at 2). To support its contention, Plaintiff cites to Fed. R. Civ. P. 11(c)(2) and Holgate 2 v. Baldwin, 425 F.3d 671, 677-78 (9th Cir. 2005). Fed. R. Civ. P. 11(c)(2) provides, in 3 relevant part: 4 A motion for sanctions must be made separately from any other motion and 5 must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented 6 to the court if the challenged paper, claim, defense, contention, or denial is 7 withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the 8 prevailing party the reasonable expenses, including attorney’s fees, incurred 9 for the motion. Further, the Ninth Circuit in Holgate emphasized the “stringent notice and filing 10 requirements on parties seeking sanctions” in the 1993 Amendments to Rule 11. Holgate, 11 425 F.3d at 677. There, the Court reversed the sanctions award when the party requesting 12 sanctions failed to comply with the Rule 11 safe harbor provision requiring the opposing 13 party 21 days to first “withdraw or otherwise correct” the offending paper. Id. at 677-78 14 (quoting Fed. R. Civ. P. 11(c)(1)(A)). 15 Defendants argue their Answer—because it is a pleading rather than a motion— 16 does not actively request the Court render an order for damages pursuant to Rule 11. 17 (Resp. at 3). Instead, Defendants assert the purpose of these references was to put “Plaintiff 18 on notice of [Defendants’] intention to seek damages under Rule 11 in a good faith effort 19 to keep Plaintiff well-informed of Defendants’ position and out of an abundance of caution 20 to preserve all possible defenses and damages against Plaintiff.” (Id. at 3-4). 21 Defendants’ assertion contradicts the plain language of the Answer. In their prayer 22 for relief, Defendants pray the Court “[e]nter an appropriate award of sanctions against 23 Plaintiff and its counsel pursuant to Rule 11, 28 U.S.C. § 1927, and the Court’s inherent 24 powers.” (Answer at 6 ¶ 3). Additionally, Defendants twice asserted “that they are entitled 25 to recover sanctions against Plaintiff and its counsel pursuant Rule 11, 28 U.S.C. § 1927, 26 and the Court’s inherent powers.” (Id. at 4 ¶¶ 31, 37). Defendants do more than place 27 Plaintiff on notice of an intention to seek sanctions under Rule 11—they actively ask the 28 1 Court, albeit improperly, to enter Rule 11 sanctions against Plaintiff. Rule 11 and caselaw 2 make clear the strict requirements for requesting sanctions. See Holgate, 425 F.3d at 677- 3 78. A pleading is not the appropriate forum for such requests. See Fed. R. Civ. P. 11 1993 4 Amendment (“The rule provides that requests for sanctions must be made as a separate 5 motion, i.e., not simply included as an additional prayer for relief contained in another 6 motion.”); see generally Ernie Ball, Inc. v. Earvana, LLC, No. EDCV060384FMCOPX, 7 2006 WL 4941831, at *2-3 (C.D. Cal. July 21, 2006) (striking prayer for attorneys’ fees 8 based on Rule 11 in defendant’s counterclaim despite defendant’s explanation “that it does 9 not in fact seek sanctions under Rule 11, but merely references the rule because it plans to 10 establish the frivolity of Plaintiff's claim by showing that Plaintiff failed to conduct an 11 adequate pre-filing investigation as mandated by Rule 11” and noting “a party may not, in 12 an opposition brief, assign a different meaning to a claim asserted in its original 13 complaint”). 14 As mentioned, the Court will not strike material absent the moving party’s showing 15 of prejudice, no possible relationship to the controversy, or confusing the issues. See 16 Contrina, 94 F. Supp. 3d at 1182; Ollier, 735 F. Supp. 2d at 1224. Plaintiff has failed to 17 show how Defendants’ Rule 11 sanctions requests—while clearly inactionable and 18 improper at this stage—are prejudicial to Plaintiff. However, the principal purpose of the 19 safe harbor provision, in addition to promoting judicial efficiency, is to provide “notice for 20 the protection of the party accused of sanctionable behavior.” 5A CHARLES ALAN WRIGHT 21 & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1337.2 (3d ed.). At this 22 point, it is doubtful Plaintiff has actually been prejudiced by Defendants’ Rule 11 sanctions 23 request—especially since Plaintiff was warned about the possibility of sanctions in 24 prelitigation correspondence with Defendant (Answer, Ex. B). But in the spirit of Rule 25 11’s strict requirements tailored to prevent prejudicial behavior, the Rule 11 sanctions 26 requests in the Answer will be stricken. Moreover, the requests certainly confuse the 27 issues. It is unclear from the plain language of the Answer what Defendants sought to 28 accomplish by making these assertions, given the Court’s confidence in defense counsel’s 1 familiarity with the procedural requirements of Rule 11. Accordingly, the Court will grant 2 Plaintiff’s motion to strike the Rule 11 sanctions requests from Defendants’ Answer. 3 B. Affirmative Defenses 4 Plaintiff further asserts Defendants’ affirmative defenses fail because they are 5 “devoid of any factual underpinnings” and do not provide “fair notice.” (Mot. at 3-4). 6 Plaintiff concedes the District of Arizona “has consistently held the Twombly pleading 7 standard does not apply to affirmative defenses” and argues the Court should apply Ninth 8 Circuit authority, regardless of whether Twombly applies to affirmative defenses.1 9 (Mot. at 3) (citing Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979) and 10 Outdoor Recreation Grp. v. Schude, No. CV214828MWFPLAX, 2021 WL 6804245, at *2 11 (C.D. Cal. Nov. 30, 2021)) 12 “The key to determining the sufficiency of pleading an affirmative defense is 13 whether it gives plaintiff fair notice of the defense.” Wyshak, 607 F.2d at 827. “[A]n 14 affirmative defense is legally insufficient only if it clearly lacks merit under any set of facts 15 the defendant might allege.” Kohler v. Islands Rests., LP, 280 F.R.D. 560, 564 (S.D. Cal. 16 2012) (emphasis added). In Outdoor Recreation Group, the Central District of California 17 held that while a “high level of specificity” may not be required, “[f]air notice still requires 18 1 This Court has previously discussed the split among federal courts regarding the issue of 19 whether Twombly applies to affirmative defenses. Craten v. Foster Poultry Farms Inc., No. CV-15-02587-PHX-DLR, 2016 WL 3457899, at *2 (D. Ariz. June 24, 2016). In 20 Craten, the Court held “the text of Rule 8(c)(1) and fairness considerations compel the conclusion that Twombly and Iqbal do not govern pleading affirmative defenses.” Id. This 21 is because Rule 8(c) governing affirmative defenses—unlike subsections (a) and (b) governing claims for relief and defenses, respectively—does not explicitly require a “short 22 and plain” statement that formed the basis for Twombly and Iqbal; subsection (c) merely requires a party to “affirmatively state” any affirmative defense. Id. Further, notions of 23 fairness support this interpretation. As explained in Craten: Plaintiffs and defendants are not similarly situated at the pleading stage. For 24 example, plaintiffs have the entire statute of limitations period to investigate their claims, thereby enabling them to allege specific facts in their 25 complaints. Once served, however, defendants typically have only 21 days in which to file responsive pleadings. Fed. R. Civ. P. 12(a). Requiring 26 defendants to allege affirmative defenses with the same level of factual specificity as plaintiffs allege claims would require a similar pre-suit 27 investigation in a much shorter window of time. Such a result would impose an unreasonable and asymmetric burden, and increase the risk that 28 defendants will waive potentially meritorious affirmative defenses. Id. at 3. 1 some factual allegations sufficient to identify the factual grounds of an affirmative 2 defense.” Outdoor Recreation Grp., 2021 WL 6804245, at *2 (striking defendants’ 3 affirmative defenses on the basis that they did not provide any factual support for their 4 asserted affirmative defenses). However, as the Craten order specifically noted, and as the 5 Court here adopts, fair notice does not require the pleading of specific factual allegations. 6 Craten, 2016 WL 3457899, at *3 (citing Tyco Fire Prods. LP v. Victaulic Co., 777 F. Supp. 7 2d 893, 901 (E.D. Pa. 2011)) (“[A]pplying the concept of notice to require more than 8 awareness of the issue’s existence imposes an unreasonable burden on defendants who risk 9 the prospect of waiving a defense at trial by failing to plead it...and have a short amount of 10 time to develop the facts necessary to do so[.]”); see supra p. 5, n.1. 11 Interestingly, even though Outdoor Recreation Grp. belongs to the line of cases this 12 Court deviates from, the Court highlights the apparent cognitive dissonance experienced 13 by Judge Fitzgerald between his decision and his personal observations. “Dropping the 14 third person for a moment,” Judge Fitzgerald remarked in the end of his order: 15 I’m not thrilled by the Motion or, indeed, my own ruling. As counsel know 16 perfectly well, the affirmative defenses here are typically what are pled in district court. The understandable desire of defense counsel is not to leave 17 something out. This Motion could probably have been brought against 99% 18 of the answers filed in this year in the Central District. They certainly are what got filed when I was at Corbin, Fitzgerald & Athey LLP. What Rule 8 19 technically requires and what lawyers actually do don’t line up – we all know 20 that. It will get dealt with in the Final Pretrial Conference Order or in the jury instructions. I hope all counsel will focus in the future on something 21 that matters. 22 Outdoor Recreation Grp., 2021 WL 6804245, at *3. The Court disagrees with 23 Judge Fitzgerald regarding the technical requirements of Rule 8; however, his commentary 24 underscores the baselessness and frivolity of filing such motions to strike affirmative 25 defenses when they are not prejudicial to the moving party. See Davis v. Ruby Foods, Inc., 26 269 F.3d 818, 821 (7th Cir. 2001) (stating that motions to strike where the material is not 27 “actually prejudicial” “are what give ‘motion practice’ a deservedly bad name.”); Raymond 28 Weil, S.A. v. Theron, 585 F. Supp. 2d 473, 489-90 (S.D.N.Y. Sept. 30, 2008) (“There is 1 nothing dumber than a motion to strike boilerplate affirmative defenses; it wastes the 2 client’s money and the court’s time.”); E.E.O.C. v. Joe Ryan Enterps., Inc., 281 F.R.D. 3 660, 664 (M.D. Ala. 2012) (“[T]he Court is hesitant to create precedent whereby it is 4 obligated to pick through a defendant’s affirmative defenses at this stage of the litigation. 5 The parties control the discovery process, and [the Plaintiff], as a sophisticated party, 6 should be able to hone in on those affirmative defenses of [Defendants] that may actually 7 become relevant in a dispositive motion or at trial.”). 8 Having set forth the applicable legal standard, the Court will analyze, in turn, the 9 sufficiency of each paragraph in the “Affirmative Defenses” section of the Answer. 10 1. Failure to State a Claim (Paragraph No. 1) 11 Defendants first paragraph alleges “the Complaint, and each claim for relief set forth 12 therein, fails to state a claim upon which relief can be granted.” (Answer at 5 ¶ 1). 13 Plaintiff argues failure to state a claim is not a proper affirmative defense, but rather 14 an allegation of a defect in Plaintiff’s Complaint. The Court will not strike this portion of 15 the Answer because it does not prejudice Plaintiff, has some relation to the controversy, 16 and does not confuse the issues. See Hamilton v. Yavapai Cmty. Coll. Dist., No. CV-12- 17 08193-PCT-PGR, 2014 WL 11515631, at *12 (D. Ariz. Sept. 9, 2014) (“although it is not 18 technically an ‘affirmative’ defense, the inclusion of such a defense in the pleadings does 19 not prejudice the plaintiff”); see also Valley Community Bank v. Progressive Cas. Ins. Co., 20 2011 WL 1833116 (N.D. Cal. 2011) (allowing a defendant to include the failure to state a 21 claim as a defense is consistent with the Federal Rules of Civil Procedure); see also 22 Ventures Edge Legal PLLC v. GoDaddy.com LLC, No. CV-15-02291-PHX-GMS, 2017 23 WL 1075059, at *2 (D. Ariz. Mar. 22, 2017) (“There is no need, however, to engage in a 24 lengthy and fine-grained analysis over whether each of the purported affirmative defenses 25 is best characterized as an affirmative defense or a negative defense or denial. The 26 mislabeling of defenses as affirmative rather than negative is not grounds for striking those 27 defenses.”). 28 /// 1 2. Joinder/Necessary and Indispensable Parties (Paragraph No. 2) 2 Defendants second paragraph alleges “there may be a lack of joinder of one or more 3 indispensable parties who should and must be joined and, without joinder of these proper 4 parties, complete relief cannot be accorded among those already attempted to be made 5 parties to this civil action.” (Answer at 5 ¶ 2). 6 Plaintiff argues lack of joinder is not an affirmative defense and Defendants fail to 7 identify the indispensable parties. The Court will not strike this portion of the Answer 8 because it does not prejudice Plaintiff, has some relation to the controversy, and does not 9 confuse the issues. Plaintiff can glean enough facts from the parties’ prelitigation 10 communications to understand Defendants’ position. Moreover, even if the factual 11 underpinnings are not clear from the circumstances, this is the purpose of discovery. See 12 Hamilton, 2014 WL 11515631, at *12 (denying to strike joinder defense); see also Craten, 13 2016 WL 3457899, at *3 (denying to strike affirmative defenses because “[d]iscovery will 14 help refine the basis of the parties’ claims and defenses”). 15 3. Payment/Setoff/Accord and Satisfaction (Paragraph No. 3) 16 Defendants’ third paragraph alleges “[t]o the extent Plaintiff has received payment 17 from any individual or entity in partial or full satisfaction of any of their alleged injuries 18 and/or claims against Defendants and/or any other alleged parties, the Complaint is barred 19 by the defenses of payment, setoff, and/or accord and satisfaction.” (Answer at 5 ¶ 3). 20 Plaintiff argues these three defenses require some previous transaction between the 21 parties that Defendants have failed to state. For the same reasons as stated above, the Court 22 will not strike this portion of the Answer because it does not prejudice Plaintiff, has some 23 relation to the controversy, and does not confuse the issues. The factual underpinnings are 24 sufficiently clear, and alternatively, they may be revealed in discovery. 25 4. Comparative Fault (Paragraph Nos. 4 and 5) 26 Defendants’ fourth and fifth paragraphs allege “Plaintiff’s injuries and damages, if 27 any, may have been caused or contributed to by the negligence, carelessness, inattention, 28 or otherwise wrongful or negligent acts of third-parties, entities, businesses, corporations, 1 or their agents or employees over whom Defendants has [sic] no control or right of control; 2 therefore, Plaintiff’s damages should be reduced or eliminated by its own percentage of 3 negligence and fault or the negligence or fault of a third-party under the doctrine of 4 comparative fault” and “Plaintiff’s damages, if any, must be reduced by the comparative 5 fault of other persons, including responsible non-parties pursuant to A.R.S. § 12-2501 et 6 seq.” (Answer at 5 ¶¶ 4, 5). 7 Plaintiff argues neither of its claims relate to negligence and consequently, these 8 defenses are immaterial and impertinent. The Court need not determine, at this stage, 9 whether a successful comparative fault defense could or would result in a reduction of 10 damages. Accordingly, the Court will not strike this portion of the Answer because it does 11 not prejudice Plaintiff, has some relation to the controversy, and does not confuse the 12 issues—even if the defense may become immaterial or impertinent. 13 5. Denials (Paragraph Nos. 6 and 7) 14 Defendants’ sixth and seventh paragraphs allege “Plaintiff’s claims are barred, in 15 whole or in part, because Defendants does [sic] not conduct any business at the property 16 relevant to Plaintiff’s claims, identified as 5307 W. Glendale Ave., Glendale, AZ 85301, 17 and did not conduct any business at 5307 W. Glendale Ave., Glendale, AZ 85301 on April 18 22, 2023” and “Plaintiff’s claims are barred, in whole or in part, because Defendants have 19 no affiliation with ‘Dealership Venue.’” (Answer at 5-6 ¶¶ 6, 7). 20 Plaintiff seeks to strike these paragraphs because they are not technically 21 “affirmative” defenses. The Court will not strike this portion of the Answer because it does 22 not prejudice Plaintiff, has some relation to the controversy, and does not confuse the 23 issues. See Ventures Edge Legal PLLC, 2017 WL 1075059, at *2 (“The mislabeling of 24 defenses as affirmative rather than negative is not grounds for striking those defenses.”). 25 Indeed, paragraphs six and seven provide Plaintiff with factual underpinnings. Thus, 26 Plaintiff’s argument is irreconcilable with Plaintiff’s claim that it has suffered because 27 Defendants failed to allege enough facts. 28 /// 1 6. Reservation (Paragraph No. 8) 2 Defendants’ eighth paragraph alleges “Defendants preserves [sic] and does not 3 knowingly or intentionally waive, any of the other affirmative defenses set forth in Arizona 4 Rules of Civil Procedure 8 or 12(b), or as recognized in statute or in common law, which 5 discovery may reveal to be applicable, or any other matter constituting an avoidance or 6 affirmative defense.” (Answer at 6 ¶ 8). 7 Plaintiff seeks to strike this paragraph because it erroneously references the Arizona 8 Rules of Procedure instead of the Federal Rules of Procedure and is otherwise improper. 9 The Court will not strike this portion of the Answer because it does not prejudice Plaintiff, 10 has some relation to the controversy, and does not confuse the issues. See G&G Closed 11 Cir. Events LLC v. Barajas, No. CV-19-05145-PHX-DLR, 2020 WL 1659903, at *2 (D. 12 Ariz. Apr. 3, 2020) (denying to strike reservation paragraph because, while meaningless 13 and unnecessary, is it not prejudicial). Plaintiff admits Rule 12(b) of the Arizona Rules of 14 Civil Procedure and the Federal Rules of Civil Procedure are identical. Defense counsel is 15 reminded of its duty of diligence; however, the Court is not tasked with line-by-line 16 scrutiny of parties’ pleadings absent clear prejudice. 17 7. Qualification (Paragraph No. 9) 18 Defendants’ ninth paragraph alleges, 19 [A]fter appropriate discovery, the following affirmative defenses may be 20 applicable: lack of formation, lack of consideration, lack of material reliance, novation, lack of privity, lack of breach, unjust enrichment, parol evidence, 21 second material breach, substantial compliance, prevention of performance, 22 no causal nexus, failure to act in a commercially reasonable manner, failure of a condition precedent, quantum meruit, offset, unclean hands, set off, 23 frustration of purpose, fair notice, mistake or mistaken belief, set off, 24 intervening or superseding event, impossibility or impracticability, abatement, estoppel, waiver, release, payment, laches, in pari delicto, failure 25 to plead with particularity, estoppel, and res judicata. The extent to which Plaintiff’s claims may be barred, in whole or in part, by one or more of the 26 foregoing affirmative defenses cannot be determined until Defendants have 27 an opportunity to complete discovery. 28 (Answer at 6 ¶ 9). 1 Plaintiff again argues these reserved/preserved defenses are inapplicable or 2|| redundant. Again, and for the same reasons as stated above, the Court will not strike this || portion of the Answer because it does not prejudice Plaintiff, has some relation to the controversy, and does not confuse the issues. See Barajas, 2020 WL 1659903, at *2. || Defendants have made clear their intention to flesh out the applicable defenses in || discovery. 7 IV. Conclusion 8 For the foregoing reasons, the Court will grant Plaintiff's Motion to Strike the Rule 9|| 11 references in Defendants’ Answer and deny the Motion as to the affirmative defenses. || As emphasized throughout this Order and in many federal courts, parties should not file 11 || motions to strike that are frivolous and do not have any practical effect on the litigation. 12 || Not only do they needlessly increase attorneys’ fees, but they waste judicial resources on 13 || unimportant matters. In the wise words of Judge Fitzgerald, the Court hopes counsel will 14|| focus in the future on something that matters.” 15 Accordingly, 16 IT IS ORDERED Plaintiff's Motion to strike portions of Defendants’ Answer 17|| (Doc. 22) is GRANTED IN PART and DENIED IN PART. The references to Rule 11 in Defendants’ Answer (Doc. 19) are STRICKEN. 19 Dated this 21st day of October, 2024. 20 fo = 21 C . ES 22 Honorable Ros yn ©. Silver 3 Senior United States District Judge 24 25 26 27 □ > Plaintiff's Counsel has appeared before the District of Arizona, and particularly this 28 Court, on numerous occasions. Informal sanctions have previously been imposed. See, e.g., J & J Sports Productions Inc. v. de la Torre, No. CV-12-01044-PHX-ROS, Doc. 29.

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