Lankford v. Taylor

• Court: District Court, D. Arizona
• Decided: January 10, 2020
• Docket: 2:17-cv-02797
• Status: Unknown

Opinion

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

9 Kirk Lankford, No. CV-17-02797-PHX-DWL (JZB)

10 Plaintiff, ORDER

11 v.

12 Joseph Taylor, et al.,

13 Defendants. 14 15 On September 23, 2019, the Court issued an order that granted in part, and denied 16 in part, Defendants’ motion for summary judgment. (Doc. 58.) With respect to Count 17 Seven of the complaint—Plaintiff’s claim under Article 2, Section 6 of the Arizona 18 Constitution—the Court noted that the claim as to Defendant Griego was likely improper 19 because the Arizona Supreme Court has never held that a private right of action for 20 damages exists under that provision and because federal courts may decline, in any event, 21 to exercise supplemental jurisdiction over novel issues of state law. (Id. at 16-17.) 22 Nevertheless, the Court afforded the parties an opportunity to submit supplemental 23 briefing. (Id.) 24 Defendant Griego has now submitted a supplemental brief arguing the Court should 25 “decline to exercise supplemental jurisdiction over Count Seven and dismiss it with 26 prejudice.” (Doc. 60 at 2.) Plaintiff did not submit a supplemental brief after receiving 27 several extensions. (Docs. 61, 63.) 28 The Court agrees with Defendant Griego that it should decline to exercise 1 || supplemental jurisdiction over Count Seven due to the novelty of the state-law claim. 2|| Thus, Count Seven will be dismissed as it pertains to Defendant Griego. However, the || Court disagrees with Defendant Griego that the dismissal should be “with prejudice.” A 4|| dismissal for lack of jurisdiction is always without prejudice. Freeman v. Oakland Unified || Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999) (“Dismissals for lack of jurisdiction should || be without prejudice so that a plaintiff may reassert his claims in a competent court.”) (quotation marks and ellipsis omitted); Fed. R. Civ. P. 41(b) (dismissal for lack of 8 || jurisdiction is not “an adjudication on the merits”). 9 Accordingly, IT IS ORDERED that Count Seven of the complaint, as it pertains to || Defendant Griego, is dismissed for lack of jurisdiction. 11 Dated this 10th day of January, 2020. 12 13 Lay

15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 The Court previously withdrew the reference to the magistrate judge with respect to 28 | Defendants’ motion for summary judgment (Doc. 58 at 20) and this order constitutes a continuation of the Court’s summary judgment ruling. _2-