Lankford v. Taylor

Opinion

WO

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

Plaintiff, ORDER

v.

Joseph Taylor, et al.,

Defendants. On September 23, 2019, the Court issued an order that granted in part, and denied in part, Defendants’ motion for summary judgment. (Doc. 58.) With respect to Count Seven of the complaint—Plaintiff’s claim under Article 2, Section 6 of the Arizona Constitution—the Court noted that the claim as to Defendant Griego was likely improper because the Arizona Supreme Court has never held that a private right of action for damages exists under that provision and because federal courts may decline, in any event, to exercise supplemental jurisdiction over novel issues of state law. (Id. at 16-17.) Nevertheless, the Court afforded the parties an opportunity to submit supplemental briefing. (Id.) Defendant Griego has now submitted a supplemental brief arguing the Court should “decline to exercise supplemental jurisdiction over Count Seven and dismiss it with prejudice.” (Doc. 60 at 2.) Plaintiff did not submit a supplemental brief after receiving several extensions. (Docs. 61, 63.) 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. 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 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 jurisdiction is not “an adjudication on the merits”). Accordingly, IT IS ORDERED that Count Seven of the complaint, as it pertains to Defendant Griego, is dismissed for lack of jurisdiction. Dated this 10th day of January, 2020. Lay

United States District Judge The Court previously withdrew the reference to the magistrate judge with respect to Defendants’ motion for summary judgment (Doc. 58 at 20) and this order constitutes a continuation of the Court’s summary judgment ruling. _2-