1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Austin Neeley, et al., No. CV-19-05899-PHX-DJH
10 Plaintiffs, ORDER
11 v.
12 State of Arizona, et al.,
13 Defendants. 14 15 Pending before the Court is Defendants Andrea Thomas and Grossman & 16 Grossman, Ltd.’s Motion for Summary Judgment against all Plaintiffs or, in the alternative, 17 Partial Summary Judgment against Plaintiff Austin Neeley on Counts Three through 18 Fifteen regarding V.S.R. (Doc. 162). Plaintiffs filed a Response in Opposition. (Doc. 252), 19 and Defendants filed a Reply. (Doc. 254). Also pending is Defendant Heather De Soler’s 20 Motion for Summary Judgement, which is not fully briefed. (Doc. 262). 21 In their Reply, Defendants point out that of the remaining five claims, only Count 22 XV—conspiracy in violation of 42 U.S.C. § 1985—presents a federal question. (Doc. 105 23 at 67–69). Defendants argue that Count XV fails to state a claim upon which relief can be 24 granted, and that the Court should grant summary judgment on Count XV and remand the 25 remaining state law claims to the Arizona Superior Court. (Doc. 254 at 2). 26 On June 21, 2022, the Court ordered Plaintiffs to file a Sur-Reply to address, in part, 27 the argument raised in Defendants’ Reply that Plaintiffs have put forth no facts to show 28 causation or a conspiracy to violate Plaintiffs’ civil rights as required to support their claim 1 for conspiracy in violation of 42 U.S.C. § 1985. (Doc. 264 at 1–2). On July 5, 2022, 2 Plaintiffs requested “a 45-day extension of time to conduct Ms. Ashmore’s deposition and 3 file their Sur-Reply.” (Doc. 267 at 3). In the alternative, Plaintiffs requested a 15-day 4 extension of time to file the Sur-Reply because of staff turnover and counsel’s failure to 5 properly calendar the filing date. (Id.) The Court denied the Motion as to Plaintiffs’ request 6 for a 45-day extension of time to take Ms. Ashmore’s deposition and granted the Motion 7 as to Plaintiffs’ request for a 15-day extension of time. (Doc. 268). The Court allowed 8 Plaintiffs’ up to and including July 21, 2022, to file a Sur-Reply. (Id.) To date, no Sur- 9 Reply has been filed, and the time in which to do so has passed. 10 I. Background 11 This case stems from the removal of Plaintiffs V.S.R., A.L.N., and A.R.N. from 12 their home by Arizona Department of Child Safety (“DCS”) employees and the subsequent 13 juvenile protection proceedings. (Doc. 105 at ¶ 38). 14 On March 9, 2022, Plaintiffs and State Defendants State of Arizona, Barbara 15 Bennett, Laura McGlynn, Shelley Ashmore, Phyllis Mitchum, Stephanie Cooper, Jeannine 16 Janowitz, Gregory McKay, and each of their respective spouses, and Delorea Blackburn 17 and Rose Blackburn, a married couple, reached a settlement of the claims against State 18 Defendants. (Doc. 248). The settlement required approval of the Arizona Joint Legislative 19 Committee (“JLBC”) before it could be considered final. (Id.) In May, the JLBC approved 20 the settlement, but it must still be approved by a probate court. (Doc. 256 at 2). 21 Plaintiffs did not, however, reach a settlement with Defendants Grossman & 22 Grossman, Ltd., Andrea Thomas, Dr. Heather de Soler, PLLC, or Heather de Soler. 23 Defendants Andrea Thomas and Grossman & Grossman, Ltd. now move for summary 24 judgment against all plaintiffs on all claims. (Doc. 162 at 1). Of the five remaining Counts, 25 Defendants contend only Count XV, Conspiracy in violation of 42 U.S.C. § 1985(3), 26 presents a federal question. (Doc. 254 at 2). Because the Second Amended Complaint 27 (“SAC”) contains no factual allegations to support this Count, Defendants argue the Court 28 should grant summary judgment on Count XV and remand the remaining state law claims 1 to the Arizona Superior Court. (Id. at 2). 2 II. Legal Standard 3 A court will grant summary judgment if the movant shows there is no genuine 4 dispute of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. 5 Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A factual dispute is 6 genuine when a reasonable jury could return a verdict for the nonmoving party. Anderson 7 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Here, a court does not weigh evidence 8 to discern the truth of the matter; it only determines whether there is a genuine issue for 9 trial. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994). A fact is 10 material when identified as such by substantive law. Anderson, 477 U.S. at 248. Only 11 facts that might affect the outcome of a suit under the governing law can preclude an entry 12 of summary judgment. Id. 13 The moving party bears the initial burden of identifying portions of the record, 14 including pleadings, depositions, answers to interrogatories, admissions, and affidavits, 15 that show there is no genuine factual dispute. Celotex, 477 U.S. at 323. Once shown, the 16 burden shifts to the non-moving party, which must sufficiently establish the existence of a 17 genuine dispute as to any material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio 18 Corp., 475 U.S. 574, 585–86 (1986). The evidence of the non-movant is “to be believed, 19 and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. But 20 if the non-movant identifies “evidence [that] is merely colorable or is not significantly 21 probative, summary judgment may be granted.” Id. at 249–50 (citations omitted). “A 22 conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is 23 insufficient to create a genuine issue of material fact.” F.T.C. v. Publ’g Clearing House, 24 Inc., 104 F.3d 1168, 1171 (9th Cir. 1997). 25 III. Discussion 26 To establish a conspiracy claim under 42 U.S.C. § 1985(3), a plaintiff must prove: 27 (1) a conspiracy, (2) for the purpose of depriving, either directly or indirectly, any person 28 of equal protection of the law, or of equal privileges and immunities under the law, (3) an 1 act in furtherance of the conspiracy, and (4) that the plaintiff was injured in his person or 2 property, or that the plaintiff was deprived of any right or privilege of a citizen of the United 3 States. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). For the second 4 element, a plaintiff must prove that the deprivation of a protected right was motivated by 5 some racial, or otherwise class-based, invidious discriminatory animus. Id. Section 6 1985(3) is extended beyond race “only when the class in question can show that there has 7 been a governmental determination that its members ‘require and warrant special federal 8 assistance in protecting their civil rights.’” Id. (citations omitted). The Ninth Circuit has 9 stated that Section 1985(3) “is not to be construed as a general federal tort law.” Id. 10 First, Plaintiffs have failed to allege in their SAC that they are members of such a 11 class. (Doc.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Austin Neeley, et al., No. CV-19-05899-PHX-DJH
10 Plaintiffs, ORDER
11 v.
12 State of Arizona, et al.,
13 Defendants. 14 15 Pending before the Court is Defendants Andrea Thomas and Grossman & 16 Grossman, Ltd.’s Motion for Summary Judgment against all Plaintiffs or, in the alternative, 17 Partial Summary Judgment against Plaintiff Austin Neeley on Counts Three through 18 Fifteen regarding V.S.R. (Doc. 162). Plaintiffs filed a Response in Opposition. (Doc. 252), 19 and Defendants filed a Reply. (Doc. 254). Also pending is Defendant Heather De Soler’s 20 Motion for Summary Judgement, which is not fully briefed. (Doc. 262). 21 In their Reply, Defendants point out that of the remaining five claims, only Count 22 XV—conspiracy in violation of 42 U.S.C. § 1985—presents a federal question. (Doc. 105 23 at 67–69). Defendants argue that Count XV fails to state a claim upon which relief can be 24 granted, and that the Court should grant summary judgment on Count XV and remand the 25 remaining state law claims to the Arizona Superior Court. (Doc. 254 at 2). 26 On June 21, 2022, the Court ordered Plaintiffs to file a Sur-Reply to address, in part, 27 the argument raised in Defendants’ Reply that Plaintiffs have put forth no facts to show 28 causation or a conspiracy to violate Plaintiffs’ civil rights as required to support their claim 1 for conspiracy in violation of 42 U.S.C. § 1985. (Doc. 264 at 1–2). On July 5, 2022, 2 Plaintiffs requested “a 45-day extension of time to conduct Ms. Ashmore’s deposition and 3 file their Sur-Reply.” (Doc. 267 at 3). In the alternative, Plaintiffs requested a 15-day 4 extension of time to file the Sur-Reply because of staff turnover and counsel’s failure to 5 properly calendar the filing date. (Id.) The Court denied the Motion as to Plaintiffs’ request 6 for a 45-day extension of time to take Ms. Ashmore’s deposition and granted the Motion 7 as to Plaintiffs’ request for a 15-day extension of time. (Doc. 268). The Court allowed 8 Plaintiffs’ up to and including July 21, 2022, to file a Sur-Reply. (Id.) To date, no Sur- 9 Reply has been filed, and the time in which to do so has passed. 10 I. Background 11 This case stems from the removal of Plaintiffs V.S.R., A.L.N., and A.R.N. from 12 their home by Arizona Department of Child Safety (“DCS”) employees and the subsequent 13 juvenile protection proceedings. (Doc. 105 at ¶ 38). 14 On March 9, 2022, Plaintiffs and State Defendants State of Arizona, Barbara 15 Bennett, Laura McGlynn, Shelley Ashmore, Phyllis Mitchum, Stephanie Cooper, Jeannine 16 Janowitz, Gregory McKay, and each of their respective spouses, and Delorea Blackburn 17 and Rose Blackburn, a married couple, reached a settlement of the claims against State 18 Defendants. (Doc. 248). The settlement required approval of the Arizona Joint Legislative 19 Committee (“JLBC”) before it could be considered final. (Id.) In May, the JLBC approved 20 the settlement, but it must still be approved by a probate court. (Doc. 256 at 2). 21 Plaintiffs did not, however, reach a settlement with Defendants Grossman & 22 Grossman, Ltd., Andrea Thomas, Dr. Heather de Soler, PLLC, or Heather de Soler. 23 Defendants Andrea Thomas and Grossman & Grossman, Ltd. now move for summary 24 judgment against all plaintiffs on all claims. (Doc. 162 at 1). Of the five remaining Counts, 25 Defendants contend only Count XV, Conspiracy in violation of 42 U.S.C. § 1985(3), 26 presents a federal question. (Doc. 254 at 2). Because the Second Amended Complaint 27 (“SAC”) contains no factual allegations to support this Count, Defendants argue the Court 28 should grant summary judgment on Count XV and remand the remaining state law claims 1 to the Arizona Superior Court. (Id. at 2). 2 II. Legal Standard 3 A court will grant summary judgment if the movant shows there is no genuine 4 dispute of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. 5 Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A factual dispute is 6 genuine when a reasonable jury could return a verdict for the nonmoving party. Anderson 7 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Here, a court does not weigh evidence 8 to discern the truth of the matter; it only determines whether there is a genuine issue for 9 trial. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994). A fact is 10 material when identified as such by substantive law. Anderson, 477 U.S. at 248. Only 11 facts that might affect the outcome of a suit under the governing law can preclude an entry 12 of summary judgment. Id. 13 The moving party bears the initial burden of identifying portions of the record, 14 including pleadings, depositions, answers to interrogatories, admissions, and affidavits, 15 that show there is no genuine factual dispute. Celotex, 477 U.S. at 323. Once shown, the 16 burden shifts to the non-moving party, which must sufficiently establish the existence of a 17 genuine dispute as to any material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio 18 Corp., 475 U.S. 574, 585–86 (1986). The evidence of the non-movant is “to be believed, 19 and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. But 20 if the non-movant identifies “evidence [that] is merely colorable or is not significantly 21 probative, summary judgment may be granted.” Id. at 249–50 (citations omitted). “A 22 conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is 23 insufficient to create a genuine issue of material fact.” F.T.C. v. Publ’g Clearing House, 24 Inc., 104 F.3d 1168, 1171 (9th Cir. 1997). 25 III. Discussion 26 To establish a conspiracy claim under 42 U.S.C. § 1985(3), a plaintiff must prove: 27 (1) a conspiracy, (2) for the purpose of depriving, either directly or indirectly, any person 28 of equal protection of the law, or of equal privileges and immunities under the law, (3) an 1 act in furtherance of the conspiracy, and (4) that the plaintiff was injured in his person or 2 property, or that the plaintiff was deprived of any right or privilege of a citizen of the United 3 States. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). For the second 4 element, a plaintiff must prove that the deprivation of a protected right was motivated by 5 some racial, or otherwise class-based, invidious discriminatory animus. Id. Section 6 1985(3) is extended beyond race “only when the class in question can show that there has 7 been a governmental determination that its members ‘require and warrant special federal 8 assistance in protecting their civil rights.’” Id. (citations omitted). The Ninth Circuit has 9 stated that Section 1985(3) “is not to be construed as a general federal tort law.” Id. 10 First, Plaintiffs have failed to allege in their SAC that they are members of such a 11 class. (Doc. 105 at ¶¶ 313–318). Plaintiffs equally fail to present sufficient factual 12 allegations to prove the remaining elements of the claim. Plaintiffs claim that Ms. Thomas 13 conspired with the Blackburns’ to change V.S.R.’s “placement plan from reunification to 14 severance and adoption,” including an agreement on “a plan to inculcate in V.S.R. negative 15 and false facts and narratives regarding her mother and Defendant Neeley.” (Doc. 105 at 16 ¶ 317). Plaintiffs allege that Ms. Thomas allowed the Blackburns to participate in 17 therapeutic counseling of V.S.R. in their foster home “in furtherance of their agreement to 18 facilitate a change in placement objectives from family reunification to severance and 19 adoption.” (Id. at ¶ 318). Beyond these allegations, Plaintiffs have not cited to any 20 evidence that indicates such an agreement existed. See United States v. Jimenez Recio, 537 21 U.S. 270, 271 (2003) (the essence of a conspiracy is an agreement to commit an unlawful 22 act); Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 626 (9th Cir. 1988) 23 (“[a] mere allegation of conspiracy without factual specificity is insufficient” to establish 24 a claim under Section 1985(3)). 25 Plaintiffs raise four additional allegations under Count XV, but none of those 26 allegations relate to Ms. Thomas. (Doc. 105 at ¶ 319, 320, 321, 322). Although Plaintiffs 27 SAC may contain legal conclusions, none of these allegations suggest Plaintiffs were 28 discriminated against based on race or some other protected class. Nor do Plaintiffs 1 provide any evidence that an agreement existed between Ms. Thomas and the Blackburns 2 to commit an unlawful act by depriving Plaintiffs of a reunification plan with their children. 3 The Court therefore concludes that Plaintiff has not presented sufficient evidence for a 4 reasonable jury to find a conspiracy as alleged. Anderson v. Liberty Lobby, Inc., 477 U.S. 5 242, 249 (1986); see also Celotex Corp., 477 U.S. at 322–23 (holding that summary 6 judgment is appropriate against a party who “fails to make a showing sufficient to establish 7 the existence of an element essential to that party’s case, and on which the party will bear 8 the burden of proof at trial”). Accordingly, Defendants are entitled to summary judgment 9 as to Count XV. 10 IV. State Law Claims 11 The SAC contains no other federal causes of action; the remaining claims are state 12 law causes of action, including intentional infliction of emotional distress; medical 13 malpractice; negligent hiring, training, supervision, and retention; and civil conspiracy 14 under Arizona law. (Doc. 105). These state law causes of action fall under the Court’s 15 supplemental jurisdiction, which courts normally decline to exercise when the federal 16 claims are dismissed before trial. 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. 17 Gibbs, 383 U.S. 715, 726 (1966); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 18 1997). Here, the Court will decline to exercise jurisdiction over the remaining state law 19 claims, and it will dismiss the entire SAC. See Gini v. Las Vegas Metro. Police Dep’t, 40 20 F.3d 1041, 1046 (9th Cir. 1994) (“When . . . the court dismisses the federal claim leaving 21 only state claims for resolution, the court should decline jurisdiction over state law claims 22 and dismiss them without prejudice.”); Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 23 1985) (“Generally, dismissal of federal claims before trial dictates that the pendent state 24 claims should also be dismissed.”). 25 Accordingly, 26 IT IS HEREBY ORDERED that Defendants’ Andrea Thomas and Grossman & 27 Grossman, LTD Motion for Summary Judgment (Doc. 162) is granted as to Count XV, 28 and the Clerk of Court shall enter judgment accordingly. 1 IT IS FURTHER ORDERED that Plaintiffs’ remaining state law claims (Count 2|| VIII, Count IX, Count X, Count XIV) are remanded to the Maricopa County Superior 3 || Court. 4 IT IS FURTHER ORDERED that Defendants Heather de Soler and Dr. Heather 5 || de Soler, PLLC’s Motion for Summary Judgment (Doc. 262) is denied as moot. 6 IT IS FINALLY ORDERED that this action is hereby terminated. 7 Dated this 26th day of July, 2022. 8 9 fe □□ 10 norable'Diang/. Hunfetewa 1 United States District Fudge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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