United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Defendant has filed a motion for partial dismissal of Plaintiff Colleen Abendano's complaint. Doc. 9. The motion is fully briefed and no party has requested oral argument. The Court will grant the motion in part and deny it in part.
Plaintiff was formerly employed by Defendant Town of Hayden as a police officer. Plaintiff was terminated on October 8, 2013. Plaintiff alleges that her termination arose out of a meeting she had with Town Manager Bill Leister on November 4, 2011 to discuss "concerns over the mismanagement of police records and possible theft of department monies by a Town official." Doc. 12, ¶ 4. She contends that the Town did not investigate her allegations but "instead set on a course of illegal retaliation and reprisal" which culminated in her termination. Id.
Plaintiff contends that Police Chief Gillen recommended on December 4, 2012 that she be terminated, and that she was notified on December 21, 2012 by Leister that he concurred with the recommendation. Id., ¶¶ 9-10. The Town Council did not approve these recommendations. Id., ¶ 11. Plaintiff alleges that she was then instructed by Chief Gillen to undergo a firearms qualification test. Id., ¶ 12. Plaintiff was told that she had failed the test and contends that she was neither provided with a written evaluation nor allowed to view her targets. Id., ¶¶ 12-13. After allegedly failing the test two more times, Plaintiff was notified by Chief Gillen that he was recommending that she be terminated immediately. Id., ¶¶ 14, 21. She received a letter from Leister on October 8, 2013 informing her that she was terminated, although she contends that neither Leister nor Chief Gillen had the authority to terminate her. Id., ¶ 23. An appeal hearing was held before the Town Council on February 28, 2014. Id., ¶ 26. Plaintiff alleges that the Town violated A.R.S. § 38-1101(E) and (G) by failing to provide her with its exhibits and witnesses at least ten business days before the hearing and then allowing that evidence to be admitted during the hearing. Id., ¶¶ 27-28.
Plaintiff filed a complaint in Gila County Superior Court on April 30, 2014, seeking special action review of the Town's action and asserting a claim pursuant to 42 U.S.C. § 1983 for violation of her procedural and substantive due process rights. Defendant removed the case to this Court.
II. Legal Standard.
When analyzing a complaint for failure to state a claim to relief under Rule 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the complaint must plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard "is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged B but it has not show[n]' B that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Defendant first argues that Plaintiff's special action is untimely. Doc. 9 at 2. The Court does not agree. None of Defendant's cited authority establishes a clear rule applicable to this case.
Defendant first asserts that the Arizona Supreme Court in Felix v. Superior Court, 375 P.2d 730, 732 (Ariz. 1962), "held that in the absence of a statutory time to file a petition [for special action], the normal period granted to file an appeal will apply to bar the remedy of certiorari unless circumstances of extraordinary character justifying the delay are shown." Doc. 9 at 2. But Felix dealt with a petition for certiorari filed in the Arizona Supreme Court, not a special action filed in superior court. Felix, 375 P.2d at 732. Nothing in Felix would make Plaintiff's special action petition untimely.
Defendant contends that State v. Mahoney, 542 P.2d 410 (Ariz.Ct.App. 1975), "dictates that Plaintiff was required to comply with the 30-day deadline for civil appeals." Doc. 9 at 2. But Mahoney was a special action involving a criminal matter. 542 P.2d at 411. The court held "that when a criminal prosecution is dismissed, the 20-day period for taking an appeal will likewise apply unless circumstances justifying the delay are shown." Id. at 412. This case does not involve the dismissal of a criminal prosecution and is therefore inapposite.
Also unavailing is Defendant's argument that Plaintiff's special action is barred by Rule 7(i) of the Arizona Rules of Procedure for Special Actions, which states that the Arizona Rules of Civil Appellate Procedure apply to the extent they are not inconsistent with the special action rules. Doc. 9 at 3. Rule 7 does not apply to actions filed in the superior court. The title of Rule 7 is "Special Appellate Court Procedures." Ariz. R. P. Spec. Act. 7. The Arizona Court of Appeals has made clear that when the Rules of Procedure for Special Actions are read as a whole, "the term appellate court' does not include superior courts functioning in their capacity to hear special actions that are functionally appeals." Rash v. Town of Mammoth, 315 P.3d 1234, 1238 (Ariz.Ct.App. 2013). The Rash court noted that the "drafters of the special action rules... have distinguished the Superior Court' or lower court' from an appellate court, '" and that Rule 7 does not establish ...