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Thaw v. Lynch

United States District Court, D. Arizona

March 15, 2016

Russell Thaw, et al., Plaintiffs,
Loretta Lynch, et al., Defendants.




At docket 9 defendants United States Attorney General Loretta Lynch and thirteen judges of the United States District Court for the District of Arizona (collectively, “Defendants”) move pursuant to Rules 12(b)(1) and (2) for an order dismissing the complaint of plaintiffs Russell Thaw, Sheryl Ann Phipps, John M. Daley, and Patent Lawyer Doe (collectively, “Plaintiffs”). In a combined filing at docket 16, Plaintiffs oppose Defendants’ motion and move for summary judgment under Rule 56. Plaintiffs’ summary judgment motion is supported by a separate “statement of material undisputed facts” at docket 17. Defendants reply in support of their motion and oppose Plaintiffs’ motion in a combined filing at docket 24. Defendants’ evidentiary objections and response to Plaintiffs’ statement of facts is at docket 25. At docket 31, Plaintiffs reply in support of their motion.

Oral argument was requested, but would not assist the court.


Local Civil Rule 83.1 (“LRCiv 83.1”) limits eligibility for full admission to the bar of the Arizona District Court to attorneys who are members of the Arizona Bar.[1] Plaintiffs, four attorneys who are not Arizona Bar members, allege that this limitation violates federal law. Specifically, they allege that LRCiv 83.1 violates (1) the Rules Enabling Act; (2) the Supremacy Clause; (3) the First Amendment; (4) Due Process; and (5) Equal Protection.


A. Rule 12(b)(6)

Defendants’ motion cites Rules 12(b)(1) and (b)(6). Under Rule 12(b)(1) a party may seek dismissal of an action for lack of subject-matter jurisdiction. Because Defendants do not assert any challenges to this court’s subject-matter jurisdiction, their reliance on Rule 12(b)(1) is misplaced. Defendants’ challenges to the sufficiency of Plaintiffs’ complaint fall squarely under Rule 12(b)(6).

Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s claims. In reviewing such a motion, “[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the non moving party.”[2] To be assumed true, the allegations “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”[3] Dismissal for failure to state a claim can be based on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”[4] “Conclusory allegations of law . . . are insufficient to defeat a motion to dismiss.”[5]

To avoid dismissal, a plaintiff must plead facts sufficient to “‘state a claim to relief that is plausible on its face.’”[6] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[7] “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”[8] “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”[9] “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content, ’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”[10]

B. Rule 56

Plaintiffs’ motion seeks summary judgment under Rule 56. Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[11] The materiality requirement ensures that “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”[12] Ultimately, “summary judgment will not lie if the . . . evidence is such that a reasonable jury could return a verdict for the non moving party.”[13] However, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”[14]

The moving party has the burden of showing that there is no genuine dispute as to any material fact.[15] Where the nonmoving party will bear the burden of proof at trial on a dis positive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact.[16] Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial.[17] All evidence presented by the non-movant must be believed for purposes of summary judgment, and all justifiable inferences must be drawn in favor of the non-movant.[18] However, the non-moving party may not rest upon mere allegations or ...

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