United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE.
Donald Conrad and the State of Arizona have filed a motion
for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c), asking the Court to dismiss Counts 1, 2, 4,
and 5 of Plaintiff Aaron Ludwig's complaint. Doc. 12. The
motion is fully briefed. Docs. 19, 26. No party requests oral
argument. The Court will deny the motion.
was employed by the Arizona Attorney General's Office
(AGO) as an Assistant Attorney General. Doc. 1, ¶ 12. In
January 2015, Plaintiff was reprimanded by his superior,
Defendant Conrad. Id., ¶ 13. Two days later,
Plaintiff was given the choice of resigning his position or
being fired. Id., ¶ 14. On January 30, 2015,
Plaintiff resigned and physically handed over his official
AGO badge and credentials to Conrad. Id., ¶ 15.
1, 2015, Plaintiff, in an attempt to help his friend retrieve
a towed vehicle, became involved in a dispute with the towing
company's owner. Id. ¶¶ 44-113. During
the dispute, Plaintiff presented his old business card to the
towing company, which identified him as "Chief of the
Financial Remedies Section of the Attorney General's
Office." Id., ¶¶ 82-83, 113.
Plaintiff ultimately secured the release of his friend's
vehicle. M, ¶¶ 108-10.
that day, the towing company owner called the AGO, objecting
to the "agent" who "laid his badge on the
counter" and was "using [his] color of authority to
intimidate people." Id., ¶¶ 114, 123.
The owner's call led to an investigation by the AGO and
resulted in Plaintiff being charged with Criminal
Impersonation. Id., ¶¶ 124, 158. Plaintiff
was served with a criminal summons on August 3, 2015.
Id., ¶ 157. At the urging of Plaintiffs
attorney, the Maricopa County Attorney's Office (MCAO)
conducted an "investigation into the bona fides of the
charge against [Plaintiff]." Id., ¶ 192.
On October 22, 2015, following the investigation, the charges
against Plaintiff were dismissed. Id., ¶¶
April 19, 2016, Plaintiff filed a notice of claim with the
authorized service recipient at the AGO's main office.
Doc. 19 at 1. It is undisputed that Plaintiff did not deliver
a notice of claim to Defendant Conrad personally. See
id.; Doc. 12 at 2. On October 20, 2016, Plaintiff filed
this action in Maricopa County Superior Court. Doc. 1-1 at 1.
Plaintiff alleged six counts: (1) malicious prosecution, (2)
abuse of process, (3) deprivation of civil rights under color
of state law, (4) liability under the theory of respondeat
superior, (5) malicious abuse of discretion, and (6)
violation of civil rights. Id., ¶¶218-64.
Defendants removed the action to this Court. Doc.1
under Rule 12(c) is proper when "the moving party
clearly establishes on the face of the pleadings that no
material issue of fact remains to be resolved." Hal
Roach Studios, Inc. v. RichardFeiner & Co., Inc.,
896 F.2d 1542, 1550 (9th Cir. 1989). The Court applies the
"same standard of review" in ruling on a 12(c)
motion as a Rule 12(b)(6) motion. Dworkin v. Hustler
Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).
Dismissal is appropriate if the complaint does not contain
"sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted).
Defendants' motion is not premature.
12(c) states that "after the pleadings are closed ... a
party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c). Plaintiff argues that Defendants'
motion is premature because Plaintiff may still be permitted
to amend his complaint, and thus the pleadings are not yet
closed. Doc. 19 at 9. Plaintiff is incorrect. "[T]he
pleadings are closed for the purposes of Rule 12(c) once a
complaint and answer have been filed, assuming, as is the
case here, that no counterclaim or cross-claim is made."
Doe v. United States, 419 F.3d 1058, 1062 (9th Cir.
Arizona's Notice of Claim Statute - A.R.S. §
Arizona's notice of claim statute, "[p]ersons who
have claims against a public entity, public school or a
public employee shall file claims with the person or persons
authorized to accept service for the public entity, public
school or public employee as set forth in the Arizona rules
of civil procedure within one hundred eighty days" of
when the action accrues. A.R.S. § 12-821.01(A). A
claimant must serve both the employer and individual employee
in accordance with the Arizona rules of civil procedure.
Id.; Harris v. Cochise Health Sys.,160 P.3d ...