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Ludwig v. State

United States District Court, D. Arizona

March 6, 2017

Aaron Ludwig, Plaintiff,
v.
State of Arizona and Donald Conrad, Defendants.

          ORDER

          DAVID G. CAMPBELL UNITED STATES DISTRICT JUDGE.

         Defendants 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.

         I. Background.

         Plaintiff 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.

         On May 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.

         Later 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., ¶¶ 194-95.

         On 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

         II. Legal Standard.

         Dismissal 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).

         III. Analysis.

         A. Defendants' motion is not premature.

         Rule 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. 2005).

         B. Arizona's Notice of Claim Statute - A.R.S. § 12-821.01.

         Under 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 ...


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