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Gale-Lawrence v. City of Tempe

United States District Court, D. Arizona

April 4, 2017

Gale-Lawrence; Webb, Plaintiff,
v.
City of Tempe, Defendant.

          ORDER

          David G. Campbell, United States District Judge

         Plaintiff, “Gale-Lawrence; Webb, ” filed a complaint against Defendant City of Tempe seeking monetary relief for an alleged violation of Plaintiff's rights under the Thirteenth and Fourteenth Amendments to the United States Constitution. Doc. 1. Defendant has filed a motion to dismiss pursuant to Rule 12(b)(7) of the Federal Rules of Civil Procedure. Doc. 15. The motion is fully briefed (Docs. 15, 19, 20), and neither party has requested oral argument. For the reasons set forth below, the Court will grant Defendant's motion to dismiss without prejudice.[1]

         I. Background.

         Plaintiff resides in a single family home on a fenced lot in Tempe, Arizona. Doc. 1, ¶ 2. The lot is bordered by Cairo Drive, two single family homes, and a public alley. Id. Plaintiff has received several notices stating that he has violated Tempe City Code Sections 29-2 and 21-3.b.8, and requesting that he take certain ameliorative action. Doc. 1 at 6-13 (Exhibits 1-7). Section 29-2 requires “all persons to keep the sidewalks in front of the premises owned, occupied or controlled by them and the land that lies between the back of the curb and the right-of-way on the side of the street on which their premises are located in good repair and free and clear of all grass, weeds and rubbish.” Section 21-3.b.8 similarly provides that the following constitutes an actionable nuisance:

Any landscaping, visible from public property, that is substantially dead, damaged, or characterized by uncontrolled growth, or presents a deteriorated or slum-like appearance; uncultivated plants, weeds, tall grass, uncultivated shrubs or growth (whether growing or otherwise) higher than twelve (12) inches; or any dead trees, bushes, shrubs or portions thereof, including stumps; or any palm or similar type tree having dead or dry fronds descending downward from the base of the lowest living frond more than eight (8) feet or dry fronds longer than five (5) feet and closer than eight (8) feet to the ground.[2]

         Plaintiff appears to have violated the identified sections of the Tempe City Code by failing to remove weeds and debris from the alley adjacent to his home and overgrown weeds and plants from his property. Id. Plaintiff alleges that, in response to threats of civil citations and criminal charges, he spent seventeen hours working in his yard and the adjacent alley to comply with the ordinances, resulting in a left leg joint stress that limited his ability to walk. Id., ¶ 8. He argues that this amounts to involuntary servitude or slavery in violation of the Constitution. Id. Plaintiff alleges that a $185.00 fine was added to his water and utility bill in response to his violation of the relevant sections of the Tempe City Code. Id., ¶ 13. He seeks removal of the $185.00 fee and any related record, as well as compensatory and punitive damages for “emotional distress, improper cost, legal cost, and wasted time.” Id., ¶¶ 13, 15.

         II. Analysis.

         Defendant asks the Court to dismiss Plaintiff's claim pursuant to Rule 12(b)(7) for failure to join the State of Arizona as a party. Doc. 15 at 1. In the alternative, Defendant asks the Court to order Plaintiff to join the State of Arizona and stay the case until Plaintiff has done so. Id. Rule 12(b)(7) allows dismissal of an action for failure to join a necessary and indispensable party under Rule 19. Rule 19 provides:

a three-step process for determining whether the court should dismiss an action for failure to join a purportedly indispensable party. First, the court must determine whether the absent party is “necessary[.]” . . . If the absent party is “necessary, ” the court must determine whether joinder is “feasible.” Finally, if joinder is not “feasible, ” the court must decide whether the absent party is “indispensable, ” i.e., whether in “equity and good conscience” the action can continue without the party.

United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999) (citations omitted); see also Paiute-Shoshone Indians of Bishop Cmty. of Bishop Colony, Cal. v. City of Los Angeles, 637 F.3d 993, 997 (9th Cir. 2011). Defendant contends that the State of Arizona is a required party because, absent joinder, Defendant “will be subjected to a substantial risk of inconsistent obligations.” Doc. 15 at 4. Neither party addresses the issues of feasibility or indispensability.[3]

         A. Required Party.

         Rule 19 defines a person or entity as a “required” party if he is subject to service of process and his joinder will not deprive the court of subject matter jurisdiction. Additionally, at least one of the following conditions must be met:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in ...

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