United States District Court, D. Arizona
G. Campbell United States District Judge.
have filed a total of four motions to dismiss the two
separate amended complaints pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. Docs. 65,
66, 71, 73. The motions are fully briefed. Docs. 88, 89, 91,
97, 98, 100, 102, 103, 105. For the reasons discussed below,
the Court will grant the motions. The requests for oral
argument are denied because the issues have been fully
briefed and oral argument will not aid the Court's
decision. See Fed. R. Civ. P. 78(b); Partridge
v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
Maricopa County Superior Court Probate Action
Gomez stands at the factual heart of this case. In connection
with an ongoing conservatorship/guardianship matter brought
in Maricopa County Superior Court (PB2015-091767), Catalina
was found incompetent. Doc. 60, ¶ 11. On July 6, 2016,
Southwest Fiduciary (“SWF”) was appointed as
Catalina's conservator, Brian J. Theut was appointed as
her counsel, and Yvette Banker, of the Banker Law Office
PLLC, was appointed as her guardian ad litem. Id.,
October 2016, SWF filed an initial inventory and appraisement
regarding Catalina's property, and identified a
commercial parcel located at 202 E. Broadway Road in Mesa,
Arizona (the “Property”). Id., ¶
14. SWF's inventory assessment estimated the value of the
Property at about $290, 000, and also identified a deed of
trust on the Property securing a $175, 000 loan made to
Catalina in 2015. Id., ¶ 15.
March or April of 2016, the beneficiary of the deed of trust,
Dafni LLC, recorded a notice of trustee's sale on the
Property. Id., ¶ 17. On September 30, 2016, the
trustee's sale occurred and Dafni purchased the Property
with a credit bid of $179, 118.16. Id., ¶ 18.
On October 4, 2016, the trustee executed a trustee's deed
conveying the Property to Dafni. Id., ¶ 19.
Plaintiffs allege that Defendants failed to take any action
to avoid the trustee's sale. Id., ¶ 24.
October 27, 2016, Ms. Banker filed a motion for discharge as
the guardian ad litem, and was subsequently discharged from
her responsibilities. Id., ¶ 20. Plaintiffs
allege that Ms. Banker, in her motion for discharge, asserted
that SWF had evaluated the Property and determined there was
no value in excess of encumbrances. Id., ¶ 21.
Plaintiffs note that this assertion contradicts SWF's
October 18, 2016 filing stating that the Property had more
than $100, 000 in equity. Id., ¶ 23.
December 5, 2016, Raymond Gomez filed the initial complaint
in this action, pro se, on behalf of himself and seven other
Plaintiffs, including Catalina Gomez, Jesus Gomez, Tony
Gomez, Maria Helena Gomez, Maria Consuelo Gomez, Maria Luz
Cabaleiro [sic], and Felicia Rea Gomez. Doc. 1. After
Defendants' counsel met and conferred with the
Plaintiffs, Plaintiffs agreed to file an amended complaint.
See, e.g., Doc. 71 at 2.
January 30, 2017, a pro-se amended complaint was filed on
behalf of “Gomez ” and was signed by Raymond
Gomez, Tony Gomez, Felicia Rea Gomez, Maria Luz Caballero,
and Maria Gomez. Doc. 57
(“RG-Complaint”). On February 1, 2017, a separate
amended complaint was filed by counsel on behalf of Jesus
Gomez, as guardian of Catalina Gomez. Doc. 60
(“CG-Complaint”). Both amended complaints named
multiple Defendants, including the State of Arizona, Governor
Ducey, Terri Clarke, Gregory Dovico, Peggy Dovico, Southwest
Fiduciary Incorporated, Brian J Theut, the law firm of Theut
Theut & Theut PC, and Yvette Banker. Docs. 57, 60.
parties later stipulated to dismiss the State of Arizona,
Governor Ducey, Terri Clarke, Gregory Dovico, Peggy Dovico,
and Southwest Fiduciary, Inc. Docs. 84, 101. The remaining
Defendants, Theut and Banker, now seek dismissal under Rules
12(b)(1) and 12(b)(6). Docs. 65, 66, 71, 73.
subject-matter jurisdiction may be raised at any time by the
parties or the Court. Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434 (2011). “A Rule
12(b)(1) jurisdictional attack may be facial or factual. In a
facial attack, the challenger asserts that the allegations
contained in a complaint are insufficient on their face to
invoke federal jurisdiction.” Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When
considering a facial attack, the Court takes the allegations
in the plaintiff's complaint as true. Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004). The party
invoking the Court's jurisdiction has the burden of
establishing it. Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016).
Constitution limits the jurisdiction of the federal courts to
“Cases” and “Controversies.” U.S.
Const. art. III, § 2. “No principle is more
fundamental to the judiciary's proper role in our system
of government.” Raines v. Byrd, 521 U.S. 811,
818 (1997) (citation omitted). In order to show that a case
or controversy exists, a plaintiff must establish that he has
standing to bring suit. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560-61 (1992). A plaintiff has standing if he
(1) “has suffered an ‘injury in fact' that is
(a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3)
it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180-81 (2000). “If a
plaintiff lacks Article III standing to bring a suit, the
federal court lacks subject matter jurisdiction and the suit
must be dismissed under Rule 12(b)(1).” Dunn v.
Haag, No. 16-CV-00792-JST, 2017 WL 818863, at *2 (N.D.
Cal. Mar. 2, 2017).
Failure to State a Claim.
successful motion to dismiss under Rule 12(b)(6) must show
either that the complaint lacks a cognizable legal theory or
fails to allege facts sufficient to support its theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss if
it contains “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) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). 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.” Id.,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
“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.” Id. (citing Twombly, 550
U.S. at 556).
RG-Complaint generally asserts that Defendants have (1)
violated the RG-Plaintiffs' constitutional rights
protected by the First, Fifth, Thirteenth, and Fourteenth
Amendments, and (2) violated several federal laws, including
the Civil Rights Act of 1983, 1964, 1986, and the Americans
with Disabilities Act. Doc. 57, ¶ 2. Defendants move to
dismiss the RG-Complaint for failure to state a claim and
lack of standing. Docs. 65, 66. The RG-Complaint asserts the
following factual allegations against the Theut Defendants:
(1) Brian Theut had no contact with Raymond before an
unspecified hearing, despite contacting other children of
(2) Another attorney at Theut law firm promised Raymond that
the law firm would keep in contact ...