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Vargas v. Snowflake Unified School District No. 5

United States District Court, D. Arizona

June 20, 2017

Oscar Vargas, Plaintiff,
v.
Snowflake Unified School District No. 5 and Hollis Merrill, Defendants.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court is a motion to dismiss the first amended complaint. Defendants raise 4 arguments why the amended complaint should be dismissed. The Court will address each argument in turn.

         I. Service of Process

         Defendants argue the amended complaint should be dismissed, with prejudice, because the Defendants were not properly served.

         A. Defendant Hollis Merrill

         Notwithstanding the fact that Defendants seek dismissal of this entire action, with prejudice, for lack of service of process, Defendants make no argument that Defendant Hollis Merrill was not served. Accordingly, the Court finds this Defendant was served. (See Doc. 5-1 at 2).

         B. Defendant Snowflake Unified School District No. 5

         Defendants next argue that Snowflake Unified School District No. 5 (hereinafter “the District”) has not been served. Under Arizona law, the District may be served by serving the entire governing board, Batty v. Glendale Union High Sch. Dist. No. 205, 212 P.3d 930, 933-34 (Ariz.Ct.App. 2009), or by serving “the official secretary, clerk or recording officer of the entity as established by law.” Ariz. R. Civ. P. 4.1(h).

         In this case, the District has 5 board members: Carol Palmer, Cory Johnson, Carole Owens, Charles Foote and Shea Flake. It is undisputed that Plaintiff served the first 3 listed members; and further undisputed that Plaintiff did not serve the last two listed members. Plaintiff did however serve Hollis Merrill, the school superintendent. Plaintiff also served Tohna L. Rogers, secretary of/to the board, at a public school board meeting. (Doc. 5-1 at 6).

         Plaintiff argues that he adequately served the board because he served the secretary of the board (Tohna Rogers) as is permitted under Arizona Rule of Civil Procedure 4.1(h). Defendant concedes that serving Tohna Rogers would be adequate to serve the board if she were the official secretary of the board. (Doc. 14 at 2). However, Defendants argue that Ms. Rogers is not an “official” secretary of the board but merely a secretary to the board. Further, Defendants argue that they have no official secretary, clerk or recording officer who can accept service of process.

         Defendants' version of the facts as to what Ms. Rogers' official position is may be true behind the scenes. However, publically, Defendants present a much difference appearance. For example, the public minutes Defendants attach to show the names of the board members (Doc. 12-1 at 4) are prepared for the signature of “Tohna L. Rogers, Secretary to the Governing Board”; and require the signature of Ms. Rogers to certify that the minutes are correct. Further, Ms. Rogers was served, as secretary to the board, at a public meeting of the board and apparently no one made any effort to advise the process server that she was not authorized to accept service for the board, nor did she refuse service because she was not authorized to accept it.

         Faced with similar facts, another Court in this district found as follows:

Prescott Unified School District (“District”) contends that Bacon-Dorow failed to properly serve the District's chief executive officer, which it contends is the governing board, because service on an individual board member is insufficient and the District does not have an individual designated pursuant to statute to receive service of process, an official secretary, a clerk, or a recording officer. Instead, Bacon-Dorow served the Summons and Complaint on Andi Mayer, Assistant to the Governing Board, who “told counsel that the school board did not have a clerk, but that she functioned as the secretary to the board and was the person tasked with receiving claims, process, and the like on behalf of the board.” (Doc. 12-1, Affidavit of Counsel.) Ms. Mayer was the de facto Secretary of the Governing Board, and the District received actual notice. Therefore, the service was sufficient.

Bacon-Dorow v. Prescott Unified Sch. Dist., No. CV-13-08039-PCT-NVW, 2013 WL 5837543, at *1 (D. Ariz. Oct. ...


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