United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
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.
Service of Process
argue the amended complaint should be dismissed, with
prejudice, because the Defendants were not properly served.
Defendant Hollis Merrill
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).
Defendant Snowflake Unified School District No. 5
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).
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).
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.
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.
with similar facts, another Court in this district found as
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.