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Rodriguez-Wakelin v. Barry

United States District Court, D. Arizona

July 30, 2018

Anita Rodriguez-Wakelin, Plaintiff,
v.
Daniel Barry, et al., Defendants.

          ORDER

          Honorable Rosemary Marquez United States District Judge.

         On January 19, 2018, Defendants Daniel Barry (“Barry”), Gary Parrish (“Parrish”), and Scott Glass (“Glass”) (collectively, “Defendants”) filed a Motion for Partial Summary Judgment (Doc. 22) and a separate Statement of Facts in support thereof (Doc. 23). Plaintiff Anita Rodriguez-Wakelin (“Plaintiff”) filed a Response on April 26, 2018 (Doc. 49) and a separate Statement of Facts (Doc. 51) the following day.[1]Defendants filed a Reply on May 24, 2018. (Doc. 58.) On June 7, 2018, Plaintiff filed a Surreply. (Doc. 59.)[2]

         I. Facts

         On April 10, 2017, City of Tucson mail room clerk Ray Corral (“Corral”) signed for the delivery of several items of certified mail sent to 255 W. Alameda, Tucson, AZ 85701. (Doc. 51-2 at 1-2; see also Doc. 58 at 3; Doc. 58-1 at 2.) The items that Corral signed for were addressed to the Tucson City Clerk, Barry, Parrish, and unnamed TPD officers.[3] (Doc. 51-2 at 1-2.) Corral submitted an affidavit stating that, while he is authorized to accept certified mail sent to the address 255 W. Alameda, he is not authorized to accept service on behalf of Barry, Parrish, or Glass. (Doc. 58-1 at 1-2.)

         Also on April 10, 2017, Deputy City Clerk Ana Juarez (“Juarez”) accepted service of a Notice of Claim on behalf of the City of Tucson. (Doc. 23 at 1; Doc. 23-2 at 2-3, 5.) The Notice of Claim indicates that it was sent via certified mail to the Tucson City Clerk as well as to Barry, Parrish, and Glass c/o the Tucson City Clerk. (See Doc. 23-2 at 7.) Juarez documented that a Notice of Claim had been received on behalf of the City of Tucson. (Id. at 2-3, 5.) The documentation form indicates that courtesy copies of the Notice of Claim were sent via email to the Risk Manager and City Attorney. (Id. at 5.) In an affidavit, Juarez avers that she is authorized to accept service on behalf of the City of Tucson but that she is not authorized to accept service on behalf of Barry, Parrish, or Glass. (Id. at 2-3.) Barry, Parrish, and Glass also aver in affidavits that they never authorized the Tucson City Clerk to accept service on their behalf in any matters and they were never served with a Notice of Claim from Plaintiff. (Id. at 13-14, 16-17, 19-20.) Plaintiff disputes whether Barry, Parrish, and Glass authorized anyone to accept a notice of claim on their behalf, and she avers that both the Risk Manager and City Attorney are responsible for serving city employees and were notified of her Notice of Claim. (Doc. 51 at 2.)

         The Notice of Claim states that the claims alleged therein can be settled for $2, 500.000.00. (Doc. 23-2 at 11.)

         II. Standard of Review

         Summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine if the evidence is such that a reasonable trier of fact could resolve the dispute in favor of the nonmoving party. Id. In evaluating a motion for summary judgment, the court must “draw all reasonable inferences from the evidence” in favor of the party opposing summary judgment. O'Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1150 (9th Cir. 2002). A reasonable inference is one which is supported by “significant probative evidence” rather than “threadbare conclusory statements.” Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680-81 (9th Cir. 1985) (internal quotation omitted). If “the evidence yields conflicting inferences [regarding material facts], summary judgment is improper, and the action must proceed to trial.” O'Connor, 311 F.3d at 1150.

         The party moving for summary judgment bears the initial burden of identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal citation and emphasis omitted); see also Fed. R. Civ. P. 56(c)(1).

         III. Discussion

         In their Motion for Partial Summary Judgment, Defendants argue (1) that Plaintiff's claims are barred under A.R.S. § 12-821.01 because Barry, Parrish, and Glass were not properly served with a Notice of Claim; (2) that the Notice of Claim served on the Tucson City Clerk was deficient because it did not include a sum certain for which each defendant could settle; and (3) that Plaintiff's claims arising from the search and seizure of her son are barred by the statute of limitations. Defendants subsequently withdrew their argument concerning the statute of limitations. (Doc. 58 at 5-6.) Accordingly, the Court will address only the first two arguments.

         A. Compliance with Requirements for Statements of Facts

         As an initial matter, both parties dispute the adequacy of the opposing party's Statement of Facts. Plaintiff points out that Defendants' Statement of Facts addresses only the issue of service of the Notice of Claim and does not address Defendants' sum-certain argument. (Doc. 51 at 2.) Although it is true that Defendants' Statement of Facts fails to include any specific statements supporting their sum-certain argument (see Doc. 23), Defendants attached a copy of Plaintiff's Notice of Claim as an exhibit to their Statement of Facts (Doc. 23-2 at 7-11), and the Notice of Claim is the only evidence needed to resolve the sum-certain argument. Accordingly, the Court addresses the merits of Defendants' sum-certain argument below.

         Defendants dispute whether Plaintiff filed a proper controverting Statement of Facts. (Doc. 58 at 1-3.) The Local Rules require any party opposing a motion for summary ...


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