United States District Court, D. Arizona
Honorable Rosemary Marquez United States District Judge.
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.Defendants filed a Reply on May 24, 2018.
(Doc. 58.) On June 7, 2018, Plaintiff filed a Surreply. (Doc.
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. (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.)
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.)
Notice of Claim states that the claims alleged therein can be
settled for $2, 500.000.00. (Doc. 23-2 at 11.)
Standard of Review
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.
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.
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.
Compliance with Requirements for Statements of Facts
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.
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 ...