United States District Court, D. Arizona
ORDER
Honorable Rosemary Marquez United States District Judge.
Pending
before the Court is a Motion for Reconsideration filed by
Defendants Daniel Barry (“Barry”), Gary Parrish
(“Parrish”) and Scott Glass (“Glass”)
(collectively, “Defendants”). (Doc. 68.)
Defendants ask the Court to reconsider its prior finding that
a material factual dispute precludes summary judgment on the
issue of whether Plaintiff properly served Barry, Parrish,
and Glass with a notice of claim pursuant to Arizona's
notice-of-claim statute, A.R.S. § 12-821.01. The Court
ordered Plaintiff to respond to the Motion (Doc. 69), but she
failed to file a written Response and the deadline for doing
so has expired. The Court held a hearing on October 4, 2018,
at which both Plaintiff and counsel for Defendants argued
their respective positions. (Doc. 78.)
I.
Background
On
January 19, 2018, Defendants filed a Motion for Partial
Summary Judgment arguing, in relevant part, that
Plaintiff's state-law claims are barred by A.R.S. §
12-821.01 because Plaintiff failed to properly serve copies
of her notice of claim on Barry, Parrish, and Glass. (Doc. 22
at 2-3.)[1] In ruling on the Motion, the Court
recognized that A.R.S. § 12-821.01 requires a person
with a claim against a public employee to mail a notice of
the claim to a person authorized to accept service for the
public employee. (Doc. 66 at 5-6.) The Court also recognized
that, pursuant to Rule 4.1 of the Arizona Rules of Civil
Procedure, service of a document upon an individual may be
accomplished by delivering a copy of the document to the
individual personally or to an agent authorized by
appointment or by law to receive service of process.
(Id. at 6.) The Court then found that, although
Plaintiff did not mail copies of her notice of claim to
Barry, Parrish, or Glass personally, there was a material
factual dispute regarding whether she mailed them to an
authorized agent. (Id. at 7-9.) In so finding, the
Court noted that Plaintiff mailed copies of her notice of
claim addressed to Barry, Parrish, Glass, and the City of
Tucson to the Tucson City Clerk, that the Tucson City Clerk
followed procedures specified in the City of Tucson Risk
Management Policy, Administrative Directive # 3.06-1, with
respect to documenting Plaintiff's notice of claim
against the City of Tucson and forwarding it to the City
Attorney, that the notice of claim forwarded to the City
Attorney listed Barry, Parrish, and Glass as defendants, that
the City Attorney now represents Barry, Parrish, and Glass in
this action, and that the Risk Management Policy specifies
that the Tucson City Clerk receives notification of all
claims against not only the City but also its employees.
(Id. at 2, 7-9.)
II.
Legal Standard
Motions
for reconsideration should be granted only in rare
circumstances. See Defenders of Wildlife v. Browner,
909 F.Supp. 1342, 1351 (D. Ariz. 1995).
“Reconsideration is appropriate if the district court
(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” School Dist. No. 1J, Multnomah
Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993); see also LRCiv 7.2(g) (motions for
reconsideration will ordinarily be denied “absent a
showing of manifest error or a showing of new facts or legal
authority that could not have been brought to [the
Court's] attention earlier with reasonable
diligence”). Motions for reconsideration should not be
used for the purpose of asking a court “to rethink what
the court had already thought through-rightly or
wrongly.” Defenders of Wildlife, 909 F.Supp.
at 1351 (internal quotation marks omitted); see also
LRCiv 7.2(g) (motions for reconsideration shall not
“repeat any oral or written argument made by the movant
in support of or in opposition to the motion that resulted in
the Order”). Mere disagreement with a previous order is
an insufficient basis for reconsideration. See Leong v.
Hilton Hotels Corp., 689 F.Supp. 1572, 1573 (D. Haw.
1988).
III.
Discussion
In
their Motion for Reconsideration, Defendants ask the Court to
reconsider its ruling that a material factual dispute
precludes summary judgment on the issue of whether Plaintiff
properly served her notice of claim on Barry, Parrish, and
Glass. (Doc. 68.) Defendants argue that there is no factual
dispute that the Risk Management Policy states that the
Tucson City Clerk receives notification of all claims against
the City and its employees; however, Defendants argue that
this language does not appoint the Tucson City Clerk as an
authorized agent for the purpose of service of notices of
claims. (Id. at 3-5.) Defendants argue that, even if
the Tucson City Clerk receives notification of all claims
against City employees, A.R.S. § 12-821.01 and Ariz. R.
Civ. P. 4.1(d) require service on authorized agents rather
than “someone who may just receive notification of the
notice of claim.” (Id. at 5.) Defendants point
out that Appendix B to the Risk Management Policy contains a
form for filing a notice of claim against the City of Tucson,
and that the form specifically states that the Tucson City
Clerk “may not accept service of claims or lawsuits
filed against individual employees or their spouses.”
(Id.; see also Doc. 68-2 at 21.) Defendants
also argue that, even if the language in the Risk Management
Policy could be construed as attempting to appoint the Tucson
City Clerk as an agent authorized to accept service of
notices of claims on behalf of city employees, as a matter of
law an agent cannot confer authority upon itself; “the
authority must come from the actions of the principal.”
(Doc. 68 at 6.) Finally, Defendants argue that the City
Attorney's receipt of the notice of claim and subsequent
representation of Defendants in this matter is insufficient
as a matter of law to constitute compliance with A.R.S.
§ 12-821.01 and Ariz. R. Civ. P. 4.1(d), because
Defendants were not represented by the City Attorney when the
Tucson City Clerk forwarded the notice of claim to the City
Attorney's Office, and Defendants had not authorized the
City Attorney at that point in time to accept service on
their behalf. (Id. at 6-8.)
As an
initial matter, the Court finds that Defendants did not have
a prior opportunity to respond to Plaintiff's arguments
concerning the City of Tucson Risk Management Policy because
Plaintiff referred to the Risk Management Policy for the
first time in a surreply filed without leave of
Court.[2] The Court also finds that Defendants have
shown in their Motion for Reconsideration that the Tucson
City Clerk is not an authorized agent for purposes of service
of notices of claims against individual City employees. As
the Court previously noted, the Risk Management Policy
specifies that the Tucson City Clerk receives notification of
all claims against the City of Tucson as well as its
employees; however, this language is insufficient to show
that the Tucson City Clerk is “an agent authorized by
appointment or by law to receive service of process” on
behalf of individual City employees. See Ariz. R.
Civ. P. 4.1(d)(3). Furthermore, as Defendants point out,
Appendix B to the Risk Management Policy specifically states
that the Tucson City Clerk “may not accept service of
claims or lawsuits filed against individual employees.”
(Doc. 68-2 at 21.)
The
parties have not identified any law authorizing the Tucson
City Clerk to accept service of notices of claims against
individual City employees, and the Court is not aware of any.
Defendants have presented affidavits from Barry, Parrish, and
Glass averring that they did not appoint the Tucson City
Clerk as an agent authorized to accept service of notices of
claims on their behalf and that they were never served with a
notice of claim from Plaintiff. (Doc. 23-2 at 13-14, 16-17,
19-20.) Defendants have shown that Barry, Parrish, and Glass
had not consented to representation by the City Attorney at
the time the Tucson City Clerk forwarded a copy of
Plaintiff's notice of claim to the City Attorney. (Doc.
68-2 at 24-32; see also Doc. 68-2 at 34-36.)
Plaintiff
was represented by an attorney at the time she mailed copies
of her notice of claim to the Tucson City Clerk. During the
October 4, 2018 hearing, she averred that the attorney
representing her at that time assured her that the notices of
claim had been properly served. Although the Court is
sympathetic to Plaintiff's predicament, Arizona law is
clear that strict compliance with A.R.S. § 12-821.01 is
required and that neither substantial compliance nor actual
notice is sufficient. Falcon ex rel Sandoval v. Maricopa
Cnty., 144 P.3d 1254, 1256 (Ariz. 2006). Plaintiff's
former attorney failed to strictly comply with A.R.S. §
12-821.01. As a result, Plaintiff's state-law claims
against Barry, Parrish, and Glass are barred. See Falcon
ex rel Sandoval, 144 P.3d at 1256 (“If a notice of
claim is not properly filed within the statutory time limit,
a plaintiff's claim is barred by statute.”).
IT
IS ORDERED that Defendants' Motion for
Reconsideration (Doc. 68) is granted. The
portion of the Court's July 30, 2018 Order finding a
material factual issue as to whether Plaintiff properly
served her notice of claim on Barry, Parrish, and Glass (Doc.
66 at 5-9) is vacated.
IT
IS FURTHER ORDERED that Defendants' Motion for
Partial Summary Judgment (Doc. 22) is
granted as to the issue of whether Plaintiff
properly served her notice of claim on Barry, Parrish, and
Glass. The Court grants summary judgment in favor of
Defendants on Plaintiffs ...