United States District Court, D. Arizona
G. Campbell Senior United States District Judge
plaintiff Rafael Cezar Danam filed this action against the 18
members of the Arizona Board of Education, asserting various
state and federal claims and seeking more than $2 million in
damages. Doc. 25. Defendants have moved to dismiss
Plaintiff's first amended complaint on several grounds.
Doc. 36. The motion is fully briefed. Docs. 37, 39. As
explained below, Plaintiff must respond to this order by July
Plaintiff's first amended complaint nor his response to
Defendant's motion clearly explain the relevant factual
background for his claims. Defendant notes that
Plaintiff's “claims appear to arise out of the
Board's investigation and subsequent revocation of
Plaintiff's teaching license.” Doc. 36 at 2. An
exhibit attached to Plaintiff's original complaint also
refers to his termination and the revocation of his
substitute teacher certification. Doc. 1 at 9.
assert that Plaintiff failed to properly serve all
Defendants; Plaintiff fails to state a claim under Rule
12(b)(6); any defamation claims based on events before May
16, 2017 are barred by the statute of limitations in A.R.S.
§ 12-541; Defendants have absolute immunity pursuant to
A.R.S. § 12-820.01 for state law claims against them;
and Defendants are not liable for punitive damages.
Failure to Serve all Defendants.
governs service of the complaint and summons on parties. Rule
4(m) provides that if “a defendant is not served within
90 days after the complaint is filed, the court - on motion
or on its own after notice to the plaintiff - must dismiss
the action without prejudice against that defendant or order
that service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.”
Fed.R.Civ.P. 4(m). Thus, “Rule 4(m) requires a two-step
analysis in deciding whether or not to extend the prescribed
time period for the service of a complaint.” In re
Sheehan, 253 F.3d 507, 512 (9th Cir. 2001).
“First, upon a showing of good cause for the defective
service, the court must extend the time period. Second, if
there is no good cause, the court has the discretion to
dismiss without prejudice or to extend the time
period.” Id.; see also Tagata v. Schwarz
Pharma., Inc., No. CV 14-2238-TUC-JAS, 2014 WL 12642791,
at *1 (D. Ariz. Dec. 8, 2014).
assert that the Court must dismiss this action because
Plaintiff failed to serve a summons on Defendant Douglass and
failed to personally serve the remaining 17 Defendants within
90 days of filing his complaint on May 16, 2018. Doc. 36 at
3-4. Plaintiff has not filed notices of service as required
by Rule 4(1), and his response to the motion is unclear. He
states that the record shows “obstruction of
justice” by Defendants in receiving service, but he
also seems to argue that he executed proper service. Doc. 37
at 8-9. Plaintiff also requests an “extension for
confirmation of service by Fed. R. Civ. P (m)” without
explanation. Id. at 9. Plaintiff has failed to show
that he properly served Defendants under Rule 4, and the
Court will order Plaintiff to show good cause why an
extension should be granted and this action should not be
dismissed for lack of service. Doc. 37 at 8-9.
Plaintiff's pending motions states that he is now out of
the country for the month of June 2019 on active military
duty, and the Court will not require Plaintiff's showing
of good cause during that time. But the Court notes that this
is the third time Plaintiff has filed a notice of active
military service for the U.S. Air Force Reserve since the
beginning of this case. See Doc. 7 (orders from May
17, 2018 to October 15, 2018); Doc. 21 (November 4, 2018 to
March 30, 2019).
Court has taken several steps to confirm that Plaintiff
currently is a reserve member of the U.S. Armed Forces.
Between April 26 and May 2, 2019, the Court's staff
placed 15 calls to various numbers at Nellis Air Force Base.
Five calls were placed to Chief Master Sergeant Andy Weeks,
as identified in the letter filed by Plaintiff at Doc. 7,
page 5. The Court also attempted to locate Colonel Raymond
Tsui, whose signature appears on the same letter, but no
number was available for him. Phone calls were made to and
messages left for the First Sergeant of the 555 RHS, and no
call was returned. Phone calls were made to and messages left
for the First Sergeant of the 820th (the public affairs
office and the base operator at Nellis Air Force Base
identified the 820th as the unit to which the 555 RHS was
assigned), and no call was returned. The individual answering
the phone at the main number for the 820th had no knowledge
of anyone with the last name of Danam currently assigned to
the 555 RHS. Another person at the 820th, apparently named
“Snyder, ” also confirmed no knowledge of a
current member by the name of Danam. Calls were placed to the
Legal Office at Nellis Air Force Base as well as the Reserve
Legal Office at Nellis Air Force Base, but were not returned.
than Plaintiff's own assertions and the letter he filed,
the Court has no clear evidence, and has been unable to
confirm, that he is on reserve status or is deployed. Absent
such evidence, the Court will not continue to prolong this
litigation, especially given that Plaintiff has failed to
show that Defendants have been served and are properly
parties to this case. By Tuesday, July 16,
2019, Plaintiff must provide proof that he is on
reserve status and has been deployed during the periods he
has stated to the Court.
Dismissal Under Rule 12(b)(6).
successful motion to dismiss under Rule 12(b)(6) must show
either that the complaint lacks a cognizable legal theory or
fails to allege facts sufficient to support its theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss as
long as it contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim has facial plausibility when
“the plaintiff pleads factual content ...