Raysene Hall v. Antonio Apodaca, et al.

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Raysene Hall, No. CV-25-00139-TUC-JCH 10 Plaintiff, ORDER 11 v. 12 Antonio Apodaca, et al., 13 Defendants. 14 15 Before the Court is pro se Plaintiff Raysene Hall’s (“Plaintiff”) Motion for Leave to 16 File a Second Amended Complaint (Doc. 34), Motion for Leave to File Third Amended 17 Complaint (Doc. 49), and Motion Under Rule 56(d) for Extension to Conduct Discovery 18 (Doc. 48). Also before the Court is Defendants Antonio Apodaca (“Apodaca”), Jeffrey 19 Glesinger (“Glesinger”), Jesse Giles (“Giles”), and Jennifer Hawkins’ (“Hawkins”) 20 (together, “Officers”) Motion for Partial Summary Judgment (Doc. 28). 21 The Court decides the matter without oral argument under District of Arizona Local 22 Rule of Civil Procedure (“LRCiv.”) 7.2(f). For the following reasons, the Court denies 23 Plaintiff’s motions (Doc. 34, 48, and 49), and grants Officers’ Motion for Partial Summary 24 Judgment (Doc. 28). 25 I. Procedural Background 26 Plaintiff filed her original Complaint on February 26, 2025, against the Tucson 27 Police Department and Apodaca. (Doc. 1.) The original Complaint was removed to this 28 Court on March 26, 2025, under 28 U.S.C. § 1441 and LRCiv. 3.6. (Id.) Defendant 1 Apodaca answered the original Complaint on April 4, 2025. (Doc. 4.) Plaintiff filed her 2 first Motion to Amend/Correct the Complaint on April 17, 2025 (Doc. 8), which this Court 3 denied for failure to comply with LRCiv. 15.1 (Doc. 10). 4 Plaintiff then filed her First Amended Complaint (“FAC”) with leave of the Court 5 on June 2, 2025 (Doc. 19). The FAC alleges that on December 20, 2024, Plaintiff was 6 involved in an altercation with the Officers in which she was tackled and handcuffed and 7 suffered injuries. (Doc. 19.) Plaintiff named the Officers and the City of Tucson (“COT”) 8 as Defendants. (Id.) All Defendants jointly filed their Answer to the FAC (“Answer”) on 9 June 16, 2025. (Doc. 20.) 10 On June 26, 2025, the Court issued a Scheduling Order setting August 25, 2025, as 11 the deadline to amend the Complaint. (Doc. 26.) On July 11, 2025, the Officers filed a 12 Motion for Partial Summary Judgment, seeking to dismiss Plaintiff’s state law claims 13 against the Officers for failure to comply with the notice of claim requirements in A.R.S. § 12-821.01. (Doc. 28.) 14 Then, on July 25, 2025, Plaintiff filed her Response to Officers’ Motion for Partial 15 Summary Judgment (Doc. 33) and a Motion for Leave to File Second Amended Complaint 16 (Doc. 34). On August 29, 2025, the Officers filed their Reply to Plaintiff’s Response (Doc. 17 39), and a Response in Opposition to Plaintiff’s Motion for Leave to File Second Amended 18 Complaint (Doc. 41). 19 Finally, on September 19, 2025, Plaintiff filed a Motion under Rule 56(d) for 20 Extension to Conduct Discovery (Doc. 48), and Motion for Leave to File a Third Amended 21 Complaint (Doc. 49). 22 This Order first addresses Plaintiff’s motions to amend her FAC, then Plaintiff’s 23 motion under Rule 56(d), and finally Officers’ Motion for Partial Summary Judgment. 24 II. Motions to Amend FAC 25 a. Standard of Review 26 A plaintiff wishing to amend her complaint must first comply with the filing 27 requirements in LRCiv. 15.1. Then, typically Federal Rule of Civil Procedure (“Rule”) 15 28 governs amended pleadings. Under Rule 15(a)(2), a court “should freely give leave [to 1 amend pleadings] when justice so requires.” Courts apply this policy with “extreme 2 liberality” to facilitate decisions on the merits, rather than on the pleadings or technicalities. 3 See Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014). Nonetheless, 4 a district court has discretion in granting leave and considers five factors in “assessing the 5 propriety of leave to amend—bad faith, undue delay, prejudice to the opposing party, 6 futility of amendment, and whether the plaintiff has previously amended the complaint.” 7 United Bhd. of Carpenters & Joiners of Am. v. Bldg. & Const. Trades Dep’t, AFL-CIO, 8 770 F.3d 834, 845 (9th Cir. 2014) (quoting United States v. Corinthian Colleges, 655 F.3d 9 984, 995 (9th Cir.2011)). But courts apply an especially permissive standard in granting 10 leave to amend where, as here, the plaintiff is pro se. Flowers v. First Hawaiian Bank, 295 11 F.3d 966, 976 (9th Cir. 2022). 12 However, if the court-ordered deadline for amending pleadings has passed, Rule 16 13 governs, rather than Rule 15. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Rule 16(b) provides that a “scheduling order shall not be modified 14 except by leave of court and upon a showing of good cause.” Fed. R. Civ. P. 16(b). For 15 purposes of Rule 16, “good cause” means the scheduling deadlines cannot be met despite 16 the party’s diligence. Johnson, 975 F.2d at 609. Thus, when a party seeks to amend the 17 complaint after the deadline for amendment has passed, the moving party must first show 18 “good cause” for modification of the scheduling order under Rule 16(b), then the party 19 must show the amendment is proper under Rule 15. Id. at 608. 20 b. Neither of Plaintiff’s motions to amend comply with LRCiv. 15.1. 21 LRCiv. 15.1 outlines the following requirements for amended pleadings: 22 A party who moves for leave to amend a pleading must attach a copy of the 23 proposed amended pleading as an exhibit to the motion, which must indicate 24 in what respect it differs from the pleading which it amends, by bracketing or striking through the text to be deleted and underlining the text to be added. 25 The proposed amended pleading must not incorporate by reference any part 26 of the preceding pleading, including exhibits. 27 Both motions to amend fail to comply with these requirements. (See Docs. 34, 35, 28 49.) Nonetheless, the Court will address the motions on the merits. 1 c. Motion for Leave to File Second Amended Complaint (Doc. 34) 2 Plaintiff’s Motion for Leave to File a Second Amended Complaint seeks to 3 (1) amend the factual allegations to a brief summary; (2) amend the Excessive Force and 4 False Arrest claims and allege them under 42 U.S.C. § 1983; (3) amend the Excessive 5 Force and False Arrest claims to be against each individual officer in his/her personal 6 capacity; (4) remove a separate claim for violation of § 1983; (5) remove the request for 7 injunctive relief; and (6) increase the punitive and compensatory damages amount from 8 $1,500,000 to $10,000,000 based on newly discovered medical evidence.1 (Docs. 34 at 1; 9 35 at 1–2.) Because Plaintiff filed this motion before the August 25, 2025 deadline to 10 amend the Complaint, Rule 15 governs. 11 Officers’ Response argues Plaintiff’s motion was unduly delayed, and granting 12 Plaintiff leave to amend would be futile and prejudice Officers. (Doc. 41 at 2–3.) 13 Specifically, Officers argue Plaintiff can disclose her newly discovered medical evidence during discovery and can already seek punitive damages under 42 U.S.C. § 1983. (Id. 14 at 1–2.) Officers also argue amendment would prejudice them because all Defendants have 15 already answered Plaintiff’s Complaint, engaged in motion practice, and filed a Motion for 16 Partial Summary Judgment. (Id. at 2–3.) Along these same lines, Officers argue granting 17 leave to amend would permit Plaintiff to circumvent partial summary judgment on her 18 False Arrest claim, forcing “them to re-litigate issues already raised in the pending 19 dispositive motion; expand the scope of litigation without materially altering Plaintiff’s 20 existing claims; and delay resolution of the issues currently before the Court.” (Id.) 21 The Court disagrees that Plaintiff’s motion to amend was unduly delayed and that 22 amendment would unduly prejudice the Officers. The litigation is still at a fairly early 23 stage. Although the parties have engaged in motion practice and there is a pending 24 dispositive motion, ample time remains until the close of discovery on April 24, 2026. 25 (Doc. 26). C.f., Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 767 (9th Cir. 2015) (upholding 26 27 1 The motion also proposes adding a claim for Intentional Infliction of Emotional Distress 28 (“IIED”) (Doc. 34-1 at 4), but as Officers’ Response points out (Doc. 41 at 3), this claim is already in the FAC. (See Doc. 19.) 1 denial where leave to amend would necessitate reopening discovery or conducting a new 2 trial). Moreover, Plaintiff is not seeking to assert entirely new legal theories or greatly alter 3 the litigation’s nature. See United States v. United Healthcare Ins. Co., 848 F.3d 1161, 4 1184 (9th Cir. 2016); Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th 5 Cir. 1990). The FAC asserts claims for Excessive Force, False Arrest and Imprisonment, 6 Violation of § 1983, and IIED. The proposed SAC would state materially the same claims 7 for Excessive Force under § 1983, False Arrest under § 1983, and IIED. And although the 8 proposed amendments would remove Plaintiff’s false arrest claim from the purview of 9 A.R.S. § 12-821.01, avoiding Officers’ Partial Motion for Summary Judgment, this is not 10 enough, alone, to show undue prejudice. 11 Nonetheless, granting Plaintiff’s Motion to File a Second Amended Complaint 12 would be futile. Futility “can, by itself, justify the denial of a motion for leave to amend.” 13 Hooper v. Shinn, 985 F.3d 594, 622 (9th Cir. 2021). “Amendment is futile if the claim sought to be added is not viable on the merits.” Id. 14 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 15 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 16 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); 17 A claim is facially plausible “when the plaintiff pleads factual content that allows the court 18 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 19 Id. Although courts accept all factual allegations in a complaint as true, dismissal is proper 20 if a complaint relies solely upon legally conclusory statements not supported by actual 21 factual allegations. Id. at 686. Further, an amended complaint supersedes the original 22 complaint and renders the original without legal effect. See Lacey v. Maricopa County, 693 23 F.3d 896, 927 (9th Cir. 2012). Thus, in determining if an amended complaint is legally 24 sufficient, a court cannot consider facts from the earlier complaint that are not included in 25 the later amended complaint. See Scott v. Chulank & Tescon, P.C., 725 F.3d 772, 783–84 26 (7th Cir. 2013). 27 Plaintiff’s proposed SAC would not survive a motion to dismiss under Rule 28 12(b)(6). The amended complaint would remove nearly all factual context to support 1 Plaintiff’s claims, leaving primarily conclusory statements in their place. Indeed, the 2 proposed amendments read as a “formulaic recitation of the elements of [each] cause of 3 action.” Somers v. Apple, Inc., 729 F.3d 953, 959–60 (9th Cir. 2013) (quoting Twombly, 4 550 U.S. at 555). (See, e.g., Doc. 35 at 1–2 (“Plaintiff was involved in an encounter with 5 Defendant Officers during which she was subjected to excessive and unreasonable force.”), 6 (“Plaintiff was arrested without probable cause, in violation of the Fourth and Fourteenth 7 Amendments.”).) Whether the Officers’ force was excessive or unreasonable or whether 8 Plaintiff was arrested without probable cause or justification are legal questions, not factual 9 allegations. Even applying the more liberal standard for pro se plaintiffs, Plaintiff’s 10 proposed SAC is insufficient as a matter of law. See Hebbe v. Pliler, 627 F.3d 338, 342 11 (9th Cir. 2010) (“[W]e continue to construe pro se filings liberally when evaluating them 12 under Iqbal [and Twombly].”). 13 Because Plaintiff fails to provide factual allegations to support her legal conclusions, amendment would not survive dismissal as a matter of law and would be 14 futile. As such, the Court will deny Plaintiff’s Motion for Leave to File a Second Amended 15 Complaint. (Doc. 34.) 16 d. Motion for Leave to File a Third Amended Complaint (Doc. 49) 17 The Motion for Leave to File a Third Amended Complaint seeks leave to amend 18 under Rules 15(a) and (c) to (1) assert claims against the Officers in their individual 19 capacities; (2) add a claim of First Amendment Retaliation against Officer Apodaca; and 20 (3) claim damages in the amount of $10,000,000. (Doc. 49.) 21 Officers’ Response argues granting Plaintiff leave to amend would cause undue 22 delay, be futile, and prejudice Officers. (Doc. 58.) Because Plaintiff filed this motion past 23 the August 25, 2025 deadline to amend the FAC, Rule 16 governs. See Johnson, 975 F.2d 24 at 609. Under Rule 16(b), “good cause” means the scheduling deadlines cannot be met 25 despite the party’s diligence. Johnson, 975 F.2d at 609. “[T]he focus of the [Rule 16] 26 inquiry is upon the moving party’s reasons for seeking modification” of the scheduling 27 order. Id. For example, courts often consider if the party discovered new information that 28 impacted the party’s ability to comply with the scheduling deadlines. See Zivkovic v. S. 1 Cal. Edison Corp., 302 F.3d 1080, 1087–88 (9th Cir. 2002); Morgal v. Maricopa Cnty. Bd. 2 of Sup’rs, 284 F.R.D. 452, 460 (D. Ariz. 2012) (same). But “[i]f the party was not diligent, 3 the inquiry should end.” Johnson, 975 F.2d at 608. 4 Plaintiff does not meet the Rule 16(b) “good cause” standard. Plaintiff does not 5 explain her failure to meet the Court’s deadline to amend the FAC, nor does Plaintiff allege 6 she was unable to comply with the deadline despite her diligence. Her proposed 7 amendments are not based on new information that compelled the delayed filing. The 8 motion seeks to add a count of First Amendment Retaliation against Apodaca that is based 9 on Plaintiff’s own personal experience during the December 20, 2024 incident. 10 The Court recognizes Plaintiff filed her motions pro se and may have been unaware 11 of the requirements of Rule 16(b). However, even a good faith mistake “establishe[s] no 12 more than inadvertence,” which is not a sufficient reason to modify the Court’s scheduling 13 order. C.f., Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (finding pro se plaintiff’s “good faith mistake” because he was unaware of the applicable procedural 14 rule was an insufficient basis to grant relief from an untimely jury demand). The Court will 15 deny the motion. (Doc. 49.) 16 III. Motion Under Rule 56(d) for Extension to Conduct Discovery (Doc. 48) 17 Plaintiff moves under Rule 56(d) for the Court to deny or defer Defendant’s Motion 18 for Partial Summary Judgment, stating “critical discovery remains outstanding, and 19 genuine disputes of material fact exist that cannot be resolved without completion of that 20 discovery.” (Doc. 48.) Because Plaintiff did not timely file a controverting statement of 21 facts, the Court construes the Officers’ statement of facts as uncontroverted for summary 22 judgment purposes. See Fed. R. Civ. P. 56(e)(2). As such, there are no material facts in 23 dispute. Further, none of the discovery Plaintiff seeks in her motion relates to Officers’ 24 Motion for Partial Summary Judgment. Accordingly, the Court will deny the motion. (Doc. 25 48.) 26 IV. Officers’ Motion for Partial Summary Judgment (Doc. 28) 27 a. Factual Background 28 On December 20, 2024, Plaintiff was involved in an altercation with the Officers, 1 who are employed by the COT. (Doc. 28 at 2.) On January 24, 2024, Plaintiff delivered a 2 notice of claim to the Office of the City Clerk (“City Clerk”) pertaining to the altercation. 3 (Doc. 28 at 2, Doc. 29-1 at 10–16.) A City Clerk employee filled out a claim form accepting 4 service on the COT’s behalf and Plaintiff signed the form. (Doc. 28 at 2; Doc. 29-1 at 10.) 5 On June 20, 2025, Plaintiff served the City Clerk with a document titled “First 6 Amended Complaint – For Excessive Use of Force, False Arrest, and Violation of Civil 7 Rights.” (Doc. 28 at 2–3; Doc. 29-1 at 19–22.) A City Clerk employee filled out a claim 8 form accepting service on behalf of the COT, Apodaca, Glesinger, and Giles, and Plaintiff 9 signed the form. (Doc. 28 at 2–3; Doc. 29 at 2; Doc. 29-1 at 19.) 10 Finally, on June 25, 2025, Plaintiff served the City Clerk with four notices of claim, 11 each naming the COT, Apodaca, Glesinger, and Giles. (Doc. 28 at 3; Doc. 29-1 at 24–33.) 12 A City Clerk employee filled out separate claim forms accepting service on behalf of the 13 COT, Apodaca, Glesinger, and Giles, and Plaintiff signed each form. (Doc. 28 at 3; Doc. 29-1 at 24–33.) 14 b. Motion for Partial Summary Judgment (Doc. 28) 15 Officers’ Motion for Partial Summary Judgment requests the Court dismiss 16 Plaintiff’s state law claims for False Arrest and Imprisonment and IIED, arguing Plaintiff 17 failed to give Officers notice of her claims within 180 days of the claims’ accrual as 18 required under A.R.S. § 12-821.01(A). (Doc. 28 at 4–5.) Officers argue City Clerk 19 personnel did not accept service from Plaintiff on behalf of Apodaca, Glesinger, and Giles 20 until June 20, 2025—two days after the statutory deadline. (Id. at 4.) Finally, Officers 21 allege Plaintiff never served Hawkins with a notice of claim.2 (Id. at 3.) 22 23 2 Officers also argue the June 20, 2025 notice of claim lacked a sum certain amount the claims could be settled for, as required under § 12-821.01(A). (Doc. 28 at 5.) The Court 24 agrees. The sum certain requirement is “clear and unequivocal” and “unmistakably instructs claimants to include a particular and certain amount of money that, if agreed to 25 by the government entity, will settle the claim.” City of Mesa v. Ryan, 557 P.3d 316, 319 (Ariz. 2024) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser, 152 P.3d 490, 493 26 (Ariz. 2007)). Plaintiff’s June 20, 2025 notice of claim was in the form of a complaint, listing specific amounts of compensatory and punitive damages, but also seeking injunctive 27 relief and “any other relief deemed just and proper.” (Doc. 29-1 at 19–22.) This notice fails to comply with the sum certain amount requirement, impermissibly “leav[ing] room for 28 debate about what the public entity [and employees] must pay to settle the claim.” City of Mesa, 557 P.3d at 319. 1 In Response, Plaintiff argues she substantially complied with § 12-821.01(A) by 2 timely filing a notice of claim implicating the COT and Officers, and that Arizona law 3 recognizes “a notice of claim need not be served on each individual officer where the City 4 and its counsel are given actual notice.” (Doc. 33 at 1–2). Plaintiff also claims equitable 5 estoppel bars Officers’ motion because Officers’ attorney “explicitly instructed Plaintiff 6 not to contact any [COT] employee and that all communications must go through her.” (Id. 7 at 2.) As support, Plaintiff attaches an April 21, 2025, email from Officers’ attorney. (Id. 8 at 7–8.) 9 c. Legal Standard for Summary Judgment 10 Summary judgment is appropriate when the parties have no genuine dispute as to 11 any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 12 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A fact is material if 13 it might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986). As the nonmovant, the Court draws all justifiable fact inferences in Plaintiff’s 14 favor. See id. at 255. 15 d. Analysis 16 There are no material facts in dispute. The only issue is whether Plaintiff complied 17 with the notice of claim requirement under A.R.S. § 12-821.01(A) as a matter of law. When 18 a federal court entertains state law claims against state entities or employees, the court is 19 obligated to apply the state law notice-of-claim provision. See, e.g., Ellis v. Salt River 20 Project Agric. Improvement & Power Dist., 432 F. Supp. 3d 1070, 1088 (D. Ariz. 2020), 21 aff’d in part, rev’d in part and remanded, 24 F.4th 1262 (9th Cir. 2022). 22 Under § 12-821.01(A), a party seeking to bring a claim against a public entity or 23 public employee must file a “notice of claim” with the person or persons authorized to 24 accept service under the Arizona Rules of Civil Procedure within one hundred eighty days 25 of the action accruing. The notice must contain “facts sufficient to permit the public 26 entity . . . or public employee to understand the basis on which liability is claimed” and a 27 “specific amount for which the claim can be settled and the facts supporting that amount.” 28 Id. Where, as here, a “claimant asserts a claim against a public entity and a public 1 employee, the claimant must give notice to both the public entity and the public employee.” 2 McGrath v. Scott, 250 F. Supp. 2d 1218, 1236 (D. Ariz. 2003) (citing Crum v. Superior 3 Court, 922 P.2d 316, 317 (Ariz. Ct. App. 1996)). Failure to file the required notice of claim 4 bars the claim. § 12-821.01(A); see also Falcon ex rel. Sandoval v. Maricopa County., 144 5 P.3d 1254, 1256 (2006) (“If a notice of claim is not properly filed within the statutory time 6 limit, a plaintiff’s claim is barred by statute.”). 7 Plaintiff’s cause of action accrued on December 20, 2024, the date of the encounter 8 with Officers. Accordingly, Plaintiff had until June 18, 2025, to file notices of claim in 9 compliance with § 12-821.01(A). For the following reasons, Plaintiff failed. 10 i. Plaintiff did not timely serve the Officers. 11 Under Arizona Rule of Civil Procedure 4.1(d), “an individual may be served” 12 personally, by leaving a copy of the document at the individual’s dwelling, or by 13 “delivering a copy . . . to an agent authorized by appointment or by law to receive service of process.” Here, the City Clerk had written authorization to accept service on behalf of 14 Apodaca, Glesinger, and Giles. A City Clerk employee accepted notice from Plaintiff on 15 behalf of Apodaca, Glesinger, and Giles on two occasions: June 20, 2025, and June 25, 16 2025. Because Plaintiff did not provide these notices until two and seven days after the 17 180-day statutory deadline, respectively, the notices to Apodaca, Glesinger, and Giles were 18 untimely. 19 Further, Plaintiff does not allege she served Hawkins with a notice of claim (Doc. 20 33) and Defendants’ Answer asserts Hawkins was never personally served. (Doc. 20 at 4.) 21 As such, Plaintiff’s claim against Hawkins is barred. § 12-821.01(A). 22 Plaintiff argues that because she served the COT on January 24, 2025 with a timely 23 notice of claim that implicated Officers, she substantially complied with § 12-821.01(A). 3 24 25 3 Plaintiff also attaches as Exhibit C to her Response a notice of claim purportedly accepted by a City Clerk employee on behalf of the COT and Apodaca dated March 6, 2025. 26 (Doc. 33-1 at 12.) However, this document is not properly authenticated, see Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002), and Plaintiff does not make any 27 argument pertaining to this document. (See generally Doc. 33.) And even though this notice would have been timely, it fails to provide a “specific amount for which the claims can be 28 settled,” and facts that explain the alleged basis for liability, as required under § 12-821.01(A). This notice does not satisfy the requirements of § 12-821.01(A). 1 (Doc. 33 at 1–2.) She also points out that Officers had actual notice of her claims. Id. But 2 Arizona courts are clear: claimants must “strictly comply with the statute.” City of Mesa, 3 557 P.3d at 319. Even “[a]ctual notice and substantial compliance do not excuse failure to 4 comply with the statutory requirements of . . . § 12-821.01(A).” Falcon ex rel., 144 P.3d 5 at 1256. And “[p]roviding notice to a governmental agency fails to suffice to give notice 6 to the individual employee.” Johnson v. Superior Court, 763 P.2d 1382, 1384 (Ariz. Ct. 7 App. 1988). Plaintiff’s timely notice to the COT did not satisfy the statutory notice 8 requirement as to Officers. As such, Plaintiff’s state law claims against the Officers are 9 barred as untimely. 10 ii. Equitable estoppel does not apply. 11 Arizona’s statutory notice of claim requirement is a “procedural 12 requirement . . . subject to waiver, estoppel and equitable tolling.” Pritchard v. State, 13 788 P.2d 1178, 1183 (Ariz. 1990). “Equitable estoppel ‘precludes a party from asserting a right inconsistent with a position previously taken to the prejudice of another acting in 14 reliance thereon.’” McLaughlin v. Jones, 401 P.3d 492, 501 (Ariz. 2017) (quoting Unruh 15 v. Indus. Comm’n, 301 P.2d 1029, 1031 (Ariz. 1956)). In Arizona, the elements of equitable 16 estoppel are: “(1) the party to be estopped commits acts inconsistent with a position it later 17 adopts; (2) reliance by the other party; and (3) injury to the latter resulting from the former’s 18 repudiation of its prior conduct.” Valencia Energy Co. v. Ariz. Dep’t of Rev., 959 P.2d 19 1256, 1267–68 (Ariz. 1998). 20 Here, Plaintiff argues that because the Officers’ attorney instructed her via email on 21 April 21, 2025, “not to reach out to any City or TPD employee . . . regarding this case and 22 issues surrounding the claims you make in this lawsuit,” she believed the attorney accepted 23 service for the Officers. (Doc. 33 at 1–2; Doc. 33-1 at 6–9.) This belief is unfounded and 24 does not support an equitable estoppel defense. 25 First, in the Officers’ filings to this Court, they have always maintained Plaintiff did 26 not comply with the notice of claim requirements. (See Doc. 4 at 5; Doc. 20 at 4.) Officers’ 27 current position is not inconsistent with their past position on this issue, as required to apply 28 equitable estoppel under Arizona law. See Valencia Energy Co., 959 P.2d at 1267–68. 1 Second, the April 21, 2025 email’s broader context makes clear Officers’ attorney 2 did not indicate she was accepting service for Officers. (See Doc. 33-1 at 6–9.) The attorney 3 contacted Plaintiff via email because Plaintiff had been corresponding with a COT 4 employee regarding an internal investigation into the December 20, 2024 incident. (Id. 5 at 7.) The email instructed Plaintiff to cease that contact and communicate with the attorney 6 instead. (Id. at 7–8.) The email does not mention notices of claim or acceptance of service 7 on the Officers’ behalf from the Officers’ attorney. (See id. at 6–9.) And the email chain 8 does not satisfy § 12-821.01(A), lacking facts to understand the basis on which Plaintiff 9 claims liability and the “amount for which the claim can be settled.” 10 Third, any potential reliance on the attorney’s email should have been dispelled 11 when Defendants filed their Answer on June 16, 2025. (See Doc. 20 at 4.) The Answer 12 asserts the affirmative defense that “Plaintiff failed to personally serve Defendants 13 Apodaca, Glesinger, Giles, and Hawkins with a notice of claim pursuant to A.R.S. § 12-821.01.” (Id.) Plaintiff therefore had notice at least two days before the 14 § 12-821.01(A) deadline ran that she had not adequately served the Officers. 15 Because Plaintiff failed to satisfy the notice of claim requirements under A.R.S. 16 § 12-821.01(A), the Court will dismiss her False Arrest and Imprisonment and IIED claims 17 as to Officers. Plaintiff also alleged in her Complaint that COT is liable under both claims 18 for Officers’ actions and so these two claims remain as against the COT. See Laurence v. 19 Salt River Project Agric. Improvement & Power Dist., 528 P.3d 139, 150 (Ariz. 2023) 20 (“[W]hen tort claims against an employee are not actually adjudicated, dismissal of the 21 employee-claim does not summarily require dismissal of the respondeat superior claim.”). 22 V. Leave to Amend 23 “Leave to amend can and should generally be given, even in the absence of such a 24 request by the party,” unless amendment would be futile. Hoang v. Bank of Am., N.A., 25 910 F.3d 1096, 1102 (9th Cir. 2018). Although Plaintiff’s prior attempts to amend her FAC 26 were insufficient, the Court does not think that any future amendment would be futile. 27 Plaintiff may be able to modify her proposed SAC to state a viable claim for False Arrest 28 under 42 U.S.C. § 1983. So long as Plaintiff’s request to amend tracks the claims in her 1 Motion for Leave to File Second Amended Complaint, the Court sees good reason to 2 extend the deadline to amend pleadings and Plaintiff need not address Rule 16 in her 3 motion.4 As such, Plaintiff has leave to file a motion to amend her FAC within 20 days of 4 this Order. 5 The Court reminds Plaintiff future motions to amend must comply with the 6 requirements in Rule 15 and LRCiv. 15.1. The Court also cautions Plaintiff that a complaint 7 must contain a “short and plain statement of the claim showing that the pleader is entitled 8 to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must include factual allegations, taken as 9 true, that allow the court to draw the reasonable inference the defendant is liable for the 10 misconduct alleged. Iqbal, 556 U.S. at 678. Finally, an amended complaint supersedes the 11 original complaint and renders the original without legal effect. See Lacey, 693 F.3d at 927. 12 VI. Order 13 Upon consideration, IT IS ORDERED: 14 (1) Without good cause appearing, denying Plaintiff’s Motion for Leave to File a Second Amended Complaint (Doc. 34) and Motion for Leave to File a Third 15 Amended Complaint (Doc. 49). 16 (2) Denying Plaintiff’s Motion Under Rule 56(d) for Extension to Conduct 17 Discovery (Doc. 48). 18 (3) Granting Officers’ Motion for Partial Summary Judgment (Doc. 28) and 19 dismissing with prejudice Plaintiff’s state law claims for False Arrest and 20 Imprisonment and Intentional Infliction of Emotional Distress against 21 Defendants Antonio Apodaca, Jeffrey Glesinger, Jesse Giles, and Jennifer 22 Hawkins. 23 . . . . 24 . . . . 25 . . . . 26 27 4 Plaintiff’s motion to amend should not assert state law claims for False Arrest and Imprisonment or IIED against the Officers, which this Order will dismiss with prejudice. 28 Nor should the motion include a First Amendment Retaliation claim, which was untimely requested under Rule 16. See supra II.d. 1 (4) Granting Plaintiff leave to file a Motion to Amend her FAC within twenty days 2 from the date of this Order, in compliance with Rule 15 and LRCiv 15.1. 3 Dated this 5th day of November, 2025. 4 5 7 / / John C. Hinderaker g _/United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14-