Opinion
CV-21-01917-PHX-DJH
12-14-2023
Mark E Stuart, et al., Plaintiffs, v. City of Scottsdale, et al., Defendants.
HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT JUDGE
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Pending before the Court is a referral for a Report and Recommendation (doc. 52) on Defendants' Motion to Strike Plaintiffs' Second Amended Complaint (“SAC”) (doc. 41). In short, Plaintiffs failed to comply with Judge Humetewa's Order to refrain from adding claims (“the Order”) (doc. 35), so Counts Seven and Eight should be dismissed. Plaintiffs' remaining counts are not otherwise impertinent or redundant. Counts One through Six of the SAC are substantially based upon allegations that occurred during Mark Stuart's criminal prosecutions for trespassing and threats (Doc. 36, ¶¶ 35-112, 12739), and these prosecutions did not conclude until after the operative complaints in the other proceedings were filed (id., at ¶¶ 153, 158). Furthermore, complete resolution of Defendants' 12(f) motion in their favor requires a determination that claim preclusion bars Plaintiffs' claims, and a motion brought under 12(f) is an improper procedural tool to determine whether a claim for damages is barred by law. Whittlestone, Inc. v. Handicraft Co., 618 F.3d 970, 976 (9th Cir. 2010) (“We hold that Rule 12(f) of the Federal Rules of Civil Procedure does not authorize a district court to dismiss a claim for damages on the basis it is precluded as a matter of law.”). Because Plaintiffs' SAC contains new counts that are clearly barred by the Order, however, the Court recommends granting, in part, Defendants' Motion to Strike, but allowing Plaintiffs to proceed on Counts One through Six, subject to any dispositive motions that may arise in due course.
The Court recognizes authority which would allow it to convert Defendants' 12(f) motion into a 12(b)(6) motion if the motion is “incorrectly denominated,” but remains, in substance, a motion to dismiss for failure to state a claim. Kelley v. Corr. Corp. of Am., 750 F.Supp.2d 1132, 1146 (E.D. Cal. 2010). Here, however, Defendants' motion is not, in substance, a motion to dismiss. Defendants clearly seek to have Plaintiffs' SAC stricken on the grounds that it is impertinent, redundant, and in violation of Judge Humetewa's Order (doc. 41 at 5)-all grounds for a motion to strike. Fed.R.Civ.P. 12(f); LRCiv. 7.2(m). Moreover, Defendants have not adequately addressed Plaintiffs' arguments their claims in the SAC did not accrue until after the filing of the operative complaints in Mr. Stuart's prior suits, which would be necessary since Defendants, as the movants, would have the burden to demonstrate Plaintiffs failed to state a claim. Shay v. Apple Inc., 512 F.Supp.3d 1066, 1071 (S.D. Cal. 2021) (collecting cases).
I. Background
Since 2017, Plaintiff Mark Stuart has filed three suits in this Court against the City of Scottsdale, the current and former Mayors of Scottsdale, Scottsdale city councilmembers, members of Scottsdale law enforcement, Scottsdale city attorneys, and other officials. Stuart, et al., v. City of Scottsdale, et al., 2:17-cv-01848-DJH (“ Stuart I' or “the 2017 Action”); Stuart, et al., v. City of Scottsdale, et al., 2:20-cv-00755-JAT (“Stuart II' or “the 2020 Action”); Stuart, et al., v. City of Scottsdale, et al., 2:21-cv-01917-DJH (“Stuart III” or “the 2021 Action”).
In the 2017 Action, Plaintiffs Mark Stuart and Save Our Preserve, Inc., filed 19 counts against those parties alleging violations of Mr. Stuart's constitutional and statutory rights stemming, in part, from his arrest and prosecution for trespassing at a Scottsdale city council meeting on February 7, 2017. (E.g., Stuart I, Doc 5, ¶¶ 28-29, 47-60, 81-82, 91-94, 99-102.) Judge Humetewa granted Defendants' motion to dismiss all claims in that action. (Stuart III, Doc. 35 at 2.) Plaintiffs appealed, and the Ninth Circuit reversed and remanded two of the 19 counts: Count Two for violation of First Amendment rights stemming from Mr. Stuart's arrest, and Count Nine, a claim for municipal liability arising out of Monell v. Department of Social Services, 436 U.S. 658 (1978) (the “Monell claim”). (Id. at 2-3.)
In 2020, Plaintiff Mark Stuart and his wife Virginia Stuart filed suit against some of the same actors in Stuart I. (Stuart II, Doc. 93.) Many of the allegations stemmed from the City's effort to satisfy a $30,115.00 judgment against Mr. and Mrs. Stuart's community property and an injunction against workplace harassment obtained by City officials against Mr. Stuart (“the Injunction”). (Stuart III, Doc. 35 at 4.) Judge Tielborg granted summary judgment in favor of all defendants (id.), and the Ninth Circuit affirmed (Stuart II, Doc. 169).
Plaintiffs Mark and Virginia Stuart initiated this action on November 12, 2021, alleging, pursuant to 42 U.S.C § 1983, violations of their constitutional rights to equal protection, due process, and freedom from malicious prosecution, unreasonable seizures, and unconstitutional city policies and practices. (Stuart III, Doc. 1 at 16-27.) Plaintiffs later filed a First Amended Complaint (“FAC”) (doc. 14), and Defendants moved to dismiss (Stuart III, doc. 21). On June 29, 2023, Judge Humetewa dismissed the FAC due to the similarity of “allegations, claims, parties, and defenses” between this action and Stuart I and II. (Stuart III, Doc. 35 at 8.) Judge Humetewa reasoned that the intertwinement of the present claims and prior claims, and the similarity of facts and parties involved, “raise the serious specter of claim preclusion in the present action.” (Id. at 6.) Judge Humetewa granted Plaintiffs' request to amend again, but instructed Plaintiffs as follows:
Plaintiffs shall remove the claims asserted in the FAC that have been adjudicated and are now precluded so that the Court can properly and accurately assess what claims, if any, should remain. To be clear, the Court is not authorizing Plaintiffs to add any new claims or parties. The Court will not look favorably on amendments to claims that have already been litigated and/or adjudicated in the 2017 and 2020 Actions.(Id. at 8.)
Plaintiffs filed the SAC on July 27, 2023. (Stuart III, Doc. 36.) Plaintiffs' claims in the SAC mostly arise from Mark Stuart's criminal prosecution for trespassing stemming from his arrest at the February 7, 2017 Scottsdale City Council meeting (the “Trespassing Prosecution”) (id., at ¶¶ 35-66), and for the criminal prosecution commencing against him in December 2019 under A.R.S. § 13-1202(A)(1) for threats he allegedly made while under psychiatric care (the “Threats Prosecution”) (id., at ¶¶ 67112). Plaintiffs bring eight causes of action:
(1) 42 U.S.C. § 1983 for Fourteenth Amendment equal protection and due process violations (id., at ¶¶ 140-49);
(2) 42 U.S.C. § 1983 for malicious prosecution in violation of the First and Fourteenth Amendments (id., at ¶¶ 150-164);
(3) 42 U.S.C. § 1983 for Fourth Amendment violations (id., at ¶¶ 165-178);
(4) 42 U.S.C. § 1983 for Monell liability (id., at ¶¶ 179-215);
(5) 42 U.S.C. § 1983 for First Amendment violations (id., at ¶¶ 216-225);
(6) Malicious prosecution under Arizona law (id., at ¶¶ 226-232);
(7) A.R.S. § 13-1202(A)(1) is unconstitutionally vague and violates the Fourteenth Amendment (id., at ¶¶ 233-244);
(8) A.R.S. § 13-1202(A)(1) is overbroad and violates the First Amendment (id., at ¶¶ 245-253).
Defendants have filed a “Motion to Strike Plaintiffs' Second Amended Complaint and to Vacate Order Setting Rule 16 Conference” (“Motion to Strike”). (Stuart III, Doc. 41.) Plaintiffs responded (Stuart III, doc. 42) and Defendants replied (Stuart III, doc. 43). Upon referral from Judge Humetewa, Defendants' Motion to Strike is before this Court for a report and recommendation.
The Court notes Judge Humetewa has vacated the scheduling conference and will reschedule it upon resolution of this Motion. (Doc. 45.) Hence, this aspect of the motion is moot.
II. Legal Standard
Defendants filed their motion pursuant to Federal Rule of Civil Procedure 12(f) and Local Rule of Civil Procedure 7.2(m). (Stuart III, Doc. 41 at 1.) “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial[.]” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Importantly, however, “[s]triking a party's pleading is an ‘extreme measure,' and Rule 12(f) motions are viewed with disfavor and are infrequently granted.” London-Marable v. Boeing Co., No. CV-04-2611 PHX -MHM, 2006 WL 3469512, at *1 (D. Ariz. Nov. 24, 2006) (citing Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000)). “When reviewing a motion to strike, the Court takes the plaintiff's allegations as true and liberally construes the allegations in the pleading in the light most favorable to the plaintiff.” Friendly House v. Whiting, No. CV 10-1061-PHX-SRB, 2012 WL 12867970, at *8 (D. Ariz. May 29, 2012) (citing Tietsworth v. Sears, 720 F.Supp.2d 1123, 1146 (N.D. Cal. 2010)). Using the criteria in 12(f), the Court must determine whether the matter at issue is “(1) an insufficient defense; (2) redundant; (3) immaterial; (4) impertinent; or (5) scandalous.” Whittlestone, 618 F.3d at 973-74. At issue here, “[i]mpertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Id. at 974 (cleaned up). Redundant matter “consists of allegations that constitute a needless repetition of other averments or which are foreign to the issue to be denied.” Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005) (citations omitted). “A motion to strike should not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing on the litigation.” Ader v. SimonMed Imaging, Inc., 324 F.Supp.3d 1045, 1050 (D. Ariz. 2018); Walters v. Fid. Mortg. of CA, 730 F.Supp.2d 1185, 1196 (E.D. Cal. 2010). “In suits involving multiple and complex issues, greater latitude in pleading may be allowed, since impertinence may not be so clear.” TriQuint Semiconductor, Inc. v. Avago Techs. Ltd., No. CV-09-01531-PHX-JAT, 2010 WL 3034880, at *3 (D. Ariz. Aug. 3, 2010) (quoting Wailua Assocs. v. Aetna Cas. & Sur. Co., 183 F.R.D. 550, 554 (D. Haw. 1998)). Importantly, Rule 12(f) is an inappropriate vehicle for dismissal of claims for damages as precluded by law. Whittlestone, 618 F.3d at 976; see also Ventures Edge Legal PLLC v. GoDaddy.com LLC, No. CV-15-02291-PHX-GMS, 2017 WL 1075059, at *1 (D. Ariz. Mar. 22, 2017) (“If the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, leaving an assessment of the sufficiency of the allegations for adjudication on the merits.”) (quotations omitted).
III. The Parties' Arguments
Defendants argue Plaintiffs' proposed SAC violates the Court's Order directing Plaintiffs to remove adjudicated claims from the FAC and prohibiting them from adding new claims or parties. (Stuart III, Doc. 41 at 1-2.) Defendants argue that Plaintiffs persist in asserting claims related to his arrest and prosecution at the February 7, 2017 city council meeting and for claims related to the Injunction obtained by the City of Scottsdale at issue in the 2020 Action. (Id. at 3-4.) Defendants characterize Plaintiffs SAC as redundant and “impertinent” insofar as it evinces lack of proper respect for the Court's Order. (Id. at 5 n. 3.) Defendants ask the Court to vacate the scheduling hearing in this matter, as “Defendants should not be required to waste funds and other resources framing a Scheduling Order and litigation plan for claims that have been expressly precluded by the Court.” (Id. at 2.)
Plaintiffs respond that the claims they asserted in the SAC did not accrue until after the 2017 and 2020 Actions, and thus, are not barred. (Stuart III, Doc. 42 at 5-6.) Plaintiffs concede they “should have sought this Court's permission to add Claims VII and VIII prior to filing the SAC[,]” but assert that the Court should permit the claims as a matter of judicial efficiency. (Id. at 3-4.) Plaintiffs argue Defendants' Motion to Strike is otherwise frivolous, and that Defendants should be sanctioned. (Id. at 11.)
Defendants reply that Plaintiffs' response was untimely, and that it need not be considered under LRCiv. P. 7.2(i). (Stuart III, Doc. 43 at 1-3.) Defendants assert, “Plaintiffs' violation of the Court's Order pervades the entirety of the SAC[]” (id. at 3, emphasis in original), and that Plaintiffs' response impermissibly argues that Judge Humetewa's Order is legally incorrect (id. at 4). Defendants renewed their request that
the case management hearing order (doc. 38) be vacated. (Id. at 5.)
The Court declines to recommend dismissal of Plaintiffs' response as untimely, as it appears to have been filed only one day late, and Defendants make no showing of prejudice.
Plaintiffs' claims in Stuart I and II fall into the following general categories:
(1) Violations of Mark Stuart's Fourth Amendment rights to be free from unreasonable investigatory seizures or detentions, excessive force, and unlawful arrests for his First Amendment activities up to February 7, 2017 (Stuart I, Doc. 5, ¶¶ 77-102, 113-18); and unlawful seizure of the Stuarts' community property in the garnishment action (Stuart II, Doc. 93, ¶¶ 161-73);
(2) Violations of Mark Stuart's First Amendment rights to freedom of speech and assembly for his speech activities related to the Save Our Preserve Initiative up to October 15, 2017 (Stuart I, Doc. 5, ¶¶ 103-118);
(3) Violations of Mark Stuart's Fifth and Fourteenth Amendment due process rights related to his speech activities in Mountain View Park and the seizure of his property; the discriminatory, selective enforcement and prosecution against Mr. Stuart for his free speech activities (id., at ¶¶ 119-137); and Fourteenth Amendment violations, and conspiracy to violate the Stuarts' Fourteenth Amendment rights, in the garnishment action (Stuart II, Doc. 93, ¶¶ 81-107);
(4) The constitutionality of specific Scottsdale city codes (Stuart I, Doc. 5, ¶¶ 13849);
(5) Monell liability for unconstitutional policies and practices and the ratification of unconstitutional policies and practices as they relate to Mr. Stuart's First Amendment activities in 2017 and in the garnishment action (id., at ¶¶ 150166, Stuart II, Doc. 93, ¶¶ 108-160);
(6) Violations of Plaintiff Mark Stuart's Arizona constitutional rights and Arizona law for abuse of process; wrongful imprisonment and arrest; conspiracy; intentional infliction of emotional distress; negligence; and gross negligence(Id., at ¶¶ 167-220, Stuart II, Doc. 93, ¶¶ 206-220); retaliation; suppression and chilling of free speech; wrongful garnishment; abuse of process; loss of consortium; defamation; and false light invasion of privacy (Stuart II, Doc. 93, ¶¶ 174-205, 221-41).
Any claims that Plaintiffs assert in the SAC that fall into those categories are thus precluded by Judge Humetewa's Order. (Doc. 35.) Importantly, while several of Plaintiffs' claims are predicated, in part, upon facts at issue in Stuart I and II, it is not “absolutely clear” that all the claims in the SAC are precluded. Ader, 324 F.Supp.3d at 1050. Plaintiffs, for instance, are correct that their claims for malicious prosecution would not accrue until Plaintiff Mark Stuart's acquittal on the underlying criminal offenses. Heck v. Humphrey, 512 U.S. 477, 484 (1994) (“One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused.”); Cabrera v. City of Huntington Park, 159 F.3d 374, 382 (9th Cir. 1998) (“Cabrera filed his initial complaint on April 12, 1995; however, Cabrera's malicious prosecution claim did not accrue until his acquittal on September 14, 1995.”). Further, although Plaintiffs bring some of the same causes of action as in prior suits, they are predicated, in part, upon factual developments that occurred after the filing of the operative complaints in Stuart I and II. Howard v. City of Coos Bay, 871 F.3d 1032, 1040 (9th Cir. 2017) (“[F]or purposes of federal common law, claim preclusion does not apply to claims that accrue after the filing of the operative complaint.”).
The Court recognizes the standard cited in Ader and other cases does not apply neatly to this case insofar as it requires the Court to assess whether the matter to be stricken could have any “possible bearing on the litigation.” 324 F.Supp.3d at 1050. The matter at hand is Plaintiffs' entire SAC, which would clearly have some bearing on the substantive issues in the litigation. Nevertheless, since Courts generally disfavor 12(f) motions, e.g., XYSkin Care & Cosms., LLC v. Hugo Boss USA, Inc., No. CV-08-1467-PHX-ROS, 2009 WL 2382998, at *1 (D. Ariz. Aug. 4, 2009), this Court finds it is the appropriate standard to determine whether Plaintiffs' SAC violates Judge Humetewa's order.
Although Plaintiff's counts in the SAC, including the malicious prosecution claims, commingle underlying factual allegations from both before and after Stuart I and Stuart II, it is unclear that Plaintiffs' entire SAC violates Judge Humetewa's Order, or is otherwise redundant or impertinent. Moreover, a motion under Rule 12(f) is not an appropriate vehicle for dismissal of claims as precluded by law, Whittlestone, 618 F.3d at 976, and the pleading must be construed in Plaintiffs' favor, Friendly House, 2012 WL 12867970, at *8. Thus, this Court should determine whether it is “absolutely clear” the claim at issue has been brought in Stuart I or II, or is otherwise redundant or impertinent. The Court will address all eight counts of the SAC.
a. Count One for Fourteenth Amendment Equal Protection and Due Process Violations Should Not be Stricken.
In Count One of the SAC, Plaintiffs allege Defendants Scottsdale, Lane, Washburn, Santaella, Scott, Cleary, and Glenn violated Plaintiffs' equal protection and due process rights by (1) refusing to provide Mark Stuart with discovery in the Trespassing Prosecution; (2) destroying exculpatory evidence in the Trespassing Prosecution; (3) selectively prosecuting Mark Stuart in the Threats Prosecution; (4) enforcing the underlying statute in an unconstitutionally vague manner; and (5) pursuing the Threats Prosecution despite having a conflict of interest. (Stuart III, Doc. 36, ¶¶ 14049.) Plaintiffs removed allegations that the Injunction-raised in Stuart II-was procured unconstitutionally, and that Defendants applied Arizona law in an irrational and discriminatory manner at the February 7, 2017 city council meeting. (Stuart III, Doc. 364 at 39-40.) In Stuart I, Plaintiff filed an equal protection claim stemming, in part, from his alleged selective prosecution in the trespassing matter. (Stuart I, Doc. 5, ¶¶ 126-37.) In the present action, he alleges Defendants violated his due process rights by destroying evidence and refusing to participate in discovery in the trespassing matter. (Stuart III, Doc. 36, ¶ 141-42.) While the two claims are obviously similar, it is unclear when Plaintiffs' present claims accrued. (See Stuart III, Doc. 42 at 6.) Had they accrued after the filing of the operative complaints in Stuart I (June 2017) or II (March 2021), then they would not be barred. Howard, 871 F.3d at 1040. The same rationale applies to Plaintiffs' selective prosecution or due process claims pertaining to the Threats Prosecution.As such, it is not clear that this claim violates Judge Humetewa's Order. The question of whether Plaintiffs could have brought such claims in Stuart I and II goes to the issue of claim preclusion, which the Court should not decide in a motion to strike. Whittlestone, 618 F.3d at 976.
Plaintiffs brought a selective prosecution claim related to the Trespassing Prosecution in Stuart I. (Stuart I, Doc. 5 at 27-29.)
Because it is not absolutely clear that Plaintiffs' Count One violates the Court's Order, or that it is otherwise impertinent or redundant, the Court recommends denying Defendants' Motion as to Count One, and allowing Plaintiffs to proceed, subject to any dispositive motions Defendants file in due course. XY Skin Care & Cosms., 2009 WL 2382998, at *1 (“Any doubt concerning the redundancy, immateriality, impertinence, scandalousness or insufficiency of all or part of a pleading must be resolved in favor of the non-movant.”).
b. Count Two for Malicious Prosecution Should Not be Stricken.
In Count Two of the SAC, Plaintiffs allege Defendants Scottsdale, Lane, Washburn, Santaella, Scott, Cleary, Glenn, and Randall caused the Trespassing and Threats Prosecutions in retaliation for Plaintiff Mark Stuart's First Amendment activities and prior suits. (Stuart III, Doc. 36, ¶¶ 150-64.) Although the allegations in Count Two of the SAC describe conduct that occurred, in part, before or during Stuart I and II (i.e., the Defendants “caused Mark Stuart to be prosecuted for trespassing without probable cause to believe that Stuart was trespassing for a malicious improper purpose”) (id., at ¶ 151), Plaintiffs are correct that a claim for malicious prosecution generally does not accrue until acquittal on the underlying offense. Heck, 512 U.S. at 484; Cabrera, 159 F.3d at 382.
In any case, Plaintiffs have not previously asserted a claim for malicious prosecution elsewhere.Therefore, it is not absolutely clear that Count Two of the SAC violates Judge Humetewa's Order, or that it is redundant or impertinent, and, therefore, it should not be stricken.
The Court notes Plaintiff Mark Stuart previously summarily alleged Defendants “maliciously prosecuted and arrested him, but not others[,]” in Stuart I (doc. 5, ¶ 27), but Plaintiffs did not appear to bring a malicious prosecution cause of action in Stuart I and, as discussed previously, the malicious prosecutions claims had not yet accrued.
c. Count Three for Unreasonable Seizure Should Not be Stricken.
Plaintiffs' Count Three alleges Defendants Scottsdale, Scott, Santaella, and Thompson unreasonably and unlawfully seized Plaintiffs' firearms and ammunition from May until August 2021. (Stuart III, Doc. 36, ¶¶ 166-78.) Plaintiffs have not raised these claims before, and the alleged seizure did not occur until after the commencement of Stuart I and II. It is clear this claim does not violate Judge Humetewa's Order. This Court does not agree that Plaintiffs “added” a claim for Virginia Stuart on this Count, as it is clear from the FAC the claim was being asserted on behalf of both Plaintiffs. (Stuart III, Doc. 14, ¶¶ 178-80.)
d. Count Four for Municipal Liability under Monell Should Not be Stricken.
Plaintiffs' Count Four alleges that the City of Scottsdale, acting through its official policymakers-Defendants Lane, Washburn, Thompson, and Scott-and pursuant to city policy, violated Mark Stuart's constitutional rights in the Threats and Trespassing Prosecutions by, inter alia, causing Mr. Stuart to be prosecuted in retaliation for his speech activities and denying him access to exculpatory evidence. (Stuart III, Doc. 36, ¶¶ 184-86.) Plaintiffs further allege Defendants implemented “Speech Suppression” and “Due Process Violation Policies.” (Id., at ¶¶ 184-93, 194-96.)
Judge Humetewa's June 29, 2023 Order notes Plaintiffs' Monell claim from the FAC was “substantially similar to the Monell claim under count nine of the 2017 Action[,]” and that it should be removed. (Stuart III, Doc. 35 at 7.) The Monell claim in the SAC still alleges, inter alia, that the City's “Speech Suppression Policies” caused Mr. Stuart's arrest and subsequent prosecution for trespassing at the February 7, 2017 city council meeting. (Stuart III, Doc. 36, ¶¶ 187-90, 193.) But while some of the subject matter was clearly at issue in Stuart I, many allegations pertain to the conduct at issue in the Trespassing and Threats Prosecutions, which continued beyond Stuart I and II (id., at ¶¶ 185-86, 191-92, 194-99), and the continued seizure of his property, (id. at 200), which occurred after Stuart II. This Court finds it is not immediately clear that this claim violates Judge Humetewa's Order, or that it is otherwise impertinent or redundant, and recommends it should not be stricken.
e. Count Five for First Amendment Harms Should Not be Stricken.
In Count Five, Plaintiffs allege Defendants Scottsdale, Lane, and Scott violated Plaintiffs' First Amendment rights by “instituting the Threats Prosecution” as retaliation for Plaintiff Mark Stuart's speech and without probable cause to believe an unlawful threat had been made. (Id., at ¶¶ 217-18.) Plaintiffs allege Defendants Scottsdale, Scott, Thompson, and “the City Council” threatened to enforce arbitrary speech rules at city council meetings, that this chilled Mark Stuart's speech, and that it prevented him from attending and speaking at city council meetings in October and November 2021. (Id., at ¶ 223.) Plaintiffs allege the city council's meeting policies are wielded to effect censorship and viewpoint discrimination in violation of the First Amendment. (Id., at ¶¶ 219-23.)
Some of Plaintiffs' allegations pertaining to the city council's speech policies could have been brought in Stuart I, and impermissibly “instituting the Threats Prosecution” could have been brought in Stuart II, but Plaintiffs also allege continuing harms that occurred after Stuart I and II. (Id., at ¶ 223.) As such, it is not clear that this Count violates Judge Humetewa's Order or is otherwise impertinent or redundant. The Court recommends allowing Plaintiffs to proceed on Count Five subject to any dispositive motions as may arise in due course.
f. Count Six for Malicious Prosecution under State Law Should Not be Stricken.
Plaintiffs allege that Defendants Scottsdale, Scott, and Lane caused Mark Stuart to be prosecuted in the Threats Prosecution to retaliate against him, to damage his reputation, and to cause him financial harm. (Id., at ¶¶ 228-30.) These claims are directly related to the injunction against harassment the City procured against Mr. Stuart, which was at issue in Stuart II, but as discussed supra under Count Two, malicious prosecution claims do not generally accrue until the defendant's acquittal on the underlying criminal charge, e.g., Glaze v. Larsen, 83 P.3d 26, 29 (Ariz. 2004), and Plaintiffs have not brought malicious prosecution claims in prior actions. As such, this Court cannot recommend striking Count Six.
g. Counts Seven and Eight Should be Stricken.
Plaintiffs added Counts Seven and Eight, seeking declaratory judgments that A.R.S. § 13-1202(A)(1) is unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments, and permanent injunctive relief prohibiting their enforcement. (Stuart III, Doc. 36, ¶¶ 233-53.) Judge Humetewa directed Plaintiff not to add new claims (doc. 35 at 8), so the Court recommends Counts Seven and Eight be stricken.
Accordingly, IT IS RECOMMENDED GRANTING Defendants' Motion to Strike (doc. 41), in part, by striking Counts Seven and Eight. In all other respects, Defendants' Motion to Strike should be DENIED.
IT IS FURTHER RECOMMENDED DENYING Defendants' Motion to Vacate the order setting the Rule 16 scheduling conference (doc. 41) as moot.
IT IS FURTHER RECOMMENDED the Court order Defendants answer to Counts One, Two, Three, Four, Five, and Six of the SAC, or file a dispositive motion on the remaining counts, within 14 days of the Court's ruling on this Report and Recommendation.
IT IS FURTHER RECOMMENDED that Plaintiffs' request for sanctions is DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72