Opinion
CV-21-00410-TUC-JAS (MSA)
04-11-2022
Elizabeth Rose Williams, Plaintiff, v. Arizona Superior Court of Pima County, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Maria S. Aguilera, United States Magistrate Judge.
This case arises from a child-custody dispute and related family-court case. Elizabeth Williams, mother to the minor children who are the subject of the dispute, sues the children's father, her former attorney, that attorney's current and former law firms, two superior court judges, the superior court, and the Arizona Commission on Judicial Conduct. All Defendants, save one who has not appeared, move to dismiss the complaint without leave to amend. The Court will recommend that the motion be granted in part. As to the Defendant who has not appeared, the Court will recommend that he be dismissed for lack of service of process.
Background
The complaint contains the following allegations: Derek Davis is the father of Williams's two minor children. (Doc. 1 at 11.) In February 2016, Davis filed a petition in the Pima County Superior Court, requesting that the court “facilitate a parenting arrangement” between he and Williams. (Id.) In response, Williams retained attorney Randi Burnett. (Id. at 15.) At the time she was retained, Burnett worked at the law firm of Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., but, in late 2019, she moved to the McCarthy Law Firm. (Id. at 15, 19-20.)
Initially, the family-court proceeding was presided over by Superior Court Judge Paul Tang. (Id. at 12.) Judge Tang had a “personal connection” to Davis, which led Judge Tang to issue adverse rulings against Williams and make abusive statements towards or about Williams. (Id. at 12-21.) Williams requested that Burnett file a complaint against Judge Tang with the Arizona Commission on Judicial Conduct (Commission), but Burnett refused to do so, believing that Judge Tang did not have a conflict. (Id. at 18-19.) Williams filed a complaint herself, but the Commission dismissed it on the ground that Judge Tang did not have a conflict. (Id. at 23.) Subsequently, Superior Court Judge Cynthia Kuhn was assigned to the case. (Id.) Judge Kuhn stated that she wanted to put Davis “back on track to seeing his children” without first hearing evidence that Davis is dangerous. (Id.) Judge Kuhn also failed to issue a timely ruling on an attorney-fee motion. (Id. at 24.)
Williams requests that the Federal Bureau of Investigation (and other, unspecified agencies) be directed to investigate whether any civil, criminal, or ethical violations occurred during the family-court proceeding. (Id. at 25.) She requests that Defendants be terminated from their positions, be stripped of all licenses, and be criminally prosecuted. (Id.) She also requests “[s]everance of [Davis's] parental rights with child support obligations intact,” as well as damages for pain and suffering. (Id.)
Miscellaneous Issues
I. Williams cannot represent her minor children.
Williams, who is not represented by counsel, named her children as plaintiffs in this lawsuit. (Doc. 1 at 6.) She says that it was proper to do so, because she controls their “legal decision-making rights,” and they “chose to bring suit.” However, “a parent or guardian cannot bring an action on behalf of a minor child without retaining a lawyer.” Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997). This is because “it is not in the interest of minors . . . that they be represented by non-attorneys.” Id. at 876 (quoting Osei-Afriyie ex rel. Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 883 (3d Cir. 1991)). Therefore, the Court will recommend that Williams's children be dismissed from this lawsuit without prejudice.
In her response to the motion to dismiss, Williams requests that the Court “provide legal representation for the two minor children at a deferred rate.” This request is not supported by citation to legal authority and, moreover, should have been raised in a motion. The Court declines to consider it.
II. Williams failed to properly serve Davis.
On February 1, 2022, the Court informed Williams that she had not filed adequate proof of service on Davis. (Doc. 49 at 2.) To prove service, Williams attempted to rely on an email exchange that occurred in November 2021. (Doc. 37.) She also relied on the fact that she had a process server deliver a copy of the complaint to Davis at his place of employment. (Doc. 31.) The Court explained that the email exchange does not constitute proof of service, as the exchange is not signed by Davis, it is not clear that Davis was the person communicating with Williams, and it is not even clear that the exchange relates to this case. (Doc. 49 at 2.) The Court explained that the process server's certificate of service also does not constitute proof of service, since the docket showed that Williams had not yet obtained a summons from the Clerk of Court. (Id.)
Because Williams was not represented by counsel, the Court extended the service deadline and directed her (for a third time) to resources that could assist her in serving Davis. (Id. at 3.) Importantly, the Court warned Williams that Davis could be dismissed from this lawsuit if she failed to serve him by the deadline and in compliance with Federal Rule of Civil Procedure 4. (Id.)
The service deadline has passed, and Williams has not filed a signed waiver-of-service form or proof that she served Davis with the summons and complaint. In fact, the docket indicates that Williams still has not obtained a summons. However, Williams did not completely ignore the Court's order. In response to one of the pending motions, Williams asserts that she properly served Davis because he “agreed to accept service by email notification [as] previously documented with the courts.” (Doc. 51 at 2.)
When a defendant is not timely served, “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.” Fed.R.Civ.P. 4(m). However, if the plaintiff shows “good cause” for not completing service, “the court must extend the time for service for an appropriate period.” Id. Here, Williams received notice that Davis could be dismissed if she did not timely and properly serve him. Notwithstanding this warning, Williams refused to make another attempt at service. Given this failure, the Court finds that good cause for another extension is lacking, and that dismissal of Davis is appropriate.
Subject-Matter Jurisdiction
I. The Rooker-Feldman Doctrine.
The Pima County Superior Court, the Commission, and Judges Kuhn and Tang (collectively, the Judicial Defendants) contend that this lawsuit is barred by the Rooker-Feldman doctrine. This doctrine “prohibits a federal district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004) (citing Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003)). A lawsuit “is a forbidden de facto appeal . . . when the plaintiff in federal district court complains of a legal wrong allegedly committed by the state court, and seeks relief from the judgment of that court.” Noel v. Hall, 341 F.3d 1148, 1163 (9th Cir. 2003). However, “[t]he doctrine does not preclude a plaintiff from bringing an ‘independent claim' that, though similar or even identical to issues aired in state court, was not the subject of a previous judgment by the state court.” Cooper v. Ramos, 704 F.3d 772, 778 (9th Cir. 2012) (quoting Skinner v. Switzer, 562 U.S. 521, 532 (2011)).
It is not clear whether the family-court proceeding is ongoing or has proceeded to final judgment. Regardless, the Rooker-Feldman doctrine also bars challenges to statecourt interlocutory orders, and Williams plainly challenges several of those. Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001). Williams's request that Davis's parental rights be severed is barred because granting that relief would require overturning or modifying the state-court order that governs Davis's parental rights. Williams's challenges to state-court rulings concerning already completed visitations are also barred, since granting relief would require finding that the rulings were erroneous. See id. (applying the doctrine because the court could have found for the plaintiff only by “holding that the state court had erred”).
The Judicial Defendants request that the complaint be dismissed in its entirety based on the Rooker-Feldman doctrine. However, Williams also raises a claim relating to the Commission's dismissal of her complaint against Judge Tang. That decision does not involve a state-court order or judgment. In addition, Williams appears to accuse Judge Tang of engaging in tortious conduct during court hearings. Conceivably, Williams could seek redress for that conduct without challenging Judge Tang's rulings. See Noel, 341 F.3d at 1164 (stating that the Rooker-Feldman doctrine does not apply when “a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party”). Given the foregoing, the Court disagrees that the Rooker-Feldman doctrine bars this lawsuit in its entirety. (As discussed in subsequent sections, though, this lawsuit should be dismissed as to the Judicial Defendants for other reasons.)
II. Sovereign Immunity.
Under the Eleventh Amendment and doctrine of sovereign immunity, “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.” Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). This immunity also applies to state agencies. Pennhurst, 465 U.S. at 100. And, so long as the state is the real party in interest, it also applies to state officers who are sued in their official capacities. Id. at 101 (quoting Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945)).
As state agencies, the Pima County Superior Court and the Commission are entitled to sovereign immunity. See Bilyeu v. Myers, 649 Fed.Appx. 372, 373 (9th Cir. 2016) (applying immunity to the Maricopa County Superior Court); Dobronski v. Arizona, 128 Fed.Appx. 608, 609 (9th Cir. 2005) (applying immunity to the Commission). Judge Kuhn and Judge Tang are also entitled to sovereign immunity, since they are state officers who were sued in their official capacities. See Lund v. Cowan, 5 F.4th 964, 969 (9th Cir. 2021) (applying immunity to a California superior court judge). Finally, Williams does not argue, and the record does not indicate, that an exception to immunity applies. The Judicial Defendants have not waived immunity but rather are asserting it, and the Court is unaware of any federal statute abrogating immunity under these circumstances. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (explaining that sovereign immunity can be waived by its holder or abrogated by Congress). And Williams is not seeking prospective injunctive relief but is instead seeking redress for events that have already occurred. See Ex parte Young, 209 U.S. 123, 155-56 (1908) (explaining that sovereign immunity does not apply when a plaintiff sues to enjoin a state officer from violating federal law).
Failure to State a Claim
I. Legal Standard.
A defendant can challenge a complaint on the ground that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A motion to dismiss under this rule “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). To survive such a motion, the plaintiff's claim must be “plausible on its face,” meaning it is supported by “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). In determining whether the plaintiff has stated a plausible claim, the court “must take all the factual allegations in the complaint as true,” although it need not “accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
II. Nonjural Defendants.
In Arizona, “[g]overnmental entities have no inherent power and possess only those powers and duties delegated to them by their enabling statutes. Thus, a governmental entity may be sued only if the legislature has so provided.” Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz.Ct.App. 2010) (citing Schwartz v. Maricopa Cty. Superior Ct., 925 P.2d 1068, 1070 (Ariz.Ct.App. 1996)). A “nonjural” entity is one which has not been authorized to sue or be sued. McKee v. State, 388 P.3d 14, 21 (Ariz.Ct.App. 2016). Here, there is no state law providing that the Pima County Superior Court or the Commission can be sued. Therefore, they are nonjural entities, and dismissal is appropriate. See Yamamoto v. Santa Cruz Cty. Bd. of Supervisors, 606 P.2d 28, 29 (Ariz.Ct.App. 1979) (holding that the Santa Cruz County Superior Court is a nonjural entity).
Williams points out that “if a complaint includes a misnomer of a jural entity and service has been made on the associated jural entity, the appropriate remedy for the error is not dismissal of the complaint but leave to amend.” Simon v. Maricopa Med. Ctr., 234 P.3d 623, 625 (Ariz.Ct.App. 2010). She requests that she be granted leave to amend so that she can add the state of Arizona as a defendant in this case. However, Williams has not “properly served” the state of Arizona. See Ariz. R. Civ. P. 4.1(h)(1) (providing that service on the state must be made on the Arizona attorney general); Ariz. Agency Handbook, ch. 13, § 13.2.2.1 (2018), https://www.azag.gov/outreach/publications/agency-handbook (last visited April 11, 2022) (providing where the attorney general can be served). The rule articulated in Simon is therefore inapplicable. See Simon, 234 P.3d at 628 (holding that amendment was appropriate because the plaintiff “properly served” the associated jural entity).
III. Judicial Immunity.
“Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Those who act with judicial immunity “cannot be held liable for damages under any circumstances, even if they violate clearly established federal rights, and even if they do so intentionally or maliciously.” Brooks v. Clark County, 828 F.3d 910, 915-16 (9th Cir. 2016). This protection “all but guarantees swift dismissals under Rule 12(b)(6), thereby sparing its beneficiaries the many different costs (pecuniary and otherwise) that litigation entails.” Id. at 916.
Williams alleges that Judge Kuhn and Judge Tang made improper statements during court hearings, issued erroneous rulings, and, in one case, excessively delayed a ruling. This conduct is shielded by judicial immunity. See Lund v. Cowan, 5 F.4th 964, 972 (9th Cir. 2021) (statements from the bench); Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (rulings on motions). Williams also alleges that Judge Tang improperly failed to recuse himself, and that Judge Tang's rulings were motivated by his “personal connection” to Davis. This conduct is also shielded by judicial immunity. See Acres Bonusing, Inc. v. Marston, 17 F.4th 901, 916 (9th Cir. 2021) (decision not to recuse), petition for cert. filed (U.S. Mar. 16, 2022) (No. 21-1255); Bradley v. Fisher, 80 U.S. 335, 348 (1871) (judicial acts done out of partiality).
Judicial immunity “is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11-12 (first citing Forrester v. White, 484 U.S. 219, 227-29 (1988); then citing Stump v. Sparkman, 435 U.S. 349, 356-57, 360 (1978); and then citing Bradley, 80 U.S. at 351). The acts described above plainly were judicial in nature, and the record does not indicate that they were done in the complete absence of jurisdiction. Therefore, neither exception applies.
IV. Sufficiency of the Allegations.
The foregoing demonstrates that the Judicial Defendants must be dismissed with prejudice, so the Court now turns to the sufficiency of the allegations against Burnett and her current and former law firms (collectively, Burnett). Williams alleges that she paid a $7,500 retainer to Burnett, that Burnett appeared in court on Williams's behalf, and that Burnett refused to file a complaint against Judge Tang after receiving notice from Williams that Judge Tang had a conflict of interest. Based on these allegations, Williams raises claims for “extortion,” “violation of [her] right to due process,” “[n]egligence,” and “[l]egal malpractice.”
The extortion claim appears to be predicated on 18 U.S.C. §§ 872 and 1951. This claim fails because those are criminal statutes which do not create a civil right of action. Abcarian v. Levine, 972 F.3d 1019, 1026 (9th Cir. 2020) (§ 1951); Ang v. Wells Fargo Bank, N.A., No. CV 18-199, 2018 WL 6131212, at *3 (C.D. Cal. June 25, 2018) (§ 872). The due-process claim appears to be brought under 42 U.S.C. § 1983. This claim fails because, as a privately retained attorney, Burnett was not acting under color of state law when representing Williams. See 42 U.S.C. § 1983 (creating liability only for state actors); Simmons v. Sacramento Cty. Superior Ct., 318 F.3d 1156, 1161 (9th Cir. 2003) (holding that a privately retained attorney did not act under color of state law when defending a client in a civil suit).
The negligence and malpractice claims also fail. These claims have identical elements: duty, breach of duty, actual and proximate causation, and damages. Glaze v. Larsen, 83 P.3d 26, 29 (Ariz. 2004) (quoting Phillips v. Clancy, 733 P.2d 300, 303 (Ariz.Ct.App. 1986)). Williams fails to allege that Burnett's refusal to file a complaint was a breach of duty, because the grounds for the complaint were ultimately found to be meritless. See Baird v. Pace, 752 P.2d 507, 509 (Ariz.Ct.App. 1987) (stating that a breach occurs when the attorney fails to “act for his client in a reasonably careful and skilled manner” (citing Martin v. Burns, 429 P.2d 660, 662 (Ariz. 1967))). Williams fails to allege that Burnett's refusal to challenge Judge Tang caused a less favorable outcome, because another judge, Judge Kuhn, later agreed that Davis should have visitation rights. See Phillips, 733 P.2d at 303 (stating that causation is established if “but for the attorney's negligence, [the client] would have been successful in the prosecution or defense of the original suit” (citing Molever v. Roush, 732 P.2d 1105, 1112 (Ariz.Ct.App. 1986))).
Leave to Amend
“A district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). Here, any amendment relating to the Judicial Defendants would be futile, as two are nonjural entities which cannot be sued, two are entitled to judicial immunity, and all are entitled to sovereign immunity. This defect would not be cured by an amendment naming the state of Arizona as a defendant, because the state also has sovereign immunity. Thus, the Court finds that the Judicial Defendants should be dismissed with prejudice.
The Judicial Defendants seek dismissal on additional grounds. Given the Court's findings, the other grounds need not be addressed.
The Court finds that dismissal of Burnett and the law firms should be without leave to amend. As the parties are not diverse, the Court will have subject-matter jurisdiction only if Williams can allege a federal-law claim. See 28 U.S.C. §§ 1331, 1332. Williams, however, has not alleged any facts about her former attorney that implicate federal law. To the contrary, her allegations are clearly limited to state-law issues, namely, legal malpractice and breach of contract. The Court is comfortable in concluding that Williams can allege no claim against Burnett that raises a federal question, sufficient to support subject-matter jurisdiction. As such, amendment would be futile. See Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189 (9th Cir. 1998) (affirming the denial of leave to amend because the proposed amendment “provided no basis for subject matter jurisdiction”).
Williams will have the opportunity to object to this report and explain what federal claim she can raise against Burnett, if any. If she cannot identify a federal claim, that would confirm the Court's conclusion that amendment would be futile. See Puri v. Khalsa, 674 Fed.Appx. 679, 685 (9th Cir. 2017) (holding that the district court did not err in denying leave to amend because the plaintiffs failed to explain how they would cure the complaint's defects). Of course, futility of amendment here would not prevent Williams from pursuing her malpractice claim in state court.
IT IS RECOMMENDED that Plaintiffs V.E.W. and M.R.D. be dismissed without prejudice.
IT IS FURTHER RECOMMENDED that Defendant Derek Davis be dismissed without prejudice for lack of service of process.
IT IS FURTHER RECOMMENDED that the motion to dismiss (Doc. 35) be granted in part and that the complaint (Doc. 1) be dismissed without leave to amend. Dismissal should be with prejudice as to the Pima County Superior Court, the Arizona Commission on Judicial Conduct, Judge Cynthia Kuhn, and Judge Paul Tang. Dismissal should be without prejudice as to Randi Burnett, the law firm of Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., and the McCarthy Law Firm.
IT IS FURTHER RECOMMENDED that the motion to compel (Doc. 42) be denied as moot.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). No replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation by the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).