Wolde-Giorgis v. Improvement

ARAYA WOLDE-GIORGIS, Plaintiff/Appellant, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, Defendant/Appellee

No. 1 CA-CV 09-0750

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT C

Filed: Jun. 25, 2011

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. CV2007-010666

The Honorable Jeanne M. Garcia, Judge

AFFIRMED

Araya Wolde-Giorgis

Plaintiff/Appellant In Propria Persona

Scottsdale

Jennings, Strouss & Salmon, P.L.C.

By John J. Egbert

Attorneys for Defendant/Appellee

Phoenix

BROWN, Judge

¶1 Araya Wolde-Giorgis ("Appellant") challenges the trial court's dismissal of his complaint against Salt River Project Agricultural Improvement and Power District ("SRP"). For the following reasons, we affirm.

BACKGROUND

¶2 On June 29, 2007, Appellant sued SRP and other defendants alleging discrimination and requesting damages. Appellant asserted that SRP deliberately overcharged him between 1994 and late 2005, refused to refund his deposit when he moved, and "violated Article II, Sections 4, 6, and 8 of the Arizona Constitution among other Arizona laws as well as 42 USC [sic] 1981, 1982, 1983, 1985, and 1986."

¶3 SRP moved to dismiss under Arizona Rule of Civil Procedure 12(b)(6), asserting Appellant's claims were barred by his failure to comply with Arizona's notice of claim statute, Arizona Revised Statutes ("A.R.S.") section 12-821.01 (2003). Appellant responded that he filed a notice of claim and his federal claims were not subject to state statutes. In an affidavit supporting his supplemental response, Appellant avowed he filed a notice of claim on September 14, 2005.

¶4 The trial court granted the motion, noting that Appellant failed to provide the notice of claim he had allegedly filed with SRP. Appellant then filed a motion for new trial. ¹The court subsequently entered judgment pursuant to Arizona Ruleof Civil Procedure 54(b), dismissing the complaint against SRP. ²This timely appeal followed.

DISCUSSION

¶5 Appellant asserts the trial court erred by granting SRP's motion to dismiss because he filed a notice of claim and because Arizona's notice of claim statute does not bar his federal claims.³

¶6 A motion to dismiss is converted to a motion for summary judgment if the court considers documents outside of the pleadings. Ariz. R. Civ. P. 12(b); see also Green v. Garriott, 221 Ariz. 404, 417, ¶ 50, 212 P.3d 96, 109 (App. 2009) ("When papers are attached to a response to a motion to dismiss and the superior court considers those documents or does not strikethem, the motion to dismiss is treated as a motion for summary judgment."). In its reply to the motion to dismiss, SRP attached an affidavit of an attorney employed by SRP and a letter SRP received from Appellant in 2002. Appellant attached an affidavit to his supplemental response. These documents converted the motion to one for summary judgment. Accordingly, we review the judgment de novo and will affirm only if there is no genuine dispute of material fact. Yollin v. City of Glendale, 219 Ariz. 24, 27, ¶ 6, 191 P.3d 1040, 1043 (App. 2008). Further, we view the facts in the light most favorable to Appellant. Mousa v. Saba, 222 Ariz. 581, 585, ¶ 15, 218 P.3d 1038, 1042 (App. 2009).

I. State Law Claims

¶7 SRP is a political subdivision of the state and therefore, a public entity. Stulce v. Salt River Project Agric. Improvement and Power Dist., 197 Ariz. 87, 89 n.1, 3 P.3d 1007, 1009 n.1 (App. 1999) (citations omitted). As such, actions against SRP are governed by Arizona's notice of claim requirements, specifically A.R.S. § 12-821.01(A), which requires service of a notice of claim against a public entity "within one hundred eighty days after the cause of action accrues." Additionally, all actions against a public entity "shall be brought within one year after the cause of action accrues." A.R.S. § 12-821 (2003). A cause of action accrues "when thedamaged party realizes he or she has been damaged and knows or reasonably should know" what caused or contributed to the damage. A.R.S. § 12-821.01(B).

¶8 Even assuming Appellant filed a notice of claim on September 14, 2005, his state law claims against SRP are time-barred. If the notice of claim was filed within one hundred eighty days of September 14, 2005, when his cause of action accrued, Appellant did not timely file his complaint, as it was filed on June 29, 2007, well over one year later. See A.R.S. § 12-821. And, even if his cause of action accrued at a later date, then Appellant did not file a timely notice of claim, as he does not allege he filed any other notices of claim.⁴See A.R.S. § 12-821.01(A). Therefore, the court properly dismissed Appellant's state law claims.

II. Federal Claims

¶9 Appellant contends that Arizona's notice of claim requirements and related statute of limitations do not control his federal claims under 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986. We agree; however, we conclude that the trial court'sorder granting SRP's motion to dismiss can be sustained on different grounds.

¶10 In Felder v. Casey, the United States Supreme Court determined that federal law preempted Wisconsin's notice of claim requirements. 487 U.S. 131, 134, 138 (1988), superseded by statute on other grounds, 42 U.S.C. § 1997(e)(a) (West 2011). In light of Felder, Arizona has recognized the one-year statute of limitations does not apply to 42 U.S.C. § 1983 claims. See Mulleneaux v. State, 190 Ariz. 535, 540, 950 P.2d 1156, 1161 (App. 1997); Morgan v. City of Phoenix, 162 Ariz. 581, 584, 785 P.2d 101, 104 (App. 1989).

¶11 Instead, a two-year statute of limitations applies to §§ 1981, 1982, 1983 and 1985 actions. A.R.S. § 12-542 (2003) (two-year statute of limitations in personal injury torts); see Kyles v. Contractors/Eng'rs Supply, Inc., 190 Ariz. 403, 407, 949 P.2d 63, 67 (App. 1997) (discussing § 1981 claims); Denny v. Hutchinson Sales Corp., 649 F.2d 816, 820 (10th Cir. 1981) (finding that § 1982 actions are governed by state statute of limitations for personal injury torts); Wallace v. Kato, 549 U.S. 384, 387 (2007) (finding that the limitations period for § 1983 actions "is that which the State provides for personal injury torts"); McDougal v. Cnty. of Imperial, 942 F.2d 668, 673-74 (9th Cir. 1991) (finding that § 1985 actions governed by state statute of limitations). A one-year statute oflimitations, however, applies to § 1986 claims. See 42 U.S.C. § 1986.

¶12 Accordingly, the trial court erred in dismissing Appellant's federal claims based on Arizona's notice of claim requirements and statute of limitations. Nevertheless, we may uphold the dismissal if it was correct for any reason. See Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986) ("We will affirm the trial court's decision if it is correct for any reason, even if that reason was not considered by the trial court."); see also Regan v. First Nat. Bank, 55 Ariz. 320, 327-28, 101 P.2d 214, 218 (1940) (affirming when an issue was determinative of an action even though it was not raised.). Accordingly, we address the merits of the federal claims raised against SRP.

¶13 To survive a motion to dismiss under Arizona law, a complaint must include a short and plain statement showing the relief to which the plaintiff is entitled. ⁵ Ariz. R. Civ. P. 8(a)(2); Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6, 189 P.3d 344, 346 (2008). Courts will consider only well-plead factual allegations. Cullen, 218 Ariz. at 419, ¶ 7, 189 P.3d at 346. Conclusory statements do not satisfy Arizona's notice pleading standard and "are insufficient to state a claim upon which relief can be granted." Id. Appellant's complaint alleges the following against SRP:

Plaintiff has been a customer of SRP between 1994 and late 2005. During those years, Plaintiff was repeatedly discriminated against and Plaintiff was forced to file two lawsuits in 1994 and 1995. Since then, the discrimination and retaliation were expanded and SRP was actually deliberately overcharging Plaintiff, and Plaintiff was forced out of an SRP area and had to rent in an APS area. Then adding insult to injury, SRP refused to refund Plaintiff's deposit when he moved out in late 2005. Plaintiff repeatedly wrote several letters between 1995 and 2006, including 8/15/05, 10/16/05, 12/17/05, 1/16/06, and 2/12/05 among many other letters including past and recent ones to both Mr. William Schraeder and current president, Mr. John Williams, and to this day, both of them not only ignored Plaintiff's request and expanded their discriminatory practices but they also refused to even refund my deposit as well as pay me back the money SRP owed Plaintiff. Above all, because of conspiracy among these Defendants with former Defendants... to discriminate and retaliate against Plaintiff, the Defendants violated Article II, Sections 4, 6, and 8 of the Arizona Constitution among other Arizona laws as well as 42 USC [sic] 1981, 1982, 1983, 1985, and 1986 and violated privacy rights of Plaintiff by releasing confidential information to a third party without Plaintiff's authorization. Then, as a result of such acts as well as overt acts in furtherance of such conspiracy to retaliate and discriminate against Plaintiff, Plaintiff was completely devastated and suffered enormous emotional and psychological injuries as will be shown during the trial.

We conclude that Appellant's federal claims pleadings are insufficient under Arizona's notice pleading requirements.

¶14 Section 1981(a) provides that all persons "shall have the same right in every State and Territory to make and enforce contracts... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white...