Polite v. TitleMax of Arizona Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Mykhal Lloyd Polite,
Plaintiff,
v.
TitleMax of Arizona Incorporated,
Defendant.
No. CV-25-01574-PHX-JZB
ORDER
Pending before the Court is Plaintiff’s “Motion for Leave to File First Amended
Complaint” (“Third Motion for Leave to Amend,” and “Motion”) (doc. 37).1 The instant
Motion was filed on December 29, 2025. See (doc. 37.) Plaintiff seeks leave to file a Third
Amended Complaint2 (“TAC”) to narrow his legal theories, “[e]liminate [n]on-[a]ctionable
and [c]ontextual statutes,” and clarify his factual allegations. (Id. at 1–2.) The Court will
deny the Motion with prejudice because Plaintiff’s TAC is futile for failing to state a viable
claim upon which relief may be granted.
I. Factual Background.
On April 1, 2025, Plaintiff, proceeding pro se, commenced this action by filing his
original Complaint against Defendant TitleMax of Arizona, Inc. (“TitleMax”). See (doc.
1.) The following facts are taken from Plaintiff’s TAC.3
Plaintiff’s action arises from a settlement agreement between the Parties entered on
1 The Parties consented to magistrate judge jurisdiction on July 15, 2025. (Doc. 20).
2 While the Motion states “First Amended Complaint,” the Court notes that, in fact,
this is Plaintiff’s Third Amended Complaint. See (docs. 1, 11, 26.)
3 Plaintiff’s clean copy of the TAC is missing page 3. See (doc. 37-1.)
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July 16, 2024, involving a repossessed 2011 Chevrolet Camaro. 4 (Doc. 37-1 at 3.) Under
the settlement agreement, Plaintiff would regain possession of the vehicle and take steps
necessary to transfer title to Plaintiff. (Id.)
On an undisclosed date, Plaintiff retrieved the vehicle. (Id.) Plaintiff alleges that he
found “the vehicle in a materially damaged condition that differed from the condition
previously communicated to Plaintiff.” (Id.) The damages alleged are mechanical and
physical in nature, “including but not limited to damage affecting its operability and ability
to pass emissions testing.” (Id.) Plaintiff alleges that Defendant did not disclose the state
of the vehicle to Plaintiff before he regained possession of the vehicle. (Id.) Beyond the
alleged damage to the vehicle, Plaintiff alleges that Defendant delayed transferring title to
the vehicle, which prevented Plaintiff from lawfully registering and driving his vehicle.
II. Procedural background.
On April 1, 2025, Plaintiff commenced this action in the Maricopa County Superior
Court. (Doc.1-1 at 3.) This action was subsequently removed to the U.S. District Court for
the District of Arizona by Defendant on May 7, 2025. (Doc. 1 at 6.) On May 21, 2025,
Plaintiff filed a First Motion for Leave to Amend. See (doc. 11.) This motion was denied
for failure to comply with LRCiv 15.1 and because of the use of hallucinated cases from
purported Artificial Intelligence use. See (doc. 25.) Following the Court’s denial, Plaintiff
simultaneously filed his Second Motion for Leave to Amend on October 6, 2025. (Doc.
26.) The Court denied his Second Motion for Leave to Amend because it was futile and
unduly prejudicial to Defendant. See (doc. 35.) The Court permitted Plaintiff to file a
renewed motion for leave to amend on or before December 26, 2025. (Id. at 11.) The instant
Motion was filed on December 29, 2025. (Doc. 37.)
III. Legal Standards.
Rule 15 of the Federal Rules of Civil Procedure governs whether the Court should
4 The Court notes that Plaintiff’s proposed Third Amended Complaint omits key facts
regarding his case, such as the existence of a title loan agreement between the Parties, the
fact that he reserved the right to pursue an action for property damage resulting, and the
specific acts Defendant’s counsel allegedly took—e.g., his prior assertion that counsel
showed him an aged photograph of the care—that supports his averment of fraud. See (doc.
35 at 1–2.)
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or should not grant leave to amend. See generally Fed. R. Civ. P. 15. Under Rule 15, a
party may amend its pleadings as a matter of course within 21 days of serving it, or 21 days
after service of a responsive pleading or Rule 12(b), (e), or (f) motion. Fed. R. Civ. P.
15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).
Generally, leave to amend is “freely give[n] when justice so requires.” Fed. R. Civ.
P. 15(a)(2). “Rule 15’s policy of favoring amendments to pleadings should be applied with
extreme liberality” in normal circumstances. DCD Programs, Ltd. v. Leighton, 833 F.2d
183, 186 (9th Cir. 1987) (cleaned up); Chudacoff v. Univ. Med. Ctr. of S. Nevada, 649 F.3d
1143, 1152 (9th Cir. 2011) (“Rule 15(a) is designed to facilitate decision on the merits,
rather than on the pleadings or technicalities.”) (cleaned up). While Rule 15 is to be applied
with extreme liberality, it does not guarantee leave to amend will be granted. Rather, the
decision whether to “grant or den[y] . . . an opportunity to amend is within the discretion
of the District Court[.]” Komie v. Buehler Corp., 449 F.2d 644, 648 (9th Cir. 1971) (citation
omitted).
In analyzing whether leave to amend should be granted, the Court applies the
following Foman factors:
In the absence of any apparent or declared reason—such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of
amendment, etc.—the leave sought should, as the rules require, be ‘freely
given.’
Foman v. Davis, 371 U.S. 178, 182 (1962).
In applying the Foman factors, the U.S. Court of Appeals for the Ninth Circuit has
clarified that not every factor is weighed evenly. Eminence Cap., LLC v. Aspeon, Inc., 316
F.3d 1048, 1052 (9th Cir. 2003). Specifically, “[p]rejudice is the ‘touchstone of the inquiry
under rule 15(a).’” Id. (quoting Lone Star Ladies Inv. Club v. Schlotzsky’s Inc., 238 F.3d
363, 368 (5th Cir. 2001)).
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Beyond undue prejudice, “[f]utility of amendment can, by itself, justify the denial
of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). An
amendment is futile where it does not “present a viable claim on the merits for which relief
could be granted[,]” Murray v. Schriro, 745 F.3d 984, 1015 (9th Cir. 2014), or “[w]here
the legal basis for a cause of action is tenuous[.]” Lockheed Martin Corp. v. Network Sols.,
Inc., 194 F.3d 980, 986 (9th Cir. 1999).
IV. Discussion.
Plaintiff seeks leave to amend so that he may: (1) narrow his legal theories; (2)
eliminate non-actionable and contextual statutes; and (3) clarify his factual allegations.
(Doc. 37 at 1–2.) Plaintiff supports his Motion by referencing Rule 15’s liberal standard
and stating that none of the Foman factors are present. (Id. at 1.) In its Response, Defendant
asserts that Plaintiff’s Motion should be denied because: (1) Plaintiff’s proposed TAC is
futile; “Plaintiff improperly seeks damages which he intended to release in the settlement
agreement”; and (3) because he neither attached the settlement agreement5 nor averred how
Defendant breached said agreement. (Doc. 38 at 1–4.) Additionally, the Court notes that
Plaintiff’s Motion is untimely under this Court’s prior order. Compare (doc. 35) with (doc.
37). Accordingly, the Court will address: (1) whether the untimeliness of Plaintiff’s Motion
necessitates denying it; (2) whether Plaintiff’s TAC is futile; and (3) whether the damages
sought are improper.
1. Untimely Motion.
As an initial matter, the Court notes that Plaintiff’s Motion is untimely. Plaintiff was
given until December 26, 2025, to file a renewed motion for leave to amend. (Doc. 35 at
11.) Plaintiff did not file the instant Motion until December 29, 2025. See (doc. 35.) The
Court puts Plaintiff on notice that he must file motions by the deadline. See Fed. R. Civ. P.
6. Signing and mailing by the deadline is insufficient; Rather, Plaintiff has an obligation to
file motions and notices by the deadline, especially considering “[p]ro se litigants must
follow the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d
5 Defendant appends the settlement agreement to their Response. See (doc. 38-1.)
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565, 567 (9th Cir. 1987), overruled on other grounds, Lacey v. Maricopa Cnty., 693 F.3d
896 (9th Cir. 2012).
Although Plaintiff’s Motion is late, the Court will not deny it on procedural grounds.
This is because the Court finds that Plaintiff’s untimely motion was due to excusable
neglect.6 However, going forward, Plaintiff is warned that he must file motions by the
deadline. Signing a motion or mailing a motion by the deadline is insufficient.
2. Futility.
The Court will next address whether Plaintiff’s TAC is futile. Plaintiff’s TAC
asserts the following counts: (a) breach of contract; (b) violations of the Arizona Consumer
Fraud Act (“ACFA”); and (c) negligence. (Doc. 37-2 at 6–7.) The Court will address each
count in turn.
a. Count One: Breach of Contract.
In his first count, Plaintiff alleges that Defendant’s breached the settlement
agreement by delivering the vehicle in a damaged condition and failing to timely transfer
title to the vehicle. (Id. at 6.) To succeed on a breach of contract claim under Arizona law,
a party “must show that an enforceable contract exists, that it was breached, and that the
plaintiff suffered damages.” Williams v. Alhambra Sch. Dist. No. 68, 234 F. Supp. 3d 971.
984–85 (D. Ariz. 2017) (citing Graham v. Asbury, 540 P.2d 656, 657 (Ariz. 1975)).
Viewing the facts in the light most favorable to Plaintiff, he has failed to present a
viable claim for which relief could be granted. This is because, as an initial matter,
Plaintiff’s TAC does not establish that an enforceable settlement agreement exists. While
Plaintiff references a settlement agreement between the Parties, he does not attach a copy
of the agreement to the TAC. Instead, Plaintiff solely states that “[u]nder the settlement,
6 “When an act may or must be done within a specified time, the court may, for good
cause, extend the time . . . on motion made after the time has expired if the party failed to
act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B) (emphasis added). “The
determination of excusable neglect takes into account: (1) the danger of prejudice; (2) the
length of the delay and its potential impact on judicial proceedings; (3) the reasons for the
delay which includes whether it was within the reasonable control of the party seeking to
show excusable neglect; and (4) whether that party acted in good faith.” De La Rosa v.
Costco Wholesale Corp., No. 21-CV-1630-W-BGS, 2022 WL 2541273, at *2 (S.D. Cal.
July 6, 2022) (citing Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380,
395 (1993)).
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Defendant agreed to return possession of the vehicle to Plaintiff and take the steps
necessary to transfer title[.]” (Doc. 37-2 at 3.) This singular reference to a purported
settlement agreement in the TAC is insufficient to establish that an enforceable contract
existed.7
Second, Plaintiff’s TAC, were it to be adopted, does not establish that Defendant
“breached” a purported settlement agreement. See Williams, 234 F. Supp. at 984–85. First,
under the sole purported provision of the agreement, Defendant’s only obligation was to
return the vehicle and transfer title. See (doc. 37-2 at 3.) This, under the TAC, Defendant
did. (Id.) (noting that Defendant did in fact transfer the vehicle and title—albeit allegedly
late). So, Defendant complied with its two purported requirements: (a) return possession;
and (b) transfer title. Regarding the averred delay in transferring the vehicle, Plaintiff does
not allege a deadline for the vehicle to be transferred nor a date when the vehicle and title
were transferred. See (id.) Without these crucial facts, the Court is unable to ascertain
whether there was a late transfer of title. Because it would require the Court and opposing
party to intuit crucial facts regarding a contract and the state of affairs in this action,
Plaintiff’s breach of contract claim is futile for failing to state a claim upon which relief
may be granted.
b. Count Two: Violation of ACFA.
Plaintiff’s ACFA claim is futile for failure to state a claim upon which relief may
be granted. Such finding should not be of surprise considering that this is Plaintiff’s second
attempt to raise an ACFA claim. Specifically, in Plaintiff’s proposed Second Amended
Complaint (“SAC”), Plaintiff asserted an ACFA violation which the Court found
insufficient. See (doc. 35 at 9–10.) Although Plaintiff’s ACFA claim in this TAC does not
perfectly mirror the ACFA claim in his SAC, both versions of his ACFA are legally
insufficient because the ACFA does not apply to settlement agreements. As this Court has
already stated:
7 While Defendant appends a copy of the settlement agreement to their Response, this
fact does not remedy Plaintiff’s failure to sufficiently allege that an enforceable agreement
existed.
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Under Arizona law, the use of “any deception, deceptive or unfair act
or practice, fraud, false pretense, false promise, misrepresentation, . . . with
intent that others rely on such [act], in connection with the sale or
advertisement of any merchandise . . . [is] unlawful.” A.R.S. § 44-1522(A).
Viewing the facts [of Plaintiff’s proposed Complaint] in the light most
favorable to [him], the Court finds that he has failed to present a viable ACFA
claim because, under the plain and unambiguous terms of the Act, it does not
apply to settlement agreements. Under both federal and state precedent,
where “the words of a statute are unambiguous, the ‘judicial inquiry is
complete.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003) (quoting
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)); State v. Serrato,
568 P.3d 756, 759 (Ariz. 2025) (“If a statute’s text is clear and unambiguous,
it controls unless it results in an absurdity or a constitutional violation.”).
Turning to the text of the ACFA, the Act only applies to advertisements and
sales. Id. Starting with advertisements, the Act defines an advertisement as
“the attempt by publication, . . . oral or written, to induce directly or indirectly
any person to enter into any obligation or acquire any title or interest in any
merchandise.” A.R.S. § 44-1521(1). Next, the Act defines sales as “any sale,
offer for sale or attempt to sell any merchandise for any consideration,
including sales, leases and rentals of any real estate subject to any form of
deed restriction imposed as part of a previous sale.” A.R.S. § 44-1521(7). So,
on its face, the ACFA is clear that a settlement agreement—and the
negotiations leading to that agreement—is neither an advertisement nor a
sale. Because Plaintiff fails to present a viable claim upon which relief may
be granted, his ACFA count is futile.
(Doc. 35 at 9–10.)
The Court finds no reason to deviate from its prior holding. Accordingly, Plaintiff’s
ACFA is futile for failure to state a claim.
c. Count Three: Negligence.
The Court finds that Plaintiff’s negligence fails to state a claim upon which relief
may be granted, and is accordingly futile. A negligence claim under Arizona law requires:
“(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach
by the defendant of that standard; (3) a causal connection between the defendant’s conduct
and the resulting injury; and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230
(Ariz. 2007).
Plaintiff’s TAC fails to aver all the required negligence elements—i.e., duty, breach,
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causation, and damages as required for a negligence claim. Specifically, Plaintiff has not
sufficiently alleged that Defendant breached a duty of care—regardless of whether a duty
existed. See Sanders v. Alger, 394 P.3d 1083, 1085–86 (Ariz. 2017) (noting Arizona state
courts’ aversion to basing decisions on broad statements of general duties owed to all
persons). Plaintiff has not alleged sufficient evidence that he had any right to the vehicle
before reaching a settlement agreement.8 Consequently, Plaintiff cannot allege that
Defendant breached a duty regarding the vehicle because he had no right to the vehicle
before regaining the vehicle.
Furthermore, Plaintiff has not asserted sufficient facts in his TAC to determine
whether a breach of duty occurred regarding the transfer of title. Accordingly, the Court
agrees with Defendant that Plaintiff’s negligence claim is merely “an unadorned, the
Defendant unlawfully-harmed-me accusation.” (Doc. 38 at 7) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). Because of this, Plaintiff’s negligence claim is futile.
3. Improperly Sought Damages.
As a final matter, the Court finds Defendant’s assertion that Plaintiff cannot recover
consequential damages well plead. See (doc.38 at 8.) Under Arizona state law, settlement
agreements are contracts governed by contract law. See Emmons v. Super. Ct. in & for
Cnty. of Maricopa, 968 P.2d 582, 585 (Ariz. App. 1998); see also Hisel v. Upchurch, 797
F. Supp. 1509, 1518–19 (D. Ariz. 1992) (“An agreement to settle a legal dispute is a
contract governed by the principles of contract law.”). In analyzing the Parties’ settlement
agreement, the Court does not find any unconscionability, unilateral or mutual mistake, or
fraud that would make the agreement and its provision unenforceable. Because of this and
considering that Plaintiff has waived seeking “economic or emotional damages,” (doc. 38
at 9), Plaintiff is unable to assert a claim for consequential damages. Therefore, any claim
8 As Defendant and this Court’s prior Order has noted, Plaintiff’s vehicle was
repossessed. During this time, Plaintiff did not have either an express or implied agreement
that the vehicle would be returned to Plaintiff. “When Plaintiff defaulted on the loan,
Defendant—as the secured party—had the right to take possession of the collateral and
dispose of the collateral by sale or lease, so long as that disposition was reasonable. A.R.S.
§§ 47-9609(A)(1), 47-9610(A).” (Doc. 35 at 9.)
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for consequential damages is futile.
V. Conclusion.
For the foregoing reasons, the Court finds that Plaintiff’s TAC is futile for failing to
present viable claims upon which relief may be granted. Therefore, the Court will deny
Plaintiff’s Motion for Leave to Amend. Because this was Plaintiff’s third attempt to amend
his Complaint, the Court will not grant leave to amend. See Sanchez v. Arpaio, No. CV 06-
0571-PHX-DGC-HCE, 2006 WL 1418562, at *1 (D. Ariz. May 22, 2006) (“The Court’s
discretion to deny or grant leave to amend is particularly broad where Plaintiff has
previously been permitted to amend his complaint. . . . The failure to cure deficiencies by
previous amendments is one of the factors to be considered in deciding whether justice
requires granting leave to amend.”).
VI. Sua Sponte Motion for Summary Judgment.
As a final matter, the Court notes that it is not likely to find any of Plaintiff’s
remaining claims sufficient based on the law and facts involved in this matter.
Consequently, the Court considers sua sponte dismissal of Plaintiff’s claims pursuant to
Rule 56(f).
“[D]istrict courts are widely acknowledged to possess the power to enter summary
judgments sua sponte, so long as the losing party was on notice that she had to come
forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); Fed.
R. Civ. P. 56(f)(3) (“After giving notice and a reasonable time to respond, the court may .
. . consider summary judgment on its own after identifying for the parties material facts
that may not be genuinely in dispute.”). “Sua sponte grants of summary judgment are only
appropriate if the losing party has reasonable notice that the sufficiency of his or her claim
will be in issue.” Norse v. City of Santa Cruz, 629 F.3d 966, 971–72 (9th Cir. 2010)
(citation omitted). “Reasonable notice implies adequate time to develop the facts on which
the litigant will depend to oppose summary judgment.” Portsmouth Square Inc. v.
S’holders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985).
Because Plaintiff’s breach of contract, negligence, and ACFA claims are legally
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deficient for the reasons stated herein, and because his averments of fraud9 and other
violations of Arizona state statutes10 in his operative Complaint are likely legally and
factually insufficient, the Court shall Order Plaintiff to brief why his claims should not be
summarily dismissed pursuant to Rule 56(f). In this brief, and at the Parties’ Case
Management Conference, Plaintiff should be prepared to address the following:
1) Why A.R.S. §§ 28-2131, 28-2134 are at all relevant considering that these
statutes apply to liens and encumbrances?
2) Why A.R.S. § 28-2060 is relevant to your claims considering that you, the
Plaintiff, are the transferee,—i.e., person receiving—meaning that the 30-
day requirement does not apply to Defendant?
3) Why A.R.S. § 47-2718, which relates to liquidated damages, applies to a
settlement agreement that does not contain a liquidated damages clause?
4) Why you could rely upon Defendant’s counsel’s representations during
settlement negotiations, considering, “as a matter of law and common sense,”
you “had no right to rely” upon representations from attorneys opposing you?
See Linder v. Brown & Herrick, 943 P.2d 758, 765 (Ariz. Ct. App. 1997).
5) What duty did Plaintiff owe you under Arizona Law? And how did
Defendant breach that duty?
6) In what way did Defendant breach the settlement agreement, considering that
it did not require them to transfer the vehicle in a certain condition?
//
9 To state a claim for fraud under Arizona state law, a party must sufficiently plead:
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s
knowledge of its falsity or ignorance of its truth, (5) the speaker’s intent that
it be acted upon by the recipient in the manner reasonably calculated, (6) the
hearer’s ignorance of its falsity, (7) the hearer’s reliance on its truth, (8) the
right to rely on it, and (9) a consequent and proximate injury.
SPUS8 Dakota LP v. KNR Contractors LLC, 641 F. Supp. 3d 682, 691 (D. Ariz. 2022).
Plaintiff fails to sufficiently allege all nine factors.
10 Plaintiff’s reliance upon A.R.S. §§ 28-2060, 28-2131, 28-2134, 47-2718 do not
appear applicable because this matter does not involve a lienholder, Plaintiff is the
transferee, and there is not a liquidated damages provision in the settlement agreement.
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Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Leave to File First Amended
Complaint (doc. 37) is DENIED as futile.
IT IS FURTHER ORDERED that Plaintiff shall not be permitted further leave to
amend his Complaint.
IT IS FURTHER ORDERED that the Court will Order that Plaintiff, on or before
FEBRUARY 27, 2026, show cause in writing why all claims against Defendant should be
dismissed pursuant to Rule 56(f)(3). Nothing in this Order shall prevent Defendant from
filing a contemplated Rule 56 Motion for Summary Judgment before that date. Plaintiff
should be prepared to discuss this matter during the scheduled Case Management
Conference on January 26, 2026.
IT IS FURTHER ORDERED that, in light of the Parties’ Joint Case Management
Report (doc. 39), the Parties may appear telephonically for the January 26, 2026, Case
Management Conference. The Parties are directed to call (855) 244-8681 and use access
code 2302 321 0604 five minutes before the hearing. It is defense counsel’s responsibility
to arrange for Plaintiff to appear telephonically.
IT IS FURTHER ORDERED that the Parties shall dial into the number provided
at least FIVE MINUTES PRIOR TO THE HEARING.
Dated this 23rd day of January, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
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