Hall v. Apodaca

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