Gellos et al v. Phoenix, City of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Susan Gellos, et al.,
Plaintiffs,
v.
City of Phoenix, et al.,
Defendants.
No. CV-24-01529-PHX-GMS
ORDER
Pending before the Court is Defendants Officer Christopher Turiano, Officer
William Gates, and City of Phoenix’s (the “Phoenix Defendants”1) Motion to Dismiss the
First Amended Complaint. (Doc. 32). For the reasons below, the motion is granted.
BACKGROUND
On January 27, 2025, the Court granted in part and denied in part the Phoenix
Defendants’ first Motion to Dismiss (Doc. 18). (See Doc. 27, as amended by Doc. 28).2
In their initial complaint, Plaintiffs—Susan Gellos and her daughter Taryn Foster—
brought a claim for excessive force, in violation of the Fourteenth Amendment and 42
U.S.C. § 1983, against the Phoenix Defendants, claiming that Officer Turiano’s use of an
armlock to subdue Gellos—a concertgoer who was asked to leave the venue—coupled with
Officer Turiano’s use of “even more force” when Gellos attempted to position her body to
1 Officer Turiano and Officer Gates (the “Officers”) are both police officers with the
Phoenix Police Department.
2 The factual background and legal standards and conclusions set forth in that
Order—Gellos v. City of Phoenix, 2025 WL 307050 (D. Ariz. Jan. 27, 2025) (Doc. 28)—
are incorporated here by reference.
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relieve her initial pain, was objectively unreasonable and worsened injuries that Gellos had
previously suffered to her right arm. (Doc. 1 at 8-10, 15). Plaintiffs also brought a § 1983
claim against Officer Gates for failure to intervene. (Id. at 16). Finally, Plaintiffs brought
a host of state law claims against the Phoenix Defendants, Richard Brunton (a private
security guard at the concert venue), a number of unknown “persons, agents, servants,
employees, corporations and/or business entities,” and the marital communities of the
individual defendants. (Id. at 7-8, 11-14).3
The Court dismissed Plaintiffs’ § 1983 claims without prejudice, holding that
Officers Turiano and Gates were entitled to qualified immunity. (Doc. 28 at 3-6). First,
regarding the claim of excessive force, the Court held that Plaintiffs failed to plead facts
demonstrating that Officer Turiano’s use of force towards Gellos violated a “clearly
established” constitutional right. (Id. at 4-5). Second, in dismissing the failure to intervene
claim against Officer Gates, the Court ruled that Plaintiffs failed to meet their burden of
identifying cases clearly establishing the law on when an officer has a “realistic opportunity
to intercede.” (Id. at 5-6).
The Court, exercising supplemental jurisdiction over the remaining state law claims,
allowed the claims of gross negligence and negligent infliction of emotional distress
against the City of Phoenix to proceed, noting that the Phoenix Defendants did not assert
lack of plausibility. (Id. at 6-8). Plaintiffs were granted leave to amend their complaint
within thirty days. (Id. at 7). Plaintiffs timely filed their amended complaint on February
26, 2025. (Doc. 29).
In their amended complaint, Plaintiffs reassert the following five claims:
• Count I: Gross negligence against the City of Phoenix;
3 Plaintiffs brought state law claims of (1) gross negligence against the Phoenix
Defendants; (2) negligence against Brunton and other unidentified security guards; (3)
intentional infliction of emotional distress against all defendants; (4) negligent infliction of
emotional distress against all defendants; and (5) assault and battery against all defendants.
(Doc. 1 at 11-14). Prior to oral argument on the Phoenix Defendant’s first motion to
dismiss, held on January 17, 2025, the parties agreed to dismiss (1) the gross negligence
and negligent infliction of emotional distress claims against the Officers without prejudice;
(2) the intentional infliction of emotional distress claim against the Phoenix Defendants
with prejudice; and (3) the assault and battery claim against the Phoenix Defendants
without prejudice. (Doc. 28 at 1).
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• Count II: Negligence against Brunton and other unidentified security guards;
• Count III: Negligent infliction of emotional distress against the City of Phoenix;
• Count V:4 Excessive force in violation of the Fourteenth Amendment and 42
U.S.C. § 1983 against Officer Turiano; and
• Count VI: Duty and failure to intervene against Officer Gates.
(Id.). Plaintiffs include additional factual allegations regarding Officer Turiano’s use of
force, averring that he was aware that Gellos’s arm was injured before he apprehended her,
knew that any physical manipulation would cause Gellos excessive pain and suffering, and
yet still put her in an armlock. (Id. ¶¶ 40-44). And, when Gellos began screaming and
repositioned her body to relieve the pain in her arm, Officer Turiano, instead of backing
off, responded with more force, resulting in additional injury to Gellos. (Id. ¶¶ 45-50).
Finally, Plaintiffs newly allege that Officer Gates stood by and watched Officer Turiano
manipulate Gellos’s arm, and, despite Gellos’s screams of pains, failed to intervene to
prevent Officer Turiano’s actions—even though Officer Gates had “plenty of time to do
so” and “could have told Turiano that what he was doing was unnecessary, overbroad, and
was the cause and creation of excessive force.” (Id. ¶¶ 55-60).
The Phoenix Defendants moved to dismiss the counts brought against them for
failure to state a claim. (Doc. 32). They contend that qualified immunity still bars the
federal claims brought against the Officers (Counts V and VI), and that Plaintiffs failed to
sufficiently plead claims for gross negligence and negligent infliction of emotional distress
against the City of Phoenix as a matter of law (Counts I and III). (Id.).
LEGAL STANDARD
A. Failure to State a Claim
The Court must dismiss an action where a plaintiff “fail[s] to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint must “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
4 Plaintiffs mislabel their fourth claim as “Count V” and their fifth claim as “Count
VI.” (Doc. 29 at 10, 12). The Court will still refer to the § 1983 claim against Officer
Turiano as “Count V” and the § 1983 claim against Officer Gates as “Count VI.”
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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). While the Court must “construe the pleadings in the light most
favorable to the nonmoving party,” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005),
a complaint may still be dismissed as a matter of law “for one of two reasons: (1) lack of a
cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” Robertson
v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); Iqbal, 556 U.S. at 678
(“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”). The Court need not accept the legal conclusions contained in a complaint as
true, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” as factual content. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555).
B. Qualified Immunity
Qualified immunity shields state actors “from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“Because qualified immunity is an immunity from suit rather than a mere defense to
liability,” immunity disputes should be resolved “at the earliest possible stage in litigation.”
Pearson v. Callahan, 555 U.S. 223, 231-32 (2009) (citation modified).
Plaintiffs can clear the qualified immunity hurdle only if they demonstrate that (1)
the officer “violated a federal statutory or constitutional right” and (2) the unlawfulness of
the officer’s conduct was “clearly established at the time” of the violation. District of
Columbia v. Wesby, 583 U.S. 48, 62-63 (2018) (quoting Reichle v. Howards, 566 U.S. 658,
664 (2012)); Shooter v. Arizona, 4 F.4th 955, 961 (9th Cir. 2021) (plaintiff has burden of
proof to demonstrate that the right was clearly established). The Court, in its discretion,
can “address the clearly established prong of the qualified immunity test first.” Shooter, 4
F.4th at 961 (internal quotation marks and citations omitted); Callahan, 555 U.S. at 236.
A right is “clearly established” if, “at the time of the officer’s conduct, the law was
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sufficiently clear that every reasonable official would understand that what he is doing is
unlawful.” Wesby, 583 U.S. at 63 (emphasis added) (internal quotation marks and citations
omitted). While “a case directly on point” is not required, “existing precedent must have
placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011). Indeed, a clearly established right must be “settled law.” Wesby,
583 U.S. at 63 (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)). “It is not enough
that the rule is suggested by then-existing precedent.” Id. (emphasis added). Instead, the
right must be dictated by either “controlling authority or a robust consensus of cases of
persuasive authority.” Id. (internal quotation marks and citations omitted).
The clearly established right must be defined with specificity. City of Escondido v.
Emmons, 586 U.S. 38, 42 (2019) (reversing denial of qualified immunity at summary
judgment where the lower court only defined the clearly established right “at a high level
of generality”). Specificity is “especially important in the Fourth Amendment context”—
the Supreme Court “has recognized that it is sometimes difficult for an officer to determine
how the relevant legal doctrine, here excessive force, will apply to the factual situation the
officer confronts.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation modified).
Thus, the inquiry for the Court at the pleading stage is to determine “whether the
complaint alleges sufficient facts, taken as true, to support the claim that the officials’
conduct violated clearly established constitutional rights of which a reasonable officer
would be aware ‘in light of the specific context of the case.’” Keates v. Koile, 883 F.3d
1228, 1235 (9th Cir. 2018) (quoting Mullenix, 577 U.S. at 12). If the complaint fails to
“contain[] even one allegation of a harmful act that would constitute a violation of a clearly
established right,” then the complaint must be dismissed. See id. (citation omitted).
DISCUSSION
I. Federal Claims (Counts V and VI)
Both of Gellos’s federal claims are barred by qualified immunity. Gellos still has
not identified cases demonstrating that Officer Turiano and Officer Gates violated any
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clearly established constitutional rights. The Court will analyze each claim in turn.5
A. Officer Turiano is Still Entitled to Qualified Immunity on Count V.
Gellos again fails to meet her burden in alleging sufficient facts to support her claim
that Officer Turiano violated her clearly established constitutional rights.
The Court accepts the following factual allegations involving Officer Turiano as
true: Gellos, described as a “small senior citizen,” attended a concert on March 9, 2023, at
the Footprint Center with Foster, her daughter. (Doc. 29 ¶¶ 19, 62). Before Plaintiffs found
their seats, Gellos verbally quarreled with another patron, who then told Footprint security
that Gellos and Foster were fighting with the patrons. (Id. ¶¶ 20-22). Footprint security
subsequently approached Plaintiffs and indicated that security had reason to believe they
were intoxicated. (Id. ¶ 23). After receiving assurance from Plaintiffs, Footprint security
escorted them to their seats. (Id. ¶¶ 24-26).
Twenty minutes later while buying drinks, Gellos had a second interaction with the
same patron from earlier. (Id. ¶¶ 28-29). Fifteen minutes after the second interaction, a
Footprint employee asked Gellos to leave but stated that Foster could stay. (Id. ¶ 30).
Plaintiffs remained calm but protested. (Id. ¶¶ 31-32). Footprint security then “grabbed
Gellos by all four limbs and forcefully and indelicately carried her out of the seating areas
of the arena.” (Id. ¶¶ 33-34). Richard Brunton, a member of Footprint security, violently
swung Gellos and wrenched her arm, at which point Gellos began to feel extreme pain.
(Id. ¶¶ 35-36). Gellos believed that Brunton had broken her arm. (Id. ¶ 37).
Shortly thereafter, the Footprint security detail met with Officer Turiano and Officer
Gates. (Id. ¶ 39). Gellos was “dwarfed by the officers.” (Id. ¶ 63). Gellos was “very clear
with” Officer Turiano—who had heard her cries of pain—that her arm was injured and that
movement to her arm was excruciating. (Id. ¶¶ 40-43). Gellos was then pushed into an
elevator by Brunton, who had her arm locked behind her. (Id. ¶ 44). In the elevator, Officer
Turiano put Gellos’s right arm into an armlock, at which point Gellos began screaming.
5 Though the amended complaint alleges that “Plaintiffs’ rights to freedom from
unreasonable seizures” were violated (Doc. 29 ¶ 107 (emphasis added)), Plaintiffs concede
that “Foster is not asserting any federal claims in this action.” (Doc. 35 at 3). Thus, the
Court will analyze only whether Gellos has properly pleaded her federal claims.
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(Id. ¶¶ 47-48). As Gellos attempted to position her body to relieve the pain, Officer
Turiano, “instead of backing off and allowing Gellos to position her body in a fashion to
reduce the excruciating pain,” responded with more force, worsening Gellos’s injuries. (Id.
¶¶ 49-50). Gellos “never intended to resist,” and any physical contact with the Officers
was unintentional and due to her pain. (Id. ¶¶ 66-68). The totality of the force used against
Gellos caused her right humerus to “snap.” (Id. ¶¶ 64, 75, 114).
Considering these alleged facts, Officer Turiano is entitled to qualified immunity.
Gellos, in her briefing, fails to define her clearly established right with specificity. Gellos
avers that Officer Turiano violated her “right to be free from the application of non-trivial
force [by police] for engaging in mere passive resistance.” (Doc. 35 at 4 (quoting Gravelet-
Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013)). But Gellos defines her right at
too high a level of generality. See Emmons, 586 U.S. at 43. The Supreme Court, when
discussing the application of the exact case that Gellos cites, has instructed courts to
“explain how that case law prohibited [the officer’s] actions in this case” when evaluating
the clearly-established prong of the qualified immunity test. Id. And though the Supreme
Court has also explained that “a general constitutional rule already identified in the
decisional law may apply with obvious clarity to the specific conduct in question,” Taylor
v. Riojas, 592 U.S. 7, 9 (2020) (citations omitted), here, it is not obviously clear that
Gravelet-Blondin applies to Officer Turiano’s conduct.
In Gravelet-Blondin, the Ninth Circuit held that an officer who tased a plaintiff-
bystander was not entitled to qualified immunity. 728 F.3d at 1089-90, 1092-96. There,
the plaintiff, who responded to noise coming from the direction of his neighbor’s house,
was standing “some thirty-seven feet” away from a group of officers who had subdued
plaintiff’s neighbor onto the ground. Id. at 1090. Though plaintiff “made no threatening
gestures” towards the officers while taking “one or two steps back,” the defendant-officer
pointed a taser at him and yelled at him to “get back.” Id. The defendant-officer then
“began to warn [plaintiff] that he would be tased if he did not leave, but fired his taser
before he had finished giving that warning.” Id. Plaintiff was tased in “dart mode,” which
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caused him “excruciating pain, paralysis, and loss of muscle control.” Id. The Ninth
Circuit, after finding that the officer’s use of force was unreasonable and excessive, held
that the “right to be free from the application of non-trivial force for engaging in passive
resistance was clearly established.” Id. at 1092-94.
But the facts and subsequent legal holdings in Gravelet-Blondin do not place the
specific constitutional question in this case “beyond debate.” See al-Kidd, 563 U.S. at 741.
First, there are substantial differences in methods of force employed by the officers.
Gravelet-Blondin involved the use of a taser in dart mode, whereas here, Gellos was placed
in an armlock by Officer Turiano. See Schmitz v. Garrison, 2025 WL 3280560, at *5 (D.
Or. Nov. 24, 2025) (holding that an officer’s use of force, which consisted of punching
plaintiff and bringing him to the ground to handcuff him, was “too factually distinct for the
relatively general rule in Gravelet-Blondin to apply”). The cases relied upon by the
Gravelet-Blondin court in defining the clearly established rule also involved different
methods of force that are too factually distinct from the situation here. See Nelson v. City
of Davis, 685 F.3d 867, 881 (9th Cir. 2012) (pepper spray pellets); Deorle v. Rutherford,
272 F.3d 1272, 1282 (9th Cir. 2001) (shooting a lead-filled beanbag round); Headwaters
Forest Def. v. County of Humboldt, 276 F.3d 1125, 1131 (9th Cir. 2002) (pepper spray).
Moreover, when determining whether the plaintiff’s constitutional right was clearly
established, the Gravelet-Blondin court conducted an inquiry into whether it was clear that
using a taser in dart mode was considered a non-trivial use of force at the time of plaintiff’s
injury. 728 F.3d at 1094-96. But here, in contrast, Gellos offers no line of cases suggesting
that using an armlock to subdue a patron being removed from a venue was clearly
established as a non-trivial use of force in 2023. In fact, the body of case law from the
Ninth Circuit might suggest otherwise. See Bernal v. Sacramento Cnty. Sheriff’s Dep’t, 73
F.4th 678, 684 n.2, 691 (9th Cir. 2023) (noting that “a twist-lock”—“a type of control hold
which uses pain to gain control”—“is one of the least intrusive control holds available”);
Tatum v. City & County of San Francisco, 441 F.3d 1090, 1096-97 (9th Cir. 2006) (use of
a control hold to secure plaintiff prior to arrest was objectively reasonable and observing
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that the Ninth Circuit has “held more aggressive police conduct than [the officer’s]
objectively reasonable, even where the conduct resulted in serious physical injury”);
Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994) (holding that use of force
consisting only of physical pressure administered on plaintiffs’ limbs in increasing degrees,
resulting in pain, “was less significant than most claims of force”); Eberle v. City of
Anaheim, 901 F.2d 814, 815, 820 (9th Cir. 1990) (application of finger-hold to move
patron, reported as “being belligerent” by stadium staff, from stadium seating to a safe area
was reasonable); see also Donovan v. Phillips, 685 F. App’x 611, 612-13 (9th Cir. 2017)
(unpublished) (describing an officer’s application of a control hold—which included
gripping plaintiff’s wrist, pulling her arm downward, and causing her to roll onto the
ground—as a use of “minimal force”). Thus, it cannot be said that every reasonable officer
would have understood that placing Gellos in an armlock when removing her from the
Footprint Center was unlawful. See Wesby, 583 U.S. at 63.
Next, there are notable differences in the circumstances leading up to the use of
force. Here, in contrast with Gravelet-Blondin, Gellos was not a mere bystander who “was
perfectly passive, engaged in no resistance, and did nothing that could be deemed
particularly bellicose.” See 728 F.3d at 1092 (internal quotation marks omitted). Instead,
Gellos had been confronted twice by Footprint security due to reports about intoxication
and fighting (Doc. 29 ¶¶ 20-30), protested after being asked by Footprint security to leave
the arena (id. ¶¶ 31-32), and was forcibly removed from her seat by Footprint security—
and suffered initial injury—prior to Officer Turiano’s involvement (id. ¶¶ 33-36). Cf. Rice
v. Morehouse, 989 F.3d 1112, 1117, 1127 (9th Cir. 2021) (relying on Gravelet-Blondin and
other Ninth Circuit case law to hold that a plaintiff who was perfectly passive, engaged in
no resistance, and did nothing that could be deemed particularly bellicose—yet was still
removed from his vehicle, forcibly thrown down to the ground, and repeatedly struck,
kneed, and had his arms and shoulders wrenched and his fingers twisted—could establish
that the officers violated his clearly established right to be free from the application of non-
trivial force for engaging in mere passive resistance). Furthermore, even though Gellos
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did not resist when she was placed in an armlock, Officer Turiano was not on clear notice
that his decision to employ more force in response to Gellos repositioning her body to
relieve her pain was unlawful. See Tatum, 441 F.3d at 1097 (9th Cir. 2006) (“Even
accepting [the] contention that [suspect] sought to escape [the officer’s] grasp to shift into
a less painful position, [suspect] still resisted arrest, which justified [the officer’s]
continued application of the control hold.”); Arpin v. Santa Clara Valley Transp. Agency,
261 F.3d 912, 922 (9th Cir. 2001) (granting qualified immunity where plaintiff “stiffened
her arm and attempted to pull it away” while she was being handcuffed, “which was
impermissible regardless of whether [the officer] had probable cause to arrest her”).
And finally, Gellos does not point to case law clearly establishing that Officer
Turiano’s decision to employ an armlock, despite his knowledge that Gellos was in pain
prior to his use of force, was unlawful. See, e.g., Schmitz, 2025 WL 3280560, at *5
(granting qualified immunity even where plaintiff informed officers that “he was not able
to put his hands behind his back because of a prior shoulder injury”); Malek v. Green, 2017
WL 4284117, at *18 (N.D. Cal. Sept. 27, 2017) (granting qualified immunity where
plaintiff did not cite any “[r]elevant authority” discussing “whether it is unreasonable for
an officer to continue handcuffing once the suspect has complained of pain from a pre-
existing injury”). And though Gellos alleges that Officer Turiano’s decision to employ an
armlock was “clearly unnecessary” (Doc. 29 ¶¶ 45, 53), such a legal conclusion does not
relieve Gellos of her burden to identify “settled law” demonstrating that Officer Turiano’s
conduct was unlawful. See Wesby, 583 U.S. at 63.
Accordingly, Gellos has failed to meet her “burden of pointing to prior case law that
articulates a constitutional rule specific enough to alert these officers in this case that their
particular conduct was unlawful.” Hughes v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir.
2022) (emphasis added). As such, the Court need not evaluate the first prong of the
qualified immunity analysis—whether Officer Turiano’s conduct constituted excessive
force. The Court will dismiss Count V with prejudice and deny Gellos leave to amend the
claim. Gellos has not demonstrated that she can plead any additional facts to overcome
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Officer Turiano’s qualified immunity. Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003
(9th Cir. 2010) (“A district court may deny a plaintiff leave to amend if it determines that
allegation of other facts consistent with the challenged pleading could not possibly cure
the deficiency.” (citation modified)).
B. The Failure to Intervene Claim Against Officer Gates (Count VI) Fails
Because it is Predicated on Officer Turiano’s Conduct.
Gellos’s claim against Officer Gates for failure to intervene is also unsuccessful.
The Court accepts the following factual allegations involving Officer Gates as true:
Officer Gates, like Officer Turiano, heard Gellos’s cries of pain about her arm as she was
being forcefully escorted out of the arena by Footprint security. (Doc. 29 ¶¶ 40-42). And
while Officer Turiano placed Gellos in an armlock in the elevator, Officer Gates stood by
and allowed the use of force to continue, even though he had “plenty of time” to tell Officer
Turiano “that what he was doing was unnecessary, overbroad, and was the cause and
creation of excessive force.” (Id. ¶¶ 55-60).
But while Gellos correctly identifies that “police officers have a duty to intercede
when their fellow officers violate the constitutional rights of a suspect or other citizen”
(Doc. 35 at 7 (quoting Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000)), such a
duty is predicated on an underlying constitutional violation. See Tobias v. Arteaga, 996
F.3d 571, 583-84 (9th Cir. 2021); Green v. City & County of San Francisco, 751 F.3d 1039,
1051 (9th Cir. 2014); Jackson v. City of Bremerton, 268 F.3d 646, 653-54 (9th Cir. 2001);
see also Shepard v. Perez, 609 F. App’x 942, 942-43 (9th Cir. 2015) (unpublished) (“A
failure-to-intervene claim requires an underlying constitutional violation.”).
Here, the Court has held that Officer Turiano’s conduct did not violate Gellos’s
clearly established constitutional rights. Thus, there is no conduct that any failure to
intervene claim against Officer Gates could be predicated on. Therefore, because the Court
has dismissed the excessive force claim against Officer Turiano, Gellos does not have a
viable claim for failure to intervene against Officer Gates. Count VI, like Count V, is
dismissed with prejudice. Telesaurus VPC, 623 F.3d at 1003.
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II. State Law Claims (Counts I, II, and III)
Because Plaintiffs have again failed to overcome dismissal of their federal claims
based on qualified immunity, the Court has now, with prejudice, “dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Court thus declines to
exercise supplemental jurisdiction over Plaintiffs’ remaining state law claims: Counts I,
II, and III. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the
federal claims are dismissed before trial . . . the state claims should be dismissed as well.”);
Les Shockley Racing, Inc. v. Nat’l Hot Rod Ass’n, 884 F.2d 504, 509 (9th Cir. 1989).
Plaintiffs, if they so choose, should refile these claims in state court.
CONCLUSION
Accordingly,
IT IS THEREFORE ORDERED that the Phoenix Defendants’ Motion to Dismiss
(Doc. 32) is GRANTED.
IT IS FURTHER ORDERED that Count V and Count VI are DISMISSED with
prejudice.
IT IS FURTHER ORDERED that Count I, Count II, and Count III are
DISMISSED without prejudice.
IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action.
Dated this 30th day of January, 2026.
Case 2:24-cv-01529-GMS Document 39 Filed 01/30/26 Page 12 of 12