Potter v. Meza et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Phillip Potter,
Plaintiff,
v.
Robert Meza, et al.,
Defendants.
No. CV-25-00663-PHX-DWL
ORDER
In February 2023, an Arizona trial court issued an order declaring Phillip Potter
(“Plaintiff”) a vexatious litigant. (Doc. 51 at 249-52.) In February 2024, the Arizona Court
of Appeals unanimously affirmed. (Id. at 264-80.) In June 2024, the Arizona Supreme
Court denied review. (Id. at 285.)
In February 2025, Plaintiff, who is proceeding pro se, initiated this action. (Doc.
1.) In Count One of his operative pleading, the First Amended Complaint (“FAC”),
Plaintiff raises a “First Amendment Facial Challenge to A.R.S. § 12-3201,” Arizona’s
vexatious litigant statute, and seeks declaratory and injunctive relief. (Doc. 14 ¶¶ 113-
207.) The two defendants named in Count One are Arizona Attorney General Kris Mayes
(“AG Mayes”), in her official capacity, and Joseph Welty, the then-Presiding Judge of the
Maricopa County Superior Court, in his “official administrative capacity.” (Id. ¶¶ 103-04.)
Judge Welty was later terminated as a defendant and substituted by now-Presiding Judge
Pamela Gates. (Doc. 77.)1
1 Given this substitution, certain documents relevant to the pending motions were
filed by Judge Welty while others were filed by Judge Gates. The Court uses the term
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In Count Two, Plaintiff raises a “First Amendment Facial Challenge to A.R.S. § 13-
2921,” Arizona’s harassment statute, and seeks declaratory and injunctive relief. (Doc. 14
¶¶ 208-14). The sole defendant named in Count Two is AG Mayes. (Id.)
In Count Three, Plaintiff asserts a claim under 42 U.S.C. § 1983 against former
Arizona State Senator and State House Member Robert Meza (“Meza”) and against former
Arizona Board of Regents member and gubernatorial candidate Karrin Taylor Robson
(“Robson”), both of whom are sued in their personal capacities. (Id. ¶¶ 215-37.) In Count
Four, Plaintiff asserts a state-law claim for abuse of process against Meza and Robson, as
well as against Alane Ortega (“Ortega”), the attorney of Plaintiff’s ex-wife. (Id. ¶¶ 238-
59.) And in Count Five, Plaintiff asserts a state-law claim for aiding and abetting abuse of
process against Meza, Robson, and Ortega. (Id. ¶¶ 260-269.)
Now pending before the Court are Defendants’ motions to dismiss (Docs. 38, 51,
52, 67), Plaintiff’s motion to strike one of the motions to dismiss (Doc. 64), Plaintiff’s
motions for judicial notice (Docs. 57, 85, 90),2 and Plaintiff’s motions for jurisdictional
discovery (Docs. 58, 84).3 The motions are now fully briefed or otherwise ripe for
resolution, and Plaintiff’s various requests for oral argument are denied because argument
would not assist the decisional process.
BACKGROUND
I. Relevant Factual Allegations
The following relevant factual allegations are taken from the FAC. (Doc. 14.) In a
nutshell, the FAC describes a series of lawsuits by Plaintiff that appear to relate, at least in
some way, to Plaintiff’s contentious divorce from his now ex-wife.
Much of the FAC details an alleged scheme (“the Scheme”) “devised” by Meza in
“Presiding Judge” to refer to these Judges collectively. Because Plaintiff’s allegations
against the Presiding Judge largely center around an order issued by Judge Welty, the Court
uses masculine pronouns for consistency purposes when referring to the Presiding Judge.
2 The parties’ filings also included various additional requests for judicial notice.
(Docs. 49 at 16; Doc. 51 at 3-7; Doc. 52 at 2; Doc. 67 at 9 n.1.)
3 Plaintiff also filed a “notice” (Doc. 93) that is not a motion, does not seek any form
of relief from the Court, and simply rehashes arguments Plaintiff made in prior briefing.
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which Plaintiff alleges that Meza “corruptly secured public funds for six Medicaid-
approved nonprofit behavioral health services organizations” and was “covertly paid” by
the nonprofits’ “complicit executives.” (Id. ¶ 1.) The FAC alleges that “Meza solicited
and secured public funds from state officials with authority to allocate these funds” to the
nonprofits and, in return, “Meza received a monthly payment” from those nonprofits “for
sham consulting services.” (Id. ¶¶ 2-4.) The FAC further alleges that “[t]he Scheme also
maintained a secondary revenue source derived from corruptly obtained private funds” in
which the nonprofits working with Meza “held fundraising events” that Meza used to
“solicit and secure corporate sponsorships from unwary registered lobbyists and corporate
executives seeking his political favor.” (Id. ¶ 13.)
The Scheme purportedly “first came to limited public awareness on August 23,
2021” when one nonprofit’s CEO met with the Arizona House of Representatives “and
disclosed that he had been covertly paying Meza since 2015.” (Id. ¶ 14.) The FAC alleges
that this disclosure occurred because the nonprofit founder’s daughter-in-law, Ortega (who
is also the attorney of Plaintiff’s ex-wife), made the CEO “aware within the prior two weeks
that Plaintiff was on the cusp of filing a civil suit that would expose the Scheme.” (Id.
¶ 15.) The FAC alleges various other purportedly fraudulent and/or improper actions taken
by Meza and these nonprofits in furtherance of the Scheme, and to cover up the Scheme,
as well as investigations into the Scheme. (Id. ¶¶ 22-26.)
Plaintiff alleges that he learned of the Scheme from his now-ex-wife “TD,” who
was also “involved in the Scheme.” (Id. ¶¶ 29-30, 43.) Ultimately, the FAC alleges that
“Plaintiff attempted to end his relationship with TD” but then “agreed to continue” with
the relationship “when TD promised she would,” among other things, “remove herself from
the Scheme” and “cease contact with Meza.” (Id. ¶ 41.) During the marriage, “[h]owever,
TD had secretly continued to . . . associate with Scheme participants, and to further the
Scheme.” (Id. ¶ 46.) The FAC alleges that Plaintiff, “increasingly concerned with TD’s
questionable behavior and deceptions,” “sought to end the brief marriage amicably.” (Id.
¶ 50.) However, the relationship quickly soured, and Plaintiff alleges that TD and/or her
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parents engaged in various improper actions, including “threatening to lodge false domestic
violence allegations” against Plaintiff and “ma[king] false allegations that Plaintiff had
planted video devices and was recording for some malicious purpose.” (Id. ¶¶ 51, 53.)
While a verbal settlement agreement in the couple’s dissolution case (FC2020-090224)
was pending (id. ¶ 55), “Scottsdale Police came to Plaintiff’s residence, notified him that
TD had secured an ex parte A.R.S. § 13-3602 order of protection, took Plaintiff’s infant
son, and explained that Plaintiff would have to challenge the order in court or else be
labeled an A.R.S. § 13-3601 Domestic Violence perpetrator” (id. ¶ 56). Plaintiff alleges
that “[e]ach allegation of assault and stalking described in the A.R.S. § 13-3602 petition
(case no. FC2020-050752) was entirely fabricated.” (Id. ¶ 57.) The FAC proceeds to
outline a series of events related to this contentious divorce and the related domestic
violence case.
Separately, the FAC alleges that Plaintiff, with TD, “developed and launched a
startup concept (‘FountainSyde’) to provide rapid and scalable Autism testing and
diagnostic services.” (Id. ¶¶ 44-45.) After FountainSyde launched, “TD asked Plaintiff to
meet with a capital investor (‘CE’)” regarding FountainSyde. (Id. ¶ 47.) “Plaintiff met
with CE on December 2, 2019 and pitched FountainSyde as an angel investment
opportunity, but TD conveyed later that same month that CE decided to pass on the
investment.” (Id.¶ 49.) As it turns out, “CE was not a capital investor” but was “the former
CEO” of “a physical therapist health insurance network” who had “paid Meza for sham
consulting services in 2013 and 2014 as part of the Scheme.” (Id. ¶ 60(c).) Ultimately,
“CE publicly announced that she had launched Axis for Autism, LLC, a behavioral health
startup to provide rapid and scalable Autism testing and diagnostic services—a functional
copy of FountainSyde.” (Id.) “After learning of Axis for Autism, LLC, and of CE’s true
relationship with Meza and TD, Plaintiff filed case no. CV2021-013210.” (Id. at 21 n.14.)
After an Arizona court quashed the order of protection involving Plaintiff and TD,
TD hired Ortega as her lawyer. (Id. ¶ 58(m)-(n).) Just before that order of protection was
quashed, Plaintiff sued TD in Maricopa County Superior Court in CV2021-005501
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“alleging Malicious Prosecution (i.e., Wrongful Institution of Civil Proceedings and
associated counts) of the order of protection.” (Id. ¶ 59.) TD is also represented by Ortega
in that malicious prosecution suit. (Id.) The FAC alleges that Meza disclosed that “he
‘helped’ TD to secure Ortega as counsel and ‘helped’ Ortega with litigation thereafter.”
(Id. ¶ 60(b).)
Plaintiff has filed several state-court lawsuits seeking documents relevant to the
Scheme. In 2022, Plaintiff filed CV2022-014146 “seeking to compel records production”
of records allegedly related to Meza’s participation in the Scheme. (Id. ¶¶ 61-62.) Plaintiff
also brought another public records case, CV2022-008626, seeking documents from Meza
and Robson related to the Scheme. (Id. ¶ 67.)
Ultimately, the FAC alleges that “[s]eeking to shut down further records production
out of concern that Plaintiff would obtain other incriminating documents, the [Arizona
House of Representatives], along with Meza and Robson jointly moved for [the CV2022-
008626] court to find Plaintiff vexatious pursuant to A.R.S. § 12-3201(A),” citing
Plaintiff’s litigation activities in FC2020-090224 (divorce dissolution), CV2021-017889 (a
personal injury case filed by Plaintiff), CV2021-005501 (malicious prosecution of order of
protection), CV2021-013210 (suit regarding Axis for Autism, LLC, which allegedly
produced a “functional copy” of Plaintiff’s startup FountainSyde), and CV2022-014146
(Plaintiff’s initial public records case). (Id.¶ 76 & 28 n.20.)
“[O]n February 27, 2023, the CV2022-008626 court issued an order . . . finding
Plaintiff statutorily vexatious per A.R.S. § 12-3201, enjoining him from filing court papers
‘in this case or any other pending civil action without prior leave of the judge assigned to
that case,’ and subjecting him to an A.R.S. § 12-3201(B) blanket injunction.” (Id. ¶ 79.)
The FAC alleges that “Meza, Robson, and the House knew when they filed the A.R.S.
§ 12-3201(A) motion that A.R.S. § 12-3201 was patently unconstitutional in every
application but used the statute for the unlawful purposes of intimidating Plaintiff and
retaliating against him for exercising his rights under the Petition Clause and Speech
Clause” and that “Meza and Robson used A.R.S. § 12-3201 for the additional unlawful
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purpose of concealing criminal conduct and obstructing investigations into the Scheme.”
(Id. ¶¶ 80-81.)
As for Ortega, the FAC alleges that Ortega, Meza, and Meza’s counsel—“with full
knowledge of the Scheme”—conspired together, including “the concerted use of, and the
overt acts of filing, A.R.S. § 12-3201(A) motions across suits.” (Id. ¶ 83.) Ortega had
previously filed two unsuccessful A.R.S. § 12-3201 motions against Plaintiff in CV2021-
013210 and had referred to those motions in CV2021-005501—all before Meza and
Robson ultimately obtained the order in CV2022-008626 declaring Plaintiff vexatious. (Id.
¶ 84.) The FAC proceeds to outline various purported instances of improper litigation
tactics by Ortega, all of which Plaintiff alleges “were . . . taken to obstruct investigations
and conceal information implicating TD and Meza in the Scheme.” (Id. ¶¶ 85-91.)
The FAC further alleges that “Ortega also instructed TD to present the A.R.S. § 12-
3201 Order from CV2022-008626 to the Arizona Secretary of State on or about April 10,
2024 seeking to have the State identify Plaintiff as an A.R.S. § 13-3601 Domestic Violence
perpetrator per A.R.S. § 41-161, et seq.” which “governs the Arizona Address
Confidentiality Program where A.R.S. § 41-161(5) verified victims of A.R.S. § 13-3601
criminal domestic violence can keep an address confidential upon relocation.” (Id. ¶ 92 &
32 n.23.) “The Secretary of State Office’s personnel did just that.” (Id. ¶ 92.) Ortega
allegedly “instructed TD to take those actions for the improper purposes of bolstering
ongoing efforts to delay, block, and/or limit financial documents production which might
prove financial crimes.” (Id. ¶ 93.) Ortega also “entered A.R.S. § 41-163(D) ‘address
confidentiality program authorization cards’ as exhibits attached to motions in the ongoing
FC2020-090224 discovery dispute.” (Id. ¶ 94.) And “TD confirmed during [a deposition]
that she pursued the A.R.S. § 41-161, et seq. action based solely on a mention of
‘harassment’ in the A.R.S. § 12-3201 Order.” (Id. ¶ 95.) The FAC alleges that Ortega
“had no factual or legal basis to instruct TD to accuse Plaintiff of being an A.R.S. § 13-
3601 Domestic Violence perpetrator” and that the “Arizona Secretary of State now holds
official records identifying Plaintiff as an A.R.S. § 13-3601 Domestic Violence
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perpetrator, although Plaintiff has never committed an act of domestic violence.” (Id.
¶¶ 96-97.)
“Despite the A.R.S. § 12-3201 Order, including the A.R.S. § 12-3201(B) blanket
provision, Plaintiff plans to file court papers absent leave of the court in ongoing FC2020-
090224 and CV2021-005501 litigation, and in this suit. For doing so, he is being
threatened with, and reasonably fears, administrative, civil, and/or criminal enforcement of
A.R.S. § 12-3201, including where filing court papers in well-founded lawsuits is being
unlawfully postured as violations of A.R.S. § 13-2810(A)(2) Interfering With Judicial
Proceedings and/or A.R.S. § 13-2921 Harassment, which enforcement authorities in turn
can then cite as predicates to prosecute A.R.S. §§ 13-3601 and 13-3602.” (Id. ¶ 98.)
II. Procedural History
On February 27, 2025, Plaintiff initiated this action. (Doc. 1.)
On May 12, 2025, Plaintiff filed the FAC. (Doc. 14.)
On May 14, 2025, Plaintiff filed a motion for a temporary restraining order and
preliminary injunction (“the first TRO motion”), which sought to enjoin AG Mayes from
enforcing the vexatious litigant statute against him. (Doc. 23.)
On June 20, 2025, after full briefing, the Court denied the first TRO motion,
concluding that it was “unclear whether Plaintiff has standing to pursue the claim giving
rise to his request for injunctive relief” and, at any rate, that Plaintiff “has not shown a
likelihood of success on the merits of his claim or even serious questions going to the merits
of that claim.” (Doc. 47 at 18.)
On June 3, 2025, AG Mayes filed a motion to dismiss. (Doc. 38.) That motion is
now fully briefed. (Docs. 49, 53.)
On July 11, 2025, Robson and Meza filed a joint motion to dismiss. (Doc. 51.) That
motion is now fully briefed. (Docs. 55, 59.)
Also on July 11, 2025, Ortega filed a motion to dismiss. (Doc. 52.) That motion is
now fully briefed. (Docs. 54, 56.)
On July 25, 2025, Plaintiff filed a motion to take judicial notice relevant to AG
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Mayes’s motion to dismiss. (Doc. 57.) That motion is now fully briefed. (Doc. 60.)
On July 28, 2025, Plaintiff filed a motion to take limited jurisdictional discovery.
(Doc. 58.) That motion is now fully briefed. (Docs. 66, 69, 72.)
On August 8, 2025, Plaintiff filed a motion to strike Robson’s and Meza’s motion
papers. (Doc. 64.) That motion is now fully briefed. (Docs. 68, 71.)
On August 11, 2025, the Presiding Judge filed a motion to dismiss. (Doc. 67.) That
motion is now fully briefed. (Docs. 79, 81.)
On October 9, 2025, Plaintiff filed another motion to take limited jurisdictional
discovery. (Doc. 84.) That motion is now fully briefed. (Docs. 86, 88.)
On October 16, 2025, Plaintiff filed a second motion to take judicial notice. (Doc.
85.) That motion is now fully briefed. (Docs. 87, 89.)
On November 9, 2025, Plaintiff filed a motion to take judicial notice regarding the
Presiding Judge’s motion to dismiss. (Doc. 90.) That motion is now fully briefed. (Docs.
91, 92.)
On December 12, 2025, Plaintiff filed a second motion for a temporary restraining
order and preliminary injunction (“the second TRO motion”), which sought “to enjoin
[AG] Mayes and [the Presiding Judge] from civilly, criminally or administratively
enforcing A.R.S. § 12-3201 until the [present] case is complete.” (Doc. 94 at 3-4.)
On December 16, 2025, the Court denied the second TRO motion. (Doc. 96.)
On December 19, 2025, Plaintiff filed a notice of interlocutory appeal from the
denial of the second TRO motion. (Doc. 97.)
DISCUSSION
I. Judicial Notice
A. Legal Standard
Federal Rule of Evidence 201(a) “governs judicial notice of an adjudicative fact
only, not a legislative fact.” Under Rule 201(b), a court “may judicially notice a fact that
is not subject to reasonable dispute” if it “is generally known within the trial court’s
territorial jurisdiction” or “can be accurately and readily determined from sources whose
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accuracy cannot reasonably be questioned.” Under Rule 201(c), a court “may take judicial
notice on its own,” and it “must take judicial notice if a party requests it and the court is
supplied with the necessary information.” A court may, however, decline to take judicial
notice of facts that are irrelevant. See, e.g., Pearson v. Arizona, 2020 WL 5544373, *2 (D.
Ariz. 2020) (“Although relevance is not explicitly required to satisfy Rule 201, the Ninth
Circuit has declined to take judicial notice of facts that are irrelevant.”) (citations omitted);
Hargis v. Access Cap. Funding, LLC, 674 F.3d 783, 793 (8th Cir. 2012) (“Courts are not
required to take judicial notice of irrelevant materials.”).
“When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers
evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule
56 motion for summary judgment, and it must give the nonmoving party an opportunity to
respond.” United States v. Ritchie, 342 F. 3d 903, 907 (9th Cir. 2003). “A court may,
however, consider certain materials—documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of judicial notice—without
converting the motion to dismiss into a motion for summary judgment.” Id. at 908
(emphasis added).
“[M]aterials of which a district court may take judicial notice are not considered
extrinsic evidence for purposes of Rules 12(b)(1) and 12(b)(6) . . . .” DeFiore v. SOC LLC,
85 F.4th 546, 553 n.2 (9th Cir. 2023). Even where a district court resolves a Rule 12(b)(1)
facial attack and accepts the plaintiff’s allegations as true, a court may still take judicial
notice of matters of public record in deciding the motion. Hyatt v. Yee, 871 F.3d 1067,
1071 n.15 (9th Cir. 2017).
B. Requests Pertaining To AG Mayes
In his response to AG Mayes’s motion to dismiss, Plaintiff asks the Court to take
judicial notice that “(1) the Arizona Legislature revised [A.R.S. § 13-2921] during the 2022
legislative session, eliminated intent as an element while maintaining the A.R.S. § 13-
2921(E) ‘harassment’ definition which has no ‘saving clause’ (FAC at 202-214), and on
the day Democrat Senator Martin Quezada voted against the 2022 revision, he explained
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on the chamber floor that § 13-2921 ‘violates the first amendment’; and (2) Republican
Senator Alexander Kolodin sponsored significant revisions in the 2025 session because the
statute ‘violates the First Amendment.’” (Doc. 49 at 16, footnotes omitted). In support,
Plaintiff directs the Court to two webpages: (1) Ariz. State Legislature, Bill History for
SB1633, https://apps.azleg.gov/BillStatus/BillOverview/77621 (last visited Dec 18, 2025)
[https://perma.cc/L8EE-AEYW]; (2) Ariz. State Legislature, Bill History for HB2043,
https://apps.azleg.gov/BillStatus/BillOverview/81701?Sessionid=129 (last visited Dec.
18, 2025) [https://perma.cc/7TJT-SM93]. (Id. at 16 n. 8 & 9.) Although AG Mayes does
not expressly object to Plaintiff’s request to take judicial notice of these facts, she does
argue in reply that “Plaintiff’s reliance on floor statements by two Arizona legislators to
show that the statute was ‘controversial’” is insufficient to show that the harassment statute
is vague. (Doc. 53 at 11, citation omitted.)
The Court could take judicial notice of the fact that A.R.S. § 13-2921 previously
contained an “intent” requirement that no longer appears in the current version of the
statute. This fact “can be accurately and readily determined” by a review of prior versions
of § 13-2921. Fed. R. Evid. 201(b)(2). Nonetheless, this request is denied as unnecessary.
Price v. Clifton, 2024 WL 4720888, *5 (C.D. Cal. 2024), report and recommendation
adopted, 2024 WL 4828700 (C.D. Cal. 2024) (“As to the other two exhibits, the Court need
not take judicial notice of state statutes or state bills, because these are matters that are
‘legislative facts,’ rather than ‘adjudicative facts,’ and are outside the scope of Rule 201.
It is unnecessary to ask a court to take judicial notice of these types of matters, which can
be reviewed by the Court conducting its own research into the relevant issues.”).
The Court also declines to take judicial notice of the alleged statements by Senators
Quezada and Kolodin regarding the purported unconstitutionality of A.R.S. § 13-2921.
Plaintiff, as the party seeking judicial notice, bears the burden of showing that the fact
sought to be noticed “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned,” and the Court need only take judicial notice of
facts for which “the [C]ourt is supplied with the necessary information.” Fed. R. Evid.
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201(b)(2), (c)(2). Although Plaintiff cites Arizona legislature “.gov” webpages, the Court
cannot locate where on these webpages Senator Quezada stated that A.R.S. § 13-2921
“violates the First Amendment,” nor can it locate where on these webpages Senator
Kolodin stated the statute “violates the First Amendment.” (Doc. 49 at 16.) The Court is
unwilling to take judicial notice of a fact for which it was not supplied with the necessary
information.4 In any event, the dismissal analysis is unaffected by whether the Senators
made these statements.
Plaintiff also seeks judicial notice of five exhibits that are purportedly relevant to
AG Mayes’s motion to dismiss. (Doc. 57.) AG Mayes declined to file a response. (Doc.
60.)
Plaintiff first seeks judicial notice of three Arizona statutes: A.R.S. § 12-861; A.R.S.
§ 12-862; and A.R.S. § 12-863. (Doc. 57 at 3.) These requests are denied for two
independent reasons.
First, Plaintiff seeks judicial notice under Rule 201. (Id. at 1 [“Pursuant to Fed. R.
Evid. (‘Rule’) 201, Plaintiff asks the Court to take judicial notice of the undisputed facts
and court opinions described below and attached as Exhibits 1-5.”].) But Rule 201 does
not provide a basis for taking judicial notice of these statutes, which are legislative rather
than adjudicative facts. See, e.g., Lemieux v. Cwalt, Inc., 2017 WL 365481, *1 (D. Mont.
2017) (“Plaintiffs ask the Court to take judicial notice of several federal and Montana
statutes, regulations, and published court decisions. But because these statutes, cases, and
regulations are ‘legislative facts’ rather than ‘adjudicative facts,’ they are not appropriate
for judicial notice.”) (citation omitted). See also Getty Petroleum Mktg., Inc. v. Cap.
Terminal Co., 391 F.3d 312, 322 (1st Cir. 2004) (Lipez, J., concurring) (“Although judicial
notice of fact and judicial notice of law share the phrase ‘judicial notice,’ they draw on
different rules of practice. Rule 201 ‘governs only judicial notice of adjudicative facts.’
Judicial notice of law is outside the scope of Rule 201, and derives from practical
4 To the extent these statements are buried somewhere in embedded hyperlinks
derivative of the webpages supplied by Plaintiff, the Court declines to embark on a quest
to find them.
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considerations and case law that do not rely on Rule 201 or principles of evidence.”)
(citation omitted).
Second, the statutes are not relevant, and Plaintiff effectively seeks judicial notice
of his own misinterpretation of them. Plaintiff seeks judicial notice of these statutes
because, in his view, they “recognize that the violation of any civil writ, process, order or
judgment can constitute a criminal offense.” (Doc. 57 at 4, cleaned up.) In his view, that
reading of the statutes advances his position that he has standing to sue AG Mayes “because
it demonstrates that there exists another specific statutory avenue other than that which
Plaintiff described in the FAC through which AG Mayes plays a ‘role’ in the § 12-3201(B)
‘enforcement scheme’ and may criminally prosecute Plaintiff for § 12-3201(B) violations
as a matter of statute.” (Id., cleaned up.) But § 12-861 simply provides that “[a] person
who wilfully disobeys a lawful writ, process, order or judgment of a superior court by doing
an action or thing therein or thereby forbidden, if the act or thing done also constitutes a
criminal offense, shall be proceeded against for contempt as provided in §§ 12-862 and 12-
863.” A.R.S. § 12-861 (emphasis added). In other words, the act taken in violation of the
court order must also independently constitute a criminal offense. And a violation of § 12-
3201 itself does not constitute a criminal offense.
Plaintiff next seeks judicial notice of A.R.S. § 41-101. (Doc. 57 at 4.) The relevance
of this statute is admittedly a closer call; however, the statute itself is still a legislative fact.
Because Plaintiff’s request was brought under Rule 201, it lacks merit.5
Plaintiff also seeks judicial notice of S.F. Cnty. Democratic Cent. Comm. v. Eu, 826
F.2d 814 (9th Cir. 1987). (Doc. 57 at 5-6.) But Plaintiff does not seek judicial notice of
this case in the traditional sense of Rule 201. Rather, Plaintiff asks the Court to take
“judicial notice” of this case as a means of arguing—as he could have done in his response
brief (Doc. 49)—that the case supports his position that his claims against AG Mayes
should not be dismissed. Plaintiff cannot use a motion for judicial notice in this fashion.
5 Moreover, even if § 41-101 provides that AG Mayes can assist a county attorney’s
prosecutorial duties, such a prosecution would still take place under statutes other than
§ 12-3201.
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Fox v. Velocity Solar Power, Inc., 2024 WL 457195, *4 (E.D. Cal. 2024) (denying
“plaintiff’s request for judicial notice of California statutes, case law, and portions of the
contracts in the exhibits . . . as irrelevant and otherwise an improper attempt to submit a
disfavored surreply”); United States v. Molen, 2011 WL 1810449, *6-7 (E.D. Cal. 2011)
(“[T]he Molens have filed at least six motions for ‘judicial notice’ that, in substance,
actually request dismissal of the complaint for failure to state a claim. The motions
reference statutes and regulations that the Molens believe support dismissal of the
complaint, and the Molens appear simply to seek to have the undersigned review—or, in
their words, ‘notice’—the statutes and regulations. When a motion actually seeks to attack
the pleadings and seeks dismissal of the action, labeling that motion as a ‘request for
judicial notice’ is misleading. Future filings labeled as requests for judicial notice that
actually seek other relief or dismissal of the case may be summarily denied.”) (cleaned up).
At any rate, Plaintiff misunderstands S.F. Cnty. Democratic Cent. Comm., which does not
“establish[],” as Plaintiff contends, “that when a state official raises a jurisdictional defense
calling to a challenged statute’s history of enforcement or prosecution, the state official
must produce a ‘record of nonenforcement’ which shows the challenged statute has been
‘commonly and notoriously violated’ and ‘has fallen into desuetude.’” (Doc. 57 at 6.)
Finally, in his second request for judicial notice relevant to AG Mayes’s motion to
dismiss, Plaintiff seeks judicial notice of (1) California’s vexatious litigant statute; and (2)
the Arizona vexatious litigant list and several records from that list. (Doc. 85.) In response,
AG Mayes states that to the extent Plaintiff is “asking the Court to take judicial notice of
the existence and contents of two California statutes and a number of orders designating
litigants vexatious from Arizona,” she “finds the request unobjectionable.” (Doc. 87 at 1.)
However, “[t]o the extent Plaintiff asks the Court to judicially notice any factual contents
of the documents or disputed legal conclusions, AG Mayes opposes that request.” (Id.)
AG Mayes also asks the Court to disregard the sections of Plaintiff’s motion that “appear[]
to be an effort to offer additional argument in opposition to AG Mayes’s motion to dismiss
the case, in effect an unauthorized sur-reply.” (Id. at 2.) In reply, Plaintiff confusingly
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argues that “Presiding Judge Gates entered no objection to the motion.” (Doc. 89 at 2.)
Plaintiff also argues, for the first time, that the records at issue should be deemed
incorporated by reference into the FAC. (Id. at 3, 5-6.)6
As an initial matter, AG Mayes is correct that large sections of Plaintiff’s second
motion to take judicial notice—much like his first motion to take judicial notice—operate,
in effect, as an unauthorized and improper surreply. Plaintiff uses the first 10 pages of his
motion to argue that the Court should adopt a conjunctive, rather than disjunctive, standard
when evaluating his claim that A.R.S. § 12-3201 is unconstitutional. (Doc. 85 at 1-10.)
Plaintiff does so even though that argument is one the Court rejected four months earlier
in its order denying Plaintiff’s first TRO motion. (Doc. 47 at 16.) Thus, the Court will
disregard the portions of Plaintiff’s second motion for judicial notice that operate, in effect,
as an unauthorized surreply.
Turning to Plaintiff’s judicial notice requests, Plaintiff first seeks judicial notice of
§§ 391-391.8 of the California Code of Civil Procedure. (Doc. 85 at 10-12.) But as
explained above, Rule 201 does not contemplate judicial notice of such legislative facts.
Furthermore, Plaintiff once again misrepresents what the statute provides. Section
391.3(b) does not say, as Plaintiff argues, that “California courts may find a pro se litigant
vexatious only ‘[i]f, after hearing evidence on the motion, the court determines that the
litigation has no merit and has been filed for the purposes of harassment or delay.’” (Doc.
85 at 11-12.) Rather, it provides: “If, after hearing evidence on the motion, the court
determines that the litigation has no merit and has been filed for the purposes of harassment
or delay, the court shall order the litigation dismissed. This subdivision shall only apply to
litigation filed in a court of this state by a vexatious litigant subject to a prefiling order
pursuant to Section 391.7 . . . .” Cal. Code Civ. P. § 391.3(b) (emphasis added). In other
words, the cited provision addresses the standard for dismissing a case filed by a pro se
litigant who has already been deemed vexatious and is already subject to a prefiling
6 These vexatious litigant records are not cited or referenced anywhere in the FAC
(Doc. 14), so the Court fails to see how they could possibly be incorporated by reference
into the FAC.
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requirement, not the standard for deeming a pro se litigant vexatious in the first place. In
fact, § 391 defines a vexatious litigant as one who, inter alia, “repeatedly files
unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or
engages in other tactics that are frivolous or solely intended to cause unnecessary delay.”
Cal. Code Civ. P. § 391(b)(3) (emphasis added). That is a disjunctive standard. Plaintiff’s
misquotation and mischaracterization of these California statutes does not warrant the
Court taking judicial notice of them.
Plaintiff also seeks judicial notice of over 250 pages of Arizona records, which are
largely composed of state-court orders finding other plaintiffs to be vexatious litigants and
administrative orders from the presiding judge designating other plaintiffs as vexatious
litigants. On the one hand, these records may have some relevance to the extent Plaintiff
seeks to use them to show that a “substantial number of applications” of A.R.S. § 12-3201
are unconstitutional. On the other hand, “judicial notice under Federal Rule of Evidence
201 is for cold, hard, undisputable facts—not law.” CTC Glob. Corp. v. Huang, 2018 WL
4849715, *3 (C.D. Cal 2018). And Plaintiff seeks judicial notice of these records to show
that “85% of vexatious litigant injunctions issued per A.R.S. § 12-3201 violate the Petition
Clause, meaning ‘a substantial number of applications . . . are unconstitutional’ in relation
to any legitimate sweep.” (Doc. 85 at 17.) Given the lack of objection from AG Mayes,
the Court will take judicial notice of the existence and contents of the orders designating
other plaintiffs vexatious; however, the Court will not take judicial notice of any disputed
facts therein. Nor will the Court take judicial notice of any legal claims. The Court also
declines to take judicial notice of whether these other vexatious litigant orders are
constitutional. That is not a proper subject of judicial notice.
C. Certain Defendants’ Requests For Judicial Notice
In their motion to dismiss, Robson and Meza seek judicial notice of several facts
related to Plaintiff’s prior litigation history against Robson and Meza. (Doc. 51 at 3-7.) In
response, Plaintiff does not appear to respond specifically to the judicial notice request.
(Doc. 55.) Plaintiff does, however, cite one of the objects of the request—the
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Administrative Order from the Presiding Judge designating Plaintiff a vexatious litigant—
without disputing it. (Id. at 4 n.1.)
The Court will take judicial notice of the following undisputed facts:7
1. On August 23, 2021, Plaintiff filed a 136-page, 772 paragraph8 complaint
against multiple defendants, including Meza and Ortega, in the Superior Court of Arizona
in Potter v. Doctor, et al., No. CV2021-013210 (Ariz. Super. Ct. Aug. 23, 2021). (Doc.
51 at 29-164.) The complaint contained 13 counts. (Id.) Among things, Plaintiff alleged
that “MEZA is an elected official who has engaged in ongoing fraud and public corruption
schemes since at least 2012.” (Id. at 33 ¶ 13.) The complaint also included allegations that
Meza “exploit[ed] his public office for private gain” through, inter alia, “fundraising
events” and “sham ‘consulting.’” (Id. at 57-58 ¶ 139.)
2. On January 19, 2022, the Arizona Superior Court in Potter v. Doctor, et al.,
No. CV2021-013210, “granted Defendant Robert Meza’s Motion to Dismiss in its
entirety.” (Id. at 174 [cleaned up].)
3. On May 16, 2022, the Arizona Superior Court in Potter v. Doctor, et al., No.
CV2021-013210 granted a motion for entry of Rule 54(b) judgment “with respect to those
Defendants who have been entirely dismissed from these proceedings.” (Id. at 183.) The
court “order[ed] Plaintiff to pay attorney’s fees in the amount of $10,000.00 and taxable
costs in the amount of $262.92” to Meza. (Id. at 185.) The court further stated in its order:
“As the Court acknowledged in its ruling filed on January 19, 2022, Plaintiff has litigated
this matter in bad faith. It is apparent from both the Complaint as well as the First Amended
Complaint that Plaintiff—clearly dissatisfied with the circumstances in the family court
7 Several of Robson’s and Meza’s requests for judicial notice contain proposed spins
on the facts. For example, Robson and Meza ask the Court to take judicial notice that the
Arizona Superior Court “reluctantly denied” initial motions to designate Plaintiff as
vexatious. (Doc. 51 at 4, emphasis added.) As another example, Robson and Meza ask
the Court to take judicial notice that “Plaintiff filed a variety of groundless motions” in
public records litigation. (Id. at 5.) Certainly, Plaintiff would dispute these
characterizations of the underlying facts. Accordingly, the Court takes judicial notice only
of the facts as stated in this order, mindful that it cannot take judicial notice of Robson’s
and Meza’s characterization of those facts.
8 Robson and Meza state that the complaint was 776 paragraphs. (Doc. 51 at 3.)
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proceedings—chose to initiate this litigation in an effort to harass numerous entities and
persons only vaguely associated with his ex-wife and her family.” (Id. at 184.)9
4. On July 7, 2022, the Arizona Superior Court in Potter v. Doctor, et al., No.
CV2021-013210 “considered Defendant [TD’s] Renewed Motion to Designate the
Plaintiff as a Vexatious Litigant” and “f[ound] that it is still improper to designate him as
a vexatious litigant.” (Id. at 187-88.) In that order, the court stated that it “is aware that
any remaining Defendants might be required to incur unnecessary attorney’s fees in the
event Plaintiff continues to file additional groundless or unjustified requests in this action”
and thus held that “all remaining Defendants will be relieved of their traditional obligation
to respond to Plaintiff’s motion unless specifically directed to do so by this Court.” (Id. at
188.)10
5. On July 8, 2022—the day after the issuance of the Arizona Superior Court’s
order in Potter v. Doctor, et al., No. CV2021-013210 denying TD’s motion to designate
Plaintiff as a vexatious litigant—Plaintiff filed a complaint in Potter v. Arizona House of
Reps., et al., No. CV2022-008626 and named Meza and Robson as defendants. (Doc. 51
at 190-204.) The complaint was brought under Arizona’s Public Records Law, A.R.S.
§ 39-121 et seq. (Id. at 190.) Plaintiff alleged in the complaint that “[t]he records sought
will shed light on Representative Meza’s involvement with nonprofit organizations he
engaged under his elected title using monies from the state.” (Id. at 190-91.)
6. On November 16, 2022, the Arizona Superior Court granted the motions to
dismiss of each defendant in Potter v. Arizona House of Reps., et al., No. CV2022-008626,
including the motions to dismiss of Robson and Meza. (Id. at 246-47.)
7. On February 24, 2023, the Arizona Superior Court in Potter v. Arizona House
of Reps., et al., No. CV2022-008626 granted the defendants’ joint motion to designate
Plaintiff as a vexatious litigant. (Id. at 249.) In that order, the Arizona Superior Court held
9 The Court takes judicial notice that this is the language of the Arizona Superior
Court but not the truth of that language.
10 Again, the Court simply takes judicial notice that this is the language used by the
Arizona Superior Court and that this is the action the Arizona Superior Court took.
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that “Plaintiff Philip Potter has engaged in vexatious conduct per Arizona Revised Statutes
§ 12-3201 by: repeated filing of court actions without substantial justification; and
repeatedly filing documents or requests for relief that have been the subject of previous
rulings by the court in similar litigation.” (Id. at 252.) The Arizona Superior Court ordered
that “Plaintiff Phillip Potter may not file any new pleading, motion or other document in
this case or any other pending civil action without prior leave of the judge assigned to that
case” and further ordered “that any request to file any new pleading, motion or other
document in this case or any other pending civil action shall attach a copy of this order
with the request.” (Id.) The Arizona Superior Court also “referr[ed] this matter to the
Honorable Joseph Welty, Presiding Judge, Maricopa County Superior Court to consider
issuing an administrative order designating Phillip Potter as a vexatious litigant.” (Id.) In
its order, the Arizona Superior Court considered Plaintiff’s litigation activity in cases
“CV2021-005501, CV2021-013210, CA-CV 22-0441 (appeal from CV2021-013210), and
CV2022-014146,” stating that “[t]he summary of Plaintiff’s claims includes many
examples of frivolous motions, disregarding court orders, re-hashed positions that were
rejected by the courts, and plain attempts to harass parties and/or unnecessarily expand
litigation matters.” (Id. at 250.)
8. In separate decisions, the Arizona Court of Appeals affirmed the superior
court’s dismissal orders in the Doctor matter (id. at 254-62) and in the Arizona House of
Representatives matter (id. at 264-80), including holding in the latter decision that the
Arizona Superior Court did not abuse its discretion in designating Plaintiff a vexatious
litigant under A.R.S. § 12-3201 (id. at 275-79). In the latter decision, the appellate court
disagreed with Plaintiff that the vexatious litigant order “unconstitutionally infringes his
First Amendment political speech rights” and found that Plaintiff’s motion to dismiss under
A.R.S. § 12-751(A)—which provides that “[i]n any legal action that involves a person’s
lawful exercise of the right [of] petition . . . the person . . . may file a motion to dismiss or
quash the action under this section”—was not denied improperly. (Id. at 278-79.)
9. The Arizona Supreme Court denied Plaintiff’s petitions for review in the
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Doctor matter (id. at 282-83) and the Arizona House of Representatives matter (id. at 285-
86).
10. On November 2, 2023, then-Presiding Judge Welty issued Administrative
Order No. 2023-159, “find[ing] that Mr. Potter has engaged in vexatious conduct by filing
claims or requests for relief that have been subject to previous rulings in previous litigation;
has unreasonably expanded court proceedings; and has brought court actions without
‘substantial justification’ as defined in A.R.S. § 12-349.” (Id. at 324-30.)11 Judge Welty
ordered that (1) “Mr. Potter may not file any new causes of action as a pro se litigant after
the date of this order without leave of the Civil Presiding Judge or his/her designee”; (2)
“Mr. Potter may not file any further pleading or motion in any of his current lawsuits as a
pro se litigant without first seeking leave from the judicial officer assigned to that lawsuit”;
(3) “[a]ny motion for leave to file any new lawsuit, pleading or motion shall be captioned
‘Application Pursuant to Court Order Seeking Leave to File,’” and “Mr. Potter must either
cite this order in his application, or attach as an exhibit a copy of this order”; and (4) “[a]ny
request for fee waiver or deferral may only be granted by the Civil Presiding Judge or
his/her designee.” (Id. at 325.) Judge Welty found those orders “to be the least restrictive
orders that will adequately address Mr. Potter’s established pattern of abuse.” (Id.)12
D. Requests Pertaining To The Presiding Judge
Plaintiff seeks judicial notice of: (1) A.R.S. § 12-109(B)(1); (2) Ariz. R. Sup. Ct.
92; (3) an Arizona Supreme Court December 13, 2024 News Release; (4) the case record
from CV2022-008626; and (5) Plaintiff’s public records request to the Presiding Judge and
the Presiding Judge’s response. (Doc. 90.)
11 Again, the Court does not take judicial notice of the truth of any of the statements
contained in this Administrative Order.
12 Ortega and the Presiding Judge also request judicial notice of Administrative Order
2023-159. (Doc. 52 at 2 [Ortega]; Doc. 67 at 9 n.1 [Presiding Judge].) Those requests are
granted for the same reasons that Robson’s and Meza’s request for judicial notice of
Administrative Order 2023-159 is granted. To the extent Plaintiff argues that he “never
received, and never saw” Administrative Order 2023-159 “prior to it being referenced in
Ms. Ortega’s motion to dismiss” (Doc. 54-1 ¶ 8), this assertion has no bearing on the
question of judicial notice—Plaintiff does not, for example, dispute the authenticity of
Administrative Order 2023-159.
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As for A.R.S. § 12-109 and Ariz. R. Sup. Ct. 92, the Presiding Judge responds that
“judicial notice of legal authorities is unnecessary” and “while there is nothing preventing
this Court from considering A.R.S. § 12-109 or Rule 92 of the Arizona Supreme Court, the
Court is not required to do so by judicial notice.” (Doc. 91 at 2-3, citations omitted.) As
for the press release and the case record from CV2022-008626, the Presiding Judge agrees
that these sources are “not subject to reasonable dispute” and are obtained “from sources
whose accuracy cannot be reasonably questioned.” (Id. at 2, citing Fed. R. Evid. 201(b).)
Thus, the Presiding Judge agrees the Court may take judicial notice of them. (Id.) As for
the public records correspondence, the Presiding Judge argues that this correspondence “is
not subject to judicial notice because the matters discussed go to the heart of the
controversy and are disputed.” (Id. at 3.) Finally, the Presiding Judge argues that
Plaintiff’s motion “repeats previous arguments and improperly responds to prior filings”
such that “Plaintiff’s Motion is a surreply in disguise.” (Id. at 4.)
In reply, Plaintiff argues that the press release and the CV2022-008626 case record
contain “conceded” facts of which the Court “must” take judicial notice per Rule
201(c)(2)—namely, that the Presiding Judge’s “‘administrative authority’ does not include
‘authority over’ private parties” and that “Judge Welty was never the assigned judge in
[CV2022-008626] and never issued an order into that case’s docket.” (Doc. 92 at 2.)
Plaintiff further argues that the “facts” contained in the public records correspondence are
“not subject to reasonable dispute” and are relevant. (Id. at 3.) Plaintiff also argues that
no “application” existed or was reviewed by the Presiding Judge—and therefore, he argues,
per Rule 11, “Presiding Judge Gates’ counsel should immediately withdraw or correct the
factual contention that Presiding Judge Welty reviewed and approved the forementioned
application.” (Id. at 4 & n.2.) In a related vein, Plaintiff asks the Court “to consider sua
sponte issuing an Order to Show Cause instructing Presiding Judge Gates’ counsel . . . to
explain why the Court should not sanction counsel.” (Id. at 4 & n.3.) Plaintiff next disputes
that the facts contained in A.R.S. § 12-109 and Arizona Supreme Court Rule 92 are
legislative rather than adjudicative. (Id. at 5-6.) Next, Plaintiff argues at length regarding
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the Presiding Judge’s purported inability to invoke judicial and sovereign immunity and
regarding why, in Plaintiff’s view, Administrative Order 2023-159 was not a judicial
decision. (Id. at 6-8.) Plaintiff also asserts that his “First Amendment facial challenge does
not rely on” Administrative Order 2023-159. (Id. at 7.) Finally, Plaintiff argues that his
motion did not operate as a surreply and that his argument that the Court cannot consider
Administrative Order 2023-159 was not raised for the first time on reply. (Id. at 9-10.)
As an initial matter, the Court agrees with the Presiding Judge that significant
portions of Plaintiff’s motion to take judicial notice operate, in effect, as an unauthorized
surreply. It is apparent that Plaintiff is seeking to use judicial notice as a vehicle to argue
why the Presiding Judge’s motion to dismiss should be denied. The Court will not consider
the arguments in Plaintiff’s motion that operate as a surreply.
Turning to the merits, the Court declines to take judicial notice of A.R.S. § 12-109
because statutes are legislative facts that fall outside Rule 201. The Court also declines to
take judicial notice of Arizona Supreme Court Rule 92 because the “undisputed fact” that
Plaintiff seeks to have noticed is not judicially noticeable. Plaintiff asks the Court “to
judicially notice the undisputed fact that nowhere in this rule does it suggest, or can it be
read to indicate, that Presiding Judges may decide the rights of parties through
administrative proceedings.” (Doc. 90 at 7.) Plaintiff is thus seeking a legal determination,
which is not the proper subject of judicial notice. CTC Glob. Corp., 2018 WL 4849715 at
*3 (“[J]udicial notice . . . is for cold, hard, undisputable facts—not law.”).
The Court will take judicial notice of the existence of the press release attached as
Exhibit 3 to Plaintiff’s motion; however, the Court declines to take judicial notice of the
truth of its contents. See, e.g., EVO Brands, LLC v. Al Khalifa Grp. LLC, 657 F. Supp. 3d
1312, 1320-21 (C.D. Cal. 2023) (“Just because the document itself is susceptible to judicial
notice does not mean that every assertion of fact within that document is judicially
noticeable for its truth. A court may not take judicial notice of the truth of disputed factual
matters at the pleading stage.”) (citations omitted). It is apparent from Plaintiff’s motion
that he seeks to use this press release to show that the issuance of Administrative Order
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2023-159 deeming him a vexatious litigant was not a “judicial” act but rather an
administrative one. Although the Presiding Judge does not object to the Court taking
judicial notice of the press release (Doc. 91 at 2), whether the issuance of Administrative
Order 2023-159 was administrative or adjudicative is disputed. Accordingly, the Court
will not take judicial notice of the truth of any disputed facts in the press release.
The Court will also take judicial notice of the existence of the CV2022-008626 case
record and its contents. The Presiding Judge does not object to this request. (Id. at 2.)
Turning finally to Plaintiff’s request for judicial notice of his public records request
to the Presiding Judge and the Presiding Judge’s response, Plaintiff’s theory of relevance
appears to boil down to a quibble over word choice. The Presiding Judge states in the
motion to dismiss that he “review[ed] and approve[d] the application to certify Plaintiff as
a vexatious litigant, as allowed by Arizona law.” (Doc. 67 at 3.) This statement is a clear
reference to Judge Blanchard’s order designating Plaintiff as a vexatious litigant in No.
CV2022-008626 and referring the matter to the Presiding Judge to have Plaintiff
designated vexatious across all Arizona cases. (Doc. 51 at 249-52 [“IT IS ORDERED
referring this matter to the Honorable Joseph Welty, Presiding Judge, Maricopa County
Superior Court to consider issuing an administrative order designating Phillip Potter as a
vexatious litigant.”].) Nonetheless, Plaintiff argues that the correspondence at issue shows
there was no “application” reviewed by the Presiding Judge. (Doc. 90 at 9, cleaned up
[“Because § 12-3201 references no such ‘application,’ the Presiding Judge did not provide
evidence of that application, and no application is docketed in the CV2022-008626 case
record, Plaintiff submitted a public records request to inspect that ‘application’
document.”].) At bottom, Plaintiff’s request amounts to nothing more than a quibble over
whether the Presiding Judge reviewed an “application” or “referral” from Judge Blanchard.
This quibble over word choice does not affect the analysis of whether the Presiding Judge’s
issuance of Administrative Order 2023-159 was an adjudicatory/judicial or administrative
act. Thus, the Court declines to take judicial notice of the correspondence. In any event,
to the extent this correspondence is relevant, the Presiding Judge is correct that the matters
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contained within that correspondence “go to the heart of the controversy and are disputed”
(Doc. 91 at 3), such that judicial notice of the correspondence would also be improper for
that reason.
II. Legal Standards
A. Rule 12(b)(1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a defendant may
move to dismiss an action for “lack of subject-matter jurisdiction.” “[I]n reviewing a Rule
12(b)(1) motion to dismiss for lack of jurisdiction, we take the allegations in the plaintiff’s
complaint as true.” Wolfe v. Strankeman, 392 F.3d 358, 362 (9th Cir. 2004), overruled on
other grounds by Munoz v. Super. Ct. of L.A. Cnty., 91 F.4th 977, 981 (9th Cir. 2024).
However, “in ruling on a 12(b)(1) jurisdictional challenge, a court may look beyond the
complaint and consider extrinsic evidence.” Warren v. Fox Fam. Worldwide, Inc., 328
F.3d 1136, 1141 n.5 (9th Cir. 2003). The plaintiff bears the burden of establishing that
subject-matter jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994).
B. Rule 12(b)(6)
Under Rule 12(b)(6), “to survive a motion to dismiss, a party must allege sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In re
Fitness Holdings, Int’l, LLC, 714 F.3d 1141, 1144 (9th Cir. 2013) (internal quotation marks
and citation omitted). “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.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“[A]ll well-pleaded allegations of material fact in the complaint are accepted as true and
are construed in the light most favorable to the non-moving party.” Id. at 1144-45 (citation
omitted). However, the court need not accept legal conclusions couched as factual
allegations. Iqbal, 556 U.S. at 678-80. Moreover, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.
The court also may dismiss due to “a lack of a cognizable legal theory.” Mollett v. Netflix,
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Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted).
III. AG Mayes’s Motion To Dismiss
Counts One and Two of the FAC are asserted against AG Mayes. In Count One,
Plaintiff raises a First Amendment facial challenge to A.R.S. § 12-3201, Arizona’s
vexatious litigant statute. (Doc. 14 ¶¶ 113-207.) In Count Two, Plaintiff raises a First
Amendment facial challenge to A.R.S. § 13-2921, Arizona’s harassment statute. (Id.
¶¶ 208-14.)
A. The Parties’ Arguments
AG Mayes moves to dismiss Counts One and Two pursuant to Rules 12(b)(1) and
12(b)(6). (Doc. 38.)
First, AG Mayes argues that “Plaintiff lacks standing to assert his challenge to the
vexatious litigant statute” because although he raises a “pre-enforcement” challenge, he
“fails to allege a credible fear of prosecution.” (Id. at 6.) AG Mayes also argues that
Plaintiff fails to meet the traceability and redressability requirements as to Count One. (Id.
at 7-9.) Specifically, AG Mayes argues that (1) “elected county attorneys[] prosecute the
vast majority of criminal cases in Arizona” and “in the unlikely event Plaintiff were
prosecuted, it would be by a county attorney”; and (2) Plaintiff’s inability to file court
papers without prior leave of Court is “enforced by the court” and “[a]t most, through an
indirect chain of statutes, [Plaintiff] alleges he could be prosecuted by someone,” “[b]ut
even that speculative belief is a far leap from tying the envisioned prosecution to AG
Mayes,” and “AG Mayes’s general supervisory power over county attorneys . . . is not
enough to bridge the gap.” (Id. at 8).
Second, AG Mayes argues that “Plaintiff also lacks standing to challenge the
harassment statute.” (Id. at 9.) Specifically, AG Mayes argues that “Plaintiff lacks any
injury connected to this statute” because “[a]lthough Plaintiff alleges that his ex-wife was
able to have her address deemed confidential as a result of his litigation being deemed
‘harassing,’ a third party having their address treated as confidential is not an ‘invasion of
a legally protected interest’ belonging to Plaintiff.” (Id. at 9-10, citation omitted). AG
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Mayes also argues that because the Secretary of State, not AG Mayes, enforces the address
confidentiality program, “any injury would not be fairly traceable to AG Mayes and could
not be redressed by the relief sought.” (Id. at 10.)
Third, AG Mayes argues that “Plaintiff’s challenge to the vexatious litigant statute
is barred by sovereign immunity” because AG Mayes does not have a connection to the
law’s enforcement. (Id. at 10-11.)
Fourth, AG Mayes argues that Plaintiff fails to state a claim as to Count One. (Id.
at 11-17.) Specifically, AG Mayes argues that (1) the vexatious litigant statute is “not
overly broad” (id. at 11-12); (2) “[t]he Noerr-Pennington doctrine does not save Plaintiff’s
overbreadth theory” (id. at 12-13); (3) Plaintiff misinterprets Ringgold-Lockhart v. Cnty.
of Los Angeles, 761 F.3d 1057 (9th Cir. 2014) (id. at 13-14); (4) the vexatious litigant
statute “comports with procedural due process” (id. at 14-16); and (5) the vexatious litigant
statute “is not void for vagueness” (id. at 16-17).
Fifth, AG Mayes argues that Plaintiff’s “void for vagueness attack” on the
harassment statute fails because of the purported presence of an intent requirement. (Id. at
17.)
In response, Plaintiff first argues that he has standing. (Doc. 49 at 1-7.) Plaintiff
argues that AG Mayes “concedes the first two Driehaus factors”—namely, (1) “an
intention to engage in a course of conduct arguably affected with a constitutional interest”;
and (2) the conduct is “proscribed by a statute.” (Id. at 2, cleaned up, quoting Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 159 (2014).) As for the third Driehaus factor,
Plaintiff argues that he has alleged a credible threat of enforcement because “in a statutorily
defined chain of causation,” AG Mayes can “invoke” a violation of the vexatious litigant
statute to prosecute Plaintiff under Arizona’s harassment statute (A.R.S. § 13-2921),
Arizona’s statute on interfering with judicial proceedings (A.R.S. § 13-2810), and/or
Arizona’s domestic violence statutes (A.R.S. §§ 13-3601, 3602). (Doc. 49 at 3.) Plaintiff
argues that enforcement is likely because the Secretary of State has already “found that
Plaintiff violated §13-3601 based on conduct expressly traced to” the vexatious litigant
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statute (A.R.S. § 12-3201) and the harassment statute (A.R.S. § 13-2921). (Doc. 49 at 4.)
Plaintiff argues the traceability and redressability requirements are met because “Arizona
legislators enacted an unattenuated statutory chain of causation whereby, once deemed
‘vexatious’, by ‘operation’ of A.R.S. § 12-3201 a litigant who files court papers absent
leave of the court violates § 12-3201(B) and becomes subject to (1) civil and criminal
‘enforcement’ per §§ 13-2810(A)(2), 13-2921, 13-3601, and 13-3602; and (2)
administrative ‘enforcement’ per §§ 12-3201(A) and 41-161, et seq.” (Doc. 49 at 6.)
Plaintiff argues that AG Mayes “admits she can prosecute for conduct proscribed by A.R.S.
§ 12-3201(B) as § 13-2810(A)(2) and/or § 13-2921 violations which are §§ 13-3601/3602
predicates.” (Doc. 49 at 7.)
As for sovereign immunity, Plaintiff argues that AG Mayes is connected to the
enforcement scheme because she can prosecute Plaintiff through the same chain of statutes
described above. (Id. at 7-8.) Plaintiff next argues that Counts One and Two should not
be dismissed under Rule 12(b)(6). (Id. at 9.) As for Count One, Plaintiff argues that A.R.S.
§ 12-3201 “facially violates the petition clause,” “facially violates the vagueness doctrine,”
and “facially violates the overbreadth doctrine.” (Id. at 10-15.) Plaintiff further argues
that § 12-3201 lacks a hearing requirement, rendering it vague. (Id. at 15-16.) Plaintiff
provides little to no substantive argument regarding Count Two, other than to request
judicial notice. (Id. at 16.) Plaintiff does, however, emphasize that A.R.S. § 13-2921 was
revised in 2022 to eliminate the intent requirement. (Id.)
In reply, AG Mayes focuses on the third Driehaus prong (Doc. 53 at 2-4) and
reiterates her arguments regarding traceability and redressability (id. at 4-6). AG Mayes
also reiterates that, as to Count One, she is entitled to sovereign immunity. (Id. at 6-7.)
And AG Mayes reiterates her 12(b)(6) arguments as to Counts One and Two. (Id. at 7-11.)
B. Count One
“[A] federal court generally may not rule on the merits of a case without first
determining that it has jurisdiction over the category of claim in suit (subject-matter
jurisdiction) and the parties (personal jurisdiction). Without jurisdiction, the court cannot
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proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the
merits of the case.” Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S.
422, 430-31 (2007) (cleaned up). Accordingly, the Court begins by determining whether
it has subject-matter jurisdiction over Count One as against AG Mayes.
“Article III standing is a necessary component of subject matter jurisdiction.” In re
Palmdale Hills Prop., LLC, 654 F.3d 868, 873 (9th Cir. 2011). “[T]he irreducible
constitutional minimum of standing contains three elements. First, the plaintiff must have
suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second,
there must be a causal connection between the injury and the conduct complained of—the
injury has to be fairly traceable to the challenged action of the defendant, and not the result
of the independent action of some third party not before the court. Third, it must be likely,
as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (cleaned up).
As discussed in the order denying Plaintiff’s first TRO motion (Doc. 47 at 4), to the
extent Plaintiff is alleging that his injury is his inability “to file court papers absent leave
of the court” and that he “fears[] administrative, civil, and/or criminal enforcement of
A.R.S. § 12-3201” (Doc. 14 ¶ 98), AG Mayes has nothing to do with this alleged injury.
A.R.S. § 12-3201(B) specifies that “the court,” not AG Mayes, is tasked with determining
whether to allow a particular filing. A.R.S. § 12-3201(B) (“A pro se litigant who is
designated a vexatious litigant may not file a new pleading, motion or other document
without prior leave of the court.”). A.R.S. § 12-3201 itself provides no method of
enforcement (civil or criminal) that would implicate AG Mayes.
Plaintiff also alleges a fear of criminal prosecution in which his future violation of
A.R.S. § 12-3201 would be used as the underlying predicate for criminal liability under
other statutes. In the FAC, Plaintiff states as follows: “Despite the A.R.S. § 12-3201 Order,
including the A.R.S. § 12-3201(B) blanket provision, Plaintiff plans to file court papers
absent leave of the court in ongoing FC2020-09024 and CV2021-005501 litigation, and in
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this suit. For doing so, he is being threatened with, and reasonably fears, administrative,
civil, and/or criminal enforcement of A.R.S. § 12-3201, including where filing court
papers in well-founded lawsuits is being unlawfully postured as violations of A.R.S. § 13-
2810(A)(2) Interfering With Judicial Proceedings and/or A.R.S. § 13-2921 Harassment,
which enforcement authorities in turn can then cite as predicates to prosecute A.R.S. §§ 13-
3601 and 13-3602.” (Doc. 14 ¶ 98, emphasis added.) In his response to AG Mayes’s
motion to dismiss, Plaintiff describes this theory as a “statutorily defined chain of
causation” in which “AG Mayes can ‘invoke [A.R.S. § 12-3201] to prosecute per §§ 13-
2921, 13-2810(A)(2), 13-3601, and/or 13-2602.” (Doc. 49 at 3. See also id. at 6 [“Arizona
legislators enacted an unattenuated statutory chain of causation whereby, once deemed
‘vexatious’, by ‘operation’ of A.R.S. § 12-3201 a litigant who files court papers absent
leave of the court violates § 12-3201(B) and becomes subject to (1) civil and criminal
‘enforcement’ per §§ 13-2810(A)(2), 13-2921, 13-3601, and 13-3602; and (2)
administrative ‘enforcement’ per §§ 12-3201(A) and 41-161, et seq.”].)13 In other words,
Plaintiff argues that if he violates the vexatious litigant order (as he plans to do), he can be
subject to civil/criminal liability in at least two ways:
1. If he violates § 12-3201 by filing court papers without court approval, he can be
subject to prosecution under § 13-2810, which makes it a class 1 misdemeanor to
interfere with judicial proceedings by, among other things “knowingly . . .
[d]isobey[ing] or resist[ing] the lawful order, process or other mandate of a court.”
A.R.S. § 13-2810(A)(2). Violation of § 13-2810 can in turn be used as a predicate
offense for enforcement of § 13-3601 “domestic violence.”
2. If he violates § 12-3201 by filing court papers without court approval, he can be
subject to prosecution under § 13-2921, which makes it a misdemeanor (and in some
circumstances, a felony) to commit harassment. Plaintiff further argues that a
13 To the extent Plaintiff argues that a future violation of § 12-3201 would subject him
to administrative enforcement under § 41-161 et seq., that injury is not traceable to AG
Mayes. The “address confidentiality program” that Plaintiff’s ex-wife allegedly entered
by invoking the § 12-3201 order is administered by the Secretary of State, not AG Mayes.
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violation of § 13-2921 is a predicate offense for § 13-3601 “Domestic violence” /
§ 13-3602 “Order of protection.”
As explained in the order denying Plaintiff’s first TRO motion (Doc. 47), the type
of claim that Plaintiff seeks to advance is known as a pre-enforcement challenge.
Driehaus, 573 U.S. at 159. Such a claim arises “when the threatened enforcement of a law
creates an Article III injury.” Id. at 158. “When an individual is subject to such a threat,
an actual arrest, prosecution, or other enforcement action is not a prerequisite to
challenging the law.” Id. See also Peace Ranch, LLC v. Bonta, 93 F.4th 482, 487 (9th Cir.
2024) (“Pre-enforcement injury is a special subset of injury-in-fact. . . . [T]he injury is the
anticipated enforcement of the challenged statute in the future. One need not violate a
criminal law and risk prosecution in order to challenge the law’s constitutionality. This
principle applies equally in the civil context.”) (citations omitted).
As noted in the order denying Plaintiff’s first TRO motion, the parties have not
cited, nor is the Court aware of, any authority that would permit Plaintiff to invoke the pre-
enforcement challenge framework under these unusual and derivative circumstances, i.e.,
where Plaintiff claims to fear future prosecution under a different statute than the statute
whose constitutionality he seeks to challenge. To that end, the Court finds Kearns v.
Cuomo, 415 F. Supp. 3d 319 (W.D.N.Y. 2019), aff’d, 981 F.3d 200 (2d Cir. 2020),
instructive.
In Kearns, “the elected County Clerk for Erie County” challenged New York’s
“Green Light Law,” arguing it was “preempted by federal immigration law.” Id. at 322-
23. Relying on a pre-enforcement theory, the plaintiff argued that he would “be subject to
potential federal criminal prosecution if he complies with the Green Light Law’s
mandates.” Id. at 328. The district court noted that “cases dealing with standing in the
context of preenforcement challenges to allegedly unconstitutional laws involve challenges
to the very statutes under which the plaintiff fears prosecution.” Id. at 328-29 (listing
cases). The court noted that “by contrast, in this case, Plaintiff is not alleging that he would
be subject to criminal prosecution under the Green Light Law (nor could he plausibly do
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so, because the Green Light Law is not a criminal statute). Instead, Plaintiff contends that
if he complies with the Green Light Law, he may be criminally prosecuted under 8 U.S.C.
§ 1324.” Id. at 329. The Kearns plaintiff did not cite “any case in which preenforcement
standing to challenge a particular statute has been recognized on the potential for
prosecution under a different law.” Id. And the district court was “not persuaded that the
caselaw Plaintiff relies upon regarding preenforcement challenges based on a credible
threat of prosecution is applicable here, where the law Plaintiff is challenging is different
than the law under which he allegedly fears criminal prosecution.” Id. At bottom, the
Kearns court found that a plaintiff who asserts standing by alleging a fear of prosecution
under a different statute than that which he is challenging “cannot satisfy the essential
requirement identified by the Supreme Court . . . that the plaintiff allege an intention to
engage in a course of conduct proscribed by the challenged statute.” Id. (emphasis added).
Ultimately, the court concluded that “[t]o the extent Plaintiff bases his theory of injury on
a credible threat of prosecution against him individually, he fails to meet his burden to
establish standing.” Id. at 334.
Other cases since Kearns have rejected or criticized this sort of derivative theory of
pre-enforcement standing. See, e.g., Splonskowski v. White, 714 F. Supp. 3d 1099, 1104
(D.N.D. 2024) (“Under [Driehaus], the threatened prosecution must be contained within
the same statute proscribing the alleged conduct. Splonskowski is allegedly subject to
criminal prosecution under a separate statute than the ones he claims conflict with federal
election law.”) (citation omitted); Mohr v. Erie Cnty. Legislature, 2023 WL 3075956, *6
(W.D.N.Y. 2023) (“That bank-shot theory of standing—where a plaintiff challenges a law
on the grounds that complying with it could lead to prosecution under some different law—
has been met with some skepticism by other courts.”); Penkoski v. Bowser, 548 F. Supp.
3d 12, 30 (D.D.C. 2021) (“[P]re-enforcement challenges are limited to where the threat of
enforcement stems from the challenged law itself.”). This skepticism is supported by the
language of the Driehaus factors themselves, which require Plaintiff to “inten[d] to engage
in a course of conduct arguably affected with a constitutional interest, but proscribed by a
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statute, and there exists a credible threat of prosecution thereunder.” 573 U.S. at 159.
As in Kearns, Plaintiff has not identified, nor has the Court located, any authority
that would allow him to invoke the pre-enforcement framework where the statute he seeks
to challenge on constitutional grounds is not the statute under which he fears criminal
prosecution.14 Accordingly, Plaintiff lacks standing to raise a facial challenge to § 12-3201
based on his fear of future prosecution by AG Mayes under other statutes.15 This
determination obviates the need to reach AG Mayes’s other arguments for dismissal of
Count One. Sinochem Int’l Co. Ltd., 549 U.S. at 430-31.16
C. Count Two
Count Two does not raise the same standing problems as Count One because the
statute that is the subject of Plaintiff’s pre-enforcement challenge —A.R.S. § 13-2921—is
the same statute under which Plaintiff claims to fear criminal prosecution. The Court thus
turns to the merits of the standing analysis.
First is the injury-in-fact requirement, which “helps to ensure that the plaintiff has
a personal stake in the outcome of the controversy.” Driehaus, 573 U.S. at 158 (cleaned
up). In a pre-enforcement challenge such as this one, “a plaintiff satisfies the injury-in-fact
14 In Count Two, Plaintiff challenges the constitutionality of A.R.S. § 13-2921, which
is one of the criminal statutes under which he claims to fear criminal prosecution as a result
of his plan to violate § 12-3201. The Court therefore addresses Plaintiff’s standing to
challenge § 13-2921 under a separate standing analysis below. The Court disagrees with
the conclusory statement made in AG Mayes’s reply that “[b]ecause Plaintiff’s challenge
to the harassment statute is derivative of his challenge to the vexatious litigant statute, the
standing analysis is the same for both counts.” (Doc. 53 at 2 n.1.) AG Mayes does not cite
any law for this proposition, which is unpersuasive for the reasons stated in the body of
this order. See generally United States v. Ceja-Prado, 333 F.3d 1046, 1049 (9th Cir. 2003)
(“[F]ederal jurisdiction cannot be created by the parties through waiver or through estoppel,
in cases in which jurisdiction otherwise does not exist. . . . [C]ourts have not allowed
jurisdiction to depend on either malfeasance or well-intentioned agreement of the
parties.”).
15 As discussed in the order denying Plaintiff’s first TRO motion, this outcome does
not undermine one of the key objectives of the pre-enforcement standing doctrine, which
is “to ensure that no law is practically unchallengeable,” because “Plaintiff already had a
full and fair opportunity to challenge the constitutionality of A.R.S. § 12-3201 during the
state-court litigation that led to the issuance (and affirmance) of the vexatious litigant order
against him.” (Doc. 47 at 6.)
16 Thus, the Court need not elaborate on its reasoning in the order denying Plaintiff’s
first TRO motion as to why Plaintiff is “unlikely to succeed on the merits of his challenge
to A.R.S. § 12-3201.” (Doc. 47 at 15.)
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requirement where he alleges (1) an intention to engage in a course of conduct arguably
affected with a constitutional interest; (2) but proscribed by a statute; and (3) there exists a
credible threat of prosecution thereunder.” Id. at 159 (cleaned up).
As for the first Driehaus factor, Plaintiff alleges that he “plans to file court papers
absent leave of the court in ongoing FC2020-090224 and CV2021-005501 litigation, and
in this suit,” and “[f]or doing so, he is being threatened with, and reasonably fears . . .
enforcement of . . . § 13-2921 Harassment.” (Doc. 14 ¶ 98.) These allegations are
sufficient to satisfy the first Driehaus factor, as Plaintiff’s anticipated course of conduct is
arguably affected with a constitutional interest under the Petition Clause.
In contrast, Plaintiff has failed to establish that his anticipated course of conduct is
“proscribed by a statute” as required under the second Driehaus factor. Under § 13-2921,
“harassment” occurs when, inter alia, a “person knowingly and repeatedly commits an act
or acts that harass another person,” and the term “harass” is defined as “conduct that is
directed at a specific person and that would cause a reasonable person to be seriously
alarmed, annoyed, humiliated or mentally distressed and the conduct in fact seriously
alarms, annoys, humiliates or mentally distresses the person.” A.R.S. § 13-2921(A), (E).
As an initial matter, the factual allegations in the FAC are insufficient to show that
Plaintiff’s anticipated course of conduct would be “repeated[]” and/or “would cause a
reasonable person to be seriously alarmed, annoyed, humiliated or mentally distressed.”
The FAC simply alleges that Plaintiff intends to make court filings in certain pending state-
court lawsuits even though he is prohibited by § 12-3201 from doing so without leave of
court. (Doc. 14 ¶ 98.) The FAC does not contain any information about the content or
frequency of those anticipated filings. This approach fails to establish that a reasonable
person would “be seriously alarmed, annoyed, humiliated or mentally distressed” by those
unspecified future court filings.
Moreover, even if the FAC had included information about the expected content
and frequency of Plaintiff’s anticipated court filings, it is unclear whether the act of filing
court papers would qualify as “conduct that is directed at a specific person,” as required
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under § 13-2921(E).17 Although the papers filed in a lawsuit may contain allegations
concerning a specific person, such as the adverse party, the act of filing itself may not be
“directed at” that person—instead, the filing may be “directed at” the court. In Hernandez
v. Loarca, 571 P.3d 371 (Ariz. Ct. App. 2025), the trial court issued an order of protection
premised on a finding that the defendant (Loarca) had committed harassment of the
plaintiff (Hernandez) in violation of § 13-2921 by sending an email to Hernandez’s
employer that accused her of plagiarism. Id. at 372, 375. The Arizona Court of Appeals
reversed, holding that even though Hernandez may have “felt ‘alarmed, annoyed or
harassed’” by the email and “[e]ven if Loarca’s conduct was intended to damage
Hernandez’s reputation or employment,” Loarca’s act of sending the email did not, as a
matter of law, qualify as harassment under § 13-2921 because “his actions were . . . not
‘directed at’ Hernandez.” Id. at 374-75. This case is roughly analogous—even if Plaintiff’s
unspecified future court filings may contain accusations of misconduct against specific
persons, and even assuming those persons would feel alarmed, annoyed, or harassed by
those accusations, it doesn’t necessarily follow (per Hernandez) that the court filings
themselves would qualify as “directed at” those persons in the manner that § 13-2921(E)
requires. And although the Arizona Court of Appeals has held that Ҥ 13-2921 expressly
contemplates that harassment can occur through communications to third parties when that
communication . . . is designed to trigger actions directed at the victim,” it is also unclear—
at least based on the lack of allegations in the FAC on this point—whether the act of filing
documents in a court case “is designed to trigger actions directed at” the opposing party.
Raber v. Wagner, 571 P.3d 902, 906 (Ariz. Ct. App. 2025) (noting that “previous decisions
. . . have vacated protective orders on the ground that a defendant’s communications were
directed toward third parties rather than directly at the victims” but emphasizing that the
17 To that end, it is notable that Plaintiff’s arguments regarding the applicability of
§ 13-2921 do not hinge on him having been deemed a vexatious litigant. Rather, Plaintiff’s
position appears to be that filing court papers that cause a specific person to experience
mental distress would violate § 13-2921 regardless of whether the filer had been deemed
vexatious under § 12-3201(A) and regardless of whether the filing was impermissible
under § 12-3201(B).
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analysis is fact-specific). At bottom, Plaintiff has failed to allege, with any specificity,
what actions he intends to take in the future, making it impossible to discern whether his
planned conduct is proscribed by § 13-2921.
Finally, although the analysis could end there, Plaintiff has also failed to satisfy the
third Driehaus factor. When addressing that factor, courts in the Ninth Circuit “consider
(1) whether the plaintiffs have articulated a concrete plan to violate the law in question, (2)
whether the prosecuting authorities have communicated a specific warning or threat to
initiate proceedings, and (3) the history of past prosecution or enforcement under the
challenged statute.” Arizona v. Yellen, 34 F.4th 841, 850 (9th Cir. 2022) (cleaned up).18
The first subfactor is not satisfied here for the reasons stated above—Plaintiff has not
established that his amorphous plan to file unspecified papers in pending lawsuits even
qualifies as conduct that would “violate the law in question.”
The second subfactor is satisfied if “the authorities in charge of enforcing the
challenged law have communicated a specific warning or threat to initiate proceedings.”
Tingley v. Ferguson, 47 F.4th 1055, 1068 (9th Cir. 2022) (cleaned up). However, the FAC
does not allege that AG Mayes has threatened to prosecute Plaintiff under § 13-2921.
Instead, Plaintiff merely alleges that his ex-wife, T.D., admitted during a deposition that
her sole basis for applying to participate in Arizona’s address protection program was “the
supposed harassment [that] occurred only via court filings in meritorious litigation.” (Doc.
14 ¶ 95.) According to Plaintiff, T.D.’s subsequent acceptance into this program shows
that “[t]he Arizona Secretary of State has accepted that a pro se litigant who files court
papers that result in the opposing party experiencing (or at least expressing) emotional
18 The Court acknowledges that subsequent Ninth Circuit case law has framed the
standing inquiry slightly differently, implying that the Driehaus test was meant to supplant
the Ninth Circuit test. See, e.g., Peace Ranch, 93 F.4th at 487; Planned Parenthood Great
Nw., Haw., Alaska, Ind., Ky. v. Labrador, 122 F.4th 825, 836 (9th Cir. 2024). In Yellen,
however, the Ninth Circuit applied the Ninth Circuit’s test as a set of subfactors for
evaluating the third Driehaus factor. Yellen, 34 F.4th at 850. The Court follows the
framework as articulated in Yellen but notes that the outcome would be the same under the
slightly different formulations articulated in other cases. (See also Doc. 53 at 3 [AG Mayes
stating that the Ninth Circuit’s “framework survived the Circuit’s decision in Peace Ranch
adopting the Driehaus approach; both Peace Ranch and the later [Planned Parenthood]
cite Yellen’s use of this third-prong framework”].)
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distress, has violated A.R.S. §[] 13-2921.” (Id. ¶ 211.) But even assuming that Plaintiff’s
speculation about the Arizona Secretary of State’s understanding of § 13-2921 is accurate,
Plaintiff overlooks that the Arizona Secretary of State is not a prosecutor and is not
responsible for initiating and pursuing harassment prosecutions under § 13-2921. Thus,
nothing from this episode qualifies as a specific warning or threat by AG Mayes to initiate
proceedings under § 13-2921.
Alternatively, even if there has been no direct warning or threat of prosecution, “the
government’s failure to disavow enforcement of the law . . . weigh[s] in favor of standing.”
Tingley, 47 F.4th at 1068. See also Peace Ranch, 93 F.4th at 489-90 (third prong of
Driehaus test “often rises or falls with the enforcing authority’s willingness to disavow
enforcement”). But this principle does not assist Plaintiff. Although AG Mayes has,
understandably, not categorically disavowed a future prosecution of Plaintiff for
harassment or domestic violence, her filings in this lawsuit indicate that she does not
believe the harassment statute applies to unauthorized court filings. (Doc. 69 at 10,
emphasis added [“Plaintiff . . . cannot shift the burden by positing that a violation of his
order will be prosecuted under some other law and demanding AG Mayes disprove his
claim. . . . The Attorney General is not going to disavow enforcement of harassment or
domestic violence statutes. Instead, those are simply not the right statutes for the
situation.”].)
The third subfactor is “the history of past prosecution or enforcement under the
challenged statute.” Yellen, 34 F.4th at 850. “[E]vidence of past instances of
enforcement,” although “not dispositive,” is “important in a standing inquiry.” LSO, Ltd.
v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000). This subfactor also undermines Plaintiff’s
claim to standing. Plaintiff does not identify any case in which AG Mayes, some other
Arizona prosecutor, or even some prosecutor in some other jurisdiction has brought
criminal harassment charges against a defendant solely based on the act of filing papers in
a pending lawsuit (or filing court papers in violation of a vexatious-litigant order). Again,
Plaintiff’s only attempt to address this subfactor is his speculation regarding the Arizona
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Secretary of State’s basis for accepting his ex-wife’s application to participate in the
address protection program. But this is not the sort of history of past prosecution that the
pre-enforcement standing inquiry contemplates.
The Court acknowledges that when “the threatened enforcement effort implicates
First Amendment rights, the inquiry tilts dramatically toward a finding of standing.” LSO,
205 F.3d at 1155. Even so, Plaintiff has failed to meet his burden of establishing that he
has standing to pursue a pre-enforcement challenge to the constitutionality of A.R.S. § 13-
2921.
D. Plaintiff’s Motion for Jurisdictional Discovery from AG Mayes
In his motion for jurisdictional discovery, Plaintiff seeks, from AG Mayes
specifically, “limited jurisdictional discovery to demonstrate whether, in speaking for the
state, the Attorney General (1) expressly disavows enforcement of § 12-3201, and if so on
what grounds, including adherence to the Noerr-Pennington doctrine; and (2) can produce
an actual ‘record of nonenforcement’ showing § 12-3201 has been ‘commonly and
notoriously violated’ but has fallen into ‘desuetude.’” (Doc. 58 at 2.) In response, AG
Mayes argues that (1) Plaintiff’s “motion is untimely”; (2) “the discovery he seeks is
mostly irrelevant, and in any event privileged”; and (3) Plaintiff’s argument operates as an
improper burden-shift because “Plaintiff bears the burden of showing he has standing.”
(Doc. 69 at 4.) In reply, Plaintiff argues that, based on AG Mayes’s response, the Court
can “recognize that Plaintiff has jurisdictional standing to challenge § 12-3201 because, as
[AG Mayes] expressly states, (1) ‘[t]he Attorney General is not going to disavow
enforcement of harassment or domestic violence statutes,’; and (2) ‘AG Mayes is not
arguing that Plaintiff lacks pre-enforcement standing because the law is old, unenforced,
and “has fallen into desuetude.”’” (Doc. 72 at 1, citing Doc. 69 at 10-11.)
Plaintiff’s request to pursue jurisdictional discovery from AG Mayes fails for two
independent reasons. First, as AG Mayes correctly notes in her response (Doc. 69 at 4-5),
the request is untimely. Arizona v. Mayorkas, 600 F. Supp. 3d 994, 1015 (D. Ariz. 2022)
(request for jurisdictional discovery untimely where, as here, it was made after motion to
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dismiss became fully briefed and after the court had already issued a ruling on a request
for preliminary injunction indicating a likely lack of standing).
Second, although the analysis could end there, Plaintiff’s request also fails on the
merits. Jurisdictional discovery “may be appropriately granted where pertinent facts
bearing on the question of jurisdiction are controverted or where a more satisfactory
showing of the facts is necessary.” Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir.
2008) (citation omitted). As discussed, Plaintiff’s pre-enforcement challenge to § 12-3201
rests on two theories. Under the first theory, Plaintiff asserts that § 12-3201 is
unconstitutional and that he fears direct enforcement of that statute by AG Mayes. But as
noted, the vexatious litigant statute, by its plain terms, is not enforced by AG Mayes.
Jurisdictional discovery into AG Mayes’s history of enforcement of § 12-3201 itself is
therefore unwarranted. Plaintiff’s other theory is that he fears enforcement of other statutes
by AG Mayes premised on his planned violation of § 12-3201. But as noted, this is not a
proper pre-enforcement challenge in relation to § 12-3201.
Nor would the requested discovery aid the jurisdictional analysis regarding Count
Two. As noted, Plaintiff’s vague allegations fail to establish that his anticipated conduct
would even violate § 13-2921; Plaintiff improperly seeks to base his fear of future
enforcement on speculation about an entirely different (and non-prosecutorial) government
official’s understanding of § 13-2921; and AG Mayes’s reply suggests, in any event, that
she does not believe § 13-2921 is “the right statute[] for the situation” (Doc. 69 at 10).
Finally, the Court reminds Plaintiff that motions for jurisdictional discovery and/or
for judicial notice—filed after motions to dismiss became fully briefed—are not
opportunities to remake arguments raised in the motion-to-dismiss briefing or to raise
entirely new arguments. To the extent Plaintiff’s motion for jurisdictional discovery raises
new arguments and/or reargues issues already addressed in the motion-to-dismiss briefing,
those portions of Plaintiff’s motion (and reply) need not be considered.
IV. Robson’s And Meza’s Motion To Dismiss
Robson and Meza jointly move to dismiss Count Three (Plaintiff’s § 1983 claim)
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and Counts Four and Five (Plaintiff’s state-law claims for abuse of process and aiding and
abetting). (Doc. 51.)
A. Plaintiff’s Motion To Strike
Before turning to the merits, the Court first addresses whether the motion to dismiss
and reply should be stricken as requested by Plaintiff. (Doc. 64.)
1. Relevant Authorities
Local Civil Rule 7.2(m)(1) provides: “Unless made at trial, a motion to strike may
be filed only if it is authorized by statute or rule, such as Federal Rules of Civil Procedure
12(f), 26(g)(2) or 37(b)(2)(A)(iii), or if it seeks to strike any part of a filing or submission
on the ground that it is prohibited or not authorized by a statute, rule, or court order.”
Local Civil Rule 12.1(c) provides:
No motion to dismiss for failure to state a claim or counterclaim, pursuant to
Federal Rule of Civil Procedure 12(b)(6), or motion for judgment on the
pleadings on a claim or counterclaim, pursuant to Federal Rule of Civil
Procedure 12(c), will be considered or decided unless the moving party
includes a certification that, before filing the motion, the movant notified the
opposing party of the issues asserted in the motion and the parties were
unable to agree that the pleading was curable in any part by a permissible
amendment offered by the pleading party. The movant may comply with this
rule through personal, telephonic, or written notice of the issues that it
intends to assert in a motion. A motion that does not contain the required
certification may be stricken summarily.
Federal Rule of Civil Procedure 11(b) provides:
By presenting to the court a pleading, written motion, or other paper—
whether by signing, filing, submitting, or later advocating it—an attorney or
unrepresented party certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances: (1) it is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase the cost of
litigation; (2) the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law; (3) the factual contentions
have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or
discovery; and (4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on belief or a
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lack of information.
The Court’s Preliminary Order requires that “before filing a Rule 12(b)(6) motion
to dismiss . . . the movant must confer with the opposing party to determine whether such
motion can be avoided” and “must attach a certificate of conferral, certifying that it notified
the opposing party of the issues asserted in its motion and that the parties conferred but
were unable to agree that the pleading was curable in any part by a permissible amendment
offered by the pleading party.” (Doc. 13 at 4.) It further provides that “[a]ny motion
lacking the required certification may be summarily stricken.” (Id.)
2. The Parties’ Arguments
Plaintiff moves, “[p]ursuant to LRCiv 7.2(m)(1),” to strike Robson’s and Meza’s
motion and reply. (Doc. 64.) Plaintiff argues that although Robson’s counsel participated
in a meet-and-confer regarding the motion to dismiss, because “Meza never requested or
participated in a meet and confer session, and he never communicated any complaint
sufficiency issues to Plaintiff as local rules and the Court’s Preliminary Order require,” the
motion and reply (as well as the certificate of conferral) “are filings prohibited by LRCiv
12.1(c), Fed. R. Civ. P. 11(b), and the Preliminary Order.” (Id. at 1, 6.) At a minimum,
Plaintiff argues the Court should strike part of the reply as violating Fed. R. Civ. P. 11(b)(2)
and (3) because Robson and Meza purportedly raise Ariz. R. Civ. P. 15(a), (d) for the first
time in their reply, which arguments lack “evidentiary support.” (Id. at 7-9.)
In response, Robson and Meza first argue that Plaintiff’s motion is “not timely” per
Fed. R. Civ. P. 12(f)(2), which “makes clear that motions to strike pleadings must be made
‘either before responding to the pleading or, if a response is not allowed, within 21 days
after being served with the pleading.’” (Doc. 68 at 1, quoting Fed. R. Civ. P. 12(f)(2).)
Second, Robson and Meza argue that Plaintiff’s “substantive position regarding who all
had to participate in the meet and confer session is inapplicable to joint motions such as”
their joint motion to dismiss. (Id. at 2.) Because Robson’s counsel attended the meet-and-
confer and “Meza did not assert any grounds for dismissal that were not discussed in the
meet and confer session, there was no need for a separate meet and confer on the same
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topics.” (Id.) Third, Robson and Meza argue that Plaintiff has used his motion to strike
“to essentially file a ‘Surreply,’” which “is procedurally improper.” (Id. at 3.)
In reply, Plaintiff argues that his motion was not untimely under Rule 12(f)(2)
because that rule applies to pleadings, whereas he seeks to strike a motion. (Doc. 71 at 1-
2.) Plaintiff further argues that “Defendants cite no legal authority or interpretation of
procedural language to support their position” that a joint motion to dismiss does not trigger
the same meet-and-confer requirement. (Id. at 2-3.) Plaintiff next argues that Meza and
Robson “strategically chose vague language to wordsmith” their certificate of compliance
“around Meza’ noncompliance” and reiterates that the certificate of conferral violates Rule
11. (Id. at 4.) Plaintiff then argues that Robson’s and Meza’s dismissal arguments are not
the same. (Id. at 4-6.) Plaintiff also argues that he need not “demonstrate injury or
prejudice.” (Id. at 6.) Plaintiff finally argues that his motion was not a surreply. (Id. at 7-
8.)19
3. Analysis
As an initial matter, it is unclear whether a motion to strike is the appropriate vehicle
for challenging an opposing party’s alleged non-compliance with a meet-and-confer
requirement. See, e.g., Perkins v. Scida, 2025 WL 1416047, *2 (C.D. Cal. 2025) (“To the
extent that Plaintiff is arguing that the Motion to Dismiss was filed in violation of the meet-
and-confer requirements of Central District Local Rule 7-3, the Motion to Strike Motion
to Dismiss and Opposition is not the appropriate pleading for that argument.”) (citation
omitted); Karlsson, 2020 WL 2615972 at *2 (“The motion to strike will be denied because
it is an inappropriate device for opposing a motion to dismiss.”).
In any event, Plaintiff’s request fails on the merits. First, the motion to dismiss did
contain a conferral certificate. (Doc. 51 at 337-38.) Plaintiff’s attempt to argue that this
certificate somehow violates Rule 11 is unpersuasive. The certificate accurately states that
19 In the Conclusion to his reply, Plaintiff asks the Court to “at least strike the filings
insofar as Meza is involved.” (Doc. 71 at 8.) But Plaintiff “do[es] not identify any
authority suggesting that a court may ‘strike’ a document as it pertains to some parties but
not others.” Karlsson v. Ronn Motor Grp. Inc., 2020 WL 2615972, *2 n.3 (D. Ariz. 2020).
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“a meet and confer was held” regarding the issues in the motion to dismiss. (Id.)
Second, “[g]enerally, courts do not exercise their discretion to strike motions where
a party’s failure to meet and confer does not prejudice their adversary.” Clark v. Weber,
2024 WL 1600322, *2 (C.D. Cal. 2024). See also Dearing v. Morristown Police Dept.,
2025 WL 418509, *3-4 (E.D. Tenn. 2025); Del Toro v. 360 P’ship LP, 2021 WL 5050057,
*2 (C.D. Cal. 2021). Given that Plaintiff responded to the motion to dismiss (without
raising the alleged lack of a meet-and-confer) and argued against each of the joint positions
raised by Robson and Meza, the Court is persuaded by Defendants’ argument that “had
there been a separate meet and confer session with Meza’s counsel, [Plaintiff] would [not]
have in any way changed his position on any [joint] matter asserted in the [motion].” (Doc.
68 at 2.) Indeed, a review of the motion shows that each issue raised with respect to Meza
was jointly raised with respect to Robson, such that Plaintiff would have been put on notice
in the meet-and-confer with Robson’s counsel of each of Meza’s grounds for dismissal.
Robson and Meza raise four arguments as to why Plaintiff’s claims against them should be
dismissed. (Doc. 51 at 1-2.) The first argument is that Plaintiff’s claims (against both
Robson and Meza) are barred by the Noerr-Pennington doctrine. (Id. at 8-10.) Although
Plaintiff belatedly claims in his reply in support of his motion to strike that Robson’s
counsel “never discussed” Noerr-Pennington immunity with him during the meet and
confer (Doc. 71 at 5), this statement appears at odds with his previous acknowledgement
that Robson’s counsel discussed the “litigation privilege” with him (Doc. 64 at 1-2). It is
also directly contradictory to the statement he made in his declaration attached to his
response to the motion to dismiss: “Mr. Flint did explain his client’s position that . . . she
has immunity under the Noerr-Pennington doctrine.” (Doc. 55-1 ¶ 15. See also id. ¶ 16
[Plaintiff stating that he “explained” to Robson’s counsel in the meet-and-confer “that
Noerr-Pennington immunity did not apply to her litigation conduct, but even if that brand
of immunity could apply, her conduct would qualify under the ‘sham litigation
exception’”].) Moreover, Plaintiff seems to misunderstand Robson’s and Meza’s
arguments regarding the Noerr-Pennington doctrine when he argues that it applies
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differently to Robson and Meza because Robson argues she is a private person while Meza
is a government official. (Doc. 71 at 5.) The Noerr-Pennington doctrine, as discussed in
greater detail below, applies equally to both defendants even assuming, as Plaintiff must
allege to assert a § 1983 claim, that Robson was a state actor under a joint action theory.
Cf. B&G Foods N. Am., Inc. v. Embry, 29 F.4th 527, 541 (9th Cir. 2022) (“In short, even
assuming Defendants were state actors, the Noerr-Pennington doctrine bars B&G’s § 1983
action challenging Defendants’ protected petitioning conduct.”) (emphasis added). The
second argument raised in the motion to dismiss is that Plaintiff’s claims against Robson
and Meza are barred by claim preclusion. (Doc. 51 at 10-12.) Again, this argument applies
equally to both Defendants. The third argument raised is an argument that is specific to
Robson. (Id. at 12-14.) Accordingly, Meza’s meet-and-confer efforts regarding this
argument (or lack thereof) are irrelevant. The fourth argument is that Plaintiff fails to state
a claim under his state-law claims against both Robson and Meza. (Id. at 14-17.) Once
again, these arguments apply equally to Robson and Meza. Accordingly, the Court agrees
with Robson and Meza that “[b]ecause Rep. Meza did not assert any grounds for dismissal
that were not discussed in the meet and confer session, there was no need for a separate
meet and confer on the same topics.” (Doc. 68 at 2.)
Third, the fact that Plaintiff’s motion to strike was filed nearly a month after the
motion to dismiss was filed, and after the motion to dismiss became fully briefed, also
undermines Plaintiff’s request. Cf. Dearing, 2025 WL 418509 at *3 (“In any event,
Plaintiff did not raise this issue until January 2025, approximately six months after his
deadline to respond to Defendants’ motions. By failing to submit a timely response to
Defendants’ motions, Plaintiff waived opposition to them.”). Indeed, Plaintiff’s motion to
strike effectively operates as an improper surreply, seeking to raise an argument (i.e.,
failure to meet and confer) he could have raised in his response brief.
This leaves Plaintiff’s argument that the Court should strike the portion of Robson’s
and Meza’s reply brief addressing claim preclusion because that portion of the brief
violates Rules 11(b)(2) and 11(b)(3). (Doc. 64 at 7-9.) The Court construes this as a Rule
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11(c) motion for sanctions premised on an alleged violation of Rule 11(b). Because
Plaintiff’s request does not comply with Rule 11(c)(2), his request is denied.20
B. The Parties’ Arguments
As noted, Robson and Meza jointly move to dismiss the FAC pursuant to Rule
12(b)(6) on four grounds. (Doc. 51.) The Court will limit its analysis to the first ground
because it is dispositive. The first ground is that “Plaintiff’s claims” against Robson and
Meza “relate solely to their participation in the proceedings to designate Plaintiff as a
vexatious litigant in the State Litigation” and are thus “barred by the Noerr-Pennington
doctrine.” (Id. at 8.) Robson and Meza argue that “[i]n the litigation context, the only
exception to Noerr-Pennington immunity is the ‘sham’ litigation exception”—and because
they were successful on their motion to have Plaintiff deemed vexatious, the sham litigation
exception cannot apply. (Id. at 9.)
In response, Plaintiff argues that Robson and Meza do not have Noerr-Pennington
immunity. (Doc. 55 at 16-17.) Citing Manistee Town Ctr. v. City of Glendale, 227 F.3d
1090 (9th Cir. 2000), Plaintiff argues that “Noerr-Pennington immunity only extends to
state actors when genuinely performing ombudsmen services for their constituents” and
that “Meza was in no way engaging in political activity in support of constituents when he
devised the Scheme, intentionally and systematically defrauded Medicaid, made
misrepresentations to state courts, aided and abetted others’ misrepresentations to state
courts, and mounted attacks on Plaintiff’s First Amendment rights.” (Id. at 16-17, cleaned
up). Plaintiff argues that, “[t]o the contrary, [Meza] and [Robson] prosecuted the § 12-
3201(A) joint motion to conceal their unlawful activities,” and that “Noerr-Pennington
does not immunize legislators who perform such self-serving acts.” (Id. at 17.) In the
alternative, Plaintiff argues that even if Noerr-Pennington does apply, Robson’s and
Meza’s petitioning “is subject to the sham litigation exception” because “[t]he supplying
20 In his reply in support of the motion to strike, Plaintiff further argues that Robson’s
and Meza’s response to the motion to strike violates Rule 11 by stating “that a defendant
need not comply with LRCiv12.1(c).” (Doc. 71 at 4.) The Court rejects this argument.
Plaintiff cannot raise a Rule 11 argument every time he disagrees with an argument made
by Defendants.
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of fraudulent information” does not receive Noerr-Pennington immunity. (Id.)
In reply, Robson and Meza argue that Plaintiff’s response “largely fails to address”
the Noerr-Pennington doctrine even though it is “dispositive.” (Doc. 59 at 2.) Robson and
Meza further argue that Plaintiff fails to “make any argument as to how his claims against
[Robson] somehow fall outside the purview of Noerr-Pennington”; that Manistee “stands
for the opposite proposition” than that proposed by Plaintiff; and that the sham litigation
exception does not apply because “Defendants prevailed on their vexatious litigant motion
at every level.” (Id. at 2-3.)
C. Noerr-Pennington
“Under the Noerr-Pennington doctrine, ‘[t]hose who petition government for
redress are generally immune from antitrust liability.’” Manistee, 227 F.3d at 1092
(quoting Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56
(1993)). “The doctrine immunizes petitions directed at any branch of government,
including the executive, legislative, judicial and administrative agencies.” Id. Although
originally applied in the antitrust context, the doctrine is no longer limited in that fashion,
and the Ninth Circuit has “held that Noerr-Pennington immunity applies to claims under
42 U.S.C. § 1983 that are based on the petitioning of public authorities.” Id. See also
Empress LLC v. City & Cnty. of S.F., 419 F.3d 1052, 1056 (9th Cir. 2005) (“Although the
Noerr-Pennington doctrine originally immunized individuals and entities from antitrust
liability, Noerr-Pennington immunity now applies to claims under § 1983 that are based on
the petitioning of public authorities.”). The doctrine applies to § 1983 claims where the
petitioning includes litigation activities. B&G Foods, 29 F.4th at 533-35. See also
Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1184 (9th Cir. 2005) (the Noerr-
Pennington doctrine applies to “[a] complaint, an answer, a counterclaim and other
assorted documents and pleadings, in which plaintiffs or defendants make representations
and present arguments to support their request that the court do or not do something” as
well as to “‘conduct incidental to’ a petition . . . if the petition itself is protected”). The
doctrine also provides immunity from state-law tort claims premised on protected
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petitioning activity. Theme Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1007
(9th Cir. 2008). See also Schrader Cellars, LLC v. Roach, 129 F.4th 1115, 1125 n.12 (9th
Cir. 2025) (“The Noerr-Pennington doctrine applies to state law tort claims.”).
Courts in the Ninth Circuit follow a three-step analysis when determining whether
conduct is immunized under the Noerr-Pennington doctrine: “(1) whether the lawsuit
imposes a burden on petitioning rights; (2) whether the alleged activities constitute
protected petitioning activity; and (3) whether the statute at issue may be construed to avoid
that burden.” B&G Foods, 29 F.4th at 535 (cleaned up). There is no immunity for “sham”
petitions, an exception analyzed as part of step two. Id.
Here, step one is satisfied because Plaintiff’s lawsuit against Robson and Meza
would burden those Defendants’ petitioning rights. Robson and Meza have a right to
petition the judiciary to have a pro se litigant deemed vexatious, and that is precisely the
conduct underlying Plaintiff’s claims in Counts Three through Five. In reaching its
determination as to step one, the Court “do[es] not consider any alleged misconduct tied to
the petitioning activities.” Id.
Step two asks whether Robson’s and Meza’s conduct constitutes “protected
petitioning activity.” Id. at 535-36. This step is composed of two subparts. Step 2A
evaluates “whether the Petition Clause extends to Defendants’ conduct,” and “[i]f it does,”
then under Step 2B, the Court must “next decide whether the sham exception to Noerr-
Pennington applies.” Id.
Step 2A would clearly be satisfied as to Robson if she were considered a private
citizen for purposes of Plaintiff’s claims. Manistee, 227 F.3d at 1093 (“If defendants were
private citizens, the applicability of the Noerr–Pennington doctrine would be clear.”). Yet
even assuming without deciding that she (like Meza) should be considered a state actor for
purposes of those claims, the outcome would be the same. In the § 1983 context, Noerr-
Pennington immunity extends to “litigation activities brought by government officials to
advance public goals.” B&G Foods, 29 F.4th at 535. Plaintiff argues that, under Manistee,
“Noerr-Pennington immunity only extends to state actors when genuinely performing
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ombudsmen services for their constituents” and that “Meza was in no way engaging in
‘political activity’ in support of ‘constituents’ when he devised the Scheme, intentionally
and systematically defrauded Medicaid, made misrepresentations to state courts, aided and
abetted others’ misrepresentations to state courts, and mounted attacks on Plaintiff’s First
Amendment rights.” (Doc. 55 at 16-17, cleaned up.)21 But this argument misses the mark.
The challenged conduct underlying Count Three is “Meza’s and Robson’s joint A.R.S.
§ 12-3201(A) motion and prosecution, including their efforts to uphold the resulting Order
on appeal.” (Doc. 14 ¶ 230.) The challenged conduct underlying Counts Four and Five is
the same. (Id. ¶ 243 [Count 4: “Meza and Robson each engaged in a willful act in the use
of a judicial process when jointly bringing the A.R.S. § 12-3201(A) motion in CV2022-
008626 and prosecuting the motion and resulting Order through appeal.”]; id. ¶ 264 [Count
5: “Meza and Robson each substantially assisted and encouraged each other to commit
their primary torts, as evidenced by their join conduct in CV2022-008626.”].) Under Step
2A, the Noerr-Pennington doctrine extends to such conduct because Defendants—in
litigating a public records case (CV2022-008626) under Arizona’s public records law—
sought to have Plaintiff deemed a vexatious litigant. Such action advances the public goal
of avoiding use of the judiciary’s time and resources on baseless or harassing litigation.
Plaintiff’s argument speaks instead to Step 2B, which asks whether the sham exception
applies.
The Ninth Circuit has “identified three circumstances in which the sham exception
might apply in the litigation context”: (1) “where the lawsuit is objectively baseless and
the defendant’s motive in bringing it was unlawful”; (2) “where the conduct involves a
21 Plaintiff also misstates the holding of Manistee. Manistee does not hold—as
Plaintiff argues—that state actors only receive Noerr-Pennington immunity when they act
as “ombudsmen for their constituents.” (Doc. 55 at 16.) In Manistee, Manistee argued
that “government officials should be excluded from Noerr-Pennington immunity because
government officials wield power that private petitioners do not.” 227 F.3d at 1094. In
addressing that argument, the Ninth Circuit noted that petitions by government officials
acting as “ombudsmen for their constituents . . . may be nearly as vital to the functioning
of a modern representative democracy as petitioning that originates with private citizens.”
Id. at 1093. Thus, Manistee does not set forth a rule that a state actor only receives Noerr-
Pennington immunity when acting on behalf of constituents but rather holds that even
petitioning done by a government official acting on behalf of constituents is immunized.
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series of lawsuits brought pursuant to a policy of starting legal proceedings without regard
to the merits and for an unlawful purpose”; and (3) “if the allegedly unlawful conduct
consists of making intentional misrepresentations to the court, litigation can be deemed a
sham if a party’s knowing fraud upon, or its intentional misrepresentations to, the court
deprive the litigation of its legitimacy.” B&G Foods, 29 F.4th at 537-38 (citation omitted).
Under the first exception, the Court “need not reach the subjective element” if the
suit was not objectively baseless. Id. at 538. The objective-baselessness requirement is
not satisfied here because “a winning lawsuit is by definition not a sham.” Relevant Grp.,
LLC v. Nourmand, 116 F.4th 917, 932 (9th Cir. 2024) (cleaned up). See also PREI, 508
U.S. at 60 n.5 (“A winning lawsuit is by definition a reasonable effort at petitioning for
redress and therefore not a sham.”). The FAC itself recognizes that the Arizona state court
issued an order granting Robson’s and Meza’s motion to designate Plaintiff vexatious.
(Doc. 14 ¶¶ 76, 79.) And the Court has judicially noticed that the Arizona Court of Appeals
affirmed that decision and the Arizona Supreme Court denied review. Thus, the first sham
exception does not apply.
The second exception does not appear to be at issue here, as Plaintiff has not alleged
in the FAC that Robson and Meza have brought a series of lawsuits against him.
As for the third exception, the FAC alleges as part of Count Three that Robson’s
and Meza’s “joint A.R.S. § 12-3201(A) motion and prosecution, including their efforts to
uphold the resulting Order on appeal . . . constitute ‘sham litigation’ predicated on a
litigant’s ‘fraud . . . misrepresentation or other misconduct’, including criminal
misconduct.” (Doc. 14 ¶ 230 [citing PREI, 508 U.S. at 61; Relevant Grp., 116 F.4th at
928].) And Plaintiff argues in his response to the motion to dismiss that “[t]he supplying
of fraudulent information threatens the fair and impartial functioning of these agencies and
does not deserve Noerr-Pennington immunity.” (Doc. 55 at 17, cleaned up.) This
argument fails for several reasons. First, the FAC fails to identify the alleged
misrepresentations that Meza and Robson made to the superior court in connection with
their prosecution of the A.R.S. § 12-3201 motion. The FAC alleges that Meza made
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“factual misrepresentations on affidavit [which] induced the trial court to grant summary
judgment in defendants’ favor” (Doc. 14 ¶ 223), but those alleged misrepresentations were
made in connection with the underlying public records suit, not Meza’s prosecution of the
vexatious litigant order. The FAC also alleges that “Meza’s misconduct and malicious
intent is further evident in other court filings where he provided knowing
misrepresentations for the unlawful purpose of attempting to conceal the Scheme. Again,
he falsely avowed to one court that Nonprofits’ executives only paid him for his ‘advice’,
although Plaintiff secured an affidavit from NP6’s CEO in another court that she paid him
for his ‘services as a fundraiser’. Meza also submitted an affidavit swearing that he did not
produce or maintain public records on his personal cell phone or personal email account,
but evidence demonstrated that he did.” (Id. ¶ 231.)22 But Plaintiff’s allegations that Meza
made misrepresentations in other contexts—including in other cases—do not show that
Meza made misrepresentations in connection with his prosecution of the vexatious litigant
motion. Nor are there any allegations of alleged misrepresentations made by Robson,
specifically, in connection with the prosecution of the vexatious litigant motion.
Second, even if Plaintiff had properly alleged misrepresentations made by Robson
and Meza in connection with their prosecution of the vexatious litigant motion, those
misrepresentations would have needed to “deprive the litigation of its legitimacy.” B&G
Foods, 29 F.4th at 538. To “overcome a 12(b)(6) motion” under the third sham exception,
Plaintiff would need to “demonstrate that [Robson and Meza] so misrepresented the truth
to the [Arizona Superior Court] that the entire . . . proceeding was deprived of its
legitimacy.” Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056, 1063 (9th Cir. 1998). That
22 As a further example, in his response to the motion to dismiss, Plaintiff—in the
context of his claim preclusion argument—states that “Meza’s associates misrepresented a
Medicaid contract’s factual terms before the CV2021-014146 trial court to withhold
records, but refused to admit their misrepresentation once discovered.” (Doc. 55 at 9, citing
Doc. 14 at 63-66.) He also states: “Meza misrepresented facts before the CV2021-013210
court when, for instance, he said he was only paid as an ‘advisor’ although a although a
senior executive ‘client’ later confirmed she paid him for ‘services as a fundraiser.’” (Id.,
citing Doc. 14 at 77, 78 n.21.) Neither of these allegations address misrepresentations
made by Meza to the CV2022-008626 court, never mind in connection with the prosecution
of the vexatious litigant order.
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standard is not satisfied here. District courts in the Ninth Circuit have held that a
proceeding is not deprived of its legitimacy “when the opposing party has the opportunity
to respond to those assertions or omissions.” Ezra v. Leifer, 2018 WL 4026975, *9 (C.D.
Cal. 2018), report and recommendation adopted, 2018 WL 4026999 (C.D. Cal. 2018). See
also Alers v. Bank of Am., NA, 2014 WL 12787629, *2 (C.D. Cal. 2014), aff’d sub. nom.,
671 F. App’x 425 (9th Cir. 2016) (sham exception for misrepresentations did not apply
because when the allegedly false statements were made, the plaintiff “then knew [them] to
be false” and “had every opportunity, in responding” to show that they were false, and thus
the alleged misrepresentations “would not have ‘deprive[d] the litigation of its
legitimacy’”); Wilson v. Leigh L. Grp., P.C., 2020 WL 3972574, *5 (N.D. Cal. 2020)
(“[A]lthough, as noted above, plaintiff alleges the defendants made fraudulent statements
in their oppositions, such asserted conduct did not ‘deprive the litigation of its legitimacy,’
as plaintiff, in his reply brief, identified the allegedly fraudulent statements and raised the
argument that defendants’ oppositions were ‘deceitful overall.’”) (citations omitted). Even
if Robson and Meza made any misrepresentations to the Arizona Superior Court in
connection with their prosecution of the vexatious litigant motion, Plaintiff—who was
given an evidentiary hearing before the vexatious litigant order was issued against him—
had the opportunity to respond.
Moreover, district courts have held that when misrepresentations were “accessible
to all involved in the state court litigation,” those “misrepresentations could not have
deprived the litigation of its legitimacy.” Williams v. Jones & Jones Mgmt. Grp., Inc.,
2015 WL 349443, *10 (C.D. Cal. 2015). In Williams, the plaintiffs argued that the
defendants “intentionally misrepresented the basis of Plaintiffs’ state court complaint in
their papers.” Id. The district court held that “such misrepresentations could not have
deprived the litigation of its legitimacy given that the content of Plaintiffs’ state court
complaint was accessible to all involved in the state court litigation.” Id. Here, too, in the
order designating Plaintiff a vexatious litigant, the Arizona Superior Court stated that it
“carefully reviewed the parties’ filings and the Court’s minute entries and orders in this
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matter, together with the pleadings, minute entries, and orders in the several other
litigation matters cited by Defendants and Plaintiff.” (Doc. 51 at 249, emphasis added.)
Accordingly, any alleged misrepresentations by Meza or Robson in underlying litigation
would have been accessible to all and thus could not have deprived the litigation of its
legitimacy. Accordingly, even if Plaintiff were to amend the FAC to allege
misrepresentations made by Meza and Robson in connection with their prosecution of the
vexatious litigant motion, such allegations would be futile.
Finally, Plaintiff argues that to the extent the question of Noerr-Pennington
immunity centers on disputed facts, his claims should not be dismissed at this stage. (Doc.
55 at 17.) But for the reasons stated above, the question of immunity does not turn on
disputed facts.
Accordingly, Plaintiff’s claims against Robson and Meza in Counts Three, Four,
and Five are barred by the Noerr-Pennington doctrine.
D. Attorneys’ Fees
Robson and Meza include a request for attorneys’ fees in their motion to dismiss.
(Doc. 51 at 17.) Plaintiff does not appear to respond to this request.
This request is premature. LRCiv 54.2(b) provides that “the party seeking an award
of attorneys’ fees and related non-taxable expenses must file and serve a motion . . . within
fourteen (14) days of the entry of judgment in the action with respect to which the services
were rendered.” No judgment against Plaintiff has yet been entered.
V. The Presiding Judge’s Motion To Dismiss
Count One of the FAC is the only claim asserted against the Presiding Judge. (Doc.
14 ¶¶ 113-207.) As discussed, Count One is a First Amendment facial challenge to
Arizona’s vexatious litigant statute, A.R.S. § 12-3201, which seeks declaratory and
injunctive relief. (Id.) Plaintiff purports to sue the Presiding Judge “in his official
administrative capacity only.” (Id. ¶ 104, emphasis in original.)
A. The Parties’ Arguments
The Presiding Judge moves to dismiss Count One under Rules 12(b)(1) and
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12(b)(6). (Doc. 67.) First, the Presiding Judge argues that “[t]his Court lacks subject
matter jurisdiction to hear this matter because there is no case or controversy between
Plaintiff” and the Presiding Judge. (Id. at 1, 3-4.) The Presiding Judge argues there is no
case or controversy because the Presiding Judge’s “only action here was to review and
approve the application to certify Plaintiff as a vexatious litigant, as allowed by Arizona
law,” and the Presiding Judge “had no part in drafting” A.R.S. § 12-3201 “nor enforces”
A.R.S. § 12-3201. (Id. at 3.) The Presiding Judge argues that he “performed a
quintessential judicial function—making a ruling based on the record before him—in his
role as a judicial officer.” (Id. at 3-4.) The Presiding Judge further argues that Plaintiff
cannot “invoke the standing of others” to “prevent” the Presiding Judge “from entering
vexatious litigant orders against others.” (Id. at 4.)
Second, the Presiding Judge argues that Plaintiff’s claims are “barred by the
Eleventh Amendment” and that, under the Supreme Court’s decision in Whole Woman’s
Health v. Jackson, 595 U.S. 30 (2021), the Presiding Judge enjoys sovereign immunity.
(Id. at 4-5.)
Third, in the alternative, the Presiding Judge argues that Plaintiff has failed to state
a claim because the Presiding Judge “has judicial immunity” and is “absolutely immune
from suit for the acts he takes in his judicial capacity.” (Id. at 7.) And the Presiding Judge
argues that Plaintiff’s attempt to avoid judicial immunity “by claiming that the [Presiding
Judge’s] action here was ‘administrative,’ . . . mischaracterizes the nature of the [FAC].”
(Id. at 8.)
In response, Plaintiff argues that the Presiding Judge’s motion “relies entirely on
judicial immunity as grounds for Fed. R. Civ. P. 12(b)(1) and (6) dismissal.” (Doc. 79 at
2.) Plaintiff argues that the Presiding Judge “performed no judicial act that could give rise
to judicial immunity” because he “never served as the trial judge assigned to any case
involving Plaintiff”; “did not hear or decide any controversy between the CV2022-008626
parties”; “administratively reviewed an ‘application’ that did not originate from the
parties”; and “acted in an administrative capacity, not a judicial capacity, when issuing and
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now maintaining [Administrative Order 2023-159].” (Id. at 2-3.) At bottom, Plaintiff
argues that the Presiding Judge’s standing, sovereign immunity, and judicial immunity
arguments fail because the Presiding Judge was sued in his administrative capacity.
Plaintiff seeks to draw a distinction between the order issued by Juge Blanchard in
CV2022-008626 and Administrative Order 2023-159, arguing that it was only Judge
Blanchard, and not the Presiding Judge, who “conducted judicial proceedings and issued
an appealable ruling.” (Id. at 6.) Plaintiff argues that the Presiding Judge’s issuance of
Administrative Order 2023-159 could not have been a judicial act because it was entered
while the Arizona Court of Appeals had issued a stay of Judge Blanchard’s order, and “[n]o
judicial act may be performed in a lower court while a case is under appellate jurisdiction.”
(Id. at 7.) Plaintiff also argues that the CV2022-008626 record “is devoid” of any
“application,” so the issuance of Administrative Order 2023-159 could not have been a
judicial act. (Id.) Plaintiff further argues that no events took place in the Presiding Judge’s
chambers and that the parties did not otherwise “confront” the Presiding Judge. (Id. at 8-
9.) Plaintiff also argues that judicial immunity cannot apply because “appellate courts
cannot exercise appellate jurisdiction over administrative orders.” (Id. at 8.)
Plaintiff further argues that he has standing because he “suffers an ongoing
irreparable injury-in-fact” caused by the Presiding Judge’s actions “when issuing and
maintaining” Administrative Order 2023-159 and that his injury is “redressable by
enjoining enforcement of that non-judicial, administrative order.” (Id. at 10.) Plaintiff
argues that the Presiding Judge “enforced, and continues to enforce, § 12-3201 via
[Administrative Order 2023-159] and by maintaining Plaintiff’s name on a vexatious
litigant list” and that the Presiding Judge “has full authority to rescind [Administrative
Order 2023-159] and to remove Plaintiff’s name from that list.” (Id.) Plaintiff also argues
sovereign immunity does not apply. (Id. at 10-11.) Next, Plaintiff asserts that there is no
judicial immunity because under § 1983, judicial immunity protects actions taken by
judges in their judicial capacity, including in actions for injunctive relief, but does not apply
to prospective declaratory relief. (Id. at 13.) Finally, Plaintiff reiterates his arguments as
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to why A.R.S. § 12-3201 violates the Petition Clause. (Id. at 13-16.)
In reply, the Presiding Judge first focuses on sovereign immunity, relying on the
Supreme Court’s decision in Whole Woman’s Health and the Ninth Circuit’s decision in
Munoz. (Doc. 81 at 2-4.) The Presiding Judge then focuses on judicial immunity, arguing
that “[d]etermining whether a person is a vexatious litigant, and issuing an order that
restricts that person’s ability to file additional litigation without guardrails is a judicial
function.” (Id. at 5.) The Presiding Judge also disputes Plaintiff’s argument that Arizona’s
vexatious litigant law would be unreviewable if his challenge here were disallowed,
arguing that “administrative orders declaring a person a ‘vexatious litigant’ are subject to
appellate review in state court through a special action.” (Id. at 6.) Next, the Presiding
Judge argues that “Plaintiff’s response cannot be used as a collateral attack on the statute
or the state court’s determination that he is a vexatious litigant.” (Id. at 7.)
B. The Rooker-Feldman Doctrine
At the time Plaintiff filed the FAC, he was allegedly unaware that the Presiding
Judge had already entered Administrative Order 2023-159 against him. Accordingly, the
FAC seeks to prevent the Presiding Judge from entering such an administrative order
and/or adding Plaintiff’s name to the vexatious litigant list. (Doc. 14 at 70-71 [“Plaintiff
requests that the Court provide the following relief: . . . Permanently enjoin[] Defendant
Welty from enforcing A.R.S. § 12-3201, which also precludes issuing any administrative
[sic] entering Plaintiff’s name onto any vexatious litigant list or register.”].) However,
Plaintiff is now aware of the entry of Administrative Order 2023-159 (which, as discussed
in earlier portions of this order, is subject to judicial notice). Accordingly, Plaintiff now
appears to seek relief taking the form of an order preventing the Presiding Judge from
maintaining and enforcing Administrative Order 2023-159. (Doc. 79 at 10 [arguing that
Plaintiff’s “ongoing irreparable injury-in-fact caused by [the Presiding Judge’s] conduct
when issuing and maintaining the AO . . . is redressable by enjoining enforcement of the
non-judicial, administrative order”].) Although Plaintiff’s briefing is far from a model of
clarity (and he does not raise this issue until his reply in support of his motion to take
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jurisdictional discovery from the Presiding Judge), Plaintiff argues that although the FAC
sought a “negative injunction preventing administrative enforcement action,” he now seeks
to “pursue a ‘positive injunction’ (i.e., a ‘mandatory injunction’) requiring his name be
removed from the state’s vexatious litigant list and the Administrative Order 2023-159 be
rescinded.” (Doc. 88 at 9.) Because the Court has taken judicial notice of Administrative
Order 2023-159, it reviews the FAC and the motions to dismiss with knowledge of the
order’s existence, and—giving Plaintiff the benefit of the doubt—reviews the FAC and
motion-to-dismiss briefing in light of Plaintiff’s revised arguments for relief.23 In that vein,
however, the Court has concerns that some of the arguments Plaintiff now makes are barred
by the Rooker-Feldman doctrine.
“Under Rooker-Feldman, a federal district court does not have subject matter
jurisdiction to hear a direct appeal from the final judgment of a state court order.” Noel v.
Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). “It is a forbidden de facto appeal under Rooker-
Feldman when the plaintiff in federal district court complains of a legal wrong allegedly
committed by the state court, and seeks relief from the judgment of that court.” Id. at 1163.
Although the Presiding Judge’s motion does not address the Rooker-Feldman
doctrine, the Court has an independent obligation to determine whether it has subject-
matter jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). As
discussed in the order denying Plaintiff’s first TRO motion (Doc. 47 at 3 n.7), to the extent
Plaintiff “seeks a declaration that [Arizona’s] vexatious litigant statute is ‘facially
unconstitutional’ and a permanent injunction barring the law’s enforcement,” such claims
are likely “not barred by Rooker-Feldman.” Nunu v. Texas, 2022 WL 820744, *2 (5th Cir.
2022). However, several of Plaintiff’s arguments appear to seek relief that would be barred
by Rooker-Feldman. For example, Plaintiff now contends he is entitled to “a ‘positive
injunction’ (i.e., a ‘mandatory injunction’) requiring his name be removed from the state’s
23 To be clear, the dismissal analysis does not ultimately turn on the timing of the
administrative order’s issuance or the precise form of relief sought by Plaintiff. As
discussed below, the adjudicatory nature of the issuance process means that Plaintiff’s
claims against the Presiding Judge, however articulated, do not present a justiciable
controversy.
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vexatious litigant list and the Administrative Order 2023-159 be rescinded.” (Doc. 88 at
9.) Such relief is likely barred by Rooker-Feldman. Bianchi v. Rylaarsdam, 334 F.3d 895,
900 (9th Cir. 2003) (“Here, Bianchi seeks an order compelling the state court to recall its
decision and reassign his case to be heard before a different panel of judges. Rooker-
Feldman precludes adjudication of this claim because the only redress Bianchi seeks is an
‘undoing’ of the prior state-court judgment—a particularized challenge to an adjudication
against him in state court clearly barred under Rooker-Feldman.”) (cleaned up); Nunu,
2022 WL 820744 at *1 (plaintiff’s “demand that the district court ‘declar[e] void’ the Texas
courts’ vexatious-litigant orders, attorney fees award, and appellate judgments affirming
them, is an attempt at modification of state judgments via a collateral federal suit—
precisely the type of action forbidden by the Rooker-Feldman doctrine”).
C. Article III Case Or Controversy
“Article III of the Constitution affords federal courts the power to resolve only
‘actual controversies arising between adverse litigants.’” Whole Woman’s Health, 595
U.S. at 39 (citation omitted). “Judges exist to resolve controversies about a law’s meaning
or its conformance to the Federal and State Constitutions, not to wage battle as contestants
in the parties’ litigation.” Id. at 40. “As [the Supreme Court] has explained, ‘no case or
controversy’ exists ‘between a judge who adjudicates claims under a statute and a litigant
who attacks the constitutionality of the statute.’” Id. (quoting Pulliam v. Allen, 466 U.S.
522, 538 n.18 (1984)). See also Kellogg v. Nichols, 149 F.4th 155, 161-62 (2d Cir. 2025)
(“Decisions from other circuits support our conclusion that there is no live case or
controversy between New York state court judges serving as firearms licensing officers
and litigants challenging the State’s licensing scheme.”); Frazier v. Prince George’s Cnty.,
Md., 140 F.4th 556, 562-63 (4th Cir. 2025) (“[W]e conclude that there is no justiciable
controversy between the plaintiffs and the judicial defendants because functions normally
performed by a judge do not create an Article III case or controversy between judges and
the litigants before them.”) (cleaned up); Reule v. Jackson, 114 F.4th 360, 365 (5th Cir.
2024) (“[T]he requirement of a justiciable controversy is not satisfied where a judge acts
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in his adjudicatory capacity. In contrast, if a judge acts as the enforcer or administrator of
a challenged statute, a case or controversy may exist.”) (citations omitted); Lindke v.
Tomlinson, 31 F.4th 487, 492-93 (6th Cir. 2022) (“[W]e agree that no case or controversy
exists between a state-court judge who has acted in an adjudicatory capacity under a state
statute and a litigant who is attacking the constitutionality of that statute.”); Bauer v. Texas,
341 F.3d 352, 359 (5th Cir. 2003) (“The requirement of a justiciable controversy is not
satisfied where a judge acts in his adjudicatory capacity.”); Mendez v. Heller, 530 F.2d
457, 458-60 (2d Cir. 1976) (affirming dismissal of suit “for want of a justiciable
controversy” even where judge was sued in administrative rather than judicial capacity).
In Wolfe, the plaintiff sought a declaratory judgment that California’s vexatious
litigant statute was unconstitutional. 392 F.3d at 360. “Citing In re the Justices of the
Supreme Court of Puerto Rico, 695 F.2d 17 (1st Cir. 1982) (‘In re Justices’), the Superior
Court Judge Defendants (Judges Garcia, Quidachay, and Chiantelli) argue[d] that there is
no ‘case or controversy’ between them and Wolfe sufficient to support federal court
jurisdiction under Article III.” Id. at 365. The Ninth Circuit reasoned that “[i]f their
argument is correct, it applies equally to Justice Strankman, who has been sued in his
judicial capacity, and to Chief Justice George, to the extent he has been sued in his judicial
capacity.” Id. Quoting In Re Justices, the Ninth Circuit stated the general rule that
“ordinarily, no ‘case or controversy’ exists between a judge who adjudicates claims under
a statute and a litigant who attacks the constitutionality of the statute,’ because when judges
act as neutral adjudicators they do not have legal interests adverse to the interests of the
litigants.” Id. (quoting In Re Justices, 695 F.2d at 21). The Ninth Circuit noted, however,
that “the First Circuit did not rest its decision in In Re Justices on Article III grounds” and
instead “resolve[d] the case on the nonconstitutional basis that judges are ‘not proper party
defendants in § 1983 actions challenging the constitutionality of state statutes.’” Id.
(quoting In re Justices, 695 F.2d at 22). The Ninth Circuit noted that it had previously
followed that approach in Grant v. Johnson, 15 F.3d 146 (9th Cir. 1994). Although the
Ninth Circuit in Wolfe and Grant did not resolve the issue on Article III grounds, both cases
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came before the Supreme Court’s decision in Whole Woman’s Health, which holds that
“‘no case or controversy’ exists ‘between a judge who adjudicates claims under a statute
and a litigant who attacks the constitutionality of the statute.’” 595 U.S. at 39-40. In light
of the Supreme Court’s more recent decision, the Court must decide the issue here on
Article III grounds. Cf. Evenson-Childs v. Ravalli Cnty., 2023 WL 2705902, *5-9 (D.
Mont. 2023), report and recommendation adopted, 2023 WL 2583261 (D. Mont. 2023)
(noting that, since Grant and In re Justices, “[o]ther federal courts have followed suit, and
‘in doing so, have used language with broader constitutional implications,’” and ultimately
dismissing claims against district court judges who “were performing quintessentially
judicial functions” for lack of an Article III case or controversy).
As relevant here, Wolfe—which again, was not decided on Article III grounds—
permitted certain claims to go forward against one of the judicial defendants sued in his
administrative capacity. 392 F.3d at 367. In Munoz, the Ninth Circuit, relying on Whole
Woman’s Health, overruled Wolfe “[t]o the extent Wolfe can be read to hold that the Ex
Parte Young exception allows injunctions against judges acting in their judicial capacity.”
91 F.4th at 981. In a footnote, however, the Ninth Circuit left open the question whether
Wolfe’s holding “allow[ing] some claims against judicial defendants to go forward when
sued in their administrative, as opposed to judicial, capacity” is consistent with Whole
Woman’s Health. Id. at 981 n.1. Here, Plaintiff purports to sue the Presiding Judge “in his
official administrative capacity only.” (Doc. 14 ¶ 104, emphasis in original.) But this is a
bare “legal conclusion” and, as such, it is “not entitled to the assumption of truth.” Iqbal,
556 U.S. at 680. Instead, it is necessary to evaluate whether the challenged actions taken
by the Presiding Judge are actually administrative or adjudicative in nature.
In Reule, the appellants, a “group of individuals who ha[d] been declared vexatious
litigants under a Texas statute,” sought to “challenge . . . the constitutionality of that statute,
which they asserted in a lawsuit against a state court judge, a state court clerk, and a state
official responsible for publishing the online list of individuals declared vexatious
litigants.” 114 F.4th at 363. The Fifth Circuit concluded that “Judge Jackson was acting
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in his adjudicatory capacity, rather than as enforcer or administrator” in his role
“evaluat[ing] vexatious litigants’ requests for permission to file a new lawsuit.” Id. at 366.
Although the plaintiffs argued “that they intended to sue Judge Jackson in his
administrative capacity, challenging only ‘the performance of the ministerial task of
deciding whether to permit a “vexatious litigant’s” pro se filing,’” the Fifth Circuit held
that “there is nothing ministerial or administrative about that duty: it is precisely the type
of adjudicatory function judges perform every day, and [plaintiffs] cannot escape the rule
articulated in Whole Woman’s Health by labeling an adjudicatory process as an
administrative one.” Id. Accordingly, the court concluded that there was “no Article III
case or controversy between [plaintiffs] and Judge Jackson” and “affirm[ed] the dismissal
of the claims against him.” Id. This reasoning is persuasive and forecloses Plaintiff’s claim
against the Presiding Judge for similar reasons.24
The Presiding Judge issued Administrative Order 2023-159 only after a vexatious-
litigant motion was made by Robson and Meza and granted by Judge Blanchard in the
underlying public records case and after Judge Blanched then made a referral to the
Presiding Judge. (Doc. 51 at 324-25.) Furthermore, the Administrative Order specifies
that the President Judge issued it only after “review of other matters filed in this Court, and
considering all the matters presented” and after making certain “findings.” (Id.) The act
of designating a pro se litigant as vexatious is considered adjudicatory. Cf. Wolfe, 392 F.3d
at 365 (“The role of a judge under the Vexatious Litigant Statute cannot be characterized
simply. . . . For example, a judge acts as a neutral adjudicator in determining whether a
plaintiff is a vexatious litigant upon a motion by a defendant, and in deciding whether to
require the litigant to post a security bond.”).
Several other aspects of Administrative Order 2023-159 underscore why its
issuance was an adjudicatory act. “Circuits have adopted a functional approach to evaluate
whether a state court judge has acted in a judicial capacity in adjudicating a state statutory
24 The Fifth Circuit noted in Reule that its decision does not conflict with the Ninth
Circuit’s decision in Wolfe because Wolfe “did not analyze the issue of standing” except as
part of a Rooker-Feldman analysis. Id. at 369.
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claim that is then challenged on constitutional grounds.” Kellogg, 149 F.4th at 162. The
relevant factors include: (1) “whether the judge may initiate proceedings under the statute,”
(2) “whether the judge who has issued the order is responsible for enforcing it”; (3)
“whether the judge played a role in enacting the statute pursuant to which the order was
issued”; (4) “whether the judge is adequately alleged to have a personal or institutional
stake in upholding the statute”; and (5) “whether the challenged act is ‘a traditionally
administrative task’ like ‘fee collection.’” Id. (citations omitted). See also Reule, 114 F.4th
at 365-66 (“Accordingly, to determine whether a case or controversy exists, courts look to
the role the judge plays in the relevant statutory scheme. If the role is strictly adjudicatory,
then no case or controversy exists. Relevant considerations include whether the judge
initiated the proceedings that the plaintiff is challenging or was a cause of the statute being
enacted and whether the challenged statutory scheme compels or allows for traditional
judicial safeguards such as notice and a hearing. Judges are not proper parties to a suit
challenging a state law if, in resolving disputes under the challenged statute, they act as
they would in any other case in that they sit as adjudicators, finding facts and determining
law in a neutral and impartial judicial fashion.”) (cleaned up).
The first factor is a close call. On the one hand, A.R.S. § 12-3201 does permit the
Presiding Judge to designate a pro se litigant vexatious “on the court’s own motion.”
A.R.S. § 12-3201(A). That is one factor to consider in determining whether a judge’s
actions are adjudicatory. Kellogg, 149 F.4th at 162 (“[W]e consider factors such as whether
the judge may initiate proceedings under the statute.”); Lindke, 31 F.4th at 493 (“[T]he role
of a judge under Michigan’s PPO statute is adjudicative [because] the judge does not
initiate the underlying action, a private party does.”). And the Ninth Circuit stated in Wolfe
that the California vexatious litigant statute “grants a judge the power to impose, on his or
her own motion, a prefiling order prohibiting a vexatious litigant from filing new litigation
without the court’s permission” and “[s]uch an action may not be purely that of a neutral
adjudicator.” 392 F.3d at 365-66 (emphasis added). On the other hand, in the case of
Administrative Order 2023-159, the Presiding Judge did not act on his own motion—
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instead, he took action in response to a referral by Judge Blanchard following a motion by
the defendants in CV2022-008626. (Doc. 51 at 324-25.) What’s more, Judge Blanchard’s
referral came after an evidentiary hearing in which Plaintiff was afforded the opportunity
to oppose the proposed vexatious-litigant designation. “[W]hether the challenged statutory
scheme . . . allows for traditional safeguards such as notice and a hearing” is a “[r]elevant
consideration.” Reule, 114 F.4th at 366-67. On balance, this factor tips in favor of the
Presiding Judge’s actions being considered adjudicatory.
As for the second factor, the only “enforcement” of A.R.S. § 12-3201 by the court
would be the rejection of papers filed without leave of court by a vexatious litigant—but
as discussed above, Reule instructs that the decision whether to permit a vexatious litigant’s
filing is adjudicatory in nature.
As for the third factor, there is no allegation that the Presiding Judge played a role
in enacting A.R.S. § 12-3201. (Doc. 67 at 3 [“The [Presiding Judge] had no part in drafting
the law that the Plaintiff believes violates his rights.”].)
As for the fourth factor, there is no allegation that the Presiding Judge had any “role
in determining [A.R.S. § 12-3201’s] criteria for” designating pro se litigants vexatious, and
“if those criteria were ever to change or be declared unconstitutional, judges who issued or
declined [vexatious litigant orders] under the statutory scheme would ‘not even have an
institutional interest in following their prior decisions.’” Kellogg, 149 F.4th at 162-63.
As for the fifth factor, nothing about the Presiding Judge’s issuance of
administrative orders designating pro se litigants vexatious is “traditionally administrative”
or similar to “fee collection.” Id. at 162. In Administrative Order 2023-159, the Presiding
Judge set forth his review of “Judge Blanchard’s referral” and Judge Blanchard’s “order
designating Mr. Potter a vexatious litigant in” CV2022-008626. (Doc. 51 at 324.) The
Presiding Judge also attached a list of cases he reviewed identifying “other vexatious
conduct by Mr. Potter in various other causes of action in this Court.” (Id. at 324, 327-30.)
To be sure, it was Judge Blanchard who initially deemed Plaintiff vexatious in CV2022-
008626 after an evidentiary hearing, ultimately referring the matter to the Presiding Judge
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under the A.R.S. § 12-3201 framework. But the Presiding Judge, agreeing with Judge
Blanchard, made an independent determination that “the cases filed by the plaintiff allege
causes of action that are unsupported by facts as alleged, argue legal positions that are not
founded in the law or reasonable interpretations of the law, re-argue the same positions
repeatedly with no regard for rulings of the Court, and promote abuse of process. Many
allegations appear to be made solely for the purposes of harassing defendants.” (Id. at
325.) The Presiding Judge also “incorporat[ed] the findings of fact and conclusions of law
of Judge Blanchard” as part of his own determination that Plaintiff was vexatious. (Id.)
The Presiding Judge was acting in an adjudicatory capacity when he reviewed the findings
of fact and conclusions of law of Judge Blanchard following an evidentiary hearing,
reviewed various cases filed by Plaintiff, and made an independent determination that
Plaintiff was vexatious under the statute.25
Accordingly, although Plaintiff purports to sue the Presiding Judge in his
administrative capacity, no Article III controversy exists because the challenged actions
taken by the Presiding Judge were adjudicatory. Thus, the Court lacks subject-matter
jurisdiction over Plaintiff’s claim against the Presiding Judge. This determination makes
it unnecessary to reach the Presiding Judge’s remaining arguments regarding sovereign
immunity and judicial immunity.
D. Plaintiff’s Request For Jurisdictional Discovery
1. The Parties’ Arguments
On September 9, 2025—the same day Plaintiff filed his response to the Presiding
Judge’s motion to dismiss—Plaintiff sent a public records request under Arizona law to
25 Plaintiff notes in his response to the Presiding Judge’s motion that in Administrative
Order 2023-159, the Presiding Judge found that Plaintiff “unreasonably expanded court
proceedings” even though that was not one of the grounds upon which Judge Blanchard
deemed Plaintiff vexatious in the public records case. (Doc. 79 at 1.) Although Plaintiff
argues he was “denied the right to be heard on that charge” (id.), if anything, this shows
that the Presiding Judge’s determination was independent and based upon his own review
of the record—which counsels against deeming his actions administrative rather than
adjudicatory. As the Presiding Judge correctly argues, the Presiding Judge “performed a
quintessential judicial function—making a ruling based on the record before him—in his
role as a judicial officer.” (Doc. 67 at 3-4.)
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counsel for the Presiding Judge seeking “copies of all records” which (1) “The Presiding
Judge created, or relied on, to ‘designate’ any authority to the Hon. John Blanchard to
‘designate a pro se litigant a vexatious litigant’”; (2) “Contain, or reference, an
‘application’ from the Hon. John Blanchard to the Presiding Judge to certify Phillip Potter
as a vexatious litigant through case CV20222-008626”; (3) “Contain communications the
Hon. Joseph Welty made with any other person regarding the previously referenced
‘application’”; and (4) “Reference, or contain communications the Hon. Joseph Welty
and/or the Hon. Pamela Welty [sic] made with any other person regarding, Administrative
Order 2023-159.” (Doc. 84 at 10-11.) Frustrated that the Presiding Judge did not respond
to this request within 30 days, Plaintiff now seeks to circumvent the public records process
by seeking jurisdictional discovery from the Presiding Judge for the same categories of
documents. (Id. at 7-8.)
In response, the Presiding Judge argues, among other things, that “no additional
facts are necessary” for the Court to determine whether it has subject-matter jurisdiction
over Plaintiff’s claim. (Doc. 86 at 3.) In particular, the Presiding Judge argues that
Administrative Order 2023-159 “is already part of the record here,” and thus “[d]iscovery
into the innerworkings of the court, including communications between judges, is
unnecessary to determine whether [Administrative Order 2023-159] designating Plaintiff
a vexatious litigant is a judicial function.” (Id. at 3-4.)
2. Analysis
The Court agrees with the Presiding Judge that jurisdictional discovery regarding
Administrative Order 2023-159 is unwarranted. Nothing about the requested discovery
would aid the Court’s analysis because it is unnecessary to look beyond Administrative
Order 2023-159 and A.R.S. § 12-3210 when determining whether an Article III
controversy exists between Plaintiff and the Presiding Judge. Cf. Yamashita v. LG Chem,
Ltd., 62 F.4th 496, 508 (9th Cir. 2023) (affirming district court’s denial of jurisdictional
discovery where “[j]urisdictional discovery would be little more than a fishing expedition
seeking support for jurisdictional theories one of which is farfetched”).
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Plaintiff’s requests for jurisdictional discovery to assist him in possibly amending
his complaint to add claims for a “positive injunction,” as well as his request for
jurisdictional discovery to assist him in adding a damages claim against the Presiding Judge
(Doc. 88 at 6), are also denied for several reasons. As an initial matter, these arguments,
raised for the first time in a reply brief, are waived. Regardless, Plaintiff’s requests amount
to nothing more than a “fishing expedition for a new theory” of jurisdiction over the
Presiding Judge. Cf. CrossFit, Inc. v. Matrix Sols., LLC, 2020 WL 6484554, *8 (S.D. Cal.
2020) (“[T]he Court declines to allow CrossFit the opportunity to engage in discovery as a
fishing expedition for a new theory of personal jurisdiction over the Fitness Trade
Defendants.”). To the extent Plaintiff seeks to amend his complaint to seek a “positive
injunction” to force the Presiding Judge to rescind Administrative Order 2023-159, such a
request would also be barred by the Rooker-Feldman doctrine. Nor has Plaintiff
established an entitlement to pursue jurisdictional discovery in support of a future damages
claim against the Presiding Judge.
VI. Ortega’s Motion To Dismiss
Plaintiff brings only state-law claims for abuse of process (Count Four) and aiding
and abetting abuse of process (Count Five) against Ortega. In her Rule 12(b)(1) motion to
dismiss, Ortega argues that the Court lacks supplemental jurisdiction over those claims
because Plaintiff “alleges no facts sufficient to show that his state law claims derive from
the same nucleus of operative fact as his federal-question claims or that the state and federal
claims—against different defendants—would be expected to be tried in the same judicial
proceeding.” (Doc. 52 at 5.) In the alternative, Ortega argues that “[e]ven if the Court
determined it had supplemental jurisdiction over the claims against Ortega, it should
decline to exercise it for the sake of judicial economy, comity with the Arizona courts’
decisions in [Plaintiff’s] state court cases and with its finding him a vexatious litigant, and
fairness and convenience for all parties other than [Plaintiff].” (Id. at 6.)
“[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so related
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to claims in the action within such original jurisdiction that they form part of the same case
or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
Moreover, “[s]uch supplemental jurisdiction shall include claims that involve the joinder
or intervention of additional parties.” Id. A district court “may decline to exercise
supplemental jurisdiction over a claim . . . if—(1) the claim raises a novel or complex issue
of State law, (2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction, (3) the district court has dismissed all claims over
which it has original jurisdiction, or (4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.” Id. § 1367(c).
Although Plaintiff’s federal claims remained pending at the time Ortega filed her
motion to dismiss, they are no longer pending—as discussed above, all of Plaintiff’s federal
claims have now been dismissed. For this reason alone, the Court declines, pursuant to
§ 1367(c)(3), to exercise supplemental jurisdiction over Plaintiff’s state-law claims against
Ortega. See generally Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)
(“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance
of factors to be considered under the pendent jurisdiction doctrine—judicial economy,
convenience, fairness, and comity—will point toward declining to exercise jurisdiction
over the remaining state-law claims.”); Gesell v. City of Cottonwood, 2025 WL 928885,
*13 (D. Ariz. 2025) (“[T]he Cohill factors counsel against retaining supplemental
jurisdiction here. First, this case is less than a year old and no trial date has been set, so
declining jurisdiction will cause minimal duplication of effort. Second, it appears the
[Maricopa] County Superior Court is at least as convenient a forum as this Court. As to
the remaining factors, considerations of fairness, federalism, and comity are best served by
allowing the Arizona state courts to address state-law claims . . . .”). This determination
makes it unnecessary to resolve whether Plaintiff’s state-law claims against Ortega derive
from the same nucleus of operative fact as his federal claims, as required under § 1367(a),
or whether the Court should decline to exercise supplemental jurisdiction for the other
reasons identified in § 1367(c). Additionally, in light of this determination, Plaintiff’s
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request to pursue jurisdictional discovery against Ortega (Doc. 58 at 2) is denied as futile.
VII. Leave To Amend
Plaintiff’s filings include an array of requests for leave to amend in the event of
dismissal.
These requests are governed by Rule 15(a) of the Federal Rules of Civil Procedure,
which “advises the court that leave shall be freely given when justice so requires.”
Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (cleaned up).
“This policy is to be applied with extreme liberality.” Id. (cleaned up). Thus, leave to
amend should be granted unless “the amendment: (1) prejudices the opposing party; (2) is
sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.”
AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006).
Additionally, “[a] district court should not dismiss a pro se complaint without leave to
amend unless it is absolutely clear that the deficiencies of the complaint could not be cured
by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (cleaned up).
“[B]efore dismissing a pro se complaint the district court must provide the litigant with
notice of the deficiencies in his complaint in order to ensure that the litigant uses the
opportunity to amend effectively.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992), as amended (May 22, 1992).
Although these standards almost always counsel in favor of giving a pro se litigant
at least one chance at amendment, this is an unusual case in that Plaintiff’s claims are not
(for the most part) being dismissed due to imprecision in pleading or the failure to plead
necessary facts with the requisite level of detail. Plaintiff’s First Amendment facial
challenge to A.R.S. § 12-3201 in Count One is being dismissed because it is not a
permissible pre-enforcement challenge (as to AG Mayes) and because it does not raise a
true case or controversy (as to the Presiding Judge). Plaintiff could not cure these defects
by pleading additional facts in a future pleading, so leave to amend as to Count One is
denied on futility grounds. Similarly, Plaintiff’s claims against Robson and Meza in
Counts Three, Four, and Five are barred by Noerr-Pennington immunity, and Plaintiff
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could not cure this defect by pleading additional facts in a future pleading. Thus, leave to
amend as to those claims is denied on futility grounds.
In contrast, because Count Two is being dismissed at least in part based on
insufficiently detailed factual allegations, the Court will err on the side of caution and grant
leave to amend as to that claim. Finally, because Plaintiff’s claims against Ortega in Counts
Four and Five are only being dismissed due to the absence of a federal claim, “Plaintiff
may reassert those claims if he chooses to take advantage of the limited grant of leave to
amend as to Count [Two] set forth above. In that scenario, [Ortega] may simply reassert
[her] dismissal arguments as to Counts [Four and Five] in [her] response to the next
iteration of Plaintiff’s complaint, and if the amended Count [Two] survives dismissal, the
Court will take up the merits of [Ortega’s dismissal arguments as to Counts Four and Five]
at that time.” Gesell, 2025 WL 928885 at *14.
Accordingly,
IT IS ORDERED that:
1. AG Mayes’s motion to dismiss (Doc. 38) is granted. Count One of the FAC
is dismissed against AG Mayes without leave to amend, and Count Two of the FAC is
dismissed against AG Mayes with leave to amend solely to address the deficiencies
identified in this order.
2. Plaintiff’s first motion to take judicial notice relevant to AG Mayes’s motion
to dismiss (Doc. 57) is denied.
3. Plaintiff’s second motion to take judicial notice relevant to AG Mayes’s
motion to dismiss (Doc. 85) is granted in part and denied in part.
4. Robson’s and Meza’s motion to dismiss (Doc. 51) is granted. Counts Three,
Four, and Five are dismissed against Robson and Meza without leave to amend.
5. Plaintiff’s motion to strike (Doc. 64) is denied.
6. Ortega’s motion to dismiss (Doc. 52) is granted. Counts Four and Five are
dismissed against Ortega with leave to amend consistent with this order.
7. Plaintiff’s motion to take limited jurisdictional discovery (Doc. 58) is
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denied.
8. The Presiding Judge’s motion to dismiss (Doc. 67) is granted. Count One
of the FAC is dismissed against the Presiding Judge without leave to amend.
9. Plaintiff’s motion to take limited jurisdictional discovery from the Presiding
Judge (Doc. 84) is denied.
10. Plaintiff’s motion to take judicial notice regarding the Presiding Judge’s
motion to dismiss (Doc. 90) is granted in part and denied in part.
11. Within 14 days of the issuance of this order, Plaintiff may file a second
amended complaint (“SAC”). The changes shall be limited to attempting to cure the
deficiencies that led to the dismissal of Count Two. Plaintiff also may reassert Counts Four
and Five against Ortega if he chooses to file a SAC. If Plaintiff does not file a SAC within
14 days of the issuance of this order, the Clerk shall enter judgment accordingly and
terminate this action.
Dated this 6th day of January, 2026.
Case 2:25-cv-00663-DWL Document 100 Filed 01/06/26 Page 67 of 67