Bollfrass v. Phoenix, City of ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gerald Bollfrass, et al., No. CV-19-04014-PHX-MTL 10 Plaintiffs, ORDER 11 v. NOT FOR PUBLICATION 12 City of Phoenix, et al., 13 Defendants. 14 15 Before the Court is the Defendant City of Phoenix Housing Department’s (the 16 “City”) Motion to Dismiss Counts IV, VII, and Jane Doe Emmerson in Plaintiffs’ Third 17 Amended Complaint. (Doc. 140). The Court has reviewed the submitted briefs. Oral 18 argument is not necessary to aid the Court’s decisional process. The Motion will be granted 19 as follows: 20 1. The City’s request for judicial notice of the Emmerson’s Memorandum of 21 Prenuptial Agreement and Notice to Creditors is granted under Rule 201, Fed. R. Evid. The 22 Agreement states that “[t]he parties also agreed that the union will have no community 23 property, each party will contract, acquire, and sell any asset as sole and separate property, 24 and the parties prospectively abrogated their respective rights to community property . . . .” 25 Maricopa County Recorder’s Office Document No. 2006-1228116 at 1. Plaintiffs name 26 Ms. Emmerson solely for community property purposes. (Doc. 136 ¶ 24.) Because there is 27 no marital community between Defendant William Emmerson and his spouse, there is no 28 need to maintain Ms. Emmerson as a defendant. The Court will therefore grant the Motion 1 to Dismiss her from this case, with prejudice. 2 2. Count IV of the Third Amended Complaint asserts a discrimination claim 3 under the Fair Housing provisions of the Phoenix City Code. See Phx. City Code §§ 18- 4 11.16, 18-11.20. The City moves to dismiss this claim, arguing that the Plaintiffs have 5 failed to allege well-pleaded facts establishing a plausible claim for discrimination. The 6 City also argues that this claim for relief simply reasserts the Plaintiffs’ previously 7 dismissed claim under the Fair Housing Code. (See Doc. 90 at 23-25.) Plaintiffs respond 8 that they believe the Court’s prior ruling was “in error,” that the City is “completely 9 ignorant” of the facts and the law, and they have added additional factual allegations 10 supporting their discrimination claim. (Doc. 141 at 8-9.) The Court agrees with the City of 11 Phoenix. Plaintiffs rehash many allegations from their previously dismissed claim. Most 12 are conclusory and self-serving. And the Court will not reevaluate the strength of the 13 allegations that it already found failed to plausibly state a claim. Count IV will be dismissed 14 with prejudice. 15 3. Count VII asserts a Fair Housing Act claim against the City. See 42 U.S.C. 16 § 3601, et seq. The City argues that this claim should be dismissed because Plaintiffs have 17 failed to allege a plausible claim under the Fair Housing Act. It also argues that this claim 18 simply reasserts Plaintiffs’ previously dismissed equal protection argument. Like their 19 response to the Motion to Dismiss Count IV, Plaintiffs maintain that they now assert a 20 gender discrimination theory that “fundamentally affected the Court’s analysis on these 21 claims.” (Doc. 141 at 9.) A Fair Housing Act claim requires that a plaintiff show that the 22 defendant “acted with any discriminatory intent during the events at issue, or whether” the 23 defendant’s “practices disproportionately impacted any particular [protected] group.” 24 Green v. Cal. Court Apartments LLC, 321 Fed. Appx. 589, 591 (9th Cir. 2009). As with 25 the Fair Housing Code claim for relief, Plaintiffs fail to assert well-pleaded facts that give 26 rise to a plausible claim that any Defendant acted with discriminatory intent or that they 27 fell victim to disparate treatment. Indeed, as the City correctly identifies, most of these 28 allegations, which are largely conclusory and self-serving, were already analyzed in the 1 || Court’s Order dismissing the Second Amended Complaint. (Doc. 90 at 18-19.) Count VII will be dismissed with prejudice. 3 This case has been on the books for nearly two years. Plaintiffs are on their Third 4|| Amended Complaint. The Court has now ruled on two separate motions to dismiss. With 5 || this Order, the number of docket filings is at 143. Plaintiffs should familiarize themselves □□ with the maxim that involves “old wine in a new bottle.” The Court expects that the parties will efficiently see the discovery phase to its conclusion. 8 Accordingly, 9 IT IS ORDERED granting the Motion to Dismiss (Doc. 140) as follows: 10 1. Defendant Jane Doe Emmerson is dismissed with prejudice. 11 2. Counts IV and VII of the Third Amended Complaint are dismissed with prejudice. 13 The Clerk of Court shall not close this case at this time. 14 Dated this 23rd day of March, 2021. 15 Michal T. Shurde Michael T. Liburdi 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 -3-