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Motion to dismiss lawsuit against Respect Arizona

Motion to dismiss lawsuit against Respect Arizona

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Published by mhendleyNT
Mx to Dismiss Klayman CONFORMED 23apr2013
Mx to Dismiss Klayman CONFORMED 23apr2013

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Published by: mhendleyNT on Apr 30, 2013
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08/25/2013

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DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINTPage 2 of 9
January 7, 2013. Verified Complaint for Special Action and Writ of Mandamus and Application for Preliminary and Permanent Injunction (“Complaint”) ¶¶ 14, 16.In January 2013 Respect Arizona was formed, filed paperwork with the Maricopa County toinitiate the recall election here at issue, and began collecting the signatures needed to place therecall election on the ballot. Complaint ¶¶ 18-19. On January 30, 2013 “Respect Arizona” throughits chairman, William James Fisher, filed its petition to recall Sherriff Joe Arpaio citing numerousincidences of malfeasance, failure to do his job, and a general violation of the public’s trust, dignityand confidence.As discussed herein, plaintiffs’ Complaint is long on bombast and legal argumentation butshort on the kind of facts needed to support their claims for relief. In summary, plaintiffs allege:
 
That “the recall petition was originated within the first six months of Sheriff Joe’sterm of office.” Complaint ¶ 31.
 
That defendants willfully “utilized the legal process and procedure of a recallelection” to allegedly harass the sheriff “and for other reasons not designed for use byArizona’s recall statutes.” Complaint ¶ 34. The Complaint does not list any of the supposed“other reasons.”
 
That they were qualified to vote and did vote for Arpaio in November 2012.Complaint ¶¶ 37-38. Plaintiffs further claim – with no citation to legal authority or further facts in support of the claim – that by petitioning to recall Joe Arpaio, defendants “seek[] tonullify [their] right to vote.” Complaint ¶ 39.
 
That defendants violated plaintiffs’ due process and equal protection rights under thestate and U.S. Constitutions (while failing to specify under which provision of the latter constitution). Complaint ¶¶ 40, 43.
 
That Respect Arizona (and no other defendants) “seek[] to have the 2012 GeneralElection results thrown out, and to have a recall election go forward.” Complaint ¶ 42.Plaintiffs’ claims are legally without merit and lack sufficient facts to give rise to any claimfor relief, much less the claims that plaintiffs make in their Complaint. In their second cause of action, plaintiffs go so far as to mislead this court as to the nature of the law by omitting a key
 
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DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINTPage 3 of 9
clause in a case they quote. Plaintiffs arguably filed their complaint knowing it was completelygroundless, because it is in reality a political tool used in an attempt to intimidate defendants andmislead the electorate. The court should not expend precious resources on plaintiffs’ obviously baseless lawsuit. Pursuant to the authorities cited below, the court should dismiss the complaint.
ArgumentI.
 
Legal Standard.
Under rule 8(a)(2) of the Rules of Civil Procedure for the Superior Courts of Arizona(“RCPSCA”) a plaintiff’s complaint must contain a “short and plain statement of the claimshowing that the pleader is entitled to relief.” Arizona follows the notice pleading standard, the purpose of which is to “give the opponent fair notice of the nature and basis of the claim andindicate generally the type of litigation involved.”
 Mackey v. Spangler 
, 81 Ariz. 113, 115, 301 P.2d1026, 1027-28 (1956);
Cullen v. Auto-Owners Ins Co
., 218 Ariz. 417, 419, 189 P.3d 344, 346(Ariz. 2008) (“Arizona follows a notice pleading standard”).A plaintiff’s failure to comply with rule 8(a)(2) subjects its complaint to dismissal for “[f]ailure to state a claim upon which relief can be granted” pursuant to RCPSCA 12(b)(6).
Cullen
,218 Ariz. at 419, 189 P.3d at 346. When evaluating a motion under rule 12(b)(6) the court musttreat as true all allegations of material fact “and indulge all reasonable inferences therefrom.”
 Id 
. Itshould be noted that Arizona courts diverge from their federal counterparts when evaluating pleadings under rule 8. The former merely require factual allegations to be “plausible.”
 Id 
. (citing
 Bell Atlantic Corp. v. Twombly
, 127 S. Ct. 1955, 1969 (2007)). In contrast, the Arizona SupremeCourt has directed courts in this state “
to consider only the reasonable inferences
that can be drawnfrom well-pled facts. . . look[ing] only to the pleading itself”
 Id 
. (emphasis added).Further, a complaint that merely states legal conclusions without supporting factualallegations will not survive a motion to dismiss.
Cullen
, 218 Ariz. at 419, 189 P.3d at 346;
Grand v. Nacchio
, 225 Ariz. 171, 175 n.1 236 P.3d 398, 402 (Ariz. 2010) (“In evaluating motions to dismiss,Arizona courts consider only the ‘well-pled facts,’ not legal conclusions”). Likewise, a complaintthat relies on mere conclusory statements of fact will fail.
Coleman v. City of Mesa
, 284 P.3d 863,867 (Ariz. 2012). In summary, dismissal is appropriate where plaintiffs “as a matter of law . . .

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