1

2

3

The Phoenix Plaza 21st Floor

4

2929 North Central Avenue

Phoenix, Arizona 85012-2793

P.O. Box 36379 Phoenix, Arizona 85067-6379

5

Telephone Facsimile

602.640.9000 602.640.9050
6

7

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9

10

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13

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16

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18

Timothy J. Eckstein, Bar No. 018321 Jean-Jacques Cabou, Bar No. 022835 OSBORN MALEDON, P.A. 2929 North Central Avenue Suite 2100 Phoenix, Arizona 85012-2793 Telephone: (602) 640-9316 Facsimile: (602) 664-2069 E-mail: teckstein@omlaw.com
jcabou@omlaw.com

Attorneys for JAVIER TORRES, ALMA SANTIAGO and LIA RIVADENEYRA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Javier Torres, Alma Santiago and Lia Rivadeneyra on behalf of themselves and others similarly situated,
Plaintiffs,
vs.
Terry Goddard, Attorney General of the State of Arizona, in his individual and official capacities; and Cameron (“Kip”) Holmes, in his individual capacity,
Defendant.

) No. ) ) ) ) COMPLAINT ) ) ) (Jury Trial Demanded) ) ) ) ) )

19

20

Plaintiffs JAVIER TORRES, ALMA SANTIAGO and LIA RIVADENEYRA,

21 on behalf of themselves and others similarly situated, complain against defendants

22 TERRY GODDARD and CAMERON (“KIP”) HOLMES as follows:

23

Nature of the Action

24

1. This is a legal action brought to redress violations of the civil and

25 constitutional rights of the plaintiffs and to prevent the continuation of

26 unconstitutional seizures of millions of dollars in money transfers sent to Arizona and

27 Mexico by thousands of people from at least 26 states around the country. Over the

28 past several years, defendants have seized over $12 million in interstate and, more

Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 1 of 13

1 recently, international money transfers, sent via wire, from the plaintiffs and literally

2 thousands of other individuals who reside in the United States. Defendants have done

3 so solely on the basis that (1) the amount plaintiffs sought to transmit exceeded a

4 certain threshold chosen by defendants (such as $500 or more), (2) the transactions

5 were initiated during extended time periods chosen by defendants and from one of

6 certain states in the United States chosen by defendants, and (3) the monies were to be

7 received anywhere in Arizona or, on information and belief, at 26 locations in Sonora,

8 Mexico. Defendants took these actions based on blanket seizure warrants and without

9 probable cause to believe that the monies were the fruits or instrumentalities of crime,

10 or otherwise subject to forfeiture; without providing adequate notice and an

11 opportunity to be heard to the senders of the money; and with improper discrimination

12 against interstate and international commerce. Defendants by these actions have

13 violated, and continue to violate, the Fourth and Fourteenth Amendments to and the

14 Commerce Clause of the United States Constitution.

15

Jurisdiction and Venue

16

2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and

17 1343(a)(3).

18

3. Pursuant to 28 U.S.C. § 1391(b), the District of Arizona is the proper

19 venue for this action because a substantial part of the events giving rise to plaintiffs’

20 claims occurred in this judicial district and, on information and belief, defendants

21 reside in this district.

22

Parties

23

4. Plaintiff Javier Torres is, and at all times pertinent hereto has been, a

24 resident of Illinois.

25

5. Plaintiff Alma Santiago is, and at all times pertinent hereto has been, a

26 resident of North Carolina.

27

6. Plaintiff Lia Rivadeneyra is, and at all times pertinent hereto has been, a

28 resident of California.

2 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 2 of 13

1

7. Defendant Terry Goddard (“Goddard”) is, and at all times pertinent

2 hereto has been, the Attorney General of the State of Arizona. He is sued in his

3 individual and official capacities.

4

8. Defendant Cameron (“Kip”) Holmes is, and at all times pertinent hereto

5 has been, the Section Chief of the Financial Remedies Section of the Criminal

6 Division of the Arizona Attorney General’s Office. He is sued in his individual

7 capacity.

8

Statement of Facts

9

9. Beginning in at least 2004, and continuing to the present day,

10 defendants have sought and obtained from the Superior Court of the State of Arizona, 11 Maricopa County, a series of what defendants refer to as “criteria-based” warrants.1

12 Each such warrant authorizes defendants to seize all monies which exceed a specified

13 amount (such as $500 or more) and are sent by an individual through the use of wire

14 transfer services provided by private companies (e.g., Western Union, MoneyGram)

15 or banking institutions from one of certain specified states (referred to by defendants

16 as “corridor states”). Each individual warrant is directed at a separate wire transfer

17 company.

18

10. Each warrant mandates the automatic seizure of every such transfer

19 during the life of the warrant, which is typically 10 business days, although the time

20 period is often extended by defendants.

21 1

Upon information and belief, beginning in 2003, defendants also sought and

22 obtained from the same court a series of “location-specific” warrants which

23

authorized the seizure of transfers of a certain dollar amount (such as $300 or more) and was either (1) sent by any of the persons listed in the warrant’s appendix from

24 Arizona to anyone at any location, or (2) sent by anyone from any location outside of

Arizona to any of the persons listed in the warrant’s appendix. In executing at least 25 some of those warrants, defendants stationed a peace officer at a Western Union

26 location in Arizona to authorize the seizure of specific transactions. The present Complaint challenges only criteria-based warrants, although plaintiffs reserve the

27 right to amend the Complaint if discovery reveals a lack of probable cause or other

28 basis for challenging the legality of the location-specific warrants.

3 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 3 of 13

1

11. On information and belief, on approximately October 20, 2004,

2 defendants obtained and executed a criteria-based warrant authorizing the seizure of

3 all $1,000 wire transfers sent via Western Union from any state outside of Arizona to

4 be paid to a recipient in Arizona.

5

12. In March of 2005, defendants obtained and executed a criteria-based

6 warrant was issued authorizing the “seizure of all $2,000 transactions placed with

7 Western Union in the United States in a location other than Arizona for payment in

8 Arizona.”

9

13. On approximately September 1, 2005, defendants obtained and executed

10 a warrant which authorized the seizure of all person-to-person wire transfers of $600

11 and $700 designated for a recipient anywhere in Arizona and sent from any of the

12 following states: Tennessee, Georgia, Illinois, New Jersey, New York, North

13 Carolina, South Carolina, and Virginia.

14

14. On approximately February 16, 2006, defendants obtained and executed

15 a warrant which authorized the seizure of all person-to-person wire transfers of $500

16 or more designated for a recipient anywhere in Arizona and sent from any of the

17 following states: Connecticut, Florida, New Jersey, North Carolina, South Carolina,

18 and Virginia. On approximately March 3, 2006, defendants obtained a modification

19 and extension of this warrant resulting in seizures of all person-to-person wire

20 transfers of $500 or more designated for a recipient anywhere in Arizona and sent

21 from any of the aforementioned states as well as Delaware, Georgia, Maryland and

22 New York. On approximately March 10, 2006, defendants obtained a second

23 extension and modification resulting in seizures of all person-to-person wire transfers

24 of $500 or more designated for a recipient anywhere in Arizona and sent from any of

25 the aforementioned states and Illinois and Indiana.

26

15. On approximately March 15, 2006, defendants obtained and executed a

27 warrant which authorized the seizure of all person-to-person wire transfers of $500 or

28 more designated for a recipient anywhere in Arizona and sent from any of the

4 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 4 of 13

1 following states: Connecticut, Delaware, Florida, Georgia, Illinois, Indiana,

2 Maryland, New Jersey, New York, North Carolina, South Carolina, and Virginia.

3 Defendants obtained an extension of this warrant, which, on information and belief,

4 resulted in seizures until approximately April 14, 2006.

5

16. On information and belief, on September 22, 2006, defendants obtained

6 and executed a warrant authorizing the seizure of all person-to-person transfers over

7 $500 from any one of 29 states to any one of 26 specific Western Union locations in

8 Sonora, Mexico. On information and belief, every transfer over $500 from the

9 following twenty-nine (29) states were to be seized: California, Arizona, New York,

10 Florida, Illinois, Georgia, New Jersey, North Carolina, Virginia, Tennessee,

11 Maryland, Texas, Nevada, South Carolina, Ohio, Pennsylvania, Washington,

12 Alabama, Indiana, Oregon, Colorado, Minnesota, Utah, Connecticut, Michigan, 13 Massachusetts, Wisconsin, Kentucky and Delaware.3

14

17. Defendants contend in their applications to the Superior Court of the

15 State of Arizona, Maricopa County, for the criteria-based warrants, that forfeiture is

16 authorized pursuant to Ariz. Rev. Stat. §§ 23-2314 and 13-4301 et seq. “based on

17 conduct described in the following statutes”: money laundering, Ariz. Rev. Stat.

18 §§ 13-2317 and 6-1241; participation in or assisting a criminal syndicate, Ariz. Rev.

19 Stat. §§ 13-2308(A)(4) and (C); fraudulent schemes and practices, willful

20 concealment, Ariz. Rev. Stat. §§ 13-2311; illegally conducting or participating in the

21 conduct of an enterprise, Ariz. Rev. Stat. §§ 13-2312; tampering with a public record,

22 Ariz. Rev. Stat. §§ 13-2407; taking the identity of another, Ariz. Rev. Stat. §§ 13-

23 2008; and attempt, solicitation, conspiracy and facilitation in connection with the

24 above, Ariz. Rev. Stat. §§ 13-1001-4. Sometimes but not always, defendants have

25 also listed smuggling, Ariz. Rev. Stat. §§ 13-2319, as an additional crime upon which

26 3

On September 25, 2006, this warrant was temporarily stayed by order of the

27 Arizona Superior Court, Maricopa County, but not before over 240 transfers totaling

28 over $200,000 were seized.

5 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 5 of 13

1 the seizures and forfeitures are based.

2

18. In the two years preceding the filing of this Complaint, defendants have

3 seized over $12 million in funds from thousands transactions attempted by plaintiffs

4 and members of the proposed plaintiff class.

5

19. As explained below, the plaintiffs have sent money in the amount of

6 $500 or more through Western Union. The plaintiffs would like to be able to continue

7 sending money to Arizona and/or Mexico in the amount of $500 or more through

8 Western Union, but have not done so because they fear that defendants will once

9 again seize and convert the money.

10

20. Members of the proposed plaintiff class have sent money to friends,

11 family members and others who reside or resided in Arizona or Mexico for a variety

12 of legal purposes. For example, people have sent money to pay for medication, car

13 repairs, loan repayments and help with rental payments.

14

21. Defendants have seized these funds by means of blanket warrants

15 without probable cause to believe that many, if not all, of them were the fruits or

16 instrumentalities of crime.

17

22. None of the plaintiffs have received notice from defendants regarding

18 their legal rights to contest the individual seizures. Defendants have not served

19 written notice of any sort on any members of the proposed class. On information and

20 belief, this decision not to serve notice was made by defendant Holmes and ratified by

21 defendant Goddard in knowing violation of both the provisions of Arizona law and of

22 the United States Constitution.

23

23. Several members of the proposed plaintiff class have attempted, without

24 receiving notice, to secure return of their monies. Some left telephonic messages with

25 the defendants’ agents and received no response, some sent letters to the defendants’

26 agents and received no response, some were contacted by defendants’ agents and

27 were interrogated and threatened.

28

24. Many members of the proposed plaintiff class were told by defendants’

6 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 6 of 13

1 agents if they could not prove to the defendants’ agents’ satisfaction that the purpose

2 of the money was legal, there was no way they could get the money returned.

3 Plaintiff Javier Torres

4

25. Plaintiff Javier Torres (“Torres”) sent one thousand dollars ($1,000) via

5 Western Union to Glendale, Arizona in approximately March 2006.

6

26. Torres sent the money to a friend as payment for a car he had previously

7 received and agreed to purchase.

8

27. When the intended recipient did not receive the money, Torres went to

9 Western Union regarding the transfer and was given a phone number for Western

10 Union’s main office. Torres called that number, gave the Western Union staff person

11 who answered the phone his name and transaction number, and was informed that

12 Arizona law enforcement officials would contact him.

13

28. Thereafter, Torres was called, on information and belief, by Arizona law

14 enforcement agents working under direction of the defendants, and was told that the

15 State of Arizona believed the money was intended to pay a “coyote” or a drug dealer

16 and the only way to recover his money was to prove to the law enforcement officer

17 that it was sent for a lawful purpose, including by sending the title and registration to

18 the car he had bought.

19

29. Torres explained that he did not have the title and registration to the car

20 because he had already sold the car, but was told that without those documents he

21 could not get his money back.

22

30. Torres spoke by telephone several more times with Arizona law

23 enforcement officials in attempts to recover his money. He does not know the names

24 of the people with whom he spoke. On information and belief, they were all agents

25 acting under defendants’ direction. He was consistently told that the only way he

26 could recover his money was if he produced the title or registration to the car.

27

31. Because the money was seized, Torres was forced to send the intended

28 recipient a $1,000 check via the United States Postal Service.

7 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 7 of 13

1

32. Neither Torres nor the intended recipient ever received any written or

2 oral notice from the defendants regarding the legal process available to challenge the

3 seizure.

4

33. Torres has been and remains afraid to send money to Arizona via any

5 wire service, including but not limited to Western Union, since his transfer was

6 seized.

7 Plaintiff Alma Santiago

8

34. Plaintiff Alma Santiago (“Santiago”) sent two thousand dollars ($2,000)

9 via Western Union to Phoenix, Arizona in approximately March 2005.

10

35. Santiago sent the money to her cousin who had previously lived in

11 North Carolina and had recently relocated to Arizona. Santiago sent him the money

12 so that he would be able to return to visit family in North Carolina.

13

36. When her cousin did not receive the money, Santiago called Western

14 Union and was told that her money was being held by the State of Arizona and that

15 someone would contact her. Later, someone who identified himself as a law

16 enforcement officer called Santiago and said that before any money would be returned

17 to her, the law enforcement officer would need to question Santiago’s cousin. On

18 information and belief, the caller was an agent working under defendants’ direction.

19 Because Santiago’s cousin did not have a telephone and she had no telephone number

20 for him, Santiago was unable to recover her money.

21

37. Neither Santiago nor, on information and belief, her cousin, received

22 any written or oral notice from the defendants regarding the process available to

23 challenge the seizure.

24

38. Santiago has been and remains afraid to send money to Arizona via any

25 wire service, including but not limited to Western Union, since her transfer was

26 seized.

27 Plaintiff Lia Rivadeneyra

28

39. Plaintiff Lia Rivadeneyra (“Rivadeneyra”) sent five hundred dollars

8 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 8 of 13

1 ($500) via Western Union to Sonora, Mexico on September 23, 2006.

2

40. Rivadeneyra sent the money to her brother, who is a resident and

3 national of Peru, while he was visiting friends in Mexico.

4

41. When Rivadeneyra’s brother did not receive the money, Rivadeneyra

5 contacted Western Union regarding the transfer. Later, on information and belief, a

6 law enforcement official from Arizona, working as an agent of defendants, called and

7 spoke to Rivadeneyra’s sister. Without identifying himself (and apparently believing

8 he was talking to Rivadeneyra), the person began to interrogate Rivadeneyra’s sister

9 regarding the transaction, accusing her of sending the money to pay a “coyote.”

10 Rivadeneyra’s sister asked if he was a police officer, but the person would not answer

11 her question so Rivadeneyra’s sister hung up.

12

42. A day or two later, Rivadeneyra called the number Western Union had

13 given her and spoke to someone who worked for the State of Arizona and was, on

14 information and belief, an agent of the defendants. Rivadeneyra was told that the

15 money would not be returned to her until the State of Arizona was able to interview

16 her brother. Rivadeneyra explained that her brother had returned to Peru from

17 Mexico, and was living there in a house without a phone.

18

43. Neither Rivadeneyra, nor, on information and belief, her brother

19 received any written or oral notice from the defendants regarding the process

20 available to challenge the seizure.

21

44. Rivadeneyra has been afraid and remains afraid to send money via any

22 wire service, including but not limited to Western Union, since her money was seized.

23

Class Action Allegations

24

45. Plaintiffs Javier Torres, Alma Santiago and Lia Rivadeneyra bring this

25 lawsuit pursuant to Federal Rule of Civil Procedure 23, on behalf of themselves and

26 all persons who sent money through a wire transfer service or banking institution to

27 be received in Arizona or, on information and belief, in Sonora, Mexico, and had that

28 money seized and converted by defendants pursuant to a criteria-based warrant, where

9 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 9 of 13

1 such money was seized no more than two years before the filing of this lawsuit.

2

46. The class defined above satisfies the numerosity, commonality,

3 typicality, adequacy, predominance, and superiority requirements of Rule 23. It is so

4 numerous that joinder of its members is impracticable. Common questions of law and

5 fact predominate over individual issues that may exist as to the class. These common

6 questions of law and fact include, inter alia, the following:

7

a. whether defendants lacked probable cause to believe that the

8

monies the class members sent were the fruits or instrumentalities of crime, or

9

otherwise subject to forfeiture under Arizona law, and thus violated the Fourth

10

Amendment;

11

b. whether defendants acted on the basis of overly broad seizure

12

warrants and thus violated the Fourth Amendment;

13

c. whether defendants failed to give class members adequate and

14

timely notice that their money had been seized and of the opportunity for a

15

hearing to contest that seizure, thus violating the due process clause of the

16

Fourteenth Amendment; and

17

d. whether defendants’ actions interfered with interstate and

18

international commerce, in violation of the Commerce Clause of the

19

Constitution.

20

47. Plaintiffs will fairly and adequately protect the interests of all class

21 members as they are members of the class and their claims are typical of the claims of

22 all class members. Plaintiffs’ interests in obtaining injunctive and monetary relief for

23 the violations of their constitutional rights by defendant are consistent with and are

24 not antagonistic to those of any person within the class.

25

48. Defendants’ wrongful conduct alleged herein has been visited generally

26 upon all members of the plaintiff class, such that common questions of fact and law

27 predominate over questions affecting only individual members.

28

49. A class action is superior to other available methods for the fair an

10 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 10 of 13

1 efficient adjudication of this controversy because it will:

2

a. avoid the heavy burden of multiple, duplicative suits;

3

b. avoid the virtually impossible task of getting all class members to

4

intervene as party-plaintiffs in this action;

5

c. allow the Court, upon adjudication of defendants’ liability, to

6

determine the claims of all class members; and

7

d. allow the court to enter appropriate final injunctive and

8

declaratory relief with respect to the class as a whole.

9

Count I: Fourth Amendment

10

50. Plaintiffs repeat and reallege paragraphs 1-49 above.

11

51. Defendants, at the time they seized the monies belonging to plaintiffs

12 Javier Torres, Alma Santiago, Lia Rivadeneyra, and members of the proposed

13 plaintiff class, lacked probable cause to believe that those monies were the fruits or

14 instrumentalities of crime, or otherwise subject to forfeiture under Arizona law.

15 Defendants’ seizure of those monies thus violated the Fourth Amendment.

16

Count II: Fourth Amendment

17

52. Plaintiffs repeat and reallege paragraphs 1-49 above.

18

53. Defendants, at the time they seized the monies belonging to plaintiffs

19 Javier Torres, Alma Santiago, Lia Rivadeneyra, and members of the proposed

20 plaintiff class, relied upon warrants which were grossly overbroad on their face and,

21 thus, violated the Fourth Amendment.

22

Count III: Due Process

23

54. Plaintiffs repeat and reallege paragraphs 1-49 above.

24

55. Defendants failed to give plaintiffs Javier Torres, Alma Santiago, Lia

25 Rivadeneyra, and members of the proposed plaintiff class, adequate and timely notice

26 that their money would be seized.

27

56. Defendants failed to demonstrate exigent circumstances permitting the

28 ex parte seizure of plaintiffs’ money.

11 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 11 of 13

1

57. Defendants failed to give plaintiffs Javier Torres, Alma Santiago, Lia

2 Rivadeneyra, and members of the proposed plaintiff class, adequate and timely notice

3 that their money had been seized.

4

58. Defendants failed to provide plaintiffs Javier Torres, Alma Santiago, Lia

5 Rivadeneyra, and members of the proposed plaintiff class, the opportunity for a

6 prompt post-seizure hearing to contest those seizures.

7

59. The actions in paragraphs 55-58 violated the due process clause of the

8 Fourteenth Amendment.

9

Count IV: Commerce Clause

10

60. Plaintiffs repeat and reallege paragraphs 1-49 above.

11

61. Defendants’ actions were directed solely at monies sent from states

12 other than Arizona for receipt in Arizona, and at monies sent from the United States to

13 Mexico. Defendants did not seize monies meeting the same criteria (for example,

14 person-to-person transfers of $500 or more) that were sent via wire intrastate, from

15 one Arizona location to another.

16

62. Defendants’ actions interfered with interstate and international

17 commerce.

18

63. Defendants’ actions discriminated against interstate and international

19 commerce and in favor of intra-state commerce within Arizona.

20

64. Defendants’ above-described actions violated the rights of plaintiffs and

21 the proposed plaintiff class under the commerce clause (U.S. Const. Art. I, § 8, cl. 3).

22

Prayer for Relief

23

WHEREFORE, plaintiffs respectfully request, on behalf of themselves and

24 the class they seek to represent, that this Court:

25

A. certify this action as a class action pursuant to Fed. R. Civ. P. 23(b)(2),

26

and pursuant to Fed. R. Civ. P. 23(b)(3) or 23(b)(1), on behalf of the

proposed plaintiff class, and designate the named plaintiffs as

27

representative of the class and their counsel of record as class counsel;

28

12 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 12 of 13

1

B. award prospective declaratory and injunctive relief to plaintiffs and

2

members of plaintiff class, declaring that defendants’ seizure of monies pursuant to “criteria-based warrants” to be in violation of the Fourth and

3

Fourteenth Amendments to and the Commerce Clause of the United

States Constitution, and preliminarily and permanently enjoining

4

defendants from seeking such warrants and seizing money on those

5

bases;

6

C. award restitution to plaintiffs and members of plaintiff class for the

7

monies wrongfully seized from them by defendants;

8

D. award damages against defendants in their individual capacities to

plaintiffs and members of the plaintiffs class for loss of their monies and

9

the uses and benefits thereof;

10 E. award plaintiffs and class members costs pursuant to 28 U.S.C. § 1920;

11

12

F. award plaintiffs and class members attorneys’ fees and related nontaxable expenses pursuant to 42 U.S.C. § 1988; and

13

G. grant such additional relief as the Court deems appropriate.

14

Jury Demand

15

Plaintiffs demand trial by jury on all issues as to which a jury trial is available.

16

DATED this 18th day of October, 2006.

17

OSBORN MALEDON, P.A.

18

19

By s/ Timothy J. Eckstein

20

Timothy J. Eckstein

Jean-Jacques Cabou

21

2929 North Central Avenue

Suite 2100

22

Phoenix, Arizona 85012-2793

23

Attorneys for Plaintiffs

24

25
1407323_1
26

27

28

13 Case 2:06-cv-02482-SMM Document 1 Filed 10/18/2006 Page 13 of 13

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Javier Torres, et al.,

)

)

10

Plaintiffs,

)

)

11 v.

)

)

12

)

Terry Goddard, Attorney General of)

13 Arizona, et al.,

)

)

14

Defendants.

)

)

15

)

No. CIV 06-2482-PHX-SMM ORDER

16 Pending before the Court is a Motion to Dismiss Plaintiffs' Claims for Monetary
17 Relief filed by Defendants Terry Goddard and Cameron Holmes ("Defendants"). (Dkt. 24)
18 Defendants moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
19 Procedure ("Federal Rules"). On June 21, 2007, Defendants filed their Answer to Plaintiffs’
20 First Amended Complaint. (Dkt. 51) Once the answer was filed, it became procedurally
21 impossible for the Court to rule on the motion to dismiss. See 5 Wright & Miller, Federal
22 Practice and Procedure: Civil § 1361 (motions made after responsive pleading are technically
23 not 12(b) motions). A motion to dismiss challenges the sufficiency of the allegations within
24 the complaint while an answer admits or denies those allegations and raises any available
25 affirmative defenses. Therefore, the Court finds that the motion to dismiss has been rendered
26 moot by the filing of an answer.
27 //
28 //

Case 2:06-cv-02482-SMM Document 53 Filed 07/12/2007 Page 1 of 2

1

Accordingly,

2

IT IS HEREBY ORDERED DENYING Defendants’ Motion to Dismiss Plaintiffs'

3 Claims for Monetary Relief (Dkt. 24).

4

DATED this 12th day of July, 2007.

5

6

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13

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15

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- 2 Case 2:06-cv-02482-SMM Document 53 Filed 07/12/2007 Page 2 of 2

 
 Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 1 of 29

1 WO

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 JAVIER TORRES, ALMA SANTIAGO ) No. CV 06-2482-PHX-SMM

and LIA RIVADENEYRA, on behalf of )

9 themselves and others similarly situated, ) MEMORANDUM OF DECISION AND

) ORDER

10

Plaintiffs,

)

)

11 v.

)

)

12 TERRY GODDARD, Attorney General of)

the State of Arizona, in his individual and)

13 official capacities, and CAMERON )

(“KIP”) HOLMES, in his individual )

14 capacity,

)

)

15

Defendants.

)

)

16

Currently before the Court is Plaintiffs Javier Torres and Lia Rivadeneyra’s Motion

17

for Class Certification (Doc . 79) and related Memorandum (Doc. 80). Defendants Terry

18

Goddard and Cam eron Holmes filed a Response and Objection to Motion for Class

19

Certification and Request for Hearing (Doc. 92). Plaintiffs later filed a Reply (Doc. 108).

20

After ordering supplemental briefing from the parties on the necessity of a hearing (Docs.

21

149, 151), the Court granted Defendants’ request and held an evidentiary hearing regarding

22

class certification on February 25, 2009 (Doc. 155). After careful consideration of the

23

arguments set forth by each party, the Court finds the following.

24

FACTUAL BACKGROUND

25

This case arises out of efforts by the Arizona Attorney General to curtail narcotics

26

smuggling and illegal smuggling of undocumented aliens. Claiming that certain wire money

27

transfers of Western Union Financial Services, Inc. (“Western Union”) involved proceeds

28

of these crimes, the state of Arizona obtained a number of warrants authorizing seizure for

Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 2 of 29

1 forfeiture of various transfers sent to Arizona.1 Since 2004, Defendants Arizona Attorney

2 General Terry Goddard and Assistant Attorney General Cam eron Holmes (collectively

3 “Defendants”) have seized in excess of $9,000,000 from thousands of people through the

4 United States pursuant to these warrants.

5 I. Issuance of Seizure Warrants

6

The six warrants being contested here were issued by the Superior Court of the State

7 of Arizona, Maricopa County and then served by Defendants on Western Union on October

8 12, 2004, March 10, 2005, Septem ber 1, 2005, Fe bruary 16, 2006, March 15, 2006, and

9 September 21, 2006, respectively (Doc. 80, Ex. A-F). Each of the warrants shared certain

10 characteristics, including requiring the seizure of (1) person-to-person transactions, (2) sent

11 from areas outside Arizona, (3) for delivery in Arizona (or in one warrant, Sonora, Mexico),

12 (4) in any amount at or exceeding a threshold level, (5) during the time period the warrant

13 was in effect.

14

More specifically, the six warrants were as follows:

15

October 12, 2004 Warrant(SW2004-001869 – Sweep 11): This wrarant

seized all $1,000 person-to-person money transfers placed with Western Union

16

outside Arizona and intended to be paid in Arizona between October 20, 2004

and November 2, 2004 (Doc. 80, Ex. A).

17

March 10, 2005 Warrant (SW2005-000696 – Sweep 12): This warrant

18

seized all $2,000 person-to-person money transfers placed with Western Union

outside of Arizona and intended to be paid in Arizona starting on Ma rch 11,

19

2005 (Doc. 80, Ex. B). The warrant later was modified to include seizure of

funds in the amounts of $1,000 and $1,500 and the termwas extended through

20

April 22, 2005 (Doc. 80, Ex. B1-B5).

21

September 1, 2005 Warrant (SW2005-002529 – Sweep 13): This

warrant seized all $600 and $700 person-to-person m oney transfers placed

22

with Western Union in any of the following states: Tennessee, Georgia,

Illinois, New Jersey, New York, North Carolina, South Carolina, and Virginia

23

(Doc. 80, Ex. C). The transfers were intended to be paid in Arizona starting

on September 2, 2005. The warrant later was modified to include seizure of

24

25

26

1 The efforts by the Arizona Attorney General to decrease human and drug smuggling

27

through the seizure of funds sent through Western Union has spawned litigation in both state and federal court. SeeW. Union v. Goddard, CV 06-2249-PHX-SMM (federal court); State

28 of Arizona v. W. Union Fin. Servs., Inc., CV-08-241-PR (state court).

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 3 of 29

1

funds placed for transm ission in Alabam a and Florida and the term was

extended through September 29, 2005 (Doc. 80, Ex. C1-C3).

2

February 16, 2006 Warrant (SW2006-002032 – Sweep 15): This

3

warrant seized all person-to-person money transfers of $500 or more placed

with Western Union in any of the following states: Connecticut, Florida, New

4

Jersey, North Carolina, South Carolina, and Virginia (Doc. 80, Ex. D). The

transfers were intended to be paid in Arizona starting on February 17, 2006.

5

The warrant later was m odified to include seizure of funds placed for

transmission in Delaware, Georgia, Maryland, New York, Illinois ,and Indiana

6

and the term was extended through March 16, 2006 (Doc. 80, Ex. D1).

7

March 15, 2006 Warrant(SW2006-002054 – Sweep 18): This warrant

seized all person-to-person m oney transfers of $500 or m ore placed with

8

Western Union in any of the following states: Connecticut, Delaware, Florida,

Georgia, Illinois, Indiana, Maryland, New Jersey, New York, North Carolina,

9

South Carolina, and Virginia (Doc. 80, Ex. E). The transfers were intended to

be paid in Arizona starting on Ma rch 17, 2006. The warrant later was

10

extended through April 14, 2006 (Doc. 80, Ex. E1).

11

September 21, 2006 Warrant (SW2006-002213 – Sweep 21): This

warrant seized all person-to-person money transfers of $500 or more placed

12

with Western Union in any of 29 states: California, Arizona, New York,

Florida, Illinois, Georgia, New Jersey, North Carolina, Virginia, Tennessee,

13

Maryland, Texas, Nevada, South Carolina, Ohio, Pennsylvania, Washington,

Alabama, Indiana, Oregon, Colorado, Minnesota, Utah, Connecticut,

14

Michigan, Massachusetts, Wisconsin, Kentucky, and Delaware (Doc. 80, Ex.

F). The transfers were intended to be paid at one of 26 locations in Sonora,

15

Mexico (Id.).

16

A. Sonora Warrant

17

The September 21, 2006 warrant, referred to by the parties as the “Sonora warrant,”

18 differs from the others in that the money transfers seized were intended for payout in Mexico,

19 rather than Arizona. Unlike the other warrants, this one has been the subject of proceedings

20 in state court as well. After the superior court issued the ex parte seizure warrant on

21 September 21, 2006, Western Union filed a motion to quash the seizure warrant as well as

22 a motion for preliminary injunction to prevent the State fromseeking similar warrants (Doc.

23 80, Ex. G). The superior court stayed the warrant pending an evidentiary hearing. Following

24 the hearing, the superior court granted both of Western Union’s m otions and held that it

25 lacked jurisdiction under the due process clause to seize transfers that originated in other

26 states and were directed to recipients outside Arizona (Sonora, Mexico) (Doc. 80, Ex. K).

27 Additionally, the court held that no probable cause was shown that any wire transfer involved

28

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 4 of 29

1 the proceeds of Arizona racketeering activity and that the Commerce Clause was violated by

2 the warrants (Id.).

3

The Arizona Court of Appeals vacated the superior court’s opinion and held that the

4 superior court could exercise in rem jurisdiction over transfers from states outside Arizona

5 to Sonora that involved Arizona racketeering activities. State v. W. Union Fin. Servs., Inc,.

6 219 Ariz. 337, 367, 199 P.3d 592, 622 (Ct. App. 2008), overruled byState v. W. Union Fin.

7 Servs., Inc., 220 Ariz. 567, 208 P.3d 218 (2009). Additionally, the court of appeals held that

8 the Fourth Amendment and Commerce Clause were not violated by the warrants. Id.

9

The Arizona Supreme Court granted review and held that the superior court could not

10 exercise in rem jurisdiction over money transfers from senders outside Arizona to recipients

11 in Mexico. W. Union, 220 Ariz. at 567-68, 208 P.3d at 218-19. The court did not address

12 either the probable cause or com merce clause issues. The Court of Appeals’ opinion

13 therefore was vacated and the case remanded to the superior court.

14 II. Western Union Money Transfers

15

Western Union’s prim ary business is person-to-person wire m oney transfers

16 conducted throughout the United States and in over 195 foreign countries. A custom er

17 initiates a transfer by visiting a Western Union location and completing a “send” form(Doc.

18 80, Ex. G, p.8). The sender then provides the Western Union agent with the necessary

19 documentation and pays the agent the amount to be transferred along with a service fee (Id).

20 The agent then enters the information into Western Union’s computer system which assigns

21 a unique Money Transfer Control Number (“MTCN”) to the transaction (Id.). This MTCN

22 is provided to the sender to give to the intended recipient of the funds (Id). The transaction

23 information is stored by Western Union at adata processing center until the funds are called

24 for payment (Id.). To receive the funds, the intended receipt completes a “receive money”

25 form and presents it, together with the MTCN and proper identification, at a Western Union

26 payout location (Id. at 10-11). After confirming this information, the agent pays the receiver

27 the amount of money transferred by the sender. (Id.) The sender can cancel the transaction

28 and receive a refund up until the money is paid to the receiver (Id. at 10).

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 5 of 29

1

This normal payout process, howe ver, was interrupted by Defendants’ service on

2 Western Union of the six seizure warrants at issue here. F or each o f the warrants,

3 Defendants prepared the warrant and filed a request for its issuance (Id. at 12-13; Doc. 80,

4 Ex. A-F). Upon issuance of a warrant, Defendants served it on Western Union (Doc. 80, Ex.

5 A-F). When the warrant was served, Western Union was required to “hold” all customers’

6 wire transfer transactions m eeting the warrant criteria and then pay the funds from the

7 transactions into a detention account (Doc. 80, Ex. F at 3, ¶ 4). Fromthe detention account,

8 the seized funds were next transferred to an account of the Clerk of the Superior Court of the

9 State of Arizona, Maricopa County where the funds were subject to forfeiture (Id.).

10

During the effective dates of the warrant, “on-call representatives” of the Arizona

11 Attorney General’s Office (the seizing agency) were available by phone to speak with

12 senders and receivers regarding the seizure of their funds (Doc. 80, Ex. K, pp. 2-3, ¶¶3-4).

13 After questioning the sender or receiver about the transaction, the representative determined

14 whether to allow the transaction to be completed (Id. at 3, ¶ 4). If no one called regarding

15 a money transfer or the person calling failed to show that the money was for a legal purpose,

16 the money transfer was forfeited (Id.). Finally, Defendants instituted forfeiture proceedings

17 and sent notice of pending forfeiture to the intended recipients of the money only (Doc. 80,

18 Ex. I, Kelly Aff.).

19 III. Plaintiffs’ Class Action

20

Plaintiffs Javier Torres and Lia Rivadeneyra (collectively “Plaintiffs”) are Western

21 Union customers whose money were seized by Defendants pursuant to these warrants.

22 Under Federal Rule of Civil Procedure 23(b)(3), Plaintiffs seek to represent both thesmelves

23 as well as a class of others senders whose fundswere subjected to these seizures during the

24 applicable limitations period (Doc. 80, 5:10-12). Plaintiffs allege that the seizures were done

25 without probable cause, that notice of the seizures as require d by due process was not

26 provided, and that the seizures violate the Commerce Clause (Id. at 5:12-16). Plaintiffs seek

27 to certify the following class:

28

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 6 of 29

1

All persons who attempted to send money through a wire tra nsfer company

from a location outside of the State of Arizona and which was subjected to a

2

blanket, criteria-based seizure by defendants on or after October 18, 2004.

3 (Id. at 5:28-6:2).2

4

PROCEDURAL BACKGROUND

5

Plaintiffs filed their Com plaint on October 18, 2006 alleging four c laims: (1)

6 Defendants lacked probable cause to belie ve that the m onies seized were the fruits or

7 instrumentalities of crimes or otherwise subject to forfeiture in violation of the Fourth

8 Amendment; (2) the seizure warrants were overly broad on their face in violation of the

9 Fourth Amendment; (3) Defendants failed to give adequate and tim ely notice that their

10 monies would be seized, as well as failed to provide a prompt post-seizure hearing to contest

11 the seizures, all in violation of due process; and (4) Defendants interfered improperly with

12 interstate and international commerce in violation of the Commerce Clause (Doc. 1,Compl.).

13 Plaintiffs’ Complaint was subsequently amended twice, but the substantive claims remained

14 the same (Doc. 47, 141).3

15

Plaintiffs filed the present Motion for Class Certification on March 14, 2008 (Doc.

16 79). Defendants filed a Response on April 21, 2008 (Doc. 92), wherein they requested a

17 hearing to “take evidence from a lim ited number of relevant law enforcem ent officials

18 concerning the facts supporting the belief that seized transactions were involved in criminal

19

20

2 The seizures at issue in this case were m ade under the authority of six different

warrants, as described previously (Doc. 80, Ex. A-F). The three m ost recently issued 21 warrants (Feb. 16, 2006, March 15, 2006, and Sept.21, 2006) did not name a single targeted

22 sender or receiver (Doc. 80, Ex. D-F). The earlier three warrants (Oct. 12, 2004, March 10, 2005, and Sept. 1, 2005) authorized seizures both on the basis either of specific names of

23 senders or receivers or on the basis of the listed criteria without regard to the names of

24

senders or receivers (Doc. 80, Ex. A-C). With respect to those seizures m ade under the earlier issued warrants, Plaintiffs state that only those seizures made without regard to names

25 of senders or receivers are members of the proposed class (Transcript of Evidentiary Hearing

(“Tr.”) 21:23-22:8). The class has been defined to exclude any sender whose transaction was 26 seized on the basis of a name (Id.).

27

3Plaintiffs have filed a motion to amend their complaint a third time (Doc. 176), and

28 such motion is still pending before the Court.

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 7 of 29

1 activity” and other evidence relating to th e typicality, com monality, and adequacy of

2 representation requirements of Rule 23 (Id. at 17). Thereafter, Plaintiffs filed a Reply on

3 May 19, 2008 (Doc. 108).

4

In light of Defendants’ request for an evidentiary he aring, the Court ordered the

5 parties to submit briefing regarding the need for a hearing on class certification (Doc. 148,

6 150). Defendants did so on Novem ber 21, 2008 (Doc. 149) followed by Plaintiffs on

7 December 12, 2008 (Doc. 151). The Court determ ined that an evidentiary hearing was

8 needed, and one was scheduled for February 25, 2009 (Doc. 154). Following a full-day

9 hearing, the Court took Plaintiffs’ class certification motion under advisement (Doc. 155).

10 Subsequently, the parties submitted additional briefing to aid the Court (Doc. 164, 1664).On

11 July 16, 2009, Plaintiffs also subm itted to the Court the decision of the Arizona Suprem e

12 Court in State of Arizona v. Western Union Financial Services, Inc,. CV-08-241-PR, that it

13 believed had bearing on the present suit (Doc. 173). On July 28, 2009, Defendants filed a

14 response discussing the relevance, if any, of the Arizona Supreme Court’s decision to class

15 certification (Doc. 174).

16

STANDARD OF REVIEW

17

The Court has discretion to certify a class, but must exercise its discretion within the

18 framework of Federal Rule of Civil Procedure 23. Zinser v. Accufix Research Inst., In,c2.53

19 F.3d 1180, 1186 (9th Cir.), amended by 273 F.3d 1266 (9th Cir. 2001). Class certification

20 is proper when a class satisfies both the criteria laid out in Rule 23(a) and the requirements

21 under one of the subcategories of Rule 23(b). SeAe mchem Prods., Inc. v. Windsor, 521 U.S.

22 591, 614 (1997).

23

Rule 23(a) of the Federal Rules of Civil Procedure establishes four prerequisites for

24 a class action, commonly referred to as (1) numerosity, (2) commonality, (3) typicality, and

25 (4) adequacy of representation. Fed. R. Civ. P. 23(a)A; mchem, 521 U.S. at 613. Numerosity

26

27

4On March 25, 2009, Plaintiffs subm itted a filing to correct a perceived error in

defense testimony offered at the class certification hearing (Doc. 164). Defendants filed a

28 response to Plaintiffs’ filing on April 7, 2009 (Doc. 166).

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 8 of 29

1 requires a class “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P.

2 23(a)(1). Commonality refers to the need for “questions of law or fact comon to the class.”

3 Fed. R. Civ. P. 23(a)(2). Typicality ensures that the “claims or defenses of the representative

4 parties are typical of the claims or defenses ofthe class” as a whole. Fed. R. Civ. P. 23(a)(3).

5 Finally, adequacy of representation is necessary to “fairly and adequately protect the

6 interests of the class.” Fed. R. Civ. P. 23(a)(4).

7

Plaintiffs have moved for class certification pursuant to Rule 23(b)(3), which further

8 requires that the Court find (1) that “the questions of law or fact common to class members

9 predominate over any questions affecting only individual m embers,” and (2) that “a class

10 action is superior to other available m ethods for fairly a nd efficiently adjudicating the

11 controversy.” Fed. R. Civ. P. 23(b)(3). Thepredominance inquiry “tests whether proposed

12 classes are sufficiently cohesive to warrant adjudication by representation.” Hanlon v.

13 Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (citaion and internal quotation omitted).

14 The superiority inquiry “necessarily involves a com parative evaluation of alterna tive

15 mechanisms of dispute resolution.” Id. at 1023.

16

A plaintiff seeking class certification bears the burden of showing that each element

17 of Rule 23 is satisfied. Doninger v. Pac. N.W. Bell, Inc. , 564 F.2d 1304, 1308 (9th Cir.

18 1977). In determining the propriety of a classaction, there is “nothing in either the language

19 or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into

20 the merits of a suit in order to determ ine whether it may be maintained as a class action.”

21 Eisen v. Carlisle & Jacquelin , 417 U.S. 156, 177 (1974); see also Moore v. Hughes

22 Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983) (holding that “it is improper to advance

23 a decision on the m erits to the class certification stage”). “[N] either the possibility that a

24 plaintiff will be unable to prove his allegations, nor the possibility that the later course of the

25 suit might unforeseeably prove the original decision to certify the class wrong, is a basis for

26 declining to certify a class which apparently satisfies [Rule 23].” Blackie v. Barrack, 524

27 F.2d 891, 901 (9th Cir. 1975).

28

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 9 of 29

1

In deciding whether to certify a class, the court must take the substantive allegations

2 of the complaint as true. Id. at 901 n.17. In order to “rule on compliance” with Rule 23, a

3 court may consider supplem ental material provided by the parties in order to m ake an

4 informed judgement. Id.

5

DISCUSSION

6

Plaintiffs seek to certify a class pursuant to Rule 23(b)(3). Plaintiffs allege that

7 Defendants’ seizure of money transfers sent through Western Union violates the Fourth

8 Amendment, Fourteenth Am endment, and Com merce Clause of the U.S. Constitution.

9 Defendants deny these allegations and contend that Plaintiffs cannot meet the requirements

10 for certification.

11

When deciding whether Plaintiffs have satisfied the requirements of Rule 23(a) and

12 (b), the Court has not undertaken to evaluate Plaintiffs’ likelihood of success on the merits

13 of the claims. Rather, the Court has made an “informed judgment,” based on the arguments

14 of both parties, the supplemental material provided, and the evidentiary hearing. Blackie ,

15 524 F.2d at 901 n.17. The court finds that Plaintiffs have satisfied the requirements of Rule

16 23(a) by demonstrating numerosity, commonality, typicality, and adequacy of representation

17 for the class. However, the Court finds that Plaintiffs have not satisfied the requirements of

18 Rule 23(b)(3) by demonstrating that questions of law and fact predominate and that a class

19 action would be superior to other forms of adjudication.

20 I. RULE 23(a)

21

A. Numerosity

22

Rule 23(a)(1) requires that a proposed class is so numerous as to make joinder of all

23 members impracticable. Fed. R. Civ. P. 23(a)(1). First, the party seeking certification must

24 demonstrate whether a class exists. A class definition should be “precise, objective, and

25 presently ascertainable.” O’Connor v. Boeing N. Am., Inc., 180 F.R.D. 359, 367 (C.D. Cal.

26 1997) (citation and internal quotation marks omitted). “A class will be found to exist if the

27 description of the class is definite enough so that it is administratively feasible for the court

28 to ascertain whether an individual is a member.” Id.

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 10 of 29

1

In their motion, Plaintiffs seek to certify the following class:

2

All persons who attempted to send money through a wire transfer com pany

from a location outside of the State of Arizona and which was subjected to a

3

blanket, criteria-based seizure by defendants on or after October 18, 2004.

4 (Doc. 80, 5:28-6:2). Plaintiffs first argue that the m embers of this proposed class can be

5 ascertained by means of objective criteria (Doc. 164; Tr. 55:5-9). According to Plaintiffs,

6 the names and addresses of class members can be obtained from Western Union’s business

7 records (Id.). When a sender transfers money through Western Union, he or she is required

8 to provide a nam e and address on the “se nd” form used to initiate the transaction. As a

9 result, Western Union has this information readily available. In response, Defendants argue

10 that the information available is incomplete as it often contains only partial addresses, such

11 as including only a city and state without a srteet name or number (Doc. 166). Additionally,

12 Defendants contend that many senders used false information to identify themselves, and

13 thus, there is no m eans of knowing whether the inform ation is accurate (Doc. 166;

14 Evidentiary Hearing Transcript PM (“Tr. PM”) 25:19-22). Western Union has a policy of

15 not requiring verifying identification fromthose individuals sending less than $1,000 (Doc.

16 166, Ex. A).

17

The Court finds that the description of the class proposed by Plaintiffs is definite

18 enough so that it is adm inistratively feasible for the court to determ ine an individual’s

19 membership in it. O’Connor, 180 F.R.D. at 367. Western Union’s business records identify

20 those senders whose m oney was seized by the State of Arizona. Defendants’ concerns

21 regarding the ability to contact everyone in the purported class goes to the issue of notice,

22 rather than to the Rule 23(a) prerequisites for class certification. For classes certified under

23 Rule 23(b)(3), the court is directed to give class members the “best notice that is practicable

24 under the circumstances, including individual notice to all m embers who can identified

25 through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). Should certain addresses be found

26 to be incomplete, another form of notice, such as publication notice, would need to be used

27 to notify class members. From the spreadsheets submitted by the parties, it appears that the

28

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 11 of 29

1 number of incomplete and/or partial addresses is sm all compared to the total num ber of

2 senders (Doc. 170).

3

In addition to showing that the class is ascertainable, the proponent umst establish that

4 the size of the class m akes joinder im practicable. “‘Im practicability’ does not m ean

5 ‘impossibility,’ but only the difficulty or inconvenience of joining all members of the class.”

6 Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964) (quoting

7 Advertising Specialty Nat. Assn’n v. FTC, 238 F.2d 108, 119 (1st Cir. 1956)). In addition

8 to class size, courts consider other indicia of im practicability, such as the geographic

9 dispersement of class members, the size of individual claims, the financial resources of class

10 members, and the ability of claim ants to institute individual suits. Amone v. Aviero, 226

11 F.R.D. 677, 683 (D. Haw. 2005).

12

While the number of Plaintiffs is not the deciding factor for numerosity, courts have

13 generally held that large num bers of potential claim ants is indicative of joinder being

14 impracticable. Immigrant Assistance Project of L.A. County Fed’n of Labor v. I.N.S., 306

15 F.3d 842, 869 (9th Cir. 2002) (recognizing that courts have certified classes solely on the

16 basis of the number of class members, even where that number is less than 100). Here, the

17 exact number of Plaintiffs is unknown, but both parties concede that the potential class would

18 number in the thousands (Doc. 80, 8:22-23 (“[T]he class is estimated to include more than

19 9,000 persons”); Doc. 92, p.7). Defendants have also provided documents indicating a large

20 number of intended recipients of the seized funds (See, e.g., Doc. 92, Ex. E). An inference

21 that the num ber of senders of these funds would be similarly large would not be

22 unreasonable. SeeSchwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985) (citing Grossamn

23 v. Waste Mgmt., Inc., 589 F. Supp. 395 (N.D. Ill. 1984) (“court is entitled to make ‘common

24 sense assumptions’ in order to support a finding of numerosity”)). The Court finds that the

25 sheer number of potential class members would make joinder of Plaintiffs impracticable and

26 satisfy the numerosity requirement. Fed. R. Civ. P. 23(a)(1).

27

In addition to the size of the class, the Court notes that additional factors are present

28 that would make joinder impracticable. The proposed class is comprised of senders who are

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 12 of 29

1 spread across the country, whose financial circumstances may prevent them from pursuing

2 individual litigation, and whose claim s are likely too sm all to make individual litigation

3 feasible. Because joinder of all members of the proposed class would be impracticable, the

4 Court finds that the numerosity requirement of Rule 23(a)(1) is met.

5

B. Commonality

6

In order to satisfy commonality, a plaintiff must show that “there are questions of law

7 or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The plaintiff’s necessary showing

8 to satisfy commonality is “minimal” and “less rigorous than the companion requirements of

9 [predominance and superiority].” Hanlon, 150 F.3d at 1019-20. Furthermore, commonality

10 can be construed perm issively. Id. at 1019. “All questions of fact and law need not be

11 common to satisfy the rule.” Id. A proposed class can show com monality by “[t]he

12 existence of shared legal issues with divergent factual predicates,” or by “a common core of

13 salient facts coupled with disparate legal remedies within the class.” Id.

14

Plaintiffs assert a series of common legal questions, including (1) whether the seizures

15 pursuant to Defendants’ warrants were seizures without probable cause; (2) whether the

16 warrants were based on individualized suspicion sufficient to support a seizure under the

17 Fourth Amendment; (3)whether the warrants are general warrants that delegate im proper

18 levels of discretion to officers executing the warrants in violation of the Fourth Aemndment;

19 (4) whether the seizures impose undue burdens on orinterferes with interstate or international

20 commerce in violation of the Commerce Clause; and (5) whether class members were given

21 adequate and timely notice that their money had been seized and an opportunity to dispute

22 the seizure (Doc. 80, 9:15-23).

23

Plaintiffs have presented issues which are com mon to the class as a whole. When

24 questions of law or fact are “applicable in the same manner to each member of the class,”

25 litigating those questions at one time in a class action is appropriate. Califano v. Yamasaki,

26 442 U.S. 682, 701 (1979). Whether or not the “blanket, criteria-based” seizure of money by

27 Defendants violated Plaintiffs’ constitutional rights under the Fourth and Fourteenth

28 Amendments and the Commerce Clause are questions of law that are comon to all members

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 13 of 29

1 of the class. Class members uniformly claim that their monies were seized by Defendants

2 pursuant to general, criteria-based warrantsunsupported by probable cause, without adequate

3 or timely notice of the seizures and without a meaningful opportunity to contest the seizures,

4 and that the seizures interfered with interstate or international commerce.

5

Defendants assert that class certification is inappropriate in this case because legal

6 interests in the seized funds m ust be assessed individually (Doc. 92, 8:4-9). Tha t is, they

7 argue that not all class members will be entitled to restitution (Id).. They assert that Plaintiffs

8 could be barred from restitution of seized funds, even if that seizure was unconstitutional, if

9 the funds were being used in furtherance of an illegal activity (Ida. t 10 (citing United States

10 v. 20832 Big Rock Drive, 51 F.3d 1402, 1406 (9th Cir. 1995)).) Defendants’ argument that

11 the Court will be required to m ake individual determ inations of each class member’s

12 entitlement to restitution overlaps with predominance, which will be discussed below.

13

At this stage, Plaintiffs need not show that the class m embers have all questions of

14 fact in common in order to satisfy commonality. See Hanlon, 150 F.3d at 1019. Plaintiffs

15 can show commonality by “[t]he existence of shared legal issues with divergent factual

16 predicates.” See id. Plaintiffs present a number of common legal issues applicable to the

17 class as a whole involving violations of the Fourth Amendment, procedural due process, and

18 the Commerce Clause. Even though class m embers’ claims could differ factually, these

19 common issues are sufficient to meet the minimal requirements for commonality. See id. at

20 1019-20.

21

C. Typicality

22

Rule 23(a)(3) requires that the “claims or defenses of the representative parties [be]

23 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Under the rule’s

24 permissive standards, a plaintiff’s claim s need not be substantially ide ntical, but only

25 “reasonably co-extensive with those of absent class m embers.” Hanlon 150 F.3d at 1020.

26 “The test of typicality ‘is whether other members have the same or similar injury, whether

27 the action is based on conduct which is not unique to the named plaintiffs, and whether other

28 class members have been injured by the same course of conduct.’” Hanon v. Dataproducts

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 14 of 29

1 Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting Schwartz, 108 F.R.D. at 282). The court

2 looks to “the nature of the claimor defense of the class representative, and not to the specific

3 facts from which it arose or the relief sought.” Id. (internal quotation omitted). Typicality

4 is “‘satisfied when each class m ember’s claim arises from the same course of events, and

5 each class m ember makes similar legal argum ent to prove the defendant’s liability.’”

6 Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (quoting Marisol v. Giulia,n1i26 F.3d

7 372, 376 (2d Cir. 1997)).

8

Defendants argue that the typicality requirement is not satisfied, because neither of

9 the named Plaintiffs are m embers of the propose d class (Doc. 92, pp.2-3). Defendants

10 correctly assert that typicality requires that the named Plaintiffs be members of the class they

11 represent. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982). “Thus, one who is not

12 a member of the defined class cannot serve as a representative plaintiff.” (Doc. 92, 3:1-2).

13

The first class representative, Javier Torres (“Torres”), allegedly tried to send the

14 proceeds that he received through the sale of an associate’s car to the associate through

15 Western Union, but the money was seized pursuant to Defendants’ warrant (Id. at 4:5-7).

16 Defendants argue that Torres is not a member of the class because “the funds he was sending

17 were not his.” (Id.at 4:16-18). However, the proposed class definition is not liimted in scope

18 to those who had an ownership in terest in the seized m oney. Rather, the proposed class

19 includes “[a]ll persons who a ttempted to send m oney through a wire transfer com pany.”

20 (Doc. 79, p.2). As a sender of money which was seized by Defendants, Torres is clearly

21 typical of the proposed class of Plaintiffs. Torres attempted to send money through Western

22 Union from a location outside of Arizona, and his fund transfers were intercepted and seized

23 as a result of one of the warrants at issue in this case. The funds he attempted to send were

24 intercepted which is what the class definition requires.

25

Defendants also argue that Lia Rivadeneyra (“Rivadenyra”) is not a m ember of the

26 class because (1) the seizure of Rivadeneyra’s funds was never “com pleted,” and (2)

27 Rivadeneyra was not subject to a “blanket” seizure warrant (Doc. 92, pp.4-5). Defendants

28 first assert that Rivadeneyra’s funds werenever seized by Defendants because the money is

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1 still within the control of Western Union (Id. at 4:21-26). On Septem ber 21, 2006,

2 Defendants served the Sonora, Mexico warrant on Western Union. That warrant required

3 Western Union to detain all money transfers of $500 or more, sent by persons in any of 29

4 states and intended for receipt at 26 agency locations in Sonora, Mexico (Doc. 80, Ex. F).

5 Due to that warrant, Rivadeneyra’s attem pt to wire funds to her brother in Sonora was

6 interrupted, and her funds were placed into a detention account. Subsequently, Western

7 Union filed a legal challenge to the Sonora warrant and seizures in state court, and the

8 Maricopa County Superior Court entered a prelim inary injunction against its c ontinued

9 execution and further violations of the U.S. Constitution (Doc. 80, Ex. K). As a result of the

10 injunction, the funds remain in Western Union’s possession and are being held pending the

11 outcome of the State’s appeal. While Defendants argue that Western Union’s possession of

12 the funds defeats typicality, the lawfulness of the seizures does not depend on the identity of

13 the custodian of the funds. The custodian of the m oney is irrelevant to the question of

14 whether Rivadeneyra falls within the class definition and is typical of the class as a whole.

15 Rivadeneyra is a member of the class because she was allegedly subjected to a seizure of

16 money initiated by Defendants.

17

Second, Defendants assert that Rivadeneyra was not subject to a “blanket” seizure

18 warrant due to the Sonora warrant’s inclusion of 26 spec ific Western Union locations.

19 Defendants contend that there was probable cause to believe that m oney laundering was

20 taking place at the Western Union location to which Rivadeneyra sent her money (Doc. 92,

21 5:12-16). However, whether there was probable cause to believe that money laundering was

22 taking place is not relevant to the typicality inquiry. Rather, this is an issue that goes to the

23 merits of the case itself.

24

Additionally, the class definition does not distinguish between those class members

25 who attempted to send m oney to Arizona from those who attem pted to send m oney to

26 Sonora, Mexico because this difference in where the recipients of the funds were located has

27 no bearing on the class claims. As stated by Plaintiffs, the classwide question is “whether

28 . . . warrants, relying exclusively on generic factors drawn from extraordinarily broad

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1 profiles, were supported by probable cause.” (Doc. 108, 5:14-15). The inclusion of the

2 names of 26 Western Union locations in the Sonora warrant where Defendants anticipated

3 the delivery of funds does not change the alleged lack of probable cause common to each of

4 the six warrants. Plaintiffs still allege that the warrants at issue failed to provide any

5 particularized information about the sender or intended recipient of the funds, including the

6 failure to include a name, address, prior history of criminal activity, association with others

7 known to engage in criminal activity, or information about the money transfers themselves

8 (Id. at 5:8-12).

9

The named Plaintiffs’ claims are typical of the rest of the class, because the allegations

10 arise out of the constitutionality of the warrants at issue, and Defendants’ actions with regard

11 to those warrants. Although the amount of money seized from each class member may have

12 been different, the typicality requirem ent is sa tisfied if the representative claim s are

13 “reasonably co-extensive with those of absent class members; they need not be substantially

14 identical.” Hanlon, 150 F.3d at 1020. The alleged injurie s arise from the same allegedly

15 unconstitutional acts on the part of Defendants. Thus, the Court finds that the nam ed

16 Plaintiffs’ claims are typical of the claims of the class as a whole.

17

D. Adequacy of Representation

18

A plaintiff must also demonstrate that she “will fairly and adequately prote ct the

19 interests of the class.” Fed. R. Civ. P. 23(a)(4). The court m ust examine two issues: (1)

20 whether the named plaintiff and her counsel have any conflicts of interest with other class

21 members, and (2) whether the nam ed plaintiff and her counsel will “prosecute the action

22 vigorously on behalf of the class.” Hanlon, 150 F.3d at 1020. In determining the latter issue,

23 the court can consider the competency of counsel. Id. at 1021.

24

There is no evidence that the named Plaintiffs or their counsel will be subject to any

25 conflict of interest with the rest of the class m embers. Defendants m ake no argum ent

26 regarding any conflict of interest (See generally, Doc. 92), other than the assertion that the

27 named Plaintiffs are not m embers of the proposed class, as a lready discussed. Plaintiffs

28 demonstrate vigorous prosecution on behalf of the class by showing that class counsel is

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1 competent. Defendants do not c hallenge the com petence of class counsel, and the

2 information submitted to this Court show counesl has extensive experience prosecuting many

3 class actions suits. (See Doc. 80, Ex. L (showing Plaintiffs’ counsel are experienced

4 attorneys, and have extensive backgrounds in class action litigation).) Defendants presented

5 no evidence to indicate any deficiencies or conflicts of interest on the part of class counsel.

6 As such, the Court finds class counse l competent. See Hanlon, 150 F.3d at 1021 (finding

7 class counsel competent when the opponents did not seriously challenge the issue a nd the

8 counsel’s record of experience dispelled any cause for concern). Thus, Plaintiffs have met

9 their burden of showing they will vigorously prosecute the action on behalf of the class.

10 II. RULE 23(b)(3)

11

In addition to meeting the requirements of Rule 23(a), Plaintiffs’ class must satisfy

12 the requirements of Rule 23(b). Here, Plaintiffs bring their suit under Rule 23(b)(3). This

13 rule requires that the court find (1) that “questions of law or fact common to class members

14 predominate over any questions affecting only individual members [predominance],” and (2)

15 that “a class action is superior to other available m ethods for fairly and efficiently

16 adjudicating the controversy [superiority].” Fed. R. Civ. P. 23(b)(3).

17

A. Predominance

18

Predominance tests the relationship between the com mon and individual issues.

19 Hanlon, 150 F.3d at 1022. Assuming that a plaintiff has already established commonality,

20 plaintiff’s burden of proof to show pr edominance is “far m ore demanding” than

21 commonality. Am chem Prods., 521 U.S. at 624. If the com mon questions do not

22 predominate over the individual ones so that class certification is warranted, in appropriate

23 cases, the district court can isolate the common issues and proceed with class treatment of

24 those particular issues. Valentino v. Carter-Wallace, Inc. , 97 F.3d 1227, 1234 (9th Cir.

25 1996). The test has been satisfied when “a com mon nucleus of facts and potential legal

26 remedies dominates this litigation.” Hanlon, 150 F.3d at 1022.

27

Defendants present several questions that they argue require individualiz

ed

28 determinations, and thus, defeat class certification. The issues necessitating individual

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 18 of 29

1 assessments by the Court for each sender include: (1) the legal interest of senders in the

2 property sent; (2) what types of notice of seiuzre and forfeiture were received by senders; and

3 (3) which senders were chilled frommaking future money transactions (Doc. 92, 7:17-8:1).

4

1. Claims Under 42 U.S.C. § 1983

5

Plaintiffs bring their claims pursuant to 42 U.S.C. § 1983 for violations of the Fourth

6 Amendment, Fourteenth Amendment, and Commerce Clause. “Section 1983 creates a cause

7 of action against a person who, acting under color of state law, deprives anothe r of rights

8 guaranteed under the Constitution.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

9 It does not create any substantive rights; instead, it is a means through which a plaintiff can

10 challenge actions by government officials. To prove a case under section 1983, a plaintiff

11 must show that “(1) the action occurred ‘undercolor of state law’ and (2) the action resulted

12 in the deprivation of a constitutional right or federal statutory right.” Id.(quoting Parratt v.

13 Taylor, 451 U.S. 527, 535 (1981)). “A person deprives another ‘of a constitutional right,

14 within the meaning of section 1983, if he doe s an affirmative act, participates in another's

15 affirmative acts, or omits to perform an act which he is legally required to do thatcauses the

16 deprivation of which [the plaintiff complains].’” Leer v. Murphy, 844 F.2d 628, 633 (9th

17 Cir. 1988) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).

18

a. Fourth Amendment

19

In Count I of their Second Am ended Complaint, Plaintiffs allege that Defenda nts’

20 “blanket criteria-based seizures” of their funds were done without probable cause to believe

21 that the funds were the fruits or instrum entalities of crimes, or subject to forfeiture under

22 Arizona law (Doc. 141, Count I, ¶¶ 45-46). The Fourth Am endment, applied to the states

23 through the Fourteenth Amendment’s due process clause, protects people from“unreasonable

24 searches and seizures,” and provides that “no Warrants shall issue, but upon probable cause

25 . . . and particularly describing the place to be searched, and the persons or things to be

26 seized.” U.S. Const. Am end. IV. The Fourth Am endment demands that searches and

27 seizures be reasonable which requires individualized suspicion of wrongdoing. City of

28 Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). As to this Fourth Am endment claim,

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 19 of 29

1 Plaintiffs bear the burden of proving that their funds were seized by Defendants or their

2 agents acting pursuant to Defendants’ direction and authority without probable cause.

3

In Count II, Plaintiffs allege another Fourth Ame ndment violation, nam ely that

4 Defendants’ warrants were overbroad on their face (Doc. 141, Count II, ¶¶ 47-48). The

5 scope of a warrant is lim ited by the extent of the probable ca use. “[P]robable cause must

6 exist to seize all the items of a particular type described in the warrant . . . The concept of

7 breadth may be defined as the requirem ent that there be probable cause to seiz e the

8 particular thing named in the warrant.” In re Grand Jury Subpoenas Dated Dec. 10, 1987 ,

9 926 F.2d 847, 857 (9th Cir. 1991) (citations omitted). For this claim, Plaintiffs must show

10 that their funds were seized by Defendants or their agents who executed a warrant that was

11 overbroad because the scope of the warrant exceeded the demonstrated probable cause.

12

Plaintiffs argue that questions of law or fact common to class members predominate

13 over any questions affecting only individual m embers. Plaintiffs contend that all of the

14 warrants utilized by Defendants contained the same characteristics, including authorizing the

15 seizure of all funds sent (1) person-to-person, (2) from outside Arizona, (3) for delivery in

16 Arizona or Sonora, Mexico, (4) in any am ount at or over a certain threshold, (5) during a

17 specified period (Doc. 80, 11:19-12:1). None of the warrants contained any particularized

18 information about any sender or receiver of the funds (Id. at 11:19-21). According to

19 Plaintiffs, the shared characteristics between the six warrants are the subject of the class

20 claims and make certification appropriate. The Court finds that there are several common

21 legal questions that could be resolved on a class-wide basis, inc luding (1) whether the

22 seizures pursuant to Defendants’ warrants lacked probable cause; (2) whether the warrants

23 were based on individualized suspicion sufficient to support a Fourth Amendment seizure;

24 and (3) whether the warrants were overbroad on their face.

25

Despite these common questions, the probable cause determination for each warrant

26 will be predicated on individual issues. For each of the six warrants, the probable cause

27 determination was based on different evidence that was presented to the state court (Doc. 87,

28 Ex. 1-6; Tr. 63:18-65:20; Tr. PM 54:4-21). This evidence includes Western Union’s

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1 transmission data, ledgers of com pleted wire transactions obtained from stash houses,

2 confidential informants, intercepted phone calls,cooperative suspects, and statistical analysis

3 (Id.). Over time, the analysis further evolved as the coyotes adapted their operations to use

4 Western Union locations in Mexico instead of Arizona (Tr. PM 54:4-21). Additional facts

5 were added with each new warrant or m odification to an existing warrant (Id. ). Thes e

6 differences between warrants would involve the Court in deciding whether there was

7 probable cause for each individual warrant and subsequent m odification based upon the

8 information presented to the state court by Defendants. These individualized deterimnations

9 will predominate over the common questions presented by Plaintiffs’ Fourth Am endment

10 claims, and thus, the predominance requirement of Rule 23(b)(3) is not satisfied.

11

b. Fourteenth Amendment

12

In Count III of their Com plaint, Plaintiff allege that Defendants failed to give

13 Plaintiffs and proposed class m embers adequate and tim ely notice of the seizure and

14 forfeiture of their funds (Doc. 141, Count III, ¶¶ 49-53). Defendants allegedly also have

15 deprived Plaintiffs and class members of a post-seizure hearing to contest the seizures and

16 forfeitures (Id.).

17

A procedural due process claimhas two elements: (1) deprivation of a constitutionally

18 protected liberty or property interest and (2) denial of adequate procedural protections. See

19 McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002); Wright v. Rivelan,d219 F.3d 905,

20 913 (9th Cir. 2000). A due process violation occurs when notice of a seizure is not provided

21 or is not tim ely and adequately provided. See Jones v. Flowers , 547 U.S. 220, 226, 229

22 (2006) (outlining requirements of constitutionally required notice when property is seized

23 by government). To prevail, Plaintiffs must show that Defendants’ seizure of their funds sent

24 through Western Union deprived them of a constitutionally-protec ted property interest

25 without due process of law.

26

Plaintiffs claim that to satisfy Due Process, class members were entitled to two forms

27 of notice so that they could reasonably exercise their constitutional right to a hearing: (1)

28 notice that their funds had beenseized, and what they could do to challenge the seizure; and

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 21 of 29

1 (2) notice of pending forfeiture, including notice of the initiation of forfeiture proceedings

2 and of the opportunity to show cause by a datecertain why forfeiture of their property should

3 not be decreed (Doc. 151, 7:14-19). Although Plaintiffs initially contested both seizure and

4 forfeiture notice, they stated in their supplemental briefing that they were withdrawing their

5 request for class certification as it related to notice osfeizure (Id. at 8:3-9). Instead, Plaintiffs

6 would only litigate their due process claim as to Defendants’ failure to provide notice of

7 pending forfeiture on a class-wide basis (Id.).

8

As to this narrower due process claimof forfeiture notice, Defendants admit that they

9 had a policy and practice to forgo sending written notice of seizure or pending forfeiture to

10 the senders of electronic funds transfers that were seized (i.e., class m embers) (Doc. 145,

11 Answer ¶¶ 20, 38; Doc. 80, Ex. I, Kelly Aff.). Defendants believed that senders of the

12 transfers were not owners or interest holders in the funds at the time of seizure (Id.). Despite

13 this lack of written notice, Defendants claimthat many members of the class received actual

14 notice that their funds had been seized and whaltegal procedures could be pursued to contest

15 the seizure and/or forfeiture of their funds (Id. ). Furthermore, Defendants argue that the

16 notice received by each sender, if any, will have to be assessed by the Court on an individual

17 basis (Doc. 92, pp. 15-16). For each sender, theCourt would need to determine the contact

18 information available, what notice was reasonably designed to apprise them, and what notice

19 was actually received (Id. at 16). In their Reply, Plaintiffs argue that if such individualized

20 inquiries were required, the certification of a ny class challenging the adequacy of notice

21 would be precluded where class members had other sources of information (Doc. 108, 13:21-

22 24). Such a position cannot be reconciled, according to Plaintiffs, with those cases where

23 courts have certified class actions based on inadequate notice claims (Id. at 13:24-26). In

24 particular, Plaintiffs point to Walte rs v. Re no in which the Ninth Circuit reviewed the

25 certification of a class-wide due process notice claim. 145 F.3d 1032 (9th Cir. 1998).

26

There are certainly com mon, class-wide questions as it rela tes to Plaintiffs’ due

27 process claims. Whether the determination that class members had no cognizable property

28 interest in the seized funds was valid is a class-wide question, as is the rela ted question of

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1 whether the failure to provide written notice of forfeiture violated due process. However, the

2 Court finds that individual issues of determ ining which class mem bers were provided

3 adequate notice predominates over these common questions. “A putative claimant’s actual

4 knowledge of a forfeiture proceeding can defeat a subsequent due process challenge, even

5 if the government botches its obligation to furnish him with notice.” United States v. One

6 Star Class Sloop S ailboat, 458 F.3d 16, 22 (1st Cir. 2006). The question of whether an

7 interested party has been provided constitutionally adequate notice by the governemnt before

8 effecting a forfeiture requires a case-by-case inquiry. As Defendants point out, there are a

9 myriad of ways that senders may have received actual notice. For example, senders could

10 have learned of the seizure fromreceivers, who were sent written notice by Defendants (Doc.

11 92, 15:22-25). Some senders called the Arizona Financial Crimes Task Force call center and

12 were informed by law enforcem ent that their transaction had been seized and could be

13 subject to forfeiture (Id. at 15:26-16:1). 5 Still others m ay have received notice through

14 publication in the Arizona Business Gazette (Id. at 15:22-25). Even among those senders

15 that received actual notice, the content of that notice may have varied. Dan Kelly testified

16 that he informed senders that their money had been seized by the state of Arizona and may

17 be subject to forfeiture (Tr. 90:4-9; 91:6-9; 108:1-109:4). However, there was no

18

19

20

5Department of Public Safety investigator Dan Ke lly testified that when a wire

21 matching the criteria of a seizure warrant was sent, the wire was diverted to a holding cue

22

handled by a select group of Western Union operators in Missouri (Tr. 81:15-82:5). When the receiver tried to obtain the money transferred by the sender, the wire was not available

23 for payout (Tr. 82:6-16). If the sender or r eceiver contacted the Western Union location

where the money was sent, they would be given a 1-800 number to Missouri (Tr. 82:21-24). 24 The Western Union operators would inform the complaining caller, whether a sender or

25 receiver, that the money had been seized by the state of Arizona (Tr. 83:1-4) The Western Union operators also would ask for a phone number, which was forwarded to the call center
26 (Tr. 83:4-6). A detective fromthe call center later would contact the complaining person (Tr.

27

83:7-9). This was the process for sweep s 11,12, 13, and 15. With sweep 21, the Sonora Warrant, Western Union was instructed to give senders a prepared document that provided

28 notice that the wires had been seized (Tr. 84:7-12).

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 23 of 29

1 standardized language used by all call center operators, and thus, the particular notice given

2 may have varied between senders.

3

In addition to whether class members received actual notice, the Court will have to

4 determine on an individual basis what contact inform ation was available for each class

5 member. “‘An elementary and fundamental requirement of due process in any proceeding

6 which is to be accorded finality is notice er asonably calculated, under all the circumstances,

7 to apprise interested parties of the pendencyof the action and afford theman opportunity to

8 present their objections.’” United State s v. Ritchie , 342 F.3d 903, 910 (9th Cir. 2003)

9 (quoting Mullane v. Cent. Hanover Ba nk & Trust Co. , 339 U.S. 306, 314 (1950)). “The

10 means employed must be such as one desirous of actually inform ing the absentee m ight

11 reasonably adopt to accomplish it.” Id. (quoting Mullane, 339 U.S. at 315). “Assessing the

12 adequacy of a particular form of notice requires balancing the ‘interest of the State’ against

13 ‘the individual interest sought to be protected by the Fourteenth Amendment.” Flowers, 547

14 U.S. at 229 (quoting Mullane , 339 U.S. at 314). As Defendants point out, m any of the

15 individuals who use Western Union for the purposes of human and drug smuggling supply

16 false names and addresses to the agents (Doc. 92, 16:13-15). The use of false identities

17 means that the inform ation available to Defendants m ay not have been accurate, even if

18 notice was sent out to some senders. Defendants might not be liable for failing to provide

19 personal notice to such individuals. The Court would need to dete rmine the contact

20 information available for each class member, what notice was reasonably designed to apprise

21 them of the forfeiture, and what notice, if any, was actually received by them.

22

Walters v. Reno, relied upon by Plaintiffs, is distinguishable. In Walters, a group of

23 aliens brought an action against the Immigration and Naturalization Service (“INS”) alleging

24 that they had been denied due process when they were given inadequate notice of deportation

25 proceedings following charges of document fraud. 145 F.3d at 1037-39. In arguing for class

26 certification, the class members raised a common constitutional question as to “whether the

27 nationwide procedures used by INS in document fraud proceedings sufficiently apprise aliens

28 of their constitutional right to a hearing, thereby satisfying the notice com ponent of due

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 24 of 29

1 process.” Id. at 1045. In opposition, the government contended that the experiences of class

2 members were not sufficiently similar because individual INS agents and branch offices had

3 disregarded the agency’s official policy and instituted their own procedures. IdT. hus, some

4 class members may have received adequate notice of the deportation proceedings despite

5 constitutionally deficient official notice procedures. Id. In rejecting the governm ent’s

6 argument and finding commonality, the Ninth Circuit stated,

7

We think the government misses the point. There is nothing wrong with the

district court’s presumption that the INS actually employed its constitutionally

8

deficient policies and procedures. The government made no showing in the

district court that its procedures were modified by more than just a few agents

9

and branch offices. Thus, it is reasonable to presum e that class m embers

involved in document fraud proceedings did not receive due process because

10

of the inadequate forms. Moreover, as the district court observed, it would be

“a twisted result” to perm it an adm inistrative agency to avoid nationwide

11

litigation that challenges the constitutionality of its general practices sipmly by

pointing to minor variations in procedure among branch offices and individual

12

INS agents[.]

13 Id. at 1046. Unlike in Walterswhere the differences in procedures were “minor variations”

14 and included only a handful of agents and one or two branch offices, the differences here are

15 much greater. While Defendants had a general policy of not sending written notice to

16 senders, there were many ways that sendersmay have received actual notice. These methods

17 included talking to receivers, contacting the call center, and through the Arizona Business

18 Gazette. Even where such notice was given, there were likely variations in its content.

19

c. Commerce Clause

20

The Commerce Clause grants Congress thepower “[t]o regulate Commerce . . . among

21 the several States.” U.S. Const. Art. I, §8. To determine whether a state regulation violates

22 the so-called “dorm ant” Commerce Clause, the Suprem e Court has adopted a dual

23 framework. A state law that discriminates against interstate commerce is “virtually per se

24 invalid,” and will survive only if it “advances a legitimate local purpose that cannot be

25 adequately served by reasonable nondiscriminatory alternatives.” Dep’t of Revenue of Ky.

26 v. Davis, 128 S.Ct. 1801, 1808 (2008) (citations omitted). Where a law does not discriminate

27 against interstate commerce but burdens it indirectly, the court employs a balancing test. Id.

28 Under this test, the law “will be upheld unless the burden imposed on [interstate] commerce

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1 is clearly excessive in relation to the putative local be nefits.” Davis, 128 S.Ct. At 1808

2 (quoting Pike v. Bruce Church , 397 U.S. 137, 142 (1970)). The Commerce Clause also

3 limits the power of states to discriminate against foreign commerce. U.S. Const. Art. I, § 8.

4 The dormant foreign Commerce Clause serves to preserve federal uniformity in the arena of

5 foreign commerce. Wardair Canada, Inc. v. Fla. Dep’t of Revenue, 477 U.S. 1, 7-8 (1986).

6 “In international relations and with respect to foreign intercourse and trade the people of the

7 United States act through a single government with unified and adequate national power.”

8 Id. at 8 (citations omitted).

9

In their Second Amended Complaint, Plaintiffs allege that the seizure of their funds

10 by Defendants constitute an unconstitutional interference with interstate or foreign commerce

11 (Doc. 141, Count IV, ¶¶ 54-58). See Edgar v. MITE Corp. , 457 U.S. 624, 642 (1982)

12 (“‘[A]ny attempt ‘directly’ to assert extraterritorial jurisdiction over per sons or property

13 would offend sister States and exceed the inherent lim its of the State’s power’”) (quoting

14 Shaffer v. Heitner, 433 U.S. 186, 197 (1977)).

15

The parties only briefly addressed the commerce clause claim in their briefing and at

16 the evidentiary hearing. Despite the lack of argum ent, Plaintiffs still have the burden of

17 demonstrating that the Rule 23 requirements are satisfied before a class can be certified. See

18 Doninger, 564 F.2d at 1308 (party seeking class certification bears the burden of showing

19 that each element of Rule 23 is satisfied). In their Motion for Class Certification, Plaintiffs

20 assert that a common question exists regarding whether the seizure of Plaintiffs’ funds

21 imposes undue burdens on or interferes with interstate or foreign commerce in violation of

22 the Commerce Clause (Doc. 80, 9:20-22; 11:16-19). Plaintiffs have failed to show that this

23 common question will predom inate over the individual issues previously discussed. The

24 warrants targeted funds sent from many different states and thus, competing state interests

25 may be involved. Additionally, the foreign commerce claim would only apply to the Sonora

26 warrant since none of the other warrants involved funds sent to a foreign country.

27

28

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1

2. Restitution Demand

2

In opposing certification, Defendants argue that the Court will have to assess each

3 senders’ legal interest in the se ized and/or forfeited funds (Doc. 92, 9:6-10). Defendants

4 claim that Plaintiffs could be barred fromrestitution of seized funds, even if that seizure was

5 unconstitutional, if the funds were being sent in furtherance of an illegal activity (Id.at 10).

6 Individualized determinations by the Court of the purpose that each sender’s funds were sent

7 through Western Union would be required before class membership could be ascertained (Id.

8 at 12-15).

9

In their Second Amended Complaint, Plaintiff seeks restitution of the funds seized

10 under the six warrants (Doc. 141, 13:10-11) (Plaintiffs request that the Court “award

11 restitution to plaintiffs and members of plaintiff class for the monies wrongfully seized from

12 them by defendants”). Well-established law holds that a party to an illegal contract cannot

13 have his illegal objects carried out. See e.g., United Bank & Trust Co. v. Joyner, 40 Ariz.

14 229, 236, 11 P.2d 829, 832 (1932) (“[T]he general law is that a party to an illegal contract

15 cannot come into court and ask to have hsiillegal objects carried out”); White v. Mattox, 127

16 Ariz. 181, 184, 619 P.2d 9, 12 (1980) (recovery under a contract will be denied if the acts to

17 be performed by the contract are themselves illegal or against public policy). Courts will not

18 aid those whose cause of action is founded on an illegal act, and thus, the courts will not

19 provide return of funds that a sender believedwas being paid pursuant to an illegal contract.

20 A court may not assist either party to enforce an illegal contract. See e.g., Jamison v. S.

21 States Life Ins. Co. , 3 Ariz. App. 131, 135-36, 412 P.2d 306, 310-11 (Ct. App. 1966)

22 (contract to make mortgage loans in violation of state statute not enforceable); Nat’l Union

23 Indem. Co. v. Bruce Bros., 44 Ariz. 454, 38 P.2d 648 (1934).

24

Although Plaintiffs claim that the seizure of their funds by Defendants violated the

25 Fourth Amendment, such violations may not entitle Plaintiffs to restitution if the monies was

26 sent for illegal purposes. At the evidentiary hearing, there was testim ony regarding

27 admissions by senders that the money was involved in criminal activity. Investigator Dan

28 Kelly of the Arizona Department of Public Safety testified that some senders admitted that

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1 the wire was sent to a coyote to bring a friend or relative into the United States (Tr. PM 9:8-

2 14). Additionally, many callers, while not admitting directly the illegal purpose of their sent

3 funds, told suspicious stories to the law enforcement operating the call center. For example,

4 individuals would send a large wire representing a significant portion of their incom e to

5 someone they didn’t know and didn’t ha ve a way to contact (Tr. 91:17-92:6). Another

6 common pattern was what witness Dan Kelly referred at the evidentiary hearing to as the “car

7 story.” A person in Illinois, for e xample, would wire $2,000 to som eone in Arizona to

8 purchase a car from this person (Tr. 92:8-15). The caller, however, would not be able to

9 provide the phone number of the individual in Arizona, the type of vehicle, or its license

10 plate (Tr. 92:16-25; 93:16-18).

11

Furthermore, logs fromthe call center operated by the Arizona Financial Crimes Task

12 Force contain adm issions from senders that they were wiring m oney to facilitate drug

13 trafficking and illegal hum an smuggling (Doc. 149, 7:1-5; Ex. A). Exam ples of such

14 admissions include: “the sender admitted the money was for payment o[f] a coyote to bring

15 her brother in law from Mexico” (Ex. A, Torres/DPS 053996); “S admitted he sent money

16 to coyote and was told to use coyote nam e” (Torres/DPS 054002); “adm its $ is to pay

17 coyote” (Torres/DPS 054004); “sender says he was asked by coyotes to send money for the

18 transportation of his wife” (Torres/DPS 054022); “sender admitted that the money was sent

19 to smuggle a relative” (Torres/DPS 054054). These and other adm issions like them show

20 that a substantial number of the proposed class members likely sent their money for illegal

21 purposes. In order to decide which class members has a restitution claim, the Court would

22 have to do an individual analysis of the thousands of transactions to ascertain the reasons

23 each was sent.

24

As Plaintiffs have failed to show that any of their claim s satisfy Rule 23(b)(3)’s

25 requirement of predominance, the Court need not reach the question of whether a class action

26 is a superior method of adjudication for the claims.

27

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 28 of 29

1 III. Western Union Decision

2

While the present motion for class certification was pending, the Arizona Supreme

3 Court issued a decision in State of Arizona v. Western Union Financial Service.sW. Union,

4 220 Ariz. at 568, 208 P.3d at 219. In reliance uponthat decision, Plaintiffs requests certain

5 relief from the Court including (1) certification of a subclass based upon the Sonora warrant

6 and an entry of judgment in favor of that subclass and (2) the grant of class certification with

7 respect to the rem aining class members (Doc. 173, 2:4-6). However, the Western Union

8 decision addressed an issue of substantive due process, namely whether the Arizona state

9 courts, consistent with the U.S. Constitution’s substantive due process clause, could exercise

10 in rem jurisdiction over money transfers that originated outside Arizona and were directed

11 to Sonora, Mexico. 220 Ariz. at 569-70, 576, 208 P.3d at 220-21, 227. Plaintiffs’ copmlaint,

12 in contrast, only addressed procedural due process concerns, including Defendants’ alleged

13 failure to provide adequate notice of seizures and prompt and adequate post-seizure hearings

14 (Doc. 141, Compl. Count III (due process claim)). Thus, the Western Uniondecision is not

15 directly applicable to Plaintiffs’ class certification motion.

16

CONCLUSION

17

After a rigorous analysis, the Court is not satisfied that Plaintiffs have set forth

18 sufficient facts in order to certify a class under Rule 23 of the Federal Rules of Civil

19 Procedure. Plaintiffs cannot dem onstrate that com mon questions pre dominate over any

20 questions affecting only individual members because individualized issues exist such as the

21 purpose for which the funds were sent, the por bable cause for each warrant, and the types of

22 notice class members received. As Plaintiffs have not shown that the proposed class is

23 sufficiently cohesive to me et Rule 23(b)(3), the Court denies Plaintiffs’ m otion for class

24 certification.

25

Accordingly,

26

IT IS HEREBY ORDEREDthat Plaintiffs’ Motion forClass Certification (Doc. 79),

27 is DENIED.

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Case 2:06-cv-02482-SMM Document 183 Filed 03/31/10 Page 29 of 29

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 1 WO

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IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Javier Torres, Lia Rivandeneyra,

) No. CV-06-2482-PHX-SMM )

10

Plaintiffs,

) )

11 vs.

) MEMORANDUM OF DECISION

)

AND ORDER

12

Thomas Horne, Attorney General of ) the State of Arizona, in his individual )

13 and official capacities, et al.,

) )

14

Defendants.

) )

15

16

Plaintiffs Javier Torres and Lia Rivadeneyra (collectively “Plaintiffs”) are customers

17 of Western Union Financial Services, Inc. (“Western Union”) whose money transfers were

18 subject to seizure warrants issued by the Maricopa County Superior Court. Plaintiffs allege

19 that their money transfers were seized without probable cause, that due process notice of the

20 seizures was not provided, and that these seizures violated the Commerce Clause. (Doc. 80

21 at 5.) Pending before the Court is Plaintiffs’ Motion for Summary Judgment on the merits

22 of their claims. (Doc. 229.) Also pending is former Attorney General Terry Goddard and

23 Assistant Attorney General Cameron Holmes (collectively “Defendants”) Cross-Motion for

24 Summary Judgment contending that they are entitled to absolute and qualified immunity, as

25 well as sum mary judgment on the m erits of the claims. (Doc. 240.) Because absolute

26 immunity is an issue to be resolved before the merits, see Imbler v. Pachtman, 424 U.S. 409,

27 419 n.13 (1976), the Court will first direct its attention to this issue. After careful

28 consideration of the parties’ a rguments, the Court finds that Defendants are entitled to

1 absolute immunity and, therefore, will grant Defendants’ Cross-Motion for Summary

2 Judgment and deny Plaintiffs’ Motion for Summary Judgment.

3

FACTUAL BACKGROUND

4

The general background of this case has been discussed in litigation occurring in both

5 state and federal court. See W. Union v. Goddard , No. CV 06-2249-PHX-SMM (federal

6 court); State of Arizona v. W. Union Fin. Servs., Inc. , 216 Ariz. 361, 166 P.3d 916 (App.

7 2007); State v. W. Union Fin. Servs., Inc,. 220 Ariz. 567, 208 P.3d 218 (2009) vacating219

8 Ariz. 337, 199 P.3d 592 (App. 2008) (sta te court). In State of Arizona v. W. Union Fin.

9 Servs., Inc., 216 Ariz. 361, 166 P.3d 916 (App. 2007), the Arizona Court of Appeals

10 provided a background summary that is helpful to an understanding of the setting in which

11 this case arose:

12

[Daniel Kelly, a financial crimes investigator with the Arizona Department

of Public Safety] testifies that sm ugglers (referred to as “coyotes”) of

13

undocumented immigrants (“UDIs”) are typically paid for their racketeering

activity after they have successfully transported their human cargo into Arizona.

14

The coyotes are paid by “sponsors” who typically reside in states, referred to as

“corridor states,” to which UDIs are frequently transported when they leave

15

Arizona. In the early years of this decade, the coyote, upon successful transport

of the UDI to Arizona, would contact the UDI’s sponsor and request that the

16

sponsor wire funds to the coyote in Arizona before the UDI was placed in transit

to his destination from Arizona.

17

Despite the use of various strategies by the coyotes’ pick-up agents to avoid

18

detection when collecting wire-transfer payments, law-enforcement officers were

able to identify and locate Western Union agents frequently used by traffickers

19

due primarily to the high volum e of busine ss that began to occur with those

agents. Once identified in this manner, further analysis permitted the identification

20

of patterns associated with wire-transfer activity associated with racketeering and

the identification of pick-up agents.

21

Kelly asserts that due to law enforcement’s success at identifying and seizing

22

wire-transfer transactions se nt to Arizona, traffickers drastically reduced the

number of wire-transfer payments into the state. Instead, illegal traffickers began

23

directing that the payments for their activities be sent to pick-up agents in Sonora

rather than Arizona. Kelly backs up these assertions by presenting his analysis of

24

data voluntarily provided by Western Union that shows all of the wire-transfers

to Sonora for the months of March and April 2005. Based on his analysis, Kelly

25

determined that a disproportionate number of the financial transfers being sent to

Sonora were sent to Western Union agents located in five cities along the Arizona

26

border. These cities include Caborca, Altar, Nogales, Agua Prieta, and San Luis

Rio Colorado. All of these cities are well known to law enforcement as staging

27

areas for smugglers, particularly human smugglers.

28 - 2 -

1 Western Union, 216 Ariz. at 363-64, 166 P.3d at 918-19.

2

Regarding this case, the Court has previously set forth the basic facts. (SeeDocs. 183,

3 216.) In addition, the parties have also stipulated to certain facts. (Doc. 231-8 at 48-71.)

4 Since at least October 2000, law enforcement personnel in Arizona have been assigned to a

5 special Arizona Financial Crimes Task Force (the “Task Force”). (Doc. 231-8 at 49-50.)

6 The Task Force has included Arizona Department of Public Safety personnel, employees of

7 the Arizona Attorney General’s Office and detectives from the City of Phoenix Police

8 Department. (Id.) An objective of the Task Force was to identify and implement strategies

9 to interrupt the flow of narcotics and alien sm uggling proceeds flowing to and through

10 Arizona. (Id.) The Task Force specialized in the investigation of money laundering through

11 commercial money remitters, such as Western Union. (Doc. 250 at 2.)

12

The Task Force members engaged in a progressive investigation over several years that

13 included, among other la w enforcement actions, over 20 seizure warrants authorized by

14 judges of the Maricopa County Superior Court. (Doc. 231-8 at 50.) Some of the seizure

15 warrants authorized seizure for forfeiture of Western Union money transfers. (Id.) During

16 the earliest stages of the Task Force’s fina ncial investigations in 2000, law enforcem ent

17 personnel became aware of a flow of tens of m illions of dollars per m onth in the form of

18 Western Union money transfers paid out in cash at small Phoenix area Western Union agent

19 locations. (Id.) Follow up analysis and investigation confirmed the connection of monies

20 being distributed through Western Union money transfer transactions with illegal activity.

21 (Id.)

22

Investigation and Initiation of In Rem Proceedings

23

Relevant to the time period of this lawsuit, Defendant Goddard was Attorney General

24 of Arizona starting in January 2003. During the time period from 2000 to 2007, Defendant

25 Holmes was an Assistant Attorney General in the Arizona Attorney General’s Office.

26 Holmes supervised the Financial Rem edies Section within the Crim inal Division of the

27 Attorney General’s Office. Holm es’ caseload consisted of civil forfeiture and civil

28 - 3 -

1 racketeering lawsuits. (Doc. 250 at 4.) In connection with the seizure warrants at issue in

2 this case and the subsequent forfeiture proceedings involving the electronic money transfers,

3 Defendant Holmes acted as the “attorney for the state” within the m eaning of A.R.S. §

4 13-4301(1) (2006). (Doc. 237 at 25.)

5

Based upon the investigation of the Task Force, Task Force agents continued to seek

6 seizure warrants. In regard to each seizure warrant, the criteria that would be used to specify

7 which money transfers would be seized was decided on by the Task Force agents. (Doc. 237

8 at 26.) Neither Defendant Holm es nor Defendant Goddard made the decision as to what

9 criteria for seizure would be used in the seizure warrant. (Id). Each application for a seizure

10 warrant was based upon detailed warrant affidavits which described the evidence supporting

11 probable cause for seizure for forfeiture of the targeted money transfer transactions. (Doc.

12 237 at 18.) Task Force agents were responsibleto prepare comprehensive affidavits which

13 were then submitted for review to Defendant Holmes. (Id.) Arizona Department of Public

14 Safety Detectives Tod Kleinman and George Gregor prepared the affidavits in support of the

15 Sweep 18 seizure warrant. (Doc. 109, Ex. 5 & 6.) Kleinm an was the sole affiant on the

16 Sweep 21 seizure warrant affidavit. (Id.)

17

As the attorney for the State in connection with the seizure warrant affidavits submitted

18 by the Task Force agents, Defendant Holmes indicated that he always reviewed the seizure

19 warrant affidavit in order to satisfy him self that the seizure warrant being applied for was

20 supported by probable cause. (Doc. 237 at 25.) Holmes also indicated that he supervised the

21 preparation of the application for seizure warrants and its attachments, i.e., the affidavits in

22 support of the seizure warrant and the proposed seizure warrant itself. (I;dD. oc. 231-8 at 58-

23 71.)

24

After Holmes’ review, the application for seizure warrant and its attachm ents–the

25 supporting warrant affidavits and the proposed seizure warrant–would be taken to court and

26 filed, numbered with a court num ber, and presented to a judge by the law enforcem ent

27 officers who were the affiants on the supporting warrant affidavits. (Doc. 237 at 26.)

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1

After the superior court considered and in this case issued the seizure warrants, Holems

2 “accomplished formal service of the warrants [commanding seizure of Plaintiffs’ funds] on

3 Western Union.” (Id.)

4

Issuance of Seizure Warrants

5

The two warrants at issue in this case were issued by the Maricopa County Supe rior

6 Court and then served by” Defendants onWestern Union on March 15, 2006 (“Sweep 18”),

7 and September 21, 2006 (“Sweep 21”). (Doc. 80, Ex. E & F.) Both of these warrants shared

8 certain characteristics, including requiring the seizure of (1) person-to-person transactions,

9 (2) sent from areas outside Arizona, (3) for delivery in Arizona (or in one warrant, Sonora,

10 Mexico), (4) in any amount at or exceeding athreshold level, (5) during the time period the

11 warrant was in effect.

12

Regarding Sweeps 18 and 21, Defendant Holmes served Western Union with letters,

13 Seizure Warrant no. SW2006-02054, and Seizure Warrant no. (SW2006-002213. (Doc. 231-

14 8 at 57-71.)

15

March 15, 2006 Warrant (SW2006-002054 – Sweep 18): This warrant seized all person-to-person money transfers of $500 or more placed with Western

16

Union in any of the following states: Connecticut, Delawa re, Florida, Georgia, Illinois, Indiana, Maryland, New Jersey, New York, North Carolina, South

17

Carolina, and Virginia. (Doc. 80, Ex. E.) The transfers were intended to be paid in Arizona starting on March 17, 2006. The warrant later was extended through

18

April 14, 2006 (Doc. 80, Ex. E1.)

19

September 21, 2006 Warrant (SW2006-002213 – Sweep 21): This warrant seized all person-to-person money transfers of $500 or more placed with Western

20

Union in any of 29 states: California, Arizona, New York, Florida, Illinois, Georgia, New Jersey, North Carolina, Virginia, Tennessee, Maryland, Texas,

21

Nevada, South Carolina, Ohio, Pennsylvania, Washington, Alabam a, Indiana, Oregon, Colorado, Minnesota, Utah, Connecticut, Michigan, Massachusetts,

22

Wisconsin, Kentucky, and De laware (Doc. 80, Ex. F.) The transfers were intended to be paid at one of 26 locations in Sonora, Mexico. (Id.)

23 These seizure warrants contained criteria for transactions that would be seized that wereemt

24 by Western Union transactions initiated by the two named Plaintiffs, Javier Torres and Lia

25 Rivadeneyra. (Doc. 231-8 at 50.)

26

Seizure of Western Union Money Transfers

27

Western Union’s primary business is person-to-person wire money transfers conducted

28

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1 throughout the United States a nd in over 195 foreign countries. A custom er initiates a

2 transfer by visiting a Western Union location and completing a “send” form. (Doc. 80, Ex.

3 G at 8.) The sender then provides the Western Union agent with the necessary

4 documentation and pays the agent the amount to be transferred along with a service fee. (Id) .

5 The agent then enters the information into Western Union’s computer system which assigns

6 a unique Money Transfer Control Number (“MTCN”) to the transaction. (Id). This MTCN

7 is provided to the sender to give to the intended recipient of the funds. (Id) .The transaction

8 information is stored by Western Union at adata processing center until the funds are called

9 for payment. (Id.) To receive the funds, the intended recipient completes a “receive money”

10 form and presents it, together with the MTCN and proper identification, at a Western Union

11 payout location. (Id. at 10-11.) After confirm ing this inform ation, the agent pays the

12 recipient the amount of money transferred by the sender. (Id.) The sender can cancel the

13 transaction and receive a refund up until the money is paid to the receiver. (Id. at 10.)

14

Plaintiffs Torres and Rivadeneyra initiated the tr ansfers at issue in this case by

15 appearing in person at a Western Union agent location and com pleting the paperwork

16 required by Western Union. (Doc. 231-8 at 53.) This normal payout process, however, was

17 interrupted by Defendants’ service on Western Union of the seizure warrants at issue here.

18 When the warrant was served, Western Union was required to “hold” a ll customers’ wire

19 transfer transactions meeting the warrant criteria and then pay the funds fromthe transactions

20 into a detention account. (Doc. 80, Ex. F at 3, ¶ 4.) Fromthe detention account, the seized

21 funds were next transferred to an account of the Clerk of the Superior Court of the State of

22 Arizona, Maricopa County where the funds were subject to forfeiture. (Id.)

23

During the effective dates of the warrant, the seizing agency, the Arizona Department

24 of Public Safety, provided “on-call representatives” who were available by phone to speak

25 with senders and receivers regarding the seizure of their funds. (Doc. 250 at 18.) The

26 Attorney General’s office had no role in supervising the call center. (Id.at 19.) Defendant

27 Holmes was never present at the call center and did not train, direct or control the call center

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1 representatives. (Id.) After questioning the sender or receiver about the transaction, the

2 representative determined whether to allow the transaction to be completed. (Id. at 18.) If

3 no one called regarding a seized transfer or the person calling failed to show that the seized

4 transfer was for a legal purpose, the seized transfer was forfeited. (Doc. 237 at 26-27.) In

5 each instance, forfeiture was sought as to all ofthe electronic money transfers that had been

6 seized pursuant to the seizure warrant, except for transfers that were released from seizure

7 subsequent to execution of the warrant. (Doc. 237 at 26-27; Doc. 250 at 15.) After notice

8 of pending forfeiture was sent to the intended recipients of the omney, forfeiture proceedings

9 were held. (Doc. 80, Ex. I, Kelly Aff.) In Sweep 21, the State of Arizona never gained

10 possession of the funds Rivadeneyra sent. (Doc. 216 at 5; Doc. 237 at 23-24.)

11

In September 2006, Western Union filed a lawsuit in Maricopa County Superior Court

12 pertaining to the Sonora warrant, and obtai ned a prelim inary injunction that prevented

13 Western Union from having to transfer Sonora warrant funds to the Maricopa County

14 Superior Court Clerk for forfeiture proceedings. Western Union, 220 Ariz. at 569, 208 P.3d

15 at 220. The Arizona Court of Appeals vacated the superior court’s order. Id. Ultimately,

16 the Arizona Supreme Court reversed and remanded to the superior court concluding that the

17 superior court could not exercise in rem jurisdiction over Western Union m oney transfers

18 from senders in other states other than Arizona to recipients in Mexico. Ida. t 576, 208 P.3d

19 at 227. In February 2010, the State of Arizona and Western Union reached a settlem ent,

20 which in part allowed Western Union to release funds seized pursuant to the Sonora warrant.

21 (Doc. 216 at 5.) Under the settlement, Defendant Holmes has stated that senders whose

22 funds were seized were eligible for a refund fromWestern Union. (Doc. 197, Ex. 8 ¶¶ 6-7.)

23

PROCEDURAL BACKGROUND

24

Plaintiffs’ Complaint alleges that (1) Defendants seized money from them in violation

25 of the Fourth Amendment based on warrants that were not properly supported by probable

26 cause; (2) the seizure warrants were overly broad on their face in violation of the Fourth

27 Amendment; (3) Defendants caused the seizure and forfeiture of Plaintiff Torres’s m oney

28 - 7 -

1 without providing him timely and adequate noticeas well as failed to provide a prompt post-

2 seizure hearing to contest the seizures, all in violation of Fourteenth Ame ndment Due

3 Process; and (4) Defendants interfered improperly with interstate and international commerce

4 in violation of the Com merce Clause. (Doc. 1.) Plaintiffs’ Com plaint was subsequently

5 amended twice, but the substantive claims remained the same (Doc. 47, 141).

6

Subsequently, Plaintiffs filed a Motion for Class Certification. (Doc. 79.) Under

7 Federal Rule of Civil Procedure 23, Plaintiffs sought to represent both themselves as well as

8 a class of others senders whose funds were subjected to these seizures during the applicable

9 limitations period. (Doc. 80.) On February 25, 2009, the Court held a hearing to “ take

10 evidence from a limited number of relevant law enforcement officials concerning the facts

11 supporting the belief that seized transactions were involved in criminal activity” and other

12 evidence that related to class certification requirem ents. (Doc. 92 at 17; Docs. 160, 162.)

13 Following the full-day hearing and additional briefing to aid the Court, the Court denied

14 Plaintiffs’ motion for class certification. (Doc. 183.) The Ninth Circuit Court of Appeals

15 denied Plaintiffs’ permission to immediately appeal the Court’s interlocutory ruling. (Doc.

16 184.)

17

Defendants then challenged Plaintiffs’ Article III standing to litigate this matter, which

18 the Court denied. (Doc. 216.) On January 11, 2011, TomHorne was substituted for that of

19 Terry Goddard, in his official capacity as the Attorney General of Arizona. (Doc. 215.) Now

20 pending are Plaintiffs’ m otion for summary judgment and Defendants’ cross-motion for

21 summary judgment. (Docs . 229, 240.)

22

STANDARD OF REVIEW

23

Summary Judgment

24

A court must grant summary judgment if the pleadings and supporting docum ents,

25 viewed in the light most favorable to the nonmoving party, “show that there is no genuine

26 issue as to any material fact and that the moving party is entitled to judgment as a matter of

27 law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986);

28 - 8 -

1 Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law

2 determines which facts are m aterial. See Anderson v. Liberty Lobby , 477 U.S. 242, 248

3 (1986); see also Jesinger, 24 F.3d at 1130. “Only disputes over facts that m ight affect the

4 outcome of the suit under the governing law will properly preclude the entry of sum mary

5 judgment.” Anderson , 477 U.S. at 248. The dispute m ust also be genuine, that is, the

6 evidence must be “such that a reasonable jury could return a verdict for the nonm oving

7 party.” Id.; see Jesinger, 24 F.3d at 1130.

8

A principal purpose of sum mary judgment is “to isolate and dispose of factually

9 unsupported claims.” Celotex , 477 U.S. at 323-24. Sum mary judgment is appropriate

10 against a party who “fails to m ake a show ing sufficient to establis h the existence of an

11 element essential to that party’s case, and on which that party will bear the burden of proof

12 at trial.” Id. at 322; see also Citadel Holding Corp. v. Roven , 26 F.3d 960, 964 (9th Cir.

13 1994). The moving party need not disprove matters on which the opponent has the burden

14 of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment

15 need not produce evidenc e “in a form that would be adm issible at trial in order to avoid

16 summary judgment.” Id. at 324. However, the nonm ovant “may not rest upon the m ere

17 allegations or denials of [the party’s]pleadings, but . . . must set forth specific facts showing

18 that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); seMe atsushita Elec. Indus. Co.,

19 Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint

20 Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).

21

Absolute Immunity

22

“The proponent of a claim to absolute immunity bears the burden of establishing the

23 justification for such im munity.” Antoine v. Byers & Anderson, Inc. , 508 U.S. 429, 432

24 (1993); see also Buckley v. Fitz simmons, 509 U.S. 259, 269 (1993); Ewing v. City of

25 Stockton, 588 F.3d 1218, 1234 (9th Cir. 2009).

26

State officials are absolutely im mune from § 1983 suits if they pe rform “‘special

27 functions’ which, because of their similarity to functions that would have been immune when

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1 Congress enacted § 1983, deserve absolute protection fromdamages liability.” Buckley, 509

2 U.S. at 268–69 (quoting Butz v. Economou, 438 U.S. 478, 508 (1978)). It is the “nature of

3 the function performed, not the identity of the actor who perform ed it,” that determ ines

4 whether an official is cloaked by absolute immunity. Buckley, 509 U.S. at 269.

5

Absolute immunity is accorded to officials of government agencies “performing certain

6 functions analogous to those of a prosecutor” or a judge. Butz , 438 U.S. at 515; se e also

7 Tamas v. Dep’t of Soc. & Health Servs. , 630 F.3d 833, 842 (9th Cir. 2010) (stating that

8 absolute immunity protects state officials when they are performing quasi-prosecutorial and

9 quasi-judicial functions). The protections of absolute immunity reflect the dual concerns that

10 harassment by unfounded litigation would cause a deflection of the governm ent official’s

11 energies from his public duties, and the possibility that he would shade his decisions instead

12 of exercising the independence of judgment required by his public trust. SeeButz, 438 U.S.

13 at 515; Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 923 (9th Cir. 2004). The Supreme

14 Court has described the functions analogous to those of a prosecutor or a judge, as those

15 “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at

16 430; see also Olsen, 363 F.3d at 923.

17

However, state officials are only gra nted qualified immunity, if they are perform ing

18 investigatory or administrative functions, or essentially functioning as a police officer or

19 detective. See Buckley, 509 U.S. at 273. Functions such as evidence gathering and witness

20 interviews are normally performed by a detective or police officer. SeeCousins v. Lockyer,

21 568 F.3d 1063, 1068 (9th Cir. 2009). When determining whether a particular action qualifies

22 for immunity, the court looks at “the nature ofthe function performed, not the identity of the

23 actor who performed it.” Kalina v. Fletcher , 522 U.S. 118, 127 (1997) (further quotation

24 omitted). “[I]mmunity is justified . . . by the functions it protects and serves, not by the

25 person to whom it attaches.” Forrester v. White, 484 U.S. 219, 227 (1988).

26 ///

27 ///

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1

DISCUSSION

2

Absolute Immunity–Holmes

3

Defendants contend that Holmes’ conduct in this case was intimately associated with

4 the judicial phase and therefore he is entitle d to absolute im munity. (Doc. 240 at 11.)

5 Specifically, Defendants point to Holm es’ conduct with re gard to his pursuit of seizure

6 warrants in an in rem proceeding and subsequent forfeiture proceedings. (Id.) Because it is

7 the conduct of the state official that determines whether he is entitled to absolute immunity,

8 the Court will review both the conduct of the Defendants and the legal context in which that

9 conduct arose.

10

It is a longstanding rule that seizure of the property, theres, is a necessary first step for

11 a trial court to havein rem jurisdiction in a forfeiture action. SeeState v. One Single Family

12 Residence at 1810 East Second Avenue, Flagstaff, Arizona, 193 Ariz. 1, 969 P.2d 166 (App.

13 1997); see also Rebublic Nat’l Ba nk of Miami v. United States , 506 U.S. 80, 84 (1992)

14 (reiterating the general rule that seizure is a prerequisite to the court’s jurisdiction in an in

15 rem civil forfeiture proceeding). Unless the state takes the first affirmative step of seizing

16 the res, it has not acquired in rem jurisdiction over the property. Residence at 1810 East

17 Second Avenue, Flagstaff, Arizona , 193 Ariz. at 3, 4, 969 P.2d at 168, 169 (“To hold

18 otherwise would lead to the absurd result that the superior court currently has jurisdiction

19 over all property in the state and that the state need only file a forfeiture complaint to seize

20 and forfeit the property.”) Absent jurisdictoi n over the property, any judgment issued by the

21 court is void. Id. at 8, 969 P.2d at 173 (vacating the judgment against the residence for lack

22 of jurisdiction).

23

In this case, based upon a showing the Maricopa County Superior Court believed

24 established probable cause that the prope rty was subject to forfeiture, the issuance of a

25 seizure warrant was the m echanism utilized by the court to authorize the seizure of

26 designated property. SeeA.R.S §§ 13-4304 (discussing property that is subject to forfeiture);

27 13-4305(A)(1) & 13-4310(A) (seizure for forfeiture pursuant to wa rrant authorized).

28 - 11 -

1 Pursuant to the warrants, the superior court acquiredin rem jurisdiction over the property at

2 the time of seizure, which gave it the power to adjudicate the disposition of the property,

3 including the issue of whether the property would be forfeited. SeeResidence at 1810 East

4 Second Avenue, Flagstaff, Arizona, 193 Ariz. at 3, 969 P.2d at 168; (Doc. 237 at 25).

5

In connection with the seizure warrants and the subsequent forfeiture proceedings

6 involving the electronic money transfers, Defendant Homes acted as attorney for the state

7 pursuant to A.R.S. § 13-4301(1) (2006). (SeeDoc. 231-8 at 58-71.) As the attorney for the

8 state in connection with the seizure warrants, Defendant Holm es indicated that he always

9 reviewed the seizure warrant affidavit in order to satisfy him self that the seizure warrant

10 being applied for by the law enforcement officers was supported by probable cause. (Doc.

11 237 at 25.) Holmes also indicated that he supervised the preparation of the application for

12 seizure warrant and its attachments, i.e., the affidavits in support of the seizure warrant and

13 the proposed seizure warrant itself. (Id.)

14

After Holmes’ review, the application for seizure warrant and its attachm ents, the

15 supporting warrant affidavits and the proposed seizure warrant, were taken to court and filed,

16 numbered with a court number, and presented toa judge by the law enforcement officers who

17 were the affiants on the supporting warrant affidavits. (Doc. 237 at 26.)

18

After the superior court considered and, in this case issued the seizure warrants, Hoelms

19 “accomplished formal service of the warrants [commanding seizure of Plaintiffs’ funds] on

20 Western Union.” (Id.; Doc. 231-8 at 57-71.)

21

As attorney for the state, Defendant Holm es handled the forfeiture proceedings

22 involving the funds derived from the electronic m oney transfers seized pursuant to the

23 seizure warrants in Sweeps 18 and 21. (Doc . 237 at 26-27). Defendant Holme s sought

24 forfeiture as to all of the electronic money transfers seized pursuant to the seizure warrants,

25 except for transfers that had been released from seizure subsequent to execution of the

26 warrant, pursuant to A.R.S. § 13-4306(A) (2006). (Doc. 237 at 26-27).

27

As attorney for the state, Defendant Holm es’ made the decision to whom the State

28 - 12 -

1 would send notice of pending forfeiture in connection with the se ized electronic money

2 transfers. (Doc. 237 at 27.) In regard to most of the money transfers seized pursuant to the

3 Task Force’s seizure warrants, including those seized in Sweeps 18 and 21, Holmes decided

4 that the S tate would provide notice of pending forfeiture to the persons who were the

5 intended recipients of the money transfer transactions. (Id.)

6

In general, government attorneys are absolutely immune from liability under 42 U.S.C.

7 § 1983 for acts involving or related to litigation. Fry v. Melaragno, 939 F.2d 832, 837 (9th

8 Cir. 1991). In Butz v. Economou, 438 U.S. 478, 515 (1978), the Supreme Court held that

9 immunity from § 1983 damage suits should be provided not only to prosecutors, but also to

10 government attorneys involved in civil adm inistrative proceedings. The Court found that

11 government attorneys were entitled to absolute im munity both for the decision to initiate

12 administrative enforcement proceedings and for their activities in litigating enforcem ent

13 actions. (Id., “The discretion which executive officials exercise with respect to the initiation

14 of administrative proceedings might be distorted if their im munity from damages arising

15 from that decision was less than com plete.”). The Butz Court went on to note that absent

16 immunity there would be a serious danger that the decision to authorize proceedings ma y

17 provoke a retaliatory response, wherein a targeted individual m ay react angrily and seek

18 vengeance in the courts. Id.1

19

In Schrob v. Catterson, 948 F.2d 1402 (3d Cir. 1991), the Third Circuit considered the

20 issue facing this Court, namely whether an attorney is entitled to absolute immunity when

21 he initiates an in rem seizure proceeding pursuant to a seizure warrant. An Assistant United

22 States Attorney (“AUSA”) initiated anin rem seizure and forfeiture action against corporate

23 stock and property of the plaintiff’s busine ss. Upon the filing of a § 1983 suit, the AUSA

24 1Correspondingly, the Ninth Circuit Court of Appeals has repeatedly held that
25 government attorneys who initiate or handle civil litigation are generally im mune from

26

liability for damages claims arising from their activities. See, e.g., Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001); Fry v. Melaragno , 939 F.2d 832, 836-37 (9th Cir.

27 1991); Demery v. Kupperman, 735 F.2d 1139, 1143-44 (9th Cir. 1984); Flood v. Harringto,n

28 532 F.2d 1248, 1250-51 (9th Cir. 1976).

- 13 -

1 asserted absolute immunity. In response, the plaintiff argued that the seizure of the business

2 property for forfeiture was an “investigative” act similar to the execution of a search warrant,

3 and therefore was not the sort of litigation-related activity entitled to absolute immunity. The

4 Third Circuit concluded that the AUSA’s actions were covered by absolute immunity, and

5 dismissed the lawsuit. Id.at 1422. The court discussed immunity in the context of thein rem

6 proceeding, as follows:

7

. . . The property sought under the seizure warrant is considered tainted upon the commission of the wrongful act a nd the government’s interest in the property

8

vests at the tim e of the act. See 21 U.S.C.A. § 881(h). The prosecutor is not gathering evidence under a seizure warrant, but has already decided to bring

9

an action for forfeiture against the guilty property. Thus, a seizur e warrant is a necessary first step in the statutory forfeiture process. The in rem complaint and

10

the seizure warrant are intim ately connected – one follows the other and effectuates it.

11 948 F.2d at 1416 (emphasis added).

12

In support of its holding that the government official was entitled to absolute immunity,

13 the Schrob court also discussed the similarity between anin rem seizure warrant and an arrest

14 warrant. Id. The seizure warrant “arrests” the property that is the subject of the forfeiture

15 action. Id. Similarly, the prosecutor’s act of seeking a warrant for the arrest of a defendant

16 against whom he had filed charges is part ofhis initiation of the prosecution protected under

17 Imbler, 424 U.S. at 431. Accord Waggy v. Spokane Cnty. Wash., 594 F.3d 707, 712 (9th

18 Cir. 2010) (finding absolute immunity for prosecutor seeking bench warrant for arrest). In

19 the same way that the arrest warrant ensures that the defendant is available for trial, and if

20 found guilty for punishment, the seizure warrant is necessary to assure the availability of

21 property subject to forfeiture and the warrant effectuates the arrest of the property. Schrob,

22 948 F.2d at 1416.

23

To the same effect is Ehrlich v. Giuliani, 910 F.2d 1220, 1222 (4th Cir. 1990) (granting

24 absolute immunity, after analogizing the seizure of property to a prosecutor’s act of seeking

25 an arrest warrant). The Ehrlich court found that pursuing a seizure warrant was m ore than

26 investigative activity: “One of the most important duties of a prosecutor pursuing a criminal

27 proceeding is to ensure that defendants, or in this case the assets, are present at trial.” Id.at

28

- 14 -

1 1223; Cf. United States v. $8,850 in U.S. Currency, 461 U.S. 555, 564 (1983) (stating that

2 like an arrest warrant, a seizur e warrant is necessary to assure the availability of property

3 subject to forfeiture and the warrant effectuates the arrest of the property).

4

In addition to finding that Defendant Holmes’ seeking the seizure warrant was not mere

5 investigative activity, the Court further finds that the Butzrationale is also applicable to the

6 absolute immunity question at issue here. The Butz Court noted that absent absolute

7 immunity there would be a serious danger thatthe government official’s decision to authorize

8 proceedings may provoke a retaliatory response, wherein a targeted individual m ay react

9 angrily and seek vengeance in the courts. 438 U.S. at 515. Given the potential for such a

10 retaliatory response, the Supreme Court also noted that this may effect the manner in which

11 the public official carries out his duties and the independent judgment that must be exercised

12 as required by the public trust. Id. Consequently, the Court concluded that provision of

13 absolute immunity was necessary. Id. at 516.

14

The Court agrees with this reasoning and rationale. Under the facts of this ca se, the

15 initiation of an action against property pursuant to a seizure warrant may very well provoke

16 a retaliatory response absent absolute immunity. Therefore, the Court finds that Defendant

17 Holmes has carried his burden of establishing his justification to absolute immunity. See Id.

18

Plaintiffs’ Objections

19

Plaintiffs contend that Defendant Holmes is not entitled to absolute immunity because

20 (1) Holmes’ conduct–reviewing charging documents before filing themwith the applicable

21 court–is commonly performed by police officers; (2) Holmes’ filing of the seizure warrant

22 preceded the filing of a charging document, the complaint for forfeiture; and (3) it was far

23 from apparent that Defendant Holm es would file a forfeiture com plaint when he filed the

24 seizure warrant. (Doc. 253.)

25

Reviewing Charging Documents

26

Plaintiffs argue that Defendant Holmes is not entitled to absolute immunity because his

27 review of charging docum ents and application to the court for the seizure warrant is an

28 - 15 -

1 investigative function that can be performed by police officers. (Doc. 253 at 8-10.)

2

It is true that while “the distinction between the roles of ‘prosecutor’ and ‘investigator’

3 [or administrator] is not always clear,” investigatory acts are norm ally done by police

4 officials. Waggy, 594 F.3d at 711; Genzler v. Longanba ch, 410 F.3d 630, 638 (9th Cir.

5 2005). Functions involving evidence gathering and witness interviews are functions that are

6 normally performed by a detective or police officer. See Cousins, 568 F.3d at 1068.

7

However, Holmes’ initiation of an in rem proceeding by the preparation and filing of

8 a seizure warrant is not m ere investigative activity in this case. In com paring Holmes’

9 functions to the functions of a prosecutor, th e dividing line that separates “investigative”

10 activities from “judicial phase” activities ha s been identified as the point at which a

11 prosecution is actually initiated, either by means of a grand jury indictment or the filing of

12 charges by the prosecutor. See Schrob, 948 F.2d at 1410-11. Therefore, a prosecutor’s

13 actions in preparing and filni g charging documents–including arrest warrants–are recognized

14 as activities protected by absolute immunity. See Kalina, 522 U.S. at 129; see also Cooper

15 v. Parrish, 203 F.3d 937, 948 (6th Cir. 2000).

16

Furthermore, Arizona’s statutes clearly provide that com mencement of forfeiture

17 proceedings is accom plished through the attorney for the state, which “m eans a lawyer

18 designated by the Attorney General, by a county attorney or by a city attorney to prosecute

19 forfeiture actions. See A.R.S. § 13-4301(1) (2006). Section 13-4308, entitled

20 “Commencement of proceedings,” provides in subsection A, in pertinent part that:

21

The attorney for the state shall determine whether it is probable that the property is subject to forfeiture and, if so, m ay cause the initiation of unconte sted or

22

judicial proceedings against the property.

23 A.R.S. § 13-4308(A) (2006). Moreover, § 13-4310(A), directly addresses the issuance of

24 seizure warrants, and provides in relevant part that:

25

In any proceeding pursuant to this chapter, the court, on application of the state, may enter any restraining order or injunction, . . . or take any other action to seize,

26

secure, maintain or preserve the availability of property subject to forfeiture under this title, including a warrant for its seizure, whether prior or subsequent to the

27

filing of a notice of pending forfeiture, complaint, indictment or information.

28 - 16 -

1 A.R.S. §§ 13-4310(A) (2006). Thus, these statutory provisions establish that a seizure

2 warrant can only be issued in the context of a judicial proceeding for forfeiture. Such

3 proceedings are be commenced by the attorney for the state, and a seizure warrant can only

4 be issued “on application of the state.” Plaintiffs’ assertion that “a seizure warrant for

5 forfeiture must be obtained by a peace officer” is in error. (SeeDoc. 253 at 9.) The role of

6 a police officer regarding seizure warrants for in rem proceedings is to provide factual

7 information by affidavit, not to apply to the court for its issuance.

8

Seizure Warrant is not a Charging Document

9

Next, Plaintiffs argue that Holmes’ filing of the seizure warrant was more like a search

10 warrant and thus investigative activity because it preceded the filing of a charging docuemnt,

11 which was the complaint for forfeiture. (Doc. 253 at 6-8.)

12

The Court has already discussed and rejected this argum ent when it reviewed the

13 requirements in Arizona for bringing anin rem civil forfeiture action. In Residence at 1810

14 East Second Avenue, Flagstaff, Arizona, 193 Ariz. at 3, 4, 969 P.2d at 168, 169, the court

15 made it abundantly clear that seizure of the property, theres, is a necessary first step for the

16 trial court to obtain in rem jurisdiction over the property in a forfeiture action. Arizona’s

17 forfeiture statutes permit property to be “charged” and “seized” pursuant to judicial process

18 before the forfeiture suit is begun with the filing of notice of pending forfeiture. SeeA.R.S.

19 § 13-4310(A). The Court has found that Holmes’ filing a seizure warrant is “prosecutorial”

20 not “investigative” activity because it is a necessary part of initiating thien rem proceedings.

21 Schrob, 948 F.2d at 1416. In the same way that an arrest warrant ensures that the defendant

22 is available for trial, and if found guilty for punishment, the seizure warrant is necessary to

23 ensure the availability of property subject to forfeiture and the warrant effectuates the arrest

24 of the property. Id. Therefore, Holm es’ filing of the seizure warrant is “intim ately

25 associated with the judicial phase” of a forfeiture action.

26

Timing of the Forfeiture Complaint

27

Contingent upon Plaintiffs’ previous argument that the filing of a seizure warrant is not

28 - 17 -

1 a charging document, Plaintiffs’ argue that it was never clear that Defendant Holmes would

2 file a forfeiture complaint. As Plaintiffs’ argument goes, since the forfeiture complaint is the

3 document that initiates in rem proceedings, if Defendant Holm es did not file a forfeiture

4 complaint, then in rem proceedings were never com menced and Holmes is not entitled to

5 absolute immunity.

6

As previously discussed, the Court has already rejected these argum ents. Because a

7 seizure warrant com mences in rem proceedings, the actual tim ing of the filing of the

8 subsequent forfeiture complaint is not relevant to whether in rem proceedings have been

9 commenced. This Court has already found Defendant Holmes’ presentation and execution

10 of a seizure warrant is “charging” activity, which entitles him to absolute immunity.

11

Moreover, Arizona’s forfeiture statutes perm it property to be “charged” and seized

12 pursuant to judicial process before the forfeitu re suit is begun with the filing of notice of

13 pending forfeiture. Arizona statutes allow seizure of property pursuant to a seizure warrant

14 either before or after the filing of notice of pending forfeiture. See A.R.S. § 13-4310(A)

15 (2006). If seizure for forfeiture takes place befo re notice of pending forfeiture is filed, the

16 state is required to proceed with filing the notice of pending forfeiture within sixty days after

17 seizure. If a notice of pending forfeiture is not filed within that tiemperiod, the property must

18 be returned to the owner or interest holder. See A.R.S. § 13-4308(B) (2006).

19

Absolute Immunity–Goddard

20

Defendant Terry Goddard was Attorney General of Arizona during the tim e period

21 relevant to this lawsuit. (Doc. 240 at 3.) Defendant Goddard began his tenure as Attorney

22 General in 2003, and served until 2011. Defendant Goddard was the overall supervisor of

23 Attorney General’s office, employing approximately four hundred attorneys. (Doc. 237 at

24 27.) Defendant Goddard was generally involved in the m anagement of the Offic e, in the

25 strategic and tactical disposition of the Office’s personnel, and in the public presentation of

26 issues involving the Office in dealings with other government agencies. (Id.) Defendant

27 Goddard was kept generally inform ed about the activities of the atto rneys working in the

28 - 18 -

1 Office through monthly meetings with department heads, periodic m eetings with section

2 leaders, and briefings through his principal deputies. (Id.)

3

Defendant Goddard testified that he understood in a very general sense what the

4 Financial Remedies Section of the Attorney General’s Office was doing in connection with

5 seizures of money transfers within the Western Union money transfer system. (Id. at 28.)

6 His knowledge of those activities was derived frombriefings. (Id.) Goddard had no actual

7 connection with the seizure warrants that were served on Western Union. (Id.)

8

Plaintiffs contend that Defendant Goddard is not entitled to absolute immunity for either

9 his failure to discontinue the program of mass seizure warrants or his refusal to return their

10 money. (Doc. 253 at 12.) In April 2006, Fred Niehaus, Western Union’s Senior Vice

11 President of Public Affairs specifically complained to Goddard that the seizure warrants were

12 damaging Western Union’s business, that they were broad based and not focused, and did

13 not distinguish between individuals. (Doc. 231 a1t0.) In addition, Plaintiffs have challenged

14 Goddard’s immunity regarding his refusal to return their m oney, contending that he is not

15 entitled to immunity for acts related to the retention of seized property. (Doc. 253 at 12.)

16

Citing Van de Kam p v. Goldstein , 555 U.S. 335 (2009), Defendants contend that

17 Goddard cannot be held liable for any alleged supervisory failings rela ted to activities by

18 subordinates which are themselves covered by absolute immunity.

19

In Van de Kamp, the Supreme Court held that a supervisory prosecutor is a bsolutely

20 immune for failing to adequately train and supervise district attorneys on the duty not to

21 withhold impeachment evidence and failing to create any systemfor accessing information

22 pertaining to the benefits provided to jailhouse inform ants. See id. at 344–45. The Court

23 considered a prosecutor’s methods of supervision of their prosecutors and concluded absolute

24 immunity applied to thoseadministrative tasks that “require legal knowledge and theexercise

25 of discretion.” Id.at 344. Prosecutors that are involved in training and supervisory activities

26 are entitled to absolute im munity because these activities are directly connected with the

27 conduct of the trial. Id. at 346.

28 - 19 -

1

Here, the conduct Plaintiffs challenge, whether Defendant Goddard should have

2 discontinued or stopped the use of seizure warrants or his refusal to return money seized by

3 those warrants, both have to do with the in rem proceedings initiated by Arizona Attorney

4 General’s office. As such, Defendant Goddard’s decision not to act is covered by absolute

5 immunity because the activities at issue are directly connected with the conduct of the civil

6 in rem proceedings. See id. at 346.

7

Official Capacity–Attorney General Horne

8

Although Plaintiffs have alleged that the current Attorney General, Tom Horne, is a

9 party in his official capacity as the head of the Attorney General’s Office (see Doc. 141 at

10 3), they have not further alleged or argued how the Attorney General’s office violated their

11 constitutional rights. In their response to Plaintiffs’ m otion for sum mary judgment,

12 Defendants considered this claim abandoned and did not respond. (Doc. 236 at 2.)

13

In § 1983 litigation, a local governmental unit may not be held responsible for the acts

14 of its employees under arespondeat superior theory of liability. SeeBd. of County Comm’rs

15 v. Brown, 520 U.S. 397, 403 (1997) . Any alleged constitutional deprivation m ust be the

16 product of a policy or customof the local governmental unit because municipal liability must

17 rest on the actions of the municipality, not the actions of the employees of the municipality.

18 See id. The Suprem e Court has em phasized that “[w]here a plaintiff claim s that the

19 municipality . . . has caused an employee to [violate plaintiff’s constitutional rights,]rigorous

20 standards of culpability and causation must be applied to ensure that the municipality is not

21 held liable solely for the actions of its employee.” Id. at 405.

22

In their motion for summary judgment, Plaintiffs have not attem pted to meet these

23 rigorous standards of culpability and causation that must be established. (Docs. 229, 230,

24 248 at 12-13.) Therefore, Plaintiffs’ official capacity allegation against Attorney General

25 Tom Horne must also be denied.

26

CONCLUSION

27

Accordingly, for the reasons set forth above,

28 - 20 -

1

IT IS HEREBY ORDERED GRANTING Defendants’ Cross-Motion for Summary

2 Judgment. (Doc. 240.) The Clerk of Court shall enter judgment accordingly.

3

IT IS FURTHER ORDERED DENYINGPlaintiffs Motion for Summary Judgment.

4 (Doc. 229.)

5

DATED this 4th day of September, 2012.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 21 -

 
 Torres v. Goddard
United States District Court for the District of Arizona January 10, 2007, Decided
No. CIV 06-2482-PHX-SMM

Reporter: 2007 U.S. Dist. LEXIS 2341 Javier Torres, et al., Plaintiffs, v. Terry Goddard, Attorney General of Arizona, et al., Defendants.
Subsequent History: Motion to strike granted by, Motion to strike denied by Torres v. Goddard, 2007 U.S. Dist. LEXIS 92327 (D. Ariz., Dec. 3, 2007) Related proceeding at State v. Western Union Fin. Servs., 219 Ariz. 337, 199 P.3d 592, 2008 Ariz. App. LEXIS 103 (Ariz. Ct. App., 2008)
Counsel: [*1] For Javier Torres, Alma Santiago, Lia Rivadeneyra, on behalf of themselves and others similarly situated, Plaintiffs: Alex R Montgomery, Mary M Rowland, Matthew J Piers, Patrick M OBrien, LEAD ATTORNEYS, Hughes Socol Piers Resnick & Dym Ltd, Chicago, IL; JeanJacques Cabou, Timothy Joel Eckstein, LEAD ATTORNEYS, Osborn Maledon PA, Phoenix, AZ.
For Terry Goddard, Attorney General of the State of Arizona, in his individual and official capacities, Cameron Holmes, in his individual capacity, Defendants: Michael King Goodwin, William August Richards, LEAD ATTORNEYS, Office of the Attorney General, Phoenix, AZ; Michael H Hinson, Office of the Attorney General, Tucson, Az.
Judges: Stephen M. McNamee, United States District Judge.
Opinion by: Stephen M. McNamee

filed a reply on December 15, 2006. (Dkt. 30). After considering the arguments raised by the parties in their briefs, the Court issues the following Order. 1
BACKGROUND
Plaintiffs's filed a four-count Complaint on October 18, 2006. (Dkt. 1). On November 20, 2006, Defendants moved to dismiss the portions of Plaintiffs's Complaint asserting claims for monetary relief pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 24). Because Defendants's Motion to Dismiss only addressed the portions of Plaintiffs's Complaint asserting claims for monetary relief, Defendants filed the instant motion requesting the Court to grant them an open extension of time to answer those portions [*3] of the Complaint not addressed in the Motion to Dismiss.
DISCUSSION
The issue pending before the Court is whether filing a Rule 12(b)(6) Motion to Dismiss which addresses only some of the claims in the Complaint suspends the time for responding to the remaining claims as well. Under the rules, a defendant must file an answer within 20 days of being served with the Complaint. Fed. R. Civ. P. 12(a)(1)(A). However, when a motion is made on any of the grounds enumerated in Rule 12(b), the responsive pleading is due within 10 days after notice of the court's action. Fed. R. Civ. P. 12(a)(4).

Opinion
ORDER
Pending before the Court is a "Motion for Open Extension of Time to Respond to Allegations of Plaintiffs' Complaint Not Addressed by Defendants' Rule 12(b)(6) Motion to Dismiss" (Dkt. 25) filed defendants Terry Goddard, the Attorney General of the State of Arizona, and Cameron Holmes, an Assistant Attorney General. Plaintiffs's filed a Response in opposition to Defendants's motion on December 5, 2006. (Dkt. 27). In turn, [*2] Defendants's

Based on the language of Rule 12(a) of the Federal Rules of Civil Procedure, it is unclear whether service of a Rule 12(b) motion directed at only parts of a pleading enlarges the time for answering the remaining portions of the pleading. Of the courts that have ruled on this issue, "the weight of the limited authority on this point is to the effect that the filing of a motion that only addresses part of a complaint suspends the time to respond to the entire complaint, not [*4] just to the claims that are the subject of the motion." 2See e.g. Finnegan v. University of Rochester Medical Center, 180 F.R.D. 247 (W.D.N.Y., 1998); Brocksopp Engineering, Inc. v. BachSimpson, Ltd.,

1 The parties have had the opportunity to submit briefs in support of their respective positions and the Court would not find oral argument helpful in resolving this matter. Accordingly, the Court finds the pending motion suitable for decision without oral argument.
2 Charles Alan Wright & Arthur R. Miller, 5B Fed. Prac. & Proc. Civ. 3d § 1346 (West 2006).

2007 U.S. Dist. LEXIS 2341, *4

Page 2 of 2

136 F.R.D. 485 ( E.D. Wis. 1991); Godlewski v. Affiliated approach is more efficient because it eliminates confusion

Computer Services, Inc., 210 F.R.D. 571 (E.D. Va. 2002). over the proper scope of discovery.

The rationale underlying the majority view is that the

minority approach requires duplicative sets of pleadings in the CONCLUSION

event that the Rule 12(b) motion is denied and causes confusion over the proper scope of discovery while the Accordingly,

motion is pending. Godlewski, 210 F.R.D. at 572. On the other hand, the minority approach prevents a party from using a partial Rule 12(b) motion to delay adjudication of the remaining portion of the action. Id.

IT IS ORDERED that Defendants's Motion for Open Extension of Time to Respond to Allegations of Plaintiffs' Complaint Not Addressed by Defendants' Rule 12(b)(6) Motion to Dismiss (Dkt. 25) is GRANTED.

This Court prefers the majority view, which extends the defendant's time to file a responsive pleading [*5] until 10 days after notice of the court's ruling even where the 12(b) motion challenges only some of the claims in the Complaint. The Court recognizes that there is a possibility that partial Rule 12(b) motions will be used as a dilatory tactic under the majority view; nonetheless, the Court finds that refusing to extend time for unchallenged portions of a Complaint adds superfluous wrinkles to a lawsuit in its infancy. In this Court's view, the majority

IT IS FURTHER ORDERED that Defendants shall file an answer to the entire Complaint with 10 days after notice of the Court's ruling on Defendants's Rule 12(b)(6) Motion to Dismiss Plaintiffs' Claims for Monetary Relief. (Dkt. 24).
DATED this 10<th> day of January, 2007.
[*6] Stephen M. McNamee
United States District Judge

 
 Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 1 of 15

1 Timothy J. Eckstein, BarNo. 018321

Jean-Jacques Cabou, Bar No. 022835

2 OSBORN MALEDON, P .A.

2929 North Central Avenue, Suite 2100

3 Phoenix, Arizona 85012-2793

Telephone: (602) 640-9316

4 Facsimile: (602) 664-2069

E-mail:

teckstein@omlaw.com

5

jcabou@omlaw.com

6 Matthew J. Piers

Joshua Karsh

7 Mary M. Rowland

Karyn L. Bass Ehler

8 HUGHES SOCOL PIERS RESNICK & DYM, LTD.

70 West Madison, Suite 4000

9 Chicago, Illinois 60602

Teleplione: (312) 580-0100

10 Facsrmile: (312) 580-1994

E-mail:

m iers hs le aLcorn

11

J:Karsh hs le aLcorn

mrowland hs le aLcorn

12

kbassehler hs le aLcorn

13
Attorneys for JAVIER TORRES 14 and LIA RIVADENEYRA

15

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

16

17 JAVIER TORRES and LIA RIVADENEYRA on behalf of themselves and others
18 similarly situated,

19

Plaintiffs,

20

v.

21 TERRY GODDARD, Attorney General ofthe
22 State of Arizona, in his individual and official capacities; and CAMERON ("KIP") HOLMES,
23 inbis individual capacity,

No. CV 06-02482-PHX-SMM SECOND AMENDED COMPLAINT
(Jury Trial Demanded)

24

Defendant.

25

26

Plaintiffs JAVIER TORRES and LIA RIVADENEYRA, on behalf of themselves

27 and others similarly situated, complain against defendant TERRY GODDARD and

28 CAMERON ("KIP") HOLMES as follows:

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 2 of 15

1

Nature of the Action

2

1. This is a legal action brought pursuant to 42 U.S.C. §§ 1983 and 1988 to

3 redress and prevent the continuation of violations of the civil and constitutional rights of

4 the plaintiffs arising from unconstitutional seizures of millions of dollars in money

5 transfers. In the two years prior to the filing of this lawsuit, defendants have illegally

6 seized more than $9 million in interstate and international money transfers, which were

7 intended to be sent via Western Union Financial Services, Inc. ("Western Union") money

8 transfers, from the plaintiffs and literally thousands of other persons throughout the

9 United States and elsewhere. Defendants have seized this money without particularized

10 information regarding the persons or transactions involved, and on the basis of the

11 following blanket criteria: (1) the amounts sought to be transmitted were in or exceeding

12 certain dollar amounts (such as in the amount of$1,000, or in or exceeding the amount of

13 $500); (2) the transactions were initiated by persons outside of Arizona (ranging from

14 anywhere in the world to large numbers of other states throughout the United States); (3)

15 the monies were intended to be received by persons in Arizona or northern Sonora,

16 Mexico, and (4) the transactions were initiated during certain time periods (ranging from

17 two weeks to over a month). These seizures are referred to herein as "blanket criteria-

18 based seizures." Defendants engaged in these seizures by means of blanket warrants

19 (referred to herein as "blanket criteria-based warrants") and without any particularized

20 probable cause to believe that the monies seized were the fruits or instrumentalities of

21 crime or otherwise subject to forfeiture. They also did so without providing adequate

22 notice and an opportunity to be heard to the senders of the money, in improper

23 interference with interstate and international commerce, and without lawful jurisdiction

24 under Arizona law over either the property seized or its owners. Defendants by these

25 actions have violated, and continue to violate, the Fourth and Fourteenth Amendments to

26 and the Commerce Clause of the United States Constitution.

27

28

2

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 3 of 15

1

Jurisdiction and Venue

2

2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).

3

3. Pursuant to 28 U.S.C. § 1391(b), the District of Arizona is the proper venue

4 for this action because a substantial part of the events giving rise to plaintiffs' claims

5 occurred in this judicial district and, on information and belief, defendants reside in this

6 district.

7

Parties

8

4. Plaintiff Javier Torres is, and at all times pertinent hereto has been, a

9 resident of Illinois.

10

5. Plaintiff Lia Rivadeneyra is, and at all times pertinent hereto has been, a

11 resident of California.

12

6. Defendant Terry Goddard ("Goddard") is, and at all times pertinent hereto

13 has been, the Attorney General of the State of Arizona. He is sued in his individual and

14 official capacities.

15

7. Defendant Cameron ("Kip") Holmes is, and at all times pertinent hereto has

16 been, the Section Chief of, or (since February 11, 2008) a Senior Litigator in, the

17 Financial Remedies Section of the Criminal Division of the Arizona Attorney General's

18 Office. He is sued in his individual capacity.

19

8. The defendants engaged in the conduct complained of both personally and

20 through agents or representatives working with and/or acting pursuant to the defendants'

21 direction and authority.

22

Statement of Facts

23

9. Since September 2004, defendants have prepared and had issued by the

24 Superior Court of the State of Arizona, Maricopa County, a series of blanket criteria-

25 based warrants. These warrants were then served by the defendants on Western Union in

26 order to seize thousands of money transfers intended to be sent to Arizona or Sonora

27 Mexico, totaling over nine million dollars. These blanket criteria-based warrants do not

28 describe or identify either the individual senders or the intended receivers of the funds,

3

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 4 of 15

1

2 nor do they describe with particularity the property to be seized, instead basing the

3 seizures on broad, blanket criteria, as described in more detail in the following

4 paragraphs.

5

10. On or about October 12, 2004, defendants served and executed a

6 modification of a pre-existing warrant, converting it into a blanket criteria based warrant,

7 and seizing $1000 person-to-person money transfers placed with Western Union

8 anywhere outside of Arizona and intended to be paid anywhere in Arizona between

9 October 20, 2004 and November 2, 2004.

10

11. On or about March 10, 2005, defendants served and executed a blanket

11 criteria-based warrant, seizing all $2,000 person-to-person money transfers placed with

12 Western Union anywhere in the United States outside of Arizona to be paid anywhere in

13 Arizona beginning on March 11, 2005. The blanket criteria of this warrant were

14 thereafter, at defendants' request, modified to also include seizures of funds in the

15 amounts of$1,000 or $1,500, and its term was extended through April22, 2005.

16 Approximately 3,582 transfers totaling over $4.6 million were seized without release.

17

12. On or about September 1, 2005, defendants served and executed a blanket

18 criteria-based warrant, seizing all $600 and $700 person-to-person money transfers to be

19 paid anywhere in Arizona and placed with Western Union in any of the following states

20 beginning on September 2, 2005: Tennessee, Georgia, Illinois, New Jersey, New York,

21 North Carolina, South Carolina, and Virginia. The blanket criteria of this warrant were

22 thereafter modified at defendants' request to also include seizures of funds placed for

23 transmission in the states of Alabama and Florida, and its term was extended through

24 September 29, 2005.

25

13. On or about February 16, 2006, defendants served and executed a blanket

26 criteria-based warrant, seizing all person-to-person money transfers of $500 or more to be

27 paid anywhere in Arizona and placed with Western Union in any of the following states

28 beginning on February 17, 2006: Connecticut, Florida, New Jersey, North Carolina, South

4

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 5 of 15

1 Carolina, and Virginia. The blanket criteria of this warrant were thereafter modified at

2 defendants request to also include the seizures of funds placed for transmission in the

3 states of Delaware, Georgia, Maryland, New York, Illinois and Indiana, and its term was

4 extended through March 16, 2006.

5

14. On or about March 15,2006, defendants served and executed a blanket

6 criteria-based warrant, seizing all person-to-person wire transfers of $500 or more to be

7 paid anywhere in Arizona and placed with Western Union in any of the following states

8 beginning on March 17, 2006: Connecticut, Delaware, Florida, Georgia, Illinois, Indiana,

9 Maryland, New Jersey, New York, North Carolina, South Carolina, and Virginia. This

10 blanket criteria-based warrant was thereafter extended at defendants request through

11 April14, 2006.

12

15. On or about September 21, 2006, defendants served and executed a blanket

13 criteria-based warrant authorizing the seizure of all person-to-person money transfers in

14 the amount of$500 or more to be paid at any of26locations in Sonora, Mexico and

15 placed with Western Union in any the following twenty-nine (29) states: California,

16 Arizona, New York, Florida, Illinois, Georgia, New Jersey, North Carolina, Virginia,

17 Tennessee, Maryland, Texas, Nevada, South Carolina, Ohio, Pennsylvania, Washington,

18 Alabama, Indiana, Oregon, Colorado, Minnesota, Utah, Connecticut, Michigan,

19 Massachusetts, Wisconsin, Kentucky and Delaware. On September 25, 2006, this

20 warrant was stayed by order of the Arizona Superior Court, Maricopa County, but not

21 before approximately 248 transfers totaling over $240,000 were seized. Thereafter, on

22 January 8, 2007, the warrant was quashed by order of the Superior Court, finding that the

23 warrant and seizures violated, inter alia, "the Commerce Clause, Foreign Commerce

24 Clause, Due Process Clause and the Fourth Amendment of the United States

25 Constitution." In The Matter Of Monies Described In Appendix One To The Supporting

26 Affidavit, No. SW 2006-002213 (Maricopa County Superior Court). That order has been

27 appealed by the State of Arizona, and the seized funds have not yet been returned.

28

16. Each of these warrants was obtained as part of an ongoing investigation into

5

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 6 of 15

1 human and drug smuggling activities and prior to a determination as to which, if any, of

2 the funds seized would ultimately be the subject of an asset forfeiture action.

3

17. Defendants contend in their applications to the Superior Court of the State

4 of Arizona, Maricopa County, for the blanket criteria-based warrants, that forfeiture is

5 authorized pursuant to Ariz. Rev. Stat. §§ 13-2314 and 13-4301 et seq. "based on conduct

6 described in the following statutes": money laundering, Ariz. Rev. Stat. §§ 13-2317 and 7 6-1241; participation in or assisting a criminal syndicate, Ariz. Rev. Stat.§§ 138 2308(A)(4) and (C); fraudulent schemes and practices, willful concealment, Ariz. Rev.

9 Stat. §§ 13-2311; illegally conducting or participating in the conduct of an enterprise, 10 Ariz. Rev. Stat. §§ 13-2312; tampering with a public record, Ariz. Rev. Stat. §§ 13-2407; 11 taking the identity of another, Ariz. Rev. Stat. §§ 13-2008; and attempt, solicitation, 12 conspiracy and facilitation in connection with the above, Ariz. Rev. Stat. §§ 13-1001-4. 13 Sometimes but not always, defendants have also listed smuggling, Ariz. Rev. Stat. §§ 1314 2319, as an additional crime upon which the seizures and forfeitures are based. However,

15 at the time of the seizures pursuant to these blanket criteria-based warrants, the 16 defendants lacked particularized probable cause to believe that any of the plaintiffs or 17 members of the proposed plaintiff class were involved in, or that their money transfers 18 were the fruits or instrumentalities of, any of the stated criminal offenses. Further, none 19 of the plaintiffs nor, on information and belief, any of the members ofthe proposed 20 plaintiff class, have ever been charged with, let alone convicted of, any crime related to 21 their attempted transfers of the funds seized by means of these blanket criteria-based

22 warrants.

23

18. The above described actions of the defendants have caused seizure of more

24 than $9 million in funds owned by and/or in which property interests were held by

25 plaintiffs and members of the proposed plaintiff class.

26

19. As explained below, the plaintiffs have sent money in the amount of$500

27 or more through Western Union. The plaintiffs would like to be able to continue sending

28 money to Arizona, Mexico and/or elsewhere in the amount of $500 or more through

6

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 7 of 15

1 Western Union, but have not done so because they fear that defendants will once again

2 seize and convert the money. The defendants have refused to agree not to engage in

3 future blanket criteria-based seizures. Plaintiffs have suffered and continue to suffer

4 irreparable injury for which there is no adequate remedy at law.

5

20. Defendants have seized funds sent by members of the proposed plaintiff

6 class, including funds sent for a variety of legal purposes to friends, family members and

7 others who reside or resided in Arizona including to pay for medication, car repairs, loan

8 repayments and rental payments.

9

21. Defendants have seized these funds by means of blanket criteria-based

10 warrants, which are general warrants, without particularized probable cause to believe

11 that the funds were the fruits or instrumentalities of crime.

12

22. None of the plaintiffs, or members of the plaintiff class, have received

13 notice from defendants regarding their legal rights to contest the individual seizures.

14 Defendants have not served written notice of any sort on plaintiffs or members of the

15 proposed class, either with regard to the seizure of their funds, or with regard to the asset

16 forfeiture actions, which were initiated weeks or months after the seizures. This decision

17 not to serve notice was made by defendant Holmes and ratified by defendant Goddard in

18 knowing violation of both the provisions of Arizona law and of the United States

19 Constitution.

20

23. Several members of the proposed plaintiff class have attempted, without

21 receiving notice, to secure return of their monies. Some left telephonic messages with the

22 defendants' agents and received no response, some sent letters to the defendants' agents

23 and received no response, some were contacted by defendants' agents and were

24 interrogated, threatened, and/or lied to as part of the investigation into the transactions

25 involved in the seized funds.

26

24. Plaintiffs and members of the proposed plaintiff class were told by

27 defendants' agents if they could not prove to the defendants' agents' satisfaction that the

28 purpose of the money was legal, there was no way they could get the money returned.

7

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 8 of 15

1

Plaintiff Javier Torres

2

25. Plaintiff Javier Torres ("Torres") sent one thousand dollars ($1000) via

3 Western Union to Glendale, Arizona in approximately March 2006.

4

26. Torres sent the money to a friend as payment for a car he had previously

5 received and agreed to try to sell.

6

27. When the intended recipient did not receive the money, Torres inquired of

7 Western Union regarding the transfer and was given a phone number for Western Union's

8 main office. Torres called that number, gave the Western Union staff person who

9 answered the phone his name and transaction number, and was informed that Arizona law

10 enforcement officials would contact him.

11

28. Thereafter, Torres was called by a law enforcement agent in Arizona

12 working with and/or as an agent of the defendants, and was questioned by the agent and

13 told that the State of Arizona believed the money was intended to pay a "coyote" or a

14 drug dealer and the only way to recover his money was to prove to the law enforcement

15 officer that it was sent for a lawful purpose, including by sending the title and registration

16 to the car he had bought.

17

29. Torres explained that he did not have the title and registration to the car

18 because he had already sold the car, but was told that without those documents he could

19 not get his money back.

20

30. Torres also spoke by telephone thereafter with law enforcement officials in

21 Arizona in attempts to recover his money. These law enforcement officials were working

22 with and/or as agents or representatives of the defendants. He was consistently told that

23 the only way he could recover his money was if he produced the title or registration to the

24 car.

25

31. Because the money was seized, Torres was forced to send the intended

26 recipient a $1000 check via the United States Postal Service.

27

32. Neither Torres nor the intended recipient ever received any written or oral

28 notice from the defendants regarding the legal process available to challenge the seizure.

8

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 9 of 15

1

33. Torres has been and remains afraid to send money to Arizona or elsewhere

2 via any wire service, including but not limited to Western Union, since his transfer was

3 seized.

4

Plaintiff Lia Rivadeneyra

5

34. PlaintiffLia Rivadeneyra ("Rivadeneyra") sent five hundred dollars ($500)

6 via Western Union to Sonora, Mexico on September 23, 2006.

7

35. Rivadeneyra sent the money to her brother, who is a resident and national of

8 Peru, while he was visiting friends in Mexico.

9

36. When Rivadeneyra's brother did not receive the money, Rivadeneyra

10 contacted Western Union regarding the transfer, and she was eventually informed that the

11 money had been seized by Arizona law enforcement.

12

37. Thereafter, Rivadeneyra and her sister had three or four telephonic

13 conversations with law enforcement officials, working with and/or as agents or

14 representatives of the defendants. In these conversations, the law enforcement officials

15 interrogated Rivadeneyra and her sister regarding the transaction, accusing Rivadeneyra

16 of sending the money to pay for drug or human trafficking. Even though they explained

17 that the money was not involved in any improper activities, the law enforcement agents

18 refused to agree to return it to Rivadeneyra or let it be sent to her brother. Rivadeneyra

19 was told that the money would not be returned to her until law enforcement agents for the

20 State of Arizona were able to interview her brother. Rivadeneyra explained that her

21 brother had no phone in Mexico, and in Peru he lived in a house without a phone.

22

38. Neither Rivadeneyra, nor, on information and belief, her brother received

23 any written or oral notice from the defendant regarding the process available to challenge

24 the seizure.

25

39. Rivadeneyra has been afraid and remains afraid to send money via any wire

26 service, including but not limited to Western Union, since her money was seized.

27

28

9

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 10 of 15

1

Class Action Allegations

2

40. Plaintiffs Javier Torres, Alma Santiago and Lia Rivadeneyra bring this

3 lawsuit pursuant to Federal Rule of Civil Procedure 23, on behalf ofthemselves and all

4 persons who attempted to send money through a wire transfer company from a location

5 outside of the State of Arizona and which was subjected to a blanket criteria-based

6 seizure by defendants on or after October 18, 2004.

7

41. The class defined above satisfies the numerosity, commonality, typicality,

8 adequacy, predominance, and superiority requirements of Rule 23. It is so numerous that

9 joinder of its members is impracticable. Common questions of law and fact predominate

10 over individual issues that may exist as to the class. These common questions of law and

11 fact include, inter alia, the following:

12

a. whether defendants lacked particularized probable cause to believe

13

that the monies the class members sent were the fruits or instrumentalities of

14

crime, or otherwise subject to forfeiture under Arizona law, and thus violated the

15

Fourth Amendment;

16

b. whether the blanket criteria-based seizure warrants executed by

17

defendants are overly broad and thus violative of the Fourth Amendment;

18

c. whether defendants failed to give class members adequate and timely

19

notice that their money had been seized and of the opportunity for a hearing to

20

contest that seizure, thus violating the due process clause of the Fourteenth

21

Amendment;

22

d. whether defendants' actions constitute improper interference with

23

interstate and international commerce, in violation of the Commerce Clause of the

24

Constitution.

25

42. Plaintiffs will fairly and adequately protect the interests of all class members

26 as they are members of the class and their claims are typical of the claims of all class

27 members. Plaintiffs' interests in obtaining injunctive and monetary relief for the

28

10

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 11 of 15

1 violations of their constitutional rights by defendant are consistent with and are not

2 antagonistic to those of any person within the class.

3

43. Defendants' wrongful conduct alleged herein has been and will continue to

4 be visited generally upon all members of the plaintiff class, such that common questions

5 of fact and law predominate over questions affecting only individual members.

6

44. A class action is superior to other available methods for the fair an efficient

7 adjudication of this controversy because it will:

8

a. avoid the heavy burden of multiple, duplicative suits;

9

b. avoid the virtually impossible task of getting all class members to intervene

10

as party-plaintiffs in this action;

11

c. allow the Court, upon adjudication of defendants' liability, to determine the

12

claims of all class members; and

13

d. allow the Court to enter appropriate final injunctive and declaratory relief

14

with respect to the class as a whole.

15

Count 1: Fourth Amendment

16

45. Plaintiffs repeat and reallege paragraphs 1-45 above.

17

46. Defendants' blanket criteria-based seizures of the monies owned by and/or

18 in which property interests were held by plaintiffs Javier Torres and Lia Rivadeneyra, and

19 members of the proposed plaintiff class, were done without probable cause to believe that

20 those monies were the fruits or instrumentalities of crime, or otherwise subject to

21 forfeiture under Arizona law, and in violation of the Fourth Amendment.

22

Count II: Fourth Amendment

23

47. Plaintiffs repeat and reallege paragraphs 1-45 above.

24

48. Defendants' use of blanket criteria-based warrants to seize the monies

25 owned by and/or in which property interests were held by plaintiffs Javier Torres and Lia

26 Rivadeneyra, and members of the proposed plaintiff class, constituted reliance upon 27

28

11

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 12 of 15

1 warrants which were grossly overbroad on their face and, thus, violative of the Fourth

2 Amendment.

3

Count III: Due Process

4

49. Plaintiffs repeat and reallege paragraphs 1-45 above.

5

50. Defendants failed to give plaintiffs Javier Torres and Lia Rivadeneyra, and

6 members of the proposed plaintiff class, adequate and timely notice regarding the seizure

7 and forfeiture of their monies.

8

51. Defendants cannot demonstrate exigent circumstances permitting the ex

9 parte forfeiture of plaintiffs' money.

10

52. Defendants failed and continue to fail to provide plaintiffs Javier Torres and

11 Lia Rivadeneyra, and members of the proposed plaintiff class, the opportunity for a

12 prompt post-seizure hearing to contest those seizures and forfeitures.

13

53. The actions in paragraphs 50-54 violated the due process clause of the

14 Fourteenth Amendment.

15

Count IV: Commerce Clause

16

54. Plaintiffs repeat and reallege paragraphs 1-45 above.

17

55. Defendants' actions were directed solely at monies sent from states other

18 than Arizona for receipt in Arizona, and at monies sent from the United States to Mexico.

19 Defendants did not seize monies meeting the same general criteria that were sent via wire

20 intrastate, from one Arizona location to another.

21

56. Defendants' actions improperly interfered with interstate and international

22 commerce.

23

57. Defendants' actions discriminated against interstate and international

24 commerce and in favor of intra-state commerce within Arizona.

25

58. Defendants' above-described actions violated the rights of plaintiffs and the

26 proposed plaintiff class under the commerce clause (U.S. Const. Art. I, § 8, cl. 3).

27

28

12

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 13 of 15

1

Prayer for Relief

2

WHEREFORE, plaintiffs respectfully request, on behalf of themselves and the

3 class they seek to represent, that this Court:

4

A. certify this action as a class action pursuant to Fed. R. Civ. P. 23(b)(2), and

pursuant to Fed. R. Civ. P. 23(b)(3) or 23(b)(1) on behalf of the proRosed

5

plaintiff class, and designate the named plamtilfs as representative of the

class and their counsel of record as class counsel;

6

B. award prospective declaratory and injunctive relief to plaintiffs and

7

members of plaintiff class, declaring that defendants' seizure of monies

pursuant to olanket criteria-based warrants to be in violation of the Fourth

8

and Fourteenth Amendments to and the Commerce Clause of the United

States Constitution, and preliminarily and permanently enjoining defendants

9

from seeking such warrants and seizmg money on those bases;

10

C. award restitution to plaintiffs and members of plaintiff class for the monies

wrongfully seized from them by defendants;

11

D. award damages against defendants in their individual capacities to plaintiffs

12

and members of the plaintiff class for loss of their monies and the uses and

benefits thereof;

13

E. award plaintiffs and class members costs pursuant to 28 U.S.C. § 1920;

14

F. award plaintiffs and class members attorneys' fees and related nontaxable

15

expenses pursuant to 42 U.S.C. § 1988; and

16

G. grant such additional relief as the Court deems appropriate.

17

18

19

20

21

22

23

24

25
26

27
28

13

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 14 of 15

1

Jury Demand

2

Plaintiffs demand trial by jury on all issues as to which a jury trial is available.

3
Respectfully submitted,
4

5

Is/Matthew J. Piers

One of the Attorneys for Plaintiffs

6

Matthew J. Piers

7

Joshua Karsh

Mary M. Rowland

8

Karyn L. Bass Ehler

Hughes Socol Piers Resnick & Dym, Ltd.

9

Three First National Plaza, Suite 4000

Chicago, Illinois 60602

10

and

11

Timothy J. Eckstein

12

Jean-Jacques Cabou

Osborn Maledon, P.A.

13

2929 N. Central Ave., Suite 2100

Phoenix, AZ 84012-2793

14

Attorneys for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

Case 2:06-cv-02482-SMM Document 141 Filed 09/08/08 Page 15 of 15

1

CERTIFICATE OF SERVICE

2 I hereby certify that on the 13th of May, 2008 I caused the attached document to be electronically transmitted to the Clerk's Office using the CMIECF System for filing and
3 transmittal of a Notice of Electronic Filing to the following CMIECF Registrants:
4 Michael H. Hinson
OFFICE OF THE ATTORNEY GENERAL
5 Liability Management Section 177 North Church Avenue
6 Suite 1105 Tucson, Arizona 85701-1114
7 Paul Correa
8 OFFICE OF THE ATTORNEY GENERAL
Liability Management Section 9 177 North Church Avenue
Suite 1105 10 Tucson, Arizona 85701-1114

11 Michael K. Goodwin
OFFICE OF THE ATTORNEY GENERAL
12 1275 West Washington Phoenix, AZ 85007-2926
13
William A. Richardson 14 OFFICE OF THE ATTORNEY GENERAL
1275 West Washington 15 Phoenix, AZ 85007-2926

16 Attorneys for Defendants

17

18 Is/Matthew J. Piers
19

20
00144665.WPD
21

22

23

24

25

26

27

28

15

 
 Case 2:06-cv-02482-SMM Document 269-1 Filed 08/10/15 Page 1 of 26

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAVIER TORRES; LIA RIVADENEYRA, individually and on behalf of all others similarly situated,
Plaintiffs-Appellants,
v.

No. 12-17096
D.C. No. 2:06-cv-02482-
SMM

TERRY GODDARD, in his individual capacity; COLIN HOLMES, in his individual capacity as personal representative of the estate of Cameron Holmes; MARK BRNOVICH, Attorney General of the State of Arizona,
Defendants-Appellees.

OPINION

Appeal from the United States District Court for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted January 28, 2014—University of Nevada, Las Vegas
Filed July 16, 2015
Before: Stephen Reinhardt, Alex Kozinski, and Jay S. Bybee, Circuit Judges.
Opinion by Judge Kozinski

Case 2:06-cv-02482-SMM Document 269-1 Filed 08/10/15 Page 2 of 26

2

TORRES V. GODDARD

SUMMARY*

Civil Rights
The panel affirmed in part and reversed in part the district court’s summary judgment, and remanded in an action brought under 42 U.S.C. § 1983 against Arizona state officials who executed over twenty warrants to seize thousands of wire transfers that officials alleged were likely to be connected to criminal conduct associated with the smuggling of undocumented aliens into the United States.
The panel first held that absolute immunity is available to prosecutors in the context of civil forfeiture proceedings. The panel held that Arizona Assistant Attorney General Cameron Holmes’s preparation of and application for the warrants were intimately associated with the judicial phase of civil forfeiture proceedings, and therefore protected by absolute immunity. The panel held however that Holmes’s service and execution of the seizure warrants were not protected by absolute immunity because those acts are functions of police officers, not the traditional functions of an advocate. The panel expressed no opinion as to whether Holmes was entitled to qualified immunity.
The panel held that Terry Goddard, in his individual capacity as the Arizona Attorney General at the time the seizure warrants were carried out, was protected by absolute immunity for supervision of Holmes’s preparation of and application for the warrants. Goddard could not claim
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case 2:06-cv-02482-SMM Document 269-1 Filed 08/10/15 Page 3 of 26

TORRES V. GODDARD

3

absolute immunity with respect to his supervision of Holmes’s service and execution of the seizure warrants because his supervision was a function of a supervising police officer, not a supervising prosecutor.

The panel held that plaintiffs waived the issue of whether the district court erred by granting summary judgment on the official capacity claims against Thomas Horne, Goddard’s successor as Arizona Attorney General. The panel expressed no opinion as to whether the district court abused its discretion by denying plaintiffs’ motion for class certification.

COUNSEL
Matthew J. Piers, Joshua Karsh, Christopher J. Wilmes (argued), Hughes Socol Piers Resnick & Dym, Ltd., Chicago, Illinois, for Plaintiffs-Appellants.
Thomas C. Horne, Arizona Attorney General, David D. Weinzweig (argued) and Evan Hiller, Assistant Attorneys General, Phoenix, Arizona, for Defendants-Appellees.

Case 2:06-cv-02482-SMM Document 269-1 Filed 08/10/15 Page 4 of 26

4

TORRES V. GODDARD

OPINION

KOZINSKI, Circuit Judge:

The state of Arizona had a coyote problem: Not the fourlegged furry kind that occasionally abscond with pets, but the kind who smuggle undocumented aliens into the United States for a fee. As part of the effort to combat the proliferation of coyotes, between 2001 and 2006 Arizona officials executed over twenty warrants to seize thousands of wire transfers that they claimed were highly likely to be connected to criminal conduct. Plaintiffs sent money via Western Union that was seized pursuant to two of these warrants. They allege the seizures were unconstitutional and seek damages, as well as injunctive and declaratory relief, against the state officials they claim are responsible for the seizures. We determine whether defendants’ actions are protected by absolute immunity.

I. BACKGROUND

The warrant program was carried out by the Arizona Financial Crimes Task Force. The Task Force consisted of personnel from several public agencies including the Arizona Attorney General’s Office. Cameron Holmes, an Assistant Attorney General and civil forfeiture prosecutor, worked with the Task Force. Holmes sought court approval for and obtained seizure warrants pursuant to Arizona’s civil forfeiture statutes. See Ariz. Rev. Stat. Ann. § 134305(A)(1).

Case 2:06-cv-02482-SMM Document 269-1 Filed 08/10/15 Page 5 of 26

TORRES V. GODDARD

5

While some of the earlier warrants sought seizure of wire transfers involving specific names listed in the warrants, later warrants, or “sweeps,” authorized seizure of all wire transfers that met certain specified criteria. The six “criteria-based” warrants identified in plaintiffs’ complaint authorized the seizure of every person-to-person Western Union wire transfer that (1) was sent from certain states to Arizona or, under one warrant, from certain states to Sonora, Mexico; (2) met or exceeded a threshold amount ranging from $500 to $2000; and (3) was made during a certain time period— typically three or four weeks in the spring or fall. Accompanying the warrant applications were factual affidavits sworn to by Task Force detectives. The affidavits claimed that any wire transfer that met the warrants’ criteria had a very high likelihood, for some warrants as high as 97 percent, of being “directly involved in illegal drug and/or human smuggling.”

The seizures followed the same basic pattern. Holmes supervised the preparation of the seizure warrants and warrant applications. Holmes also reviewed the factual affidavits sworn to by Task Force detectives “in order to satisfy [himself] that the seizure warrant[s] being applied for [were] supported by probable cause.” Holmes then sought approval of the warrants before a state court judge. Once the warrants were approved, Holmes served them on Western Union’s corporate headquarters. The warrants were “effective upon receipt” by Western Union. They required Western Union to identify all wire transfers that met the listed criteria and “cause the transaction[s] to be ‘force paid’ to a detention account” maintained for the state by Western Union. Western

Case 2:06-cv-02482-SMM Document 269-1 Filed 08/10/15 Page 6 of 26

6

TORRES V. GODDARD

Union seized the funds on the state’s behalf by loading the criteria into its computer system. When a wire transfer that met all the criteria listed in a warrant was initiated, Western Union’s computer system automatically diverted the transfer to Arizona’s detention account. While the seized funds were held by Western Union, they were considered to be in the “constructive custody of the law enforcement agency making the seizure for forfeiture.”

Although the affidavits claimed that a wire transfer that met the warrants’ criteria had a high likelihood of being subject to forfeiture, they acknowledged that some transfers detained by Western Union may “not [be] involved in the conduct described in the affidavit.” The warrants therefore required the state to notify the consignee of the seizure and staff a 24-hour hotline. Arizona officials operated this “call center” and “[made] decisions as to whether particular money transfers could be released from seizure.” See Ariz. Rev. Stat. Ann. § 13-4306(A). If the call center official was satisfied that the transfer was for a legitimate purpose, the funds were released. If the official was not so convinced, or if the call center wasn’t contacted about the seized transfer, the funds remained in the detention account. The funds were detained by Western Union for the period of the warrant plus twenty-one days. At the end of the detention period, the warrants required Western Union to convey all unreleased funds to a bank account maintained by the Maricopa County

Case 2:06-cv-02482-SMM Document 269-1 Filed 08/10/15 Page 7 of 26

TORRES V. GODDARD

7

Superior Court.1 Holmes subsequently brought civil forfeiture proceedings against these funds.

Plaintiffs Javier Torres and Lia Rivadeneyra sent funds via Western Union that were seized pursuant to two of the warrants. Their section 1983 complaint alleges that defendants, “both personally and through agents or representatives,” “served and executed” the criteria-based warrants and “have illegally seized more than $9 million in interstate and international money transfers.” Plaintiffs allege that the seizures were unconstitutional because they were

1 The funds detained by Sweep 21, the warrant that authorized seizure of funds sent from outside Arizona to Sonora, Mexico, never made it into state custody. As soon as this warrant was served, Western Union challenged it on the ground that Arizona lacked in rem jurisdiction over these funds. The Maricopa County Superior Court quashed the warrant, thereby preventing Western Union from transferring the funds detained pursuant to Sweep 21 to the State of Arizona. The Arizona Supreme Court agreed and held that Arizona couldn’t exercise in rem jurisdiction over funds transferred from other states to Sonora because those funds were never present in Arizona. State v. W. Union Fin. Servs., Inc., 208 P.3d 218, 223–27 (Ariz. 2009) (citing Shaffer v. Heitner, 433 U.S. 186, 212 (1977)).
The other warrants were limited to funds sent to Arizona and weren’t challenged on that ground. Despite the differences between Sweep 21 and the other warrants identified in the complaint, our absolute immunity analysis is the same because plaintiffs allege that defendants performed the same functions with respect to all of the warrants. See pp. 13–25 infra; Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (whether absolute immunity applies depends on “the nature of the function performed” (internal quotation marks and citation omitted)). But that’s not necessarily true of qualified immunity. That protection depends on “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation omitted). We leave the qualified immunity question to the district court on remand. See pp. 20–21, 25–26 infra.

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conducted without “particularized probable cause” to believe that their wire transfers “were involved in,” or “were the fruits or instrumentalities of, any of the stated criminal offenses” in the warrants. They seek damages and restitution of the seized funds, as well as injunctive and declaratory relief. They also seek to represent a Rule 23(b)(3) class consisting of all persons whose wire transfers were seized pursuant to the six criteria-based warrants.

The complaint initially named two defendants: Holmes, in his individual capacity, and Terry Goddard, Arizona’s Attorney General at the time the seizure warrants were carried out and at the time the complaint was filed, in his individual and official capacities. Holmes died while this appeal was pending, and was replaced as a defendant by the personal representative of his estate, Colin Holmes. Goddard was succeeded by Thomas Horne as Arizona’s Attorney General after the lawsuit was filed, and Horne replaced Goddard as a defendant in his official capacity. Horne was succeeded by Mark Brnovich while this appeal was pending, and Brnovich replaced Horne as a defendant in his official capacity. Horne is no longer a defendant and Goddard remains a defendant in his individual capacity only.

The district court granted summary judgment to Holmes and Goddard, finding their actions protected by absolute immunity. In the district court’s view, “government attorneys are absolutely immune from liability under [section 1983] for acts involving or related to litigation,” and all of Holmes’s and Goddard’s actions were so related. The district court also granted summary judgment to Horne (the Attorney General at the time) on plaintiffs’ official capacity claim because plaintiffs hadn’t “alleged or argued how the Attorney General’s office violated their constitutional rights.” We

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have jurisdiction pursuant to 28 U.S.C. § 1291 and review claims of absolute immunity de novo. See Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005).

II. ABSOLUTE IMMUNITY

In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme Court held that criminal prosecutors may claim absolute immunity from damages liability for actions “intimately associated with the judicial phase of the criminal process,” such as the prosecutor’s initiation of a prosecution and presentation of the state’s case. Id. at 430. Absolute prosecutorial immunity is meant to “protect[] the prosecutor from harassing litigation that would divert his time and attention from his official duties” and to “enabl[e] him to exercise independent judgment when ‘deciding which suits to bring and in conducting them in court.’” Kalina v. Fletcher, 522 U.S. 118, 125 (1997) (quoting Imbler, 424 U.S. at 424); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir. 2012) (en banc).

But “the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Because absolute prosecutorial immunity stems from “the interest in protecting the proper functioning of the office, rather than the interest in protecting its occupant,” the touchstone is “the nature of the function performed, not the identity of the actor who performed it.” Kalina, 522 U.S. at 125, 127 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)) (internal quotation marks omitted). A prosecutor is absolutely immune “when performing the traditional functions of an advocate.” Id. at 131. However, he is not entitled to such protection when he is “cast [] in the role of an administrator or

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investigative officer rather than that of advocate.” Id. at 125 (quoting Imbler, 424 U.S. at 430–31) (internal quotation marks omitted). We must therefore focus “on the conduct for which immunity is claimed, not on the harm that the conduct may have caused or the question whether it was lawful.” Buckley, 509 U.S. at 271.

A. Absolute Immunity in the Civil Forfeiture Context

While Imbler arose in the context of a criminal prosecution, this lawsuit arises from a civil forfeiture proceeding. Therefore, before considering the specific actions of Holmes and Goddard, we must determine whether absolute immunity is available at all to a prosecutor conducting a civil forfeiture proceeding. Although the Supreme Court hasn’t directly addressed this question, it has extended the reasoning of Imbler to agency officials “performing certain functions analogous to those of a prosecutor.” Butz v. Economou, 438 U.S. 478, 515 (1978). The plaintiff in Butz was a commodities merchant who claimed that officials from the Department of Agriculture vindictively instituted administrative proceedings against him in retaliation for his criticism of the agency. Id. at 480. He brought damages claims against a number of federal officials, including the Department of Agriculture attorney who prosecuted the enforcement proceeding, alleging that the officials violated his constitutional rights. Id. at 481–82.

The Court held that “adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication” are entitled to absolute immunity. Id. at 512–13. Consequently, absolute immunity extends to “agency officials performing certain functions analogous to

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those of a prosecutor.” Id. at 515. That’s because, just like a criminal prosecutor, “[t]he discretion which executive officials exercise with respect to the initiation of administrative proceedings might be distorted” in the absence of absolute immunity. Id. (citing Imbler, 424 U.S. at 426 n.24). An agency official’s decision to initiate proceedings must be able to be made “free from intimidation or harassment.” Id. at 516. And the procedural safeguards available to the defendant give him an “ample opportunity to challenge the legality of the proceeding” and “provide sufficient checks on agency zeal.” Id. at 515–16; see also Fry v. Melaragno, 939 F.2d 832, 836–38 (9th Cir. 1991).

The reasoning of Butz applies with equal or greater force in the civil forfeiture context. In rem proceedings seeking the forfeiture of property connected to criminal activity are functionally analogous to criminal proceedings. See United States v. U.S. Coin & Currency, 401 U.S. 715, 719 (1971). They are frequently brought in connection with, or immediately followed by, a criminal prosecution. A government attorney in a forfeiture proceeding prosecutes and seeks to establish “the ‘guilt’ of the property seized.” United States v. One 1985 Mercedes, 917 F.2d 415, 419 (9th Cir. 1990) (citation omitted). Like a criminal prosecutor, a civil forfeiture prosecutor is “likely to provoke ‘with some frequency’ retaliatory suits by angry defendants.” Butz, 438 U.S. at 510 (quoting Imbler, 424 U.S. at 425). Providing a civil forfeiture prosecutor with only qualified immunity “might have an adverse effect on the functioning” of the civil forfeiture system by “discouraging the initiation of [in rem civil forfeiture] prosecutions” and impacting the manner in which the attorney conducts a forfeiture prosecution. Id.

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In rem civil forfeiture proceedings like those conducted by Holmes in this case also carry sufficient procedural safeguards “to reduce the need for private damages actions as a means of controlling unconstitutional conduct.” Id. at 512. All persons known to have an interest in the seized property are entitled to reasonable notice of pending forfeiture. See Ariz. Rev. Stat. Ann. §§ 13-4306(C), 13-4307. The property owners may appear in court and challenge a proposed forfeiture. See, e.g., id. §§ 13-4309, 13-4310. The forfeiture proceedings are conducted before an impartial state court judge. See, e.g., id. § 13-4311. In such a proceeding, anyone disputing the forfeiture may testify, introduce evidence and present and cross-examine witnesses. See, e.g., id. § 134311(L).

We therefore hold that absolute immunity is available to prosecutors in the context of civil forfeiture proceedings. In doing so, we join every other circuit that has addressed this question. See Schrob v. Catterson, 948 F.2d 1402, 1411–13 (3d Cir. 1991); see also Cooper v. Parrish, 203 F.3d 937, 947–48 (6th Cir. 2000); Mendenhall v. Goldsmith, 59 F.3d 685, 691 (7th Cir. 1995); Ehrlich v. Giuliani, 910 F.2d 1220, 1222–24 (4th Cir. 1990).

B. Holmes in His Individual Capacity

We now turn to whether absolute immunity attaches to the specific actions taken by Holmes. Like a criminal prosecutor, a civil forfeiture prosecutor isn’t entitled to absolute immunity merely because of his status as a prosecutor. Rather, we must evaluate each act a civil forfeiture prosecutor took and determine whether the prosecutor was performing a function that’s protected by absolute immunity. See Milstein v. Cooley, 257 F.3d 1004,

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1011–13 (9th Cir. 2001) (evaluating absolute immunity act by act). The “official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Burns v. Reed, 500 U.S. 478, 486 (1991).

1. Preparation and Application

Holmes oversaw the preparation of the warrants, warrant applications and factual affidavits. He also reviewed and edited the factual affidavits that were sworn to by Task Force detectives to satisfy himself that the warrants were supported by probable cause. He then presented the warrant applications to a state court judge for approval.

Whether a prosecutor’s application for a warrant is protected by absolute immunity depends on the function the warrant serves. The prosecutor in Kalina had “commenced a criminal proceeding against [the plaintiff] by filing three documents”: “an information charging [the plaintiff] with burglary”; “a motion for an arrest warrant”; and a probable cause certification that “summarized the evidence supporting the charge.” 522 U.S. at 120–21. The Supreme Court held that the prosecutor’s “activities in connection with the preparation and filing of” the information and the motion for an arrest warrant were protected by absolute immunity. Id. at 129. These activities were “the work of an advocate and [were] integral to the initiation of the prosecution.” Id. at 130. And in KRL v. Moore, 384 F.3d 1105 (9th Cir. 2004), we held that a prosecutor was entitled to absolute immunity when procuring a search warrant, when the warrant “sought evidence to prosecute the crimes charged in the indictment.” Id. at 1112. Because the prosecutor obtained the warrant to

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“marshal evidence for trial,” he was performing a “traditional function of an advocate for the [s]tate.” Id. at 1112–13.

However, a warrant may also be sought for an investigative purpose. See Genzler, 410 F.3d at 638 (citing KRL, 384 F.3d at 1110–16). In KRL, we held that the prosecutor wasn’t entitled to absolute immunity when he sought a search warrant that “went beyond any legitimate preparation to prosecute” the plaintiff for the crimes charged, and was instead part of a “collateral investigation into new crimes.” 384 F.3d at 1113–14. We treated this second warrant differently, not because the prosecutor’s acts were different, but because the prosecutor sought the warrant for a different purpose. Id.; Genzler, 410 F.3d at 642–43. Thus, when evaluating an act such as the procurement of a warrant, we “take into account the goal of performing [the] action to determine function.” al-Kidd v. Ashcroft, 580 F.3d 949, 960 (9th Cir. 2009), rev’d on other grounds, 131 S. Ct. 2074 (2011).

Plaintiffs argue that the warrants here fall on the investigative side of the line. They point out that, unlike the prosecutor in Kalina, Holmes prepared and applied for the warrants before he filed any forfeiture complaints against the seized property. And, because the Task Force set up a call center to help weed out legal transfers, Holmes never filed forfeiture complaints against some of the funds. They argue that this multi-step process—a seizure warrant, followed by the call center, followed by a forfeiture complaint only in some cases—raises an issue of fact as to whether Holmes applied for the warrants in order to initiate forfeiture proceedings or instead used the warrants as an investigative tool.

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But plaintiffs’ position misapprehends the role of a courtissued seizure warrant in Arizona’s civil forfeiture process. While seizure for forfeiture can be accomplished in several ways, see Ariz. Rev. Stat. Ann. § 13-4305(A), the warrants Holmes prepared and applied for required a prior judicial determination of probable cause that the property was subject to forfeiture. See id. §§ 13-4305(A)(1), 13-4310(B). The seizure warrants couldn’t be used to conduct an investigation that might lead to a probable cause determination. Rather, in order for the warrants to be issued, the attorney for the state was first required to make that determination, prepare a warrant with a supporting factual affidavit and seek issuance of the warrant by a judge. That’s why the seizure warrants issued in this case stated that there was “probable cause to believe that conduct giving rise to forfeiture has occurred with respect to all of the property” covered by the warrants, and that “forfeiture is authorized pursuant to” Arizona’s forfeiture statutes. Thus, Holmes wasn’t performing the “detective’s role in searching for the clues and corroboration that might give him probable cause.” Kalina, 522 U.S. at 126 (quoting Buckley, 509 U.S. at 273). Rather, upon review of the factual affidavits sworn to by Task Force detectives, Holmes determined that there was probable cause to believe that the property covered by the warrants was subject to forfeiture. Only then did Holmes apply for the warrants.

Moreover, seizure of the property is “integral to the initiation of” an in rem civil forfeiture proceeding, id. at 130, because it’s a “prerequisite to the court’s jurisdiction,” State v. One Single Family Residence at 1810 E. Second Ave., 969 P.2d 166, 169 (Ariz. Ct. App. 1997) (citing Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 84 (1992)). Although the court’s issuance of a seizure warrant doesn’t constitute a civil forfeiture complaint, “[t]he in rem

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complaint and the seizure warrant are intimately connected— one follows the other and effectuates it.” Schrob, 948 F.2d at 1416. Holmes’s preparation of and application for seizure warrants is the civil forfeiture analog to the prosecutor’s application for an arrest warrant in Kalina. These actions are likewise shielded by absolute immunity and may not form the basis of a claim for damages.

Arizona’s insertion of an intermediate step that allowed for the rapid release of some seized funds doesn’t change the character of Holmes’s actions. While Arizona law authorizes the release of property seized for forfeiture “if forfeiture or retention is unnecessary,” Ariz. Rev. Stat. Ann. § 134306(A), nothing prevented Arizona from seeking forfeiture of every seized wire transfer. When a prosecutor decides to initiate a criminal proceeding, he is surely aware that he may have to terminate the proceeding if the factual allegations that supported probable cause turn out to be untrue. That doesn’t mean that the prosecutor’s initiation of the proceeding (or the acts he takes in preparation for it) aren’t protected by absolute immunity. In Kalina, for example, the Supreme Court held that the prosecutor’s preparation and filing of the arrest warrant were protected by absolute immunity even though the criminal charges were subsequently dismissed. 522 U.S. at 122. State officials do not lose absolute immunity by constructing an additional step in the civil forfeiture process to avoid unnecessary judicial proceedings.

2. Service and Execution

If Holmes’s actions were limited to preparing and applying for the warrants, our analysis of his absolute immunity could end there. However, plaintiffs also allege that “defendants served and executed” the warrants and

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“illegally seized” the funds. Plaintiffs argue that, even if we find that Holmes’s preparation and application for the seizure warrants were acts of advocacy protected by absolute immunity, serving and executing of seizure warrants are acts that “could have been performed by police officers” and thus can’t be shielded by absolute immunity. Because we must evaluate absolute immunity act by act, we must also consider whether absolute immunity bars damages claims based on a forfeiture prosecutor’s service and execution of the seizure warrants he applied for.

Arizona’s civil forfeiture statutes make clear that the seizure of property pursuant to a seizure warrant is the function of police officers, not prosecutors. The “[a]ttorney for the state” is designated to “investigate, commence and prosecute an action under this chapter,” Ariz. Rev. Stat. Ann. § 13-4301(1), whereas the “[s]eizing agency” “employs the peace officer who seizes property for forfeiture,” id. § 134301(8). “Seizure for forfeiture” is “seizure of property by a peace officer coupled with an assertion by the seizing agency or by an attorney for the state that the property is subject to forfeiture.” Id. § 13-4301(9). Consistent with the civil forfeiture statutes, the seizure warrants themselves directed police officers, not the attorney for the state, to seize the subject property. The warrants authorized “[a]ny peace officer” to “seize all of the property” that met the criteria “for forfeiture pursuant to” Arizona’s civil forfeiture statutes. And, as the warrant applications explained, “the peace officers [would] carry out th[e] warrant[s] by serving [them] on Western Union at its corporate offices, requiring Western Union to transfer the described funds to the clerk of the Maricopa County Superior Court.”

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Nevertheless, it was Holmes, not Arizona police officers, who “carr[ied] out” the warrants in the manner described above.2 In doing so, Holmes “performed an act that any [Arizona police officer] might have performed.” Kalina, 522 U.S. at 129–30. And “[w]hen the functions of prosecutors and [police officers] are the same, as they were here, the immunity that protects them is also the same.” Buckley, 509 U.S. at 276; see also Burns, 500 U.S. at 492–96. Because Holmes went beyond the “traditional functions of an advocate” and “carr[ied] out” the warrants, he was only entitled to the qualified immunity that a police officer would receive when doing so.

Defendants argue that such a result “mistakenly focus[es] on the description of [the] alleged misconduct alone rather than the function being performed.” They insist that absolute immunity extends to Holmes’s service of the warrants because service is “an essential step in the initiation of a forfeiture action,” and “was not an investigative technique.” In other words, defendants argue that Holmes was performing a “prosecutorial function” when he served the warrants because service is a prerequisite to forfeiture.

2 Defendants claim that, because plaintiffs’ response to their crossmotion for summary judgment states that Holmes “reviewed, approved, procured and served” the warrants, plaintiffs waived the right to contest Holmes’s absolute immunity with respect to “execution.” But plaintiffs have never conceded that any of Holmes’s actions are protected by absolute immunity. Moreover, on the record before us, a distinction between “service” and “execution” of the warrants is only semantic. The warrants were “effective upon receipt” by Western Union. They required Western Union to seize all transfers that met their criteria on the state’s behalf. Regardless of whether Holmes’s actions are characterized as “service and execution” of the warrants or, as the warrant applications state, “carry[ing] out” the warrants, plaintiffs haven’t waived the right to contest Holmes’s immunity with respect to his role in the actual seizures.

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This argument can’t be squared with the Supreme Court’s reasoning in Kalina, where the Court distinguished between the prosecutor’s preparation and filing of the information and motion for an arrest warrant (which were shielded by absolute immunity), and her personal attestation to the factual allegations in the probable cause certification (which was not). 522 U.S. at 130. Although all of the prosecutor’s acts were prerequisites to the initiation of the prosecution, personally attesting to the factual allegations contained in the certification cast the prosecutor in the role of a witness, not an attorney. Id. at 131. The Court’s distinction between this act, and the other protected acts, didn’t depend on whether it was “investigative.”3 Rather, absolute immunity didn’t attach because the prosecutor wasn’t performing the function of an advocate. The Court rejected the prosecutor’s argument that absolute immunity applied because her personal attestation to the factual allegations “was just one incident in a presentation that, viewed as a whole, was the work of an advocate and was integral to the initiation of the prosecution.” Id. at 130. We similarly reject the analogous argument defendants advance here. Serving and executing seizure warrants are the functions of police officers, not the “traditional functions of

3 That doesn’t mean that whether a prosecutor’s act was investigative is irrelevant to absolute immunity. In Buckley, the Court held that a prosecutor wasn’t entitled to absolute immunity because his actions were “investigative functions normally performed by a detective or police officer.” 509 U.S. at 273; see also Burns, 500 U.S. at 492–96. Therefore, if a prosecutor acts in an investigative capacity, he’s not protected by absolute immunity. But under Kalina, the fact that a prosecutor’s act isn’t investigative, and may be necessary to the commencement of a prosecution, doesn’t guarantee absolute immunity. Rather, absolute immunity only applies when the prosecutor is performing the “traditional functions of an advocate.” Kalina, 522 U.S. at 131.

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an advocate,” id. at 131, and thus under Kalina are functions that aren’t protected by absolute immunity.

We acknowledge that our application of the functional approach means that Holmes is entitled to absolute immunity with respect to some acts but not others, even though all of plaintiffs’ claims are predicated on the same constitutional violation: seizure of their funds without probable cause. However, the result we reach is the “essence of the function test” because absolute immunity is based on the nature of the function performed, not the underlying constitutional claim. Buckley, 509 U.S. at 274 n.5. Critically, if Holmes’s service and execution of the warrants were acts protected by absolute immunity, we’d be faced with an “incongruous” result where a prosecutor performing the function of a police officer would be entitled to absolute immunity merely because of his status as a prosecutor. See id. at 275 n.6 (quoting Burns, 500 U.S. at 495). Service of the self-executing seizure warrants merely carried out the command of the warrants; it wasn’t a “function[] that require[s] the exercise of prosecutorial discretion.” Kalina, 522 U.S. at 125. Extending absolute immunity to this type of police activity would be inconsistent with the distinction drawn by the Supreme Court in Kalina.

We express no opinion as to whether Holmes is entitled to qualified immunity. Although defendants raised qualified immunity in their cross motion for summary judgment, the district court didn’t reach the issue because it held that absolute immunity barred all of plaintiffs’ claims. The parties did not brief the issue on appeal. We therefore remand to the district court to determine, in the first instance, whether Holmes’s actions in serving and executing the warrants are protected by qualified immunity. If the district court determines that any of Holmes’s actions aren’t

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protected by qualified immunity, it must then go on to assess whether those unprotected acts (and only those acts) give rise to a cause of action for damages against Holmes under section 1983. See Buckley, 509 U.S. at 274 n.5.

C. Goddard in His Individual Capacity

Goddard was Arizona’s Attorney General at the time the warrants were carried out and at the time the complaint was filed. He was succeeded by Horne (and Horne by Brnovich) while this lawsuit was pending. Goddard thus remains a defendant only in his individual capacity. Unlike an official capacity claim, where the constitutional injury “must be attributable to [an] official policy or custom,” an individual capacity claim “hinges upon [the individual defendant’s] participation in the deprivation of constitutional rights.” Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991). Plaintiffs don’t allege Goddard was directly involved in the preparation, filing, service or execution of the warrants. They nevertheless claim that Goddard “could have stopped the criteria-based warrant program but chose not to.” Plaintiffs argue that Goddard had a duty to exercise his supervisory authority over the Arizona officials who were responsible for procuring and carrying out the seizure warrants and, by failing to do so, is also subject to section 1983 liability for the seizures. See Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000).

1. Preparation and Application

Holmes’s preparation of and application for the warrants were “intimately associated with the judicial phase” of the civil forfeiture proceedings, Imbler, 424 U.S. at 430, and therefore protected by absolute immunity. Goddard’s

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supervision of these activities is likewise protected by absolute immunity under Van de Kamp v. Goldstein, 555 U.S. 335, 345 (2009). In Van de Kamp, Goldstein had alleged that the trial prosecutors who conducted his case didn’t tell him that a jailhouse informant who testified against him at his trial previously received favorable treatment in exchange for his testimony. Id. at 339. Goldstein sued the county district attorney and his chief deputy, alleging that the trial prosecutors’ failure to disclose the informant’s treatment resulted from their supervisors’ failure to “adequately [] train and [] supervise” subordinate prosecutors and their “failure to establish an information system about informants.” Id. at 340. Goldstein didn’t claim that the supervisory prosecutors personally erred in his trial, but rather argued that they were liable because their “general methods of supervision” caused a “consequent error by an individual prosecutor” at his trial. Id. at 346.

The Supreme Court held that absolute immunity barred Goldstein’s claims. In doing so, the Court considered a “hypothetical case” in which the failure to disclose the informant’s treatment arose from a prosecutor’s “specific supervision or training related to a particular case.” Id. at 345–46. The Court concluded that the trial and supervisory prosecutors in that case would both be entitled to absolute immunity. The decision to disclose (or to not disclose) an informant’s favorable treatment is an act that’s “‘intimately associated with the judicial phase of the criminal process’ because it concern[s] the evidence presented at trial.” Id. at 345 (quoting Imbler, 424 U.S. at 430). If a supervisory prosecutor wasn’t entitled to absolute immunity for this conduct, such a rule would implicate “all of the considerations” that counseled in favor of immunity in Imbler, including “Imbler’s basic fear . . . that the threat of

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damages liability would affect the way in which prosecutors carried out their basic court-related tasks.” Id.4

Plaintiffs’ claims against Goddard are analogous to the hypothetical case discussed in Van de Kamp. They don’t arise from Goddard’s “general methods of supervision,” but rather arise from Goddard’s “acequisece[nce]” and “ratifi[cation]” of Holmes’s procurement of particular seizure warrants. Under Van de Kamp, the absolute immunity that protects Holmes’s preparation and application for the warrants also protects Goddard’s decision to permit Holmes to do so. There is no functional difference between a civil forfeiture prosecutor’s preparation and application for seizure warrants, and his supervisor’s decision to allow him to engage in those activities. A supervisor’s decision to permit a subordinate prosecutor to prepare and apply for seizure warrants is an “act[] undertaken by [the supervisor] in preparing for the initiation of judicial proceedings,” and “occur[s] in the course of [the supervisor’s] role as an advocate for the [s]tate.” Kalina, 522 U.S. at 126 (internal quotation marks omitted). Indeed, if the rule were otherwise, a plaintiff could just “restyle a complaint charging a trial failure so that it becomes a complaint charging a failure of training or supervision” and thereby “eviscerate Imbler.” Van de Kamp, 555 U.S. at 347.

4 Goldstein’s complaint was different from the hypothetical case because his claims arose from defendants’ “general methods of supervision.” Van de Kamp, 555 U.S. at 346. But, as the Court explained, Goldstein’s “general” claims nevertheless “rest[ed] in necessary part upon a consequent error by an individual prosecutor in the midst of trial.” Id. The challenged procedures related to “how and when to make impeachment information available at a trial.” Id. They were “directly connected with the prosecutor’s basic trial advocacy duties,” and under Imbler were protected by absolute immunity. Id.

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2. Service and Execution

Plaintiffs also allege that Goddard “culpably acquiesced in and subsequently ratified the service of warrants and the seizure” of their funds. We hold that service and execution of seizure warrants, even when performed by a prosecutor, aren’t protected by absolute immunity because those acts are functions of police officers, not prosecutors. See Kalina, 522 U.S. at 130–31. Under Kalina, Goddard’s supervision of Holmes’s service and execution of seizure warrants is likewise a function of a supervising police officer, not a supervising prosecutor. Service and execution aren’t “intimately associated with the judicial phase” of the proceedings. Goddard therefore can’t claim absolute immunity with respect to his supervision of the service and execution of the seizure warrants.

Van de Kamp doesn’t countenance a different result. The supervisor’s activities in Van de Kamp were protected by absolute immunity not because they were the actions of a supervisor or a prosecutor, but because they “concerned the evidence presented at trial.” 555 U.S. at 345. The presentation of evidence is “intimately associated with the judicial phase” of the criminal proceeding whether it’s conducted in a direct or supervisory capacity. Id. But nothing in Van de Kamp permits us to grant a supervising prosecutor absolute immunity for supervising an activity that’s not protected by absolute immunity under Imbler and its progeny. Such a result would eviscerate the distinction drawn by the Supreme Court in Kalina. Absolute immunity would turn on whether a prosecutor was a supervisor, instead of on whether the function performed was that of an advocate for the state. Rather, Kalina controls Goddard’s immunity

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with respect to service and execution. Under Kalina those functions aren’t protected by absolute immunity.

III. OFFICIAL CAPACITY CLAIM AGAINST BRNOVICH

The district court granted summary judgment to Horne (who was then Arizona’s Attorney General) on the basis that plaintiffs hadn’t “alleged or argued how the Attorney General’s office violated their constitutional rights.” The district court addressed the claim on the merits even though “[d]efendants considered this claim abandoned and did not respond” in their filings on summary judgment. Although plaintiffs list the grant of summary judgment in favor of the Attorney General among the issues presented on appeal, their brief does not argue the point or cite any authorities in support of their official capacity claims against the Attorney General. Because plaintiffs didn’t “specifically and distinctly argue” in their opening brief that the district court’s grant of summary judgment in favor of the Attorney General was incorrect, this issue is waived. See Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1059 (9th Cir. 2013).

IV. CLASS CERTIFICATION

Plaintiffs also argue that the district court abused its discretion in denying their motion for class certification. We express no opinion on the class certification issue. The class certification question may be answered quite differently after our opinion and any ruling by the district court on Holmes’s

Case 2:06-cv-02482-SMM Document 269-1 Filed 08/10/15 Page 26 of 26

26

TORRES V. GODDARD

or Goddard’s qualified immunity. The parties may raise the class certification issue in any subsequent appeal.

AFFIRMED in part, REVERSED in part and REMANDED.

The parties shall bear their own costs on appeal.

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Javier Torres, et al.,

)

)

10

Plaintiffs,

)

)

11 v.

)

)

12 Terry Goddard, in his individual capacity,)

Colin Homes, personal representative of)

13 the estate of Cameron Homes,

)

)

14

Defendants.

)

)

15

No. CV-06-2482-PHX-SMM MEMORANDUM OF DECISION AND ORDER

16

This case is on remand from the Ninth Circuit Court of Appeals. See Torres v.

17 Goddard, 793 F.3d 1046 (9th Cir. 2015). The Ninth Circuit remanded the issue of whether

18 Defendants, although not entitled to absolute immunity, are entitled to qualified immunity

19 for the service and execution of seizure for forfeiture warrants authorized by the Maricopa

20 County Superior Court. Id. at 1056-59. The parties have briefed the issue and it is now ready

21 for the Court’s review. (Docs. 276, 282-83.)

22

After due consideration of the parties’ submissions, the Court will grant Defendants’

23 Supplemental Motion for Summary Judgment Re: Qualified Immunity. (Doc. 276.)

24

BACKGROUND

25

This Court and the Ninth Circuit have previously detailed the extensive factual

26 background of this case. See Torres, 793 F.3d at 1048-50; (Doc. 261 at 2-8.) In order to

27 determine the narrow qualified immunity issue remanded to this Court, the Court will set out

28 the following relevant facts.

1

Between 2001 and 2006, in its effort to combat the proliferation of coyotes bringing

2 in undocumented immigrants, Arizona officials executed over twenty warrants to seize

3 thousands of wire transfers that they claimed were highly likely to be connected to criminal

4 conduct. Torres, 793 F.3d at 1048.

5

Plaintiffs Javier Torres and Lia Rivadeneyra (“Plaintiffs”) were customers of Western

6 Union Financial Services, Inc. (“Western Union”) whose money transfers were subject to

7 seizure for forfeiture warrants issued by the Maricopa County Superior Court. At the time

8 the seizure for forfeiture warrants were carried out and at the time this lawsuit was initiated,

9 Defendant Terry Goddard (“Goddard”) was Attorney General of Arizona. (Doc. 261.) During

10 the time period from 2000 to 2007, Defendant Cameron Holmes (“Holmes”) was an Assistant

11 Attorney General in the Arizona Attorney General’s Office.1 Holmes supervised the

12 Financial Remedies Section within the Criminal Division of the Attorney General’s Office.

13 (Doc. 261.) Holmes’s caseload consisted, in part, of civil forfeiture lawsuits. (Id.) In

14 connection with the seizure warrants at issue and the subsequent forfeiture proceedings

15 involving the electronic money transfers, Holmes acted as the “attorney for the state.” Under

16 Arizona’s forfeiture statutes, A.R.S. §§ 13–4301 through 13–4315, “[a]ttorney for the state”

17 means an attorney designated by the attorney general . . . to investigate, commence and

18 prosecute an action under this chapter.” A.R.S. § 4301(1) (2006).

19

The warrant program was carried out by the Arizona Financial Crimes Task

Force. The Task Force consisted of personnel from several public agencies

20

including the Arizona Attorney General’s Office. Cameron Holmes . . . worked

with the Task Force. Holmes sought court approval for and obtained seizure

21

warrants pursuant to Arizona’s civil forfeiture statutes. See [A.R.S.]§

13–4305(A)(1).

22

While some of the earlier warrants sought seizure of wire transfers involving

23

specific names listed in the warrants, later warrants, or “sweeps,” authorized

seizure of all wire transfers that met certain specified criteria. The six

24

“criteria-based” warrants identified in plaintiffs’ complaint authorized the

seizure of every person-to-person Western Union wire transfer that (1) was

25

sent from certain states to Arizona or, under one warrant, from certain states

to Sonora, Mexico; (2) met or exceeded a threshold amount ranging from $500

26

27

1Holmes died while this matter was on appeal at the Ninth Circuit and was replaced

28 by the personal representative of his estate, Colin Holmes. Torres, 793 F.3d at 1050.

- 2 -

1

to $2000; and (3) was made during a certain time period—typically three or

four weeks in the spring or fall. Accompanying the warrant applications were

2

factual affidavits sworn to by Task Force detectives. The affidavits claimed

that any wire transfer that met the warrants’ criteria had a very high likelihood,

3

for some warrants as high as 97 percent, of being “directly involved in illegal

drug and/or human smuggling.”

4

The seizures followed the same basic pattern. Holmes supervised the

5

preparation of the seizure warrants and warrant applications. Holmes also

reviewed the factual affidavits sworn to by Task Force detectives “in order to

6

satisfy [himself] that the seizure warrant[s] being applied for [were] supported

by probable cause.” Holmes then sought approval of the warrants before a state

7

court judge. Once the warrants were approved, Holmes served them on

Western Union’s corporate headquarters. The warrants were “effective upon

8

receipt” by Western Union. They required Western Union to identify all wire

transfers that met the listed criteria and “cause the transaction[s] to be ‘force

9

paid’ to a detention account” maintained for the state by Western Union.

Western Union seized the funds on the state’s behalf by loading the criteria

10

into its computer system. When a wire transfer that met all the criteria listed

in a warrant was initiated, Western Union’s computer system automatically

11

diverted the transfer to Arizona’s detention account. While the seized funds

were held by Western Union, they were considered to be in the “constructive

12

custody of the law enforcement agency making the seizure for forfeiture.”

13 Torres, 793 F.3d at 1049. The Ninth Circuit summarized the Plaintiffs’ complaint, as follows:

14

[Plaintiffs’] section 1983 complaint alleges that defendants, “both personally

and through agents or representatives,” “served and executed” the

15

criteria-based warrants and “have illegally seized more than $9 million in

interstate and international money transfers.” Plaintiffs allege that the seizures

16

were unconstitutional because they were conducted without “particularized

probable cause” to believe that their wire transfers “were involved in,” or

17

“were the fruits or instrumentalities of, any of the stated criminal offenses” in

the warrants.

18

Torres, 793 F.3d at 1050 (emphasis added).

19

In Torres, joining all of the other circuits that had addressed the issue, the Ninth

20

Circuit held that absolute immunity is available to prosecutors in the context of civil

21

forfeiture proceedings. Id. at 1052. In application to the facts of this case, the Ninth Circuit

22

found that as prosecutors, the Defendants’ actions were protected by absolute immunity. Id.

23

at 1051-54. However, the Ninth Circuit remanded the Defendants’ actions related to service

24

and execution of the seizure warrants. According to the Ninth Circuit’s remand instructions,

25

the Court is to determine whether Defendant Holmes’s actions in serving and executing the

26

warrants are protected by qualified immunity and whether Defendant Goddard’s actions in

27

supervising the service and execution of the warrants are protected by qualified immunity.

28

- 3 -

1 Id. at 1057, 1059. Further, if any of Holmes’s actions or Goddard’s actions are not protected

2 by qualified immunity, the Ninth Circuit specified that the Court go on to assess whether

3 those unprotected acts give rise to a cause of action for damages against Holmes and

4 Goddard under section 1983, citing Buckley v. Fitzsimmons, 509 U.S. 259, 274 n.5 (1993).

5 See Torres, 793 F.3d at 1057.2

6

STANDARD OF REVIEW

7

“The doctrine of qualified immunity protects government officials ‘from liability for

8 civil damages insofar as their conduct does not violate clearly established statutory or

9 constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan,

10 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Before

11 a government official can be subject to liability for civil damages, both prongs of the

12 qualified immunity analysis must be satisfied: (1) whether the official violated the plaintiff’s

13 constitutional rights, and if so, (2) whether the right violated was clearly established at the

14 time of the official’s conduct. Pearson, 555 U.S. at 232.

15

Regarding the constitutional violation prong in search and seizure cases, “[w]here the

16 alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the

17 fact that a neutral magistrate has issued a warrant is the clearest indication that the officers

18 acted in an objectively reasonable manner or, as we have sometimes put it, in objective good

19 faith” . . . unless “it is obvious that no reasonably competent officer would have concluded

20 that a warrant should issue.” Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012)

21 (further citation and quotation omitted).

22

23

2Previously, this Court granted summary judgment to Defendants and dismissed

Plaintiffs’ lawsuit, which included their Fourth Amendment claims, their procedural due

24 process claim, and their Commerce Clause claim. (Doc. 261). Plaintiffs appealed to the Ninth

25 Circuit. The Ninth Circuit only examined Plaintiffs’ claim for seizure of their funds without probable cause and granted a limited remand to determine whether qualified immunity

26 shields the Defendants from a Fourth Amendment claim premised on service and execution

27 of the seizure warrants. Plaintiffs did not petition for rehearing for any claim allegedly overlooked. The only claim remanded to this Court, and thus at issue, is Plaintiffs’ Fourth

28 Amendment seizure claim related to the government officials’ claim for qualified immunity.

- 4 -

1

Regarding the clearly established prong, the burden is on the Plaintiffs to show that

2 the law was clearly established at the time of the alleged violation. See Davis v. Scherer, 468

3 U.S. 183, 197-98 (1984). The Supreme Court requires factual correspondence, as follows:

4

the right the official is alleged to have violated must have been clearly

established in a more particularized, and hence more relevant, sense. The

5

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right. That is not to say that an

6

official action is protected by qualified immunity unless the very action in

question has previously been held unlawful, but it is to say that in light of pre-

7

existing law the unlawfulness must be apparent.

8 Anderson v. Creighton, 483 U.S. 635, 640 (1987) (further citation and quotation omitted).

9 The Supreme Court has repeatedly emphasized that courts are not to define clearly

10 established law at a high level of generality, “[t]he dispositive question is whether the

11 violative nature of particular conduct is clearly established.” Mullenix v. Luna, 136 S. Ct.

12 305, 308 (2015) (further citation and quotation omitted).

13

“Qualified immunity gives government officials breathing room to make reasonable

14 but mistaken judgments, and protects all but the plainly incompetent or those who knowingly

15 violate the law.” Messerschmidt, 132 S. Ct. at 1244 (further citation and quotation omitted).

16

DISCUSSION

17

Defendants contend that qualified immunity shields them from personal liability

18 regarding their actions in serving and executing a pair of state court issued seizure for

19 forfeiture warrants to Western Union headquarters. (Doc. 276.) In support, Defendants argue

20 that serving and executing a pair of seizure warrants issued by two Maricopa County

21 Superior Court Judges to Western Union headquarters in connection with a criminal

22 investigation did not violate Plaintiffs’ rights against unreasonable seizure under the Fourth

23 Amendment. (Id.)

24

In support, Defendants contend that Plaintiffs have failed to provide the legal

25 authority which requires such “particularized” probable cause in the factual context of the

26 seizure of money or other personal property for forfeiture. (Doc. 258 at 11.) Rather,

27 Defendants contend that Plaintiffs have ignored an extensive amount of case authority

28 indicating that, in the context of seizure and forfeiture of money, the government need only

- 5 -

1 to show evidence, circumstantial or otherwise, that is sufficient to support a reasonable belief

2 that the money has a general connection to crime. See, e.g., U.S. v. Approximately $1.67

3 Million In Cash, 513 F.3d 991, 999-1000 (9th Cir. 2008); U.S. v. $5,644,540,00 in U.S.

4 Currency, 799 F.2d 1357, 1363 (9th Cir. 1986); U.S. v. $93,685.61 in U.S. Currency, 730

5 F.2d 571, 572 (9th Cir. 1984). As long as such evidence is shown in support of probable

6 cause, there is no need to tie the money in question to a particular identifiable illicit

7 transaction. See Approximately $1.67 Million in Cash, 513 F.3d at 999; Marine Midland

8 Bank v. U.S., 11 F.3d 1119, 1126 (2d Cir. 1993).

9

Defendants argue that there is no case law holding that their service and execution of

10 the seizure for forfeiture warrants was a clearly established violation of the Fourth

11 Amendment. (Doc. 276.) According to Defendants, given the case law involving money

12 forfeiture, Plaintiffs can only defeat their defense of qualified immunity if they are able to

13 point to legal authorities that would have clearly established that at the time of seizure

14 Plaintiffs’ type of transaction-specific probable cause was required to support seizure

15 warrants for electronic money transfers.

16

Plaintiffs maintain that the central question in this case is the Fourth Amendment’s

17 main rule of reasonableness which requires “individualized suspicion of wrongdoing” citing

18 Chandler v. Miller, 520 U.S. 305, 313 (1997). (Doc. 282 at 2.) Plaintiffs argue that statistics

19 alone cannot satisfy the Fourth Amendment probable cause standard for issuing a seizure

20 warrant. (Id.) Based on the lack of individualized suspicion, Plaintiffs contend that the

21 seizure warrants were facially invalid, which invalidity was not cured by the supporting

22 affidavits. (Id. at 3.) Because clearly established Fourth Amendment law requires

23 particularized probable cause, and the warrants and affidavits at issue did not provide such

24 probable cause, Plaintiffs argue that Defendants are not entitled to qualified immunity, citing

25 Messerschmidt, 132 S. Ct. at 1244. (Id.)

26

Plaintiffs do acknowledge that when a seizure warrant has been reviewed and issued

27 by a judge, in order to reach the conclusion that qualified immunity does not attach to the

28 service and execution of the warrant, Messerschmidt requires that it be so “obvious that no

- 6 -

1 reasonably competent officer would have concluded that a warrant should issue . . . for

2 example, where the warrant was based on an affidavit so lacking in indicia of probable cause

3 as to render official belief in its existence entirely unreasonable.” 132 S. Ct. at 1245 (further

4 citation and quotation omitted). In support that Defendants acted unreasonably in the service

5 and execution of the warrants, Plaintiffs rely on United States v. Grant, 682 F.3d 827 (9th

6 Cir. 2012) and People v. Underwood, 725 F.3d 1076 (9th Cir. 2013). (Doc. 282 at 7-9.) For

7 instance, the Grant court found the officers’ reliance on the search warrant “entirely

8 unreasonable,” despite review and approval by a magistrate because the supporting affidavit

9 did “not set out any plausible connection between [the defendant, whose home was

10 authorized by the warrant to be searched] and the gun or ammunition used in the homicide.”

11 682 F.3d at 836. Probable cause had not been established due to the absence of evidence

12 connecting the defendant to the homicide being investigated. Id. at 828. Continuing,

13 Plaintiffs argue that here, as in Grant, there was no evidence connecting the wire transfers

14 sent by Plaintiffs to any particular crime. (Doc. 282 at 8.) Finally, Plaintiffs contend that the

15 warrants’ statistical inferences and general conclusions about drug and human smugglers

16 provided no particularized probable cause to Defendants about Plaintiffs nor any of

17 Plaintiffs’ transactions. (Id. at 9.)

18

The Court disagrees with Plaintiffs. The Court finds that Defendants are entitled to

19 qualified immunity. Defendants are shielded by qualified immunity unless both prongs of

20 constitutional analysis are satisfied: (1) whether the official violated the plaintiff’s

21 constitutional rights, and if so, (2) whether the right violated was clearly established at the

22 time of the official’s conduct. See Pearson, 555 U.S. at 232. The Court initially finds that

23 Defendants did not violate the Plaintiffs’ constitutional rights, and, next, even assuming a

24 constitutional violation, such a violation was not a violation of clearly established law at the

25 time of the service and execution of the seizure warrants.

26

Constitutional Violation

27

The Court finds that the seizure warrant for forfeiture at issue did not violate

28 Plaintiffs’ rights against unreasonable seizure under the Fourth Amendment. In

- 7 -

1 Messerschmidt, the Supreme Court held that “[w]here the alleged Fourth Amendment

2 violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate

3 has issued a warrant is the clearest indication that the officers acted in an objectively

4 reasonable manner or, as we have sometimes put it, in objective good faith.” 132 S. Ct. at

5 1245.

6

However, the issue here is not whether the non-party police investigators offered

7 enough evidence in their affidavits and materials to meet the requirements of probable cause.

8 The only issue is whether, even assuming that probable cause was insufficient, their

9 affidavits and materials were so lacking in indicia of probable cause “as to render official

10 belief in its existence entirely unreasonable.” Messerschmidt, 132 S. Ct. at 1245. Thus,

11 Plaintiffs would be required to show that when Defendant Holmes, under the supervision of

12 Defendant Goddard, served the warrants on Western Union, a finding could be made that

13 neither officer acted objectively reasonable in concluding that a warrant should issue. Id.

14

Under the Fourth Amendment, government officials who have a reasonable but

15 mistaken belief as to the facts in support of the question of probable cause are not in violation

16 of the Constitution. See Anderson v. Creighton, 483 U.S. 635, 641 (1987) (stating that “it is

17 inevitable that law enforcement officials will in some cases reasonably but mistakenly

18 conclude that probable cause is present, and we have indicated that in such cases those

19 officials—like other officials who act in ways they reasonably believe to be lawful—should

20 not be held personally liable.”); see also Armstrong v. Asselin, 734 F.3d 984, 991 (9th Cir.

21 2013) (stating that a state official is entitled to qualified immunity even for a seizure based

22 on an invalid warrant if he has a reasonable belief that the warrant is supported by reasonable

23 cause).

24

The record in this case requires a finding of no constitutional violation because

25 Defendants acted reasonably in service and execution of the warrants believing that the

26 warrants were supported by probable cause. In support, two Maricopa County Superior Court

27 Judges, Judge James Keppel and Judge Brian Ishikawa, after reviewing the supporting

28 affidavits and materials, both found probable cause and issued the challenged warrants. (Doc.

- 8 -

1 231-8 at 57-71.) It follows from Messerschmidt, the fact that two Maricopa County Superior

2 Court Judges issued seizure for forfeiture warrants is the clearest indication that Defendants,

3 in the service and execution of those warrants, acted in an objectively reasonable manner.

4 See 132 S. Ct. at 1245.

5

Next, although its opinion was subsequently vacated on other grounds by the Arizona

6 Supreme Court, this Court finds the reasoning of the Arizona Court of Appeals persuasive

7 on the issue of probable cause because it thoroughly reviewed and analyzed the facts at issue

8 and the merits of Judge Ishikawa’s finding.3 See State of Arizona v. Western Union Fin.

9 Serv., 219 Ariz. 337, 353-62, 199 P.3d 592, 608-17 (App. 2008), opinion vacated on other

10 grounds by, 220 Ariz. 567, 208 P.3d 218 (2009).4 In summary, the Arizona Court of Appeals

11 found “the Seizure Warrant at issue in this case was supported by probable cause that

12 proceeds of Arizona racketeering activities would be in [Western Union’s] possession in the

13 form of [electronic credits] during the ten-day time frame of the Warrant. Therefore, the

14 Warrant did not violate the Fourth Amendment merely because the [electronic credits] at

15 issue were not in [Western Union’s] possession at the time the court issued the Warrant. . .

16 . [U]nder the specific circumstances of this case, the Seizure Warrant did not violate the

17 Fourth Amendment as it was supported by probable cause and was sufficiently particularized

18 in describing the property to be seized and its location. Id. at 362, 199 P.3d at 617.

19

Specifically, the State had the burden of showing that the electronic credits of Western

20 Union were the proceeds of or used to facilitate Arizona racketeering offenses, namely

21 human smuggling and narcotics trafficking. See id. at 343, 199 P.3d at 598 (citing A.R.S. §

22 13–2314(C) (2001) (authorizing court to issue seizure warrant prior to determination of

23

24

3The Court finds that the two warrant applications signed by Judges Keppel and

25 Ishikawa are functionally similar for purposes of reviewing the determination of probable

cause. 26

27

4The Arizona Supreme Court determined that Arizona’s courts lack jurisdiction to

issue a warrant seizing Western Union money transfers sent from other states to the Country

28 of Mexico. 220 Ariz. at 568, 208 P.3d at 219.

- 9 -

1 liability for racketeering); A.R.S. § 13–2314(G)(3) (providing that proceeds traceable to

2 racketeering subject to forfeiture); and A.R.S. § 13–4310(A) (2001) (authorizing court to

3 issue seizure warrant “prior or subsequent to the filing of a notice of pending forfeiture,

4 complaint, indictment or information”). In support of probable cause, the court of appeals

5 reviewed the submitted affidavits and declarations from members of a financial crimes task

6 force (the “Task Force”). Id. at 353-62, 199 P.3d at 608-17. Based on its review of the

7 totality of the Task Force findings, the court of appeals concluded that the electronic credits

8 targeted by the seizure warrants had a causal nexus to human smuggling and/or narcotics

9 trafficking. Id. at 359, 199 P.3d at 614 (stating that the state had produced credible evidence

10 demonstrating a probability that the targeted electronic credits were linked to racketeering

11 activity). This finding of probable cause by the Arizona Court of Appeals further supports

12 that Defendants, in the service and execution of those warrants, acted in an objectively

13 reasonable manner. See Messerschmidt, 132 S. Ct. at 1245. There is no evidence that the

14 Task Force affidavits and materials were so lacking in indicia of probable cause as to render

15 Defendants’ official belief in probable cause entirely unreasonable.5 See id.

16

Thus the Court easily concludes that even if Defendants reasonably but mistakenly

17 concluded that probable cause was present (which in fact probable cause was present), they

18

19 5The Court disagrees with Plaintiffs that United States v. Grant, 682 F.3d 827 (9th Cir.
20 2012), is applicable to the facts at issue. In Grant, the court found that the affidavit in support
21 of the search warrant did “not set out any plausible connection between [the defendant, whose home was authorized by the warrant to be searched] and the gun or ammunition used
22 in the homicide.” 682 F.3d at 836. Probable cause had not been established due to the
23 absence of evidence connecting the defendant to the homicide being investigated. Initially, the Court finds that Grant is distinguished as it overturned a denied
24 suppression motion but did not involve any qualified immunity analysis. Furthermore, there
25 is abundant evidence in support of probable cause in this case, as opposed to Grant. The Task Force’s investigation into human smuggling and the use by smugglers of Western Union’s
26 electronic credits in violation of Arizona’s racketeering statutes lasted from 2000 to 2006,
27 when the warrants at issue were served by Defendants. The lengthy analysis by the Arizona Court of Appeals demonstrated that the electronic credits targeted by the seizure warrants had
28 a causal nexus to human smuggling and/or narcotics trafficking.

- 10 -

1 will not be held personally liable. See Anderson, 483 U.S. at 641. Defendants are entitled to

2 qualified immunity. See Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (stating that the shield

3 of qualified immunity “protects all but the plainly incompetent or those who knowingly

4 violate the law.”) (further citation omitted).

5

Clearly Established Law

6

Even when it is assumed that a constitutional violation may have been committed,

7 Plaintiffs must also establish that the alleged constitutional violation was clearly established

8 and gave fair notice to the state officials at issue. In the particular factual context of this case,

9 Plaintiffs cannot so demonstrate.

10

Plaintiffs contend that Defendants are not entitled to qualified immunity for their roles

11 in serving and executing general seizure warrants that were devoid of particularized probable

12 cause. (Doc. 282 at 2-3.) According to Plaintiffs, the warrant violated the Fourth

13 Amendment’s requirement of “individualized suspicion of wrongdoing.” (Id.) Based on the

14 lack of individualized suspicion, Plaintiffs contend that the seizure warrants were facially

15 invalid, which invalidity was not cured by the supporting affidavits. (Id. at 3.) Plaintiffs

16 contend that by the time Defendants caused the seizure of their funds in 2006, it had been

17 clear for decades that statistical inferences and profile evidence alone cannot establish

18 probable cause. (Id. at 4.) Plaintiffs emphasize that there was no evidence connecting the

19 wire transfers sent by Plaintiffs to any particular crime. (Id. at 8.)

20

Defendants respond that state officials are not expected to second-guess issuing courts

21 that have found probable cause, having the responsibility to scour the materials for defects

22 in probable cause to ensure that a warrant may issue. As stated in both Messerschmidt and

23 Armstrong, when a court has issued a warrant, any alleged defects, assuming they exist,

24 would need to be obvious to the state official with just a simple glance. Messerschmidt, 132

25 S. Ct. at 1250; Armstrong, 734 F.3d at 992. Here, any defects, if there were any, would only

26 become apparent upon a careful and detailed legal analysis, looking at the warrant, affidavit,

27 and relevant statutes. Thus, Defendants contend that no clearly established law gave them

28 fair notice that service and execution of the warrants in this case was a constitutional

- 11 -

1 violation.

2

The Court agrees with Defendants that no clearly established law gave them fair

3 notice that service and execution of the seizure warrants for forfeiture in this case would be

4 a constitutional violation. The burden is on the Plaintiffs to show that the law was clearly

5 established at the time of the alleged violation. See Davis v. Scherer, 468 U.S. 183, 197-98

6 (1984). The Supreme Court has repeatedly stated that clearly established law is not defined

7 at a high level of generality. See Mullenix, 136 S. Ct. at 308. “For federal law to be clearly

8 established, there must be fairly close factual correspondence between the prior precedents

9 and the case at hand. Federal law is less likely to be clearly established when it depends on

10 an ad hoc balancing of competing interests between the state and the individual.” Martin A.

11 Schwartz, Fed. Judicial Ctr., Section 1983 Litigation, 147 (3rd ed. 2014). In Mullenix, the

12 Supreme Court reiterated that “[t]he dispositive question is whether the violative nature of

13 particular conduct is clearly established.” 136 S. Ct. at 308; see also City & Cnty. of San

14 Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015) (requiring for clearly established law that

15 the state official be given fair notice of the particular conduct which is prohibited).

16

Plaintiffs reliance upon Grant to establish clearly defined law for Defendants is

17 misplaced. In Grant, at issue was the absence of facts in the search warrant demonstrating

18 probability that the weapon in the homicide investigation would be found at the search

19 location. Grant is far removed from the facts at issue here. In support of the seizure warrant

20 for forfeiture, the facts at issue in the warrant application showed that the res being seized

21 was probably the proceeds of racketeering allegations.

22

Grant has no bearing on the Court’s “clearly established” analysis because the

23 application for the search warrant in Grant took place in 2009, three years after Defendants’

24 service and execution of the seizure for forfeiture warrants in 2006. The ruling in Grant by

25 the Ninth Circuit did not occur until 2012. As a matter of law, clearly established law for

26 qualified immunity purposes is the law clearly established at the time of the conduct at issue.

27 See Anderson, 483 U.S. at 639 (stating that whether a state official may be held personally

28 liable for an allegedly unlawful official action “generally turns on the objective legal

- 12 -

1 reasonableness of the action, assessed in light of the legal rules that were clearly established

2 at the time it was taken.”).

3

Moreover, even if considered, for federal law to be clearly established, there must be

4 fairly close factual correspondence between the prior precedents and the case at hand.

5 Otherwise, the state official is not put on notice that existing precedent has placed the

6 statutory or constitutional question beyond debate. See al-Kidd, 131 S. Ct. at 2083; see also

7 Mullenix, 136 S. Ct. at 308 (stating that “[t]he dispositive question is whether the violative

8 nature of particular conduct is clearly established”). Because there is no fairly close factual

9 correspondence between Grant and the facts here, Grant would not have provided any notice

10 to Defendants here that any reasonable official would have understood that he was violating

11 the constitutional right at issue.

12

Plaintiffs also rely on People v. Underwood, 725 F.3d 1076 (9th Cir. 2013) (stating

13 that the warrant affidavit was so lacking in indicia of probable cause as to preclude any

14 officer’s objectively reasonable reliance on it). As in Grant, Underwood has no bearing on

15 the Court’s “clearly established” analysis because the application for the search warrant at

16 issue in Underwood took place in 2010, four years after Defendants’ service and execution

17 of the seizure for forfeiture warrants in 2006. The ruling in Underwood by the Ninth Circuit

18 did not occur until 2013.

19

Moreover, Underwood is not factually similar. It deals with the lack of probable cause

20 to search for drug trafficking evidence. The affidavit in support of the search warrant failed

21 to define “drug trafficker” and provided no facts in support of the conclusion that defendant

22 was a drug trafficker. The Ninth Circuit held that probable cause had not been established

23 because the affidavit did not provide proper support for the conclusion that defendant was

24 a drug courier and no support for the conclusion that drug trafficking evidence would be

25 found at his address. Because there is no fairly close factual correspondence between

26 Underwood and the facts here, even if Underwood were timely, which it is not, it would not

27 have provided notice to Defendants here that any reasonable official would have understood

28 that his actions violated the constitutional right at issue.

- 13 -

1

Thus, Plaintiffs have failed to carry their burden of showing clearly established law

2 at the time of the alleged violation that Defendants’ service and execution of the seizure for

3 forfeiture warrants was objectively unreasonable in light of the legal rules that were clearly

4 established at the time it was taken.

5

CONCLUSION

6

The Court finds that qualified immunity shields Defendants from personal liability

7 regarding their actions in serving and executing a pair of 2006 state court issued seizure for

8 forfeiture warrants to Western Union headquarters.

9

Accordingly, on the basis of the foregoing,

10

IT IS HEREBY ORDERED granting Defendants’ Supplemental Motion for

11 Summary Judgment Re: Qualified Immunity. (Doc. 276.) The Clerk of Court shall issue

12 Judgment in favor of Defendants and terminate this case.

13

IT IS FURTHER ORDERED that the Clerk of Court forward this Order to the Ninth

14 Circuit Court of Appeals.

15

DATED this 29th day of June, 2016.

16

17

18

19

20

21

22

23

24

25

26

27

28

- 14 -

 
 Case: 16-16315, 06/25/2018, ID: 10920218, DktEntry: 47-1, Page 1 of 6

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
JUN 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

JAVIER TORRES; LIA RIVADENEYRA, individually and on behalf of all others similarly situated,

No. 16-16315 D.C. No. 2:06-cv-02482-SMM

Plaintiffs-Appellants, v.

MEMORANDUM*

TERRY GODDARD, in his individual capacity; CAMERON H. HOLMES, AKA Kip Holmes, in his individual capacity; THOMAS C. HORNE, Attorney General, Attorney General of the State of Arizona,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted July 27, 2017 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Case: 16-16315, 06/25/2018, ID: 10920218, DktEntry: 47-1, Page 2 of 6
Before: BYBEE, NGUYEN,** and OWENS,*** Circuit Judges. Named plaintiffs Javier Torres and Lia Rivadeneyra brought this putative
class action under 42 U.S.C. § 1983 against the Attorney General and Assistant Attorney General of the State of Arizona. They allege that two warrants issued by the Maricopa County Superior Court against plaintiffs’ money orders with Western Union Financial Services (“Western Union”) violated their Fourth and Fourteenth Amendment rights. The district court denied class certification and granted defendants’ motion for summary judgment, holding that defendants were entitled to absolute immunity for their actions. On appeal we held that although defendants were absolutely immune for the preparation and application of the warrants, they could not claim the same absolute immunity as to their execution and service, and so we affirmed in part and reversed in part for further proceedings on the question of qualified immunity. Torres v. Goddard, 793 F.3d 1046, 1053–59 (9th Cir. 2015). On remand, the court again denied class certification, and granted
** This case was submitted to a panel that included Judge Kozinski. Following Judge Kozinski’s retirement, Judge Nguyen was drawn by lot to replace him. Ninth Circuit General Order 3.2h. Judge Nguyen has reviewed all case materials.
*** This case was submitted to a panel that included Judge Reinhardt. Following Judge Reinhardt’s passing, Judge Owens was drawn by lot to replace him. Ninth Circuit General Order 3.2h. Judge Owens has reviewed all case materials.
2

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defendants’ motion for summary judgment, holding that qualified immunity protected defendants against these claims. The court reasoned that there was no violation in that defendants “acted reasonably in service and execution . . . believing that the warrants were supported by probable cause,” and that even if a violation had been committed, no clearly established law gave them fair notice of liability. Torres and Rivadeneyra appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. We review de novo whether qualified immunity protects government officers from liability. Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). We review the denial of class certification for an abuse of discretion. Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010).
We presume the parties’ familiarity with the facts of this case as set forth in our published opinion, see Torres, 793 F.3d at 1048–50, and as set forth in the district court’s order. After consideration of the briefs, record, and argument, we affirm.
1. Torres and Rivadeneyra first argue that defendants are not entitled to qualified immunity for the execution and service of the warrants, because the warrants were insufficiently particularized. They argue that the Attorney General’s use and issuance of “criteria-based” warrants violates the requirement of
3

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particularized probable cause, see Ybarra v. Illinois, 444 U.S. 85, 91 (1979), and the prohibition on using profile evidence as probable cause, see United States v. $49,576.00 U.S. Currency, 116 F.3d 425, 427–28 (9th Cir. 1997), and that both propositions were clearly established.
Even assuming plaintiffs’ Fourth Amendment rights were violated, such a violation was not clearly established at the time. This second prong of the qualified immunity analysis requires us to examine the “contours” of the plaintiffs’ Fourth Amendment rights to determine whether those particular rights were “clearly established,” Hope v. Pelzer, 536 U.S. 730, 739 (2002), and ask whether a “reasonable official” would have known that “what he [was] doing violate[d] that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Plaintiffs carry the burden of showing that the law was clearly established at the time of the alleged violation, see Davis v. Scherer, 468 U.S. 183, 197 (1984), and we define “clearly established law” not at a high level of generality, but with a fair degree of granularity, Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation omitted).
We agree with the district court’s analysis, and we find that the cases cited by plaintiffs would not have provided defendants with notice in 2006 that their conduct constituted an unconstitutional seizure in violation of plaintiffs’ Fourth Amendment rights. The cases they cite are simply too general to have done so.
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See, e.g., Ybarra, 444 U.S. at 90 & n.2 (warrant that broadly directed the police to search “the following person or place: . . . the Aurora Tap Tavern. . . . [a]lso the person of ‘Greg’” was not supported by probable cause); $49,576.00, 116 F.3d at 427–28 (affidavit by arresting officer noting merely that “appellant fits a drug courier profile” was insufficient for probable cause). “[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity,” and “innocent behavior frequently will provide the basis for [it].” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). Although “profile” evidence that “describe[s] a very large category of presumably innocent [persons]” does not alone establish probable cause, Reid v. Georgia, 448 U.S. 438, 441 (1980) (per curiam), the program at issue here identified transfers with an extremely high statistical likelihood of a criminal nexus. Whether or not the warrants were properly issued, we agree with the district court that defendants are entitled to qualified immunity as to their service and execution.
2. Torres and Rivadeneyra argue that the district court ignored our remand of their Due Process and Commerce Clause claims, and that the district court erred in refusing to certify their class claims. As to the former argument, even if those claims survived our remand, they are nonetheless meritless because the claimed violations of the Due Process and Commerce Clauses are even less
5

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“clearly established” than the claimed violations of the Fourth Amendment for which defendants are entitled to qualified immunity. As to the latter argument, “the district court need not inquire as to whether [a] meritless claim should form the basis of a class action.” Corbin v. Time Warner Entm’t-Advance/Newhouse P’ship, 821 F.3d 1069, 1085 (9th Cir. 2016).
The judgment of the district court is AFFIRMED.
6

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United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment •

This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. Purpose (Panel Rehearing): • A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not addressed in the opinion. • Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 08/2013

1

Case: 16-16315, 06/25/2018, ID: 10920218, DktEntry: 47-2, Page 2 of 5
► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 08/2013

2

Case: 16-16315, 06/25/2018, ID: 10920218, DktEntry: 47-2, Page 3 of 5
• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
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Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms.
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Post Judgment Form - Rev. 08/2013

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Case: 16-16315, 06/25/2018, ID: 10920218, DktEntry: 47-2, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit
BILL OF COSTS
This form is available as a fillable version at: http://cdn.ca9.uscourts.gov/datastore/uploads/forms/Form%2010%20-%20Bill%20of%20Costs.pdf.
Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief Reply Brief Other**

REQUESTED (Each Column Must Be Completed)

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

$

$

$

$

TOTAL: $

ALLOWED (To Be Completed by the Clerk)

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

$

$

$

$

TOTAL: $

* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page

Case: 16-16315, 06/25/2018, ID: 10920218, DktEntry: 47-2, Page 5 of 5 Form 10. Bill of Costs - Continued

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

 
 Alerts not yet Supported for this Docket

CLOSED,PROTO,STD

U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:06-cv-02482-SMM

Torres et al v. Horne, et al. Assigned to: Judge Stephen M McNamee Case in other court: Ninth Circuit, 12-17096; Mandate
08/10/15
Ninth Circuit, 16-16315; Mandate 07/17/18 Cause: 42:1983 Civil Rights Act

Date Filed: 10/18/2006 Date Terminated: 07/01/2016 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Javier Torres

represented by Alex R Montgomery , Hughes Socol Piers Resnick & Dym Ltd 70 W Madison St Ste 4000 Chicago, IL 60602 312-604-2674 Fax: 312-580-1994 Email: amontgomery@hsplegal.com TERMINATED: 05/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean-Jacques Cabou Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067-6379 602-640-9000 Fax: 602-640-9050 Email: jcabou@omlaw.com TERMINATED: 07/02/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Karsh , Hughes Socol Piers Resnick & Dym Ltd

70 W Madison St Ste 4000 Chicago, IL 60602 312-604-2630 Fax: 312-604-2631 Email: jkarsh@hsplegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliet V Berger-White , Hughes Socol Piers Resnick & Dym Ltd 70 W Madison St Ste 4000 Chicago, IL 60602 312-604-2616 Fax: 312-604-2617 Email: jberger-white@hsplegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karyn L Bass Ehler , Hughes Socol Piers Resnick & Dym Ltd 70 W Madison St Ste 4000 Chicago, IL 60602 312-604-2646 Fax: 312-604-2647 Email: kbassehler@hsplegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary M Rowland Hughes Socol Piers Resnick & Dym Ltd 70 W Madison St Ste 4000 Chicago, IL 60602 312-580-0100 Fax: 312-580-1994 Email: mrowland@hsplegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J Piers

Hughes Socol Piers Resnick & Dym Limited 70 W Madison St., Ste. 4000 Chicago, IL 60602 312-604-2606 Fax: 312-580-1994 Email: mpiers@hsplegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick M OBrien , Hughes Socol Piers Resnick & Dym Ltd 70 W Madison St Ste 4000 Chicago, IL 60602 312-604-2646 Fax: 312-580-1994 Email: pobrien@hsplegal.com TERMINATED: 05/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Joel Eckstein Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067-6379 602-640-9000 Fax: 602-640-9050 Email: teckstein@omlaw.com TERMINATED: 07/02/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher J Wilmes Hughes Socol Piers Resnick & Dym 70 W Madison St., Ste. 4000 Chicago, IL 60602 312-604-2636 Fax: 312-604-2637 Email: cwilmes@hsplegal.com ATTORNEY TO BE NOTICED
Kate Schwartz Hughes Socol Piers Resnick & Dym Limited

Plaintiff
Alma Santiago TERMINATED: 09/08/2008

70 W Madison St., Ste. 4000 Chicago, IL 60602 312-604-2750 Fax: 312-604-2751 Email: kschwartz@hsplegal.com ATTORNEY TO BE NOTICED
represented by Alex R Montgomery , (See above for address) TERMINATED: 05/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean-Jacques Cabou (See above for address) TERMINATED: 07/02/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Karsh , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliet V Berger-White , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karyn L Bass Ehler , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary M Rowland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J Piers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick M OBrien ,

Plaintiff
Lia Rivadeneyra on behalf of themselves and others similarly situated

(See above for address) TERMINATED: 05/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Joel Eckstein (See above for address) TERMINATED: 07/02/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alex R Montgomery , (See above for address) TERMINATED: 05/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean-Jacques Cabou (See above for address) TERMINATED: 07/02/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Karsh , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliet V Berger-White , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karyn L Bass Ehler , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary M Rowland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J Piers (See above for address)

V.
Defendant
Terry L Goddard in his individual capacity

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick M OBrien , (See above for address) TERMINATED: 05/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Joel Eckstein (See above for address) TERMINATED: 07/02/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher J Wilmes (See above for address) ATTORNEY TO BE NOTICED
Kate Schwartz (See above for address) ATTORNEY TO BE NOTICED
represented by David Daniel Weinzweig Office of the Attorney General Phoenix 2005 N Central Ave. Phoenix, AZ 85004-1592 602-542-7989 Fax: 602-364-2214 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael King Goodwin Office of the Attorney General Phoenix - Liability Mgmt. 2005 N Central Ave. Phoenix, AZ 85004-1592 602-542-7674 Fax: 602-542-7644 Email: michael.goodwin@azag.gov LEAD ATTORNEY

Defendant
Cameron Holmes in his individual capacity also known as Kip Holmes

ATTORNEY TO BE NOTICED
William August Richards Baskin PLC 6263 N Scottsdale Rd., Ste. 340 Scottsdale, AZ 85250 602-812-7979 Fax: 602-595-7800 Email: BRichards@rmazlaw.com TERMINATED: 01/06/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Hinson Office of the Attorney General Tucson - Liability Mgmt. 177 N Church St., Ste. 1105 Tucson, AZ 85701 520-638-2805 Fax: 520-628-6050 Email: Michael.Hinson@azag.gov ATTORNEY TO BE NOTICED
Paul Correa Office of the Attorney General Tucson 177 N Church Ave., Ste. 1105 Tucson, AZ 85701 520-638-2809 Fax: 520-628-6050 Email: paul.correa@azag.gov
represented by David Daniel Weinzweig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael King Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William August Richards (See above for address) TERMINATED: 01/06/2011

Defendant
Thomas C Horne Attorney General of the State of Arizona

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Hinson (See above for address) ATTORNEY TO BE NOTICED
Paul Correa (See above for address) ATTORNEY TO BE NOTICED
represented by David Daniel Weinzweig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael King Goodwin (See above for address) ATTORNEY TO BE NOTICED
Michael H Hinson (See above for address) ATTORNEY TO BE NOTICED
Paul Correa (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/18/2006 10/18/2006
10/19/2006

# Docket Text
1 COMPLAINT, filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Civil Cover Sheet)(Eckstein, Timothy) (Entered: 10/18/2006)
3 Filing fee paid 10/18/06, receipt number PHX049518. This case has been assigned to the Honorable Mark E. Aspey. All future pleadings or documents should bear the correct case number: CV06-2482-PHXMEA. Magistrate Election form attached. (Attachments: # 1 Instructions) (ESL) (Entered: 10/18/2006)
4 Summons Issued as to Terry Goddard, Cameron Holmes. (Attachments: # 1 Holmes)(PEM) (Entered: 10/19/2006)

10/19/2006 10/19/2006
10/19/2006 10/19/2006
10/19/2006 10/19/2006
10/19/2006 10/19/2006

5 MOTION for Admission Pro Hac Vice as to attorney Matthew J Piers on behalf of plaintiffs Javier Torres, Alma Santiago, and Lia Rivadeneyra. (BAS, ) (Entered: 10/19/2006)
6 ORDER pursuant to General Order 05-25 granting 5 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/19/2006)
7 MOTION for Admission Pro Hac Vice as to attorney Mary M Rowland on behalf of plaintiffs Javier Torres, Alma Santiago, and Lia Rivadeneyra. (BAS, ) (Entered: 10/19/2006)
8 ORDER pursuant to General Order 05-25 granting 7 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/19/2006)
9 MOTION for Admission Pro Hac Vice as to attorney Alex R Montgomery on behalf of plaintiffs Javier Torres, Alma Santiago, and Lia Rivadeneyra. (BAS, ) (Entered: 10/19/2006)
10 ORDER pursuant to General Order 05-25 granting 9 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/19/2006)
11 MOTION for Admission Pro Hac Vice as to attorney Patrick M O'Brien on behalf of plaintiffs Javier Torres, Alma Santiago, and Lia Rivadeneyra. (BAS, ) (Entered: 10/19/2006)
12 ORDER pursuant to General Order 05-25 granting 11 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/19/2006)

10/23/2006 11/06/2006 11/06/2006
11/06/2006 11/07/2006 11/07/2006 11/08/2006 11/09/2006 11/14/2006

13 ORDER that Plas shall each execute and file within 20 days of the entry of this order their written election to either consent to the exercise of jurisdiction over this matter by a magistrate judge or a written election to have this case reassigned to a United States district judge. Signed by Judge Mark E Aspey on 10/23/06. (LCF) (Entered: 10/23/2006)
14 NOTICE of Appearance by Michael H Hinson on behalf of all defendants (Hinson, Michael) (Entered: 11/06/2006)
15 STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT - TO FILE RESPONSIVE PLEADING by Terry Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order Order Extending Time to File Responsive Pleading)(Hinson, Michael) Modified on 11/7/2006 (DNH, ). INCORRECT PDF ATTACHED, ATTORNEY NOTICED TO REFILE. (Entered: 11/06/2006)
19 Party Elects Assignment of Case to District Judge Jurisdiction. TEXT ONLY ENTRY, NO PDF DOCUMENT ATTACHED. (MAP) (Entered: 11/14/2006)
16 NOTICE TO FILER OF DEFICIENCY re 15 Stipulation For Extension of Time To Answer Complaint filed by Cameron Holmes,, Terry Goddard,. Description of deficiency: Incorrect PDF attached duplicated Proposed Order attached. (DNH) (Entered: 11/07/2006)
17 STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT - File Responsive Pleading by Terry Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order Order Extending Time to File Responsive Pleading)(Hinson, Michael) (Entered: 11/07/2006)
18 ORDER that dfts shall each execute and file within 20 days of the entry of this order their written election to either consent to the exercise of jurisdiction over this matter by a magistrate judge or a written election to have this case reassigned to a United States district judge. Signed by Judge Mark E Aspey on 11/8/06. (TLJ) (Entered: 11/08/2006)
21 Party Elects Assignment of Case to District Judge Jurisdiction. TEXT ONLY ENTRY, NO PDF DOCUMENT ATTACHED. (MAP) (Entered: 11/14/2006)
20 MINUTE ORDER Pursuant to Local Rule 3.8(a), a request has been received for a random reassignment of this case to a District Judge FURTHER ORDERED Case reassigned to by random draw to Judge Paul G. Rosenblatt. All further pleadings should now list the following COMPLETE case number: CIV-06-2482-PHX-PGR. (MAP) (Entered: 11/14/2006)

11/17/2006 11/17/2006 11/20/2006 11/20/2006 12/01/2006
12/05/2006 12/07/2006

22 Notice re Filing Motion to Transfer by Terry Goddard, Cameron Holmes (Attachments: # 1 Exhibit # 2 Text of Proposed Order Order)(Goodwin, Michael) (Entered: 11/17/2006)
23 Notice re Notice of Filing Motion to Transfer Case by Javier Torres, Alma Santiago, Lia Rivadeneyra (Attachments: # 1 Exhibit Motion to Transfer# 2 Exhibit Exhibit A to Motion# 3 Exhibit B to the Motion# 4 Exhibit C to the Motion)(Rowland, Mary) (Entered: 11/17/2006)
24 MOTION to Dismiss Counts/Claims : for monetary relief, due to failure to state a claim upon which relief can be granted by Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 11/20/2006)
25 MOTION for Extension of Time to File Answer --Respond to Allegations of Plaintiffs' Complaint Not Addressed by Defendants' Rule 12(b)(6) Motion to Dismiss by Terry Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order Order for Open Extension of Time to Respond to Allegations of Plaintiffs' Complaint Not Addressed By Defendants' Rule 12(b)(6) Motion to Dismiss)(Hinson, Michael) (Entered: 11/20/2006)
26 ORDERED granting 25 & 26 Defendants' Motion to Transfer Related Case and Plaintiffs' Motion to Transfer Related Case. ORDERED that the Clerk of Court shall provide a copy of this Order to counsel of record in each of the following cases: CV 06-2249-PHX-SMM and CV 06-2482-PHX-PGR. ORDERED that the Clerk of Court shall provide a copy of this Order to United States District Judge Paul G. Rosenblatt. Judge Stephen M McNamee added. Judge Paul G Rosenblatt no longer assigned to case. Signed by Judge Stephen M McNamee on 11/29/06. (TLJ) (Entered: 12/01/2006)
27 RESPONSE in Opposition re 25 MOTION for Extension of Time to File Answer --Respond to Allegations of Plaintiffs' Complaint Not Addressed by Defendants' Rule 12(b)(6) Motion to Dismiss MOTION for Extension of Time to File Answer --Respond to Allegations of Plaintiffs' Complaint Not Addressed by Defendants' Rule 12(b)(6) Motion to Dismiss filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 12/05/2006)
28 RESPONSE in Opposition re 24 MOTION to Dismiss Counts/Claims : for monetary relief, due to failure to state a claim upon which relief can be granted Plaintiffs' Response in Opposition to Defendants Terry Goddard and Cameron Holmes' Rule 12(b)(6) Motion to Dismiss Plaintiffs' Claim for Monetary Relief filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A)(Piers, Matthew) (Entered: 12/07/2006)

12/15/2006 12/15/2006
12/20/2006 01/10/2007 01/10/2007 01/23/2007 01/24/2007 02/09/2007

29 STIPULATION for Extension of Time to File Reply Re Defendants' Pending Rule 12(b)(6) Motion to Dismiss by Terry Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order Order Extending Time for Defendants to File Reply Memorandum re Defendants' Pending Rule 12(b)(6) Motion to Dismiss)(Hinson, Michael) (Entered: 12/15/2006)
30 REPLY in Support re 25 MOTION for Extension of Time to File Answer --Respond to Allegations of Plaintiffs' Complaint Not Addressed by Defendants' Rule 12(b)(6) Motion to Dismiss MOTION for Extension of Time to File Answer --Respond to Allegations of Plaintiffs' Complaint Not Addressed by Defendants' Rule 12(b)(6) Motion to Dismiss filed by Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 12/15/2006)
31 ORDER granting re 29 Stipulation and the defendants shall have through 1/10/07 to file their reply memorandum. Signed by Judge Stephen M McNamee on 12/20/06. (TLJ) (Entered: 12/20/2006)
32 ORDERED granting 25 Defendant's Motion for Extension of Time. ORDERED that Defendants shall file an answer to the entire Complaint within 10 days after notice of the Court's ruling on Defendant's Rule 12(b)(6) Motion to Dismiss Plaintiffs' Claims for Monetary Relief 24 . Signed by Judge Stephen M McNamee on 1/10/07.(TLJ) (Entered: 01/10/2007)
33 REPLY in Support re 24 MOTION to Dismiss Counts/Claims : for monetary relief, due to failure to state a claim upon which relief can be granted filed by Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 01/10/2007)
34 OTHER NOTICE re: Notice of State Court's Order in SW2006-002213 by Plaintiffs Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A)(Piers, Matthew) Modified on 1/24/2007 (TLJ). INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM SUPPLEMENT TO OTHER NOTICE. (Entered: 01/23/2007)
35 NOTICE TO FILER OF DEFICIENCY re 34 Supplement filed by Alma Santiago, Lia Rivadeneyra, Javier Torres. Description of deficiency: Incorrect document type selected. (TLJ) (Entered: 01/24/2007)
36 OBJECTION re 34 Supplement, and Motion to Strike Plaintiffs' Notice of State Court's Order in SW 2006-002213 by Defendants Terry Goddard, Cameron Holmes. (Richards, William) (Entered: 02/09/2007)

04/30/2007
05/02/2007 05/02/2007 05/02/2007
05/07/2007
05/08/2007 05/09/2007 05/10/2007

37 ORDER Scheduling Conference set for 5/30/2007 11:00 AM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.. Signed by Judge Stephen M McNamee on 4/30/2007. IT IS FURTHER ORDERED that the Clerk of the Court send copies of this Order to all counsel of record and to all parties, if any, appearing in propria persona. (TCA, ) (Entered: 04/30/2007)
38 MOTION for Admission Pro Hac Vice as to attorney Julliet BergerWhite on behalf of Javier Torres, Alma Santiago, and Lia Rivadeneyra. (BAS, ) (Entered: 05/02/2007)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX057438 as to Juliet Berger-White. (BAS, ) (Entered: 05/02/2007)
39 ORDER pursuant to General Order 05-25 granting 38 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 05/02/2007)
40 MOTION TO WITHDRAW AS ATTORNEY re PLAINTIFFS' MOTION TO WITHDRAW APPEARANCE OF PATRICK M. O'BRIEN AND ALEX R. MONTGOMERY by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) Modified on 5/8/2007 (TLJ). INCORRECT EVENT TYPE SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM MOTION TO WITHDRAW TO MOTION TO WITHDRAW AS ATTORNEY. (Entered: 05/07/2007)
41 NOTICE TO FILER OF DEFICIENCY re 40 MOTION to Withdraw re PLAINTIFFS' MOTION TO WITHDRAW APPEARANCE OF PATRICK M. O'BRIEN AND ALEX R. MONTGOMERY filed by Alma Santiago, Lia Rivadeneyra, Javier Torres. Description of deficiency: Incorrect event type selected. (TLJ) (Entered: 05/08/2007)
42 ORDER granting 40 Plaintiffs' Motion to Withdraw Appearance of Patrick M. O'Brien and Alex R. MontgomerySigned by Judge Stephen M McNamee on 5/9/07.(TLJ) (Entered: 05/09/2007)
43 OBJECTION re 37 Order, Set Hearings,, Objection to Setting of Rule 16(b) Comprehensive Scheduling Conference/Request to Vacate Order Requiring Joint Case Management Plan by Defendants Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 05/10/2007)

05/10/2007 05/15/2007
05/30/2007
06/04/2007 06/04/2007 06/05/2007 06/05/2007 06/21/2007 07/10/2007

44 MOTION to Vacate re Order Requiring Joint Case Management Plan (Request to Vacate) by Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 05/10/2007)
45 IT IS ORDERED granting Defendants' 43 Objection and 44 Motion to Vacate. IT IS FURTHER ORDERED that the Preliminary Pretrial Conference set for 5/30/07 will now be treated as a Status Hearing. IT IS FURTHER ORDERED granting out-of-state counsel the option to appear by telephone at the 5/30/07 Status Hearing. Signed by Judge Stephen M McNamee on 5/14/07.(TLJ) (Entered: 05/15/2007)
46 Minute Entry. Proceedings held before Judge Stephen M McNamee : Apr. Matthew Piers/Jean-Jacques Cabou for plas, William Richards/Michael Goodwin for dftsStatus Conference held on 5/30/2007 re: pending motion to dismiss. (Court Reporter Gary Moll.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 05/30/2007)
47 FIRST AMENDED COMPLAINT against Defendants Terry Goddard and Cameron Holmes; Jury Demand, filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) Modified on 6/22/2007 (MAP). (Entered: 06/04/2007)
48 TRANSCRIPT DESIGNATION AND ORDER FORM by Javier Torres, Alma Santiago, Lia Rivadeneyra for Status Hearing proceedings held on 5/30/07 before Judge Stephen M McNamee. (BAS, ) (Entered: 06/05/2007)
49 TRANSCRIPT of Status Hearing Proceedings held on 5/30/07 before Judge Stephen M McNamee. Court Reporter: Gary Moll. (BAS, ) (Entered: 06/05/2007)
50 TRANSCRIPT DESIGNATION AND ORDER FORM by Terry Goddard, Cameron Holmes for status hearing proceedings held on 5/30/07 before Judge Stephen M McNamee. (BAS, ) (Entered: 06/08/2007)
51 ANSWER to Amended Complaint 47 with Jury Demand by Terry Goddard, Cameron Holmes. (Hinson, Michael) Modified on 6/22/2007 to correct docket link (MAP). (Entered: 06/21/2007)
52 ORDER Scheduling Conference set for 9/26/2007 10:00 AM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.. Signed by Judge Stephen M McNamee on 7/10/2007. (TCA, ) (Entered: 07/10/2007)

07/12/2007 07/12/2007 07/17/2007 07/24/2007
08/10/2007 08/16/2007
09/18/2007 09/19/2007 09/19/2007

53 ORDER denying 24 Defendants' Motion to Dismiss Plaintiffs' Claims for Monetary Relief. Signed by Judge Stephen M McNamee on 7/12/07.(TLJ, ) (Entered: 07/12/2007)
54 MOTION to Strike re PLAINTIFFS' MOTION TO STRIKE CERTAIN OF DEFENDANTS' AFFIRMATIVE DEFENSES by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 07/12/2007)
55 STIPULATION re 54 MOTION to Strike re PLAINTIFFS' MOTION TO STRIKE CERTAIN OF DEFENDANTS' AFFIRMATIVE DEFENSES by Terry Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order Granting Stipulation)(Richards, William) (Entered: 07/17/2007)
56 IT IS ORDERED granting the parties' Stipulated Motion to Extend Defendants' Deadline to Respond to Plaintiffs' Motion to Strike Certain of Defendants' Affirmative Defenses 55 . IT IS FURTHER ORDERED that Defendants shall have through 8/10/07, to file a response. Signed by Judge Stephen M McNamee on 7/23/07. (TLJ) (Entered: 07/24/2007)
57 RESPONSE to Motion re 54 MOTION to Strike re PLAINTIFFS' MOTION TO STRIKE CERTAIN OF DEFENDANTS' AFFIRMATIVE DEFENSES filed by Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 08/10/2007)
58 REPLY in Support re 54 MOTION to Strike re PLAINTIFFS' MOTION TO STRIKE CERTAIN OF DEFENDANTS' AFFIRMATIVE DEFENSES PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION TO STRIKE CERTAIN OF DEFENDANTS' AFFIRMATIVE DEFENSES filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Berger-White, Juliet) (Entered: 08/16/2007)
59 MOTION for Joint Request That the Named Parties Be Excused From Appearing at the Preliminary Pretrial Conference by Terry Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order Excusing Named Parties From Appearing at the Preliminary Pretrial Conference)(Hinson, Michael) (Entered: 09/18/2007)
60 MOTION for Admission Pro Hac Vice as to attorney Joshua Karsh on behalf of the plaintiffs Javier Torres, Alma Santiago, and Lia Rivadeneyra. (BAS, ) (Entered: 09/19/2007)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX062495 as to Joshua Karsh. (BAS, ) (Entered: 09/19/2007)

09/19/2007
09/19/2007 09/19/2007 09/20/2007 09/26/2007
09/28/2007 10/12/2007 10/12/2007 11/06/2007

61 ORDER pursuant to General Order 05-25 granting 60 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 09/19/2007)
62 ORDER granting the parties' 59 Joint Motion/Request. IT IS HEREBY ORDERED that the named parties be excused from appearing at the preliminary pretrial conference set for 9/26/07. Signed by Judge Stephen M McNamee on 9/19/07.(SAT) (Entered: 09/19/2007)
63 REPORT re: Rule 26(f) Planning Meeting by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 09/19/2007)
64 REPORT of Reformatted Proposed Case Management Plan by Plaintiffs Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 09/20/2007)
65 Minute Entry. Proceedings held before Judge Stephen M McNamee : Apr. Josh Karsh for plas; William August Richards for dfts, dft Cameron Holmes presentScheduling Conference held on 9/26/2007.Final Pretrial Conference set for 2/11/2009 04:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.Court order to follow. (Court Reporter Elaine Cropper.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 09/27/2007)
66 RULE 16 SCHEDULING ORDER: Setting a Final Pretrial Conference for 2/11/2009 at 04:00 PM before Judge Stephen M McNamee. Discovery due by 6/27/2008, Dispositive motions due by 1/16/2009. Open attached pdf for further details. Signed by Judge Stephen M McNamee on 09/26/07. (ESL) (Entered: 09/28/2007)
67 Notice re Service of State Defs' Rule 26 Initial Disclosure Stmt by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 10/12/2007)
68 Notice re Plaintiffs' Notice of Initial Disclosure by Javier Torres, Alma Santiago, Lia Rivadeneyra (Karsh, Joshua) (Entered: 10/12/2007)
69 Notice re Service by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 11/06/2007)

11/13/2007 12/03/2007
12/10/2007 12/21/2007 01/28/2008 01/29/2008 01/29/2008
01/30/2008 02/20/2008 03/03/2008 03/14/2008 03/14/2008

70 Notice re Service by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 11/13/2007)
71 ORDER granting Plaintiffs' Motion to Strike affirmative defenses 54 ; denying Plaintiffs' Motion to Strike affirmative defenses 54 . ORDER that Defendants shall have until 12/21/07 to file an amended answer to the First Amended Complaint. Signed by Judge Stephen M McNamee on 12/3/07.(TLJ) (Entered: 12/03/2007)
72 NOTICE of Appearance by Paul Correa on behalf of Terry Goddard, Cameron Holmes (Correa, Paul) (Entered: 12/10/2007)
73 AMENDED ANSWER to Plaintiffs' First 47 Amended Complaint by Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 12/21/2007)
74 MOTION for Admission Pro Hac Vice as to attorney Karyn L Bass Ehler on behalf of plaintiffs Javier Torres, Alma Santiago, and Lia Rivadeneyra. (BAS, ) (Entered: 01/29/2008)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX067084 as to Karyn L Bass Ehler. (BAS, ) (Entered: 01/29/2008)
75 ORDER pursuant to General Order 05-25 granting 74 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/29/2008)
76 NOTICE of Deposition of Javier Torres, filed by Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 01/30/2008)
77 NOTICE of Deposition of Lia Rivadeneyra, filed by Terry Goddard, Cameron Holmes. (Correa, Paul) (Entered: 02/20/2008)
78 NOTICE of Deposition of Alma Santiago, filed by Terry Goddard, Cameron Holmes. (Correa, Paul) (Entered: 03/03/2008)
79 MOTION to Certify Class by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 03/14/2008)
80 PLAINTIFFS' MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A through A1, # 2 Exhibit B, # 3 Exhibit B1 through B3, # 4 Exhibit B4 and B5, # 5 Exhibit C, C1, C2 & C3,

03/14/2008 03/21/2008
03/21/2008 03/24/2008 03/25/2008 03/27/2008 03/31/2008

# 6 Exhibit D, D1, E, E1, F & G, # 7 Exhibit H through L)(Piers, Matthew) Modified on 1/27/2009, INCORRECT EVENT TYPE SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM "Motion" TO "Memorandum", (LSP). (Entered: 03/14/2008)
81 MOTION to Amend/Correct re Second Amended Complaint Plaintiffs' Motion for Leave to File Second Amended Complaint by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A - Second Amended Complaint, # 2 Appendix Redline Second Amended Complaint)(Piers, Matthew) (Entered: 03/14/2008)
82 MOTION for Protective Order PLAINTIFFS' MOTION FOR ENTRY OF PROTECTIVE ORDER REGARDING DOCUMENTS SUBPOENAED FROM WESTERN UNION by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A: Subpoena served on Western Union, # 2 Exhibit B: Plaintiffs' Proposed Protective Order Regarding Documents Produced by Western Union)(Piers, Matthew) (Entered: 03/21/2008)
83 Notice re Service by Terry Goddard, Cameron Holmes (Correa, Paul) (Entered: 03/21/2008)
84 RESPONSE in Opposition re 82 MOTION for Protective Order PLAINTIFFS' MOTION FOR ENTRY OF PROTECTIVE ORDER REGARDING DOCUMENTS SUBPOENAED FROM WESTERN UNION filed by Terry Goddard, Cameron Holmes. (Attachments: # 1 Exhibit Exhibit 1to Response to Plaintiffs' Motion for Entry of Protective Order)(Hinson, Michael) (Entered: 03/24/2008)
85 RESPONSE in Opposition re 82 MOTION for Protective Order PLAINTIFFS' MOTION FOR ENTRY OF PROTECTIVE ORDER REGARDING DOCUMENTS SUBPOENAED FROM WESTERN UNION (Amended) filed by Terry Goddard, Cameron Holmes. (Attachments: # 1 Exhibit 1 to Amended Response to PLS' Motion for Protective Order)(Hinson, Michael) (Entered: 03/25/2008)
86 Notice re Service of Defendants' First Supplemental Rule 26 Disclosure Statement by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 03/27/2008)
87 RESPONSE in Opposition re 81 MOTION to Amend/Correct re Second Amended Complaint Plaintiffs' Motion for Leave to File Second Amended Complaint filed by Terry Goddard, Cameron Holmes. (Attachments: # 1 Exhibit Exhibit 1 Part 1 of 5, # 2 Exhibit Exhibit 1 Part 2 of 5, # 3 Exhibit Exhibit 1 Part 3 of 5, # 4 Exhibit Exhibit 1 Part 4 of 5, # 5 Exhibit Exhibit 1 Part 5 of 5, # 6 Exhibit Exhibit 2 Part 1 of 4, # 7 Exhibit Exhibit 2 Part 2 of 4, # 8 Exhibit Exhibit 2 Part 3 of 4,

03/31/2008
04/07/2008
04/17/2008 04/18/2008
04/21/2008 04/22/2008 04/22/2008 04/28/2008

# 9 Exhibit Exhibit 2 Part 4 of 4, # 10 Exhibit Exhibit 3 Part 1 of 2)(Richards, William) (Entered: 03/31/2008)
88 Additional Attachments to Main Document re 87 Response in Opposition to Motion,, by Defendants Terry Goddard, Cameron Holmes. (Attachments: # 1 Exhibit Exhibit 4 Part 1 of 2, # 2 Exhibit Exhibit 4 Part 2 of 2, # 3 Exhibit Exhibit 5 Part 1 of 2, # 4 Exhibit Exhibit 5 Part 2 of 2, # 5 Exhibit Exhibit 6)(Richards, William) (Entered: 03/31/2008)
89 REPLY in Support re 81 MOTION to Amend/Correct re Second Amended Complaint Plaintiffs' Motion for Leave to File Second Amended Complaint PLAINTIFFS' REPLY FOR MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Piers, Matthew) (Entered: 04/07/2008)
90 STIPULATION re 79 MOTION to Certify Class by Terry Goddard, Cameron Holmes, Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Text of Proposed Order Index and Proposed Order)(Richards, William) (Entered: 04/17/2008)
91 ORDER re 90 STIPULATION re 79 MOTION to Certify Class; that Defendants shall have through April 21, 2008 to file their response to Plaintiffs pending motion for class certification, and Plaintiffs shall have through May 19, 2008 to file their reply in support of the motion for class certification.. Signed by Judge Stephen M McNamee on 4/18/08. (DMT, ) (Entered: 04/18/2008)
92 RESPONSE in Opposition re 79 MOTION to Certify Class filed by Terry Goddard, Cameron Holmes. (Attachments: # 1 Exhibit Index and Exhibit, # 2 Exhibit Index and Exhbit, # 3 Exhibit Index and Exhibit, # 4 Exhibit Index and Exhibit, # 5 Exhibit Index and Exhibit)(Richards, William) (Entered: 04/21/2008)
93 ORDER denying 81 Plaintiff's Motion for Leave to File Second Amended Complaint; denying as moot 87 Defendants' Motion to Strike footnote six. Signed by Judge Stephen M McNamee on 4/22/08.(TLJ) (Entered: 04/22/2008)
94 NOTICE of Deposition of James P. Walsh, filed by all plaintiffs. (Eckstein, Timothy) (Entered: 04/22/2008)
95 NOTICE of Deposition of James Walsh, filed by all plaintiffs. (Eckstein, Timothy) (Entered: 04/28/2008)

04/29/2008

96 Notice re Deposition of James Walsh (Second Amended) by Javier Torres, Alma Santiago, Lia Rivadeneyra re 94 Notice of Deposition, 95 Notice of Deposition (Eckstein, Timothy) (Entered: 04/29/2008)

04/30/2008 97 NOTICE of Deposition of Dan Kelly, filed by all plaintiffs. (Eckstein, Timothy) (Entered: 04/30/2008)

05/02/2008

98 NOTICE of Deposition of TERRY GODDARD, filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 05/02/2008)

05/02/2008

99 NOTICE of Deposition of Claudia Vazquez, filed by Terry Goddard, Cameron Holmes. (Attachments: # 1 Exhibit Exhibit A and Service Page)(Hinson, Michael) (Entered: 05/02/2008)

05/07/2008 100 NOTICE of Deposition of DAN KELLY, filed by all plaintiffs. (Cabou, Jean-Jacques) (Entered: 05/07/2008)

05/07/2008 101 NOTICE of Deposition of 30(B)(6), filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 05/07/2008)

05/07/2008

102 NOTICE of Deposition of ARIZONA DEPARTMENT OF PUBLIC SAFETY, filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 05/07/2008)

05/12/2008 103 Notice re of Service by Terry Goddard, Cameron Holmes (Richards, William) (Entered: 05/12/2008)

05/13/2008

104 MOTION to Amend/Correct re Leave to File Second Amended Complaint by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A: Redlined version of Second Amended Complaint)(Ehler, Karyn) (Entered: 05/13/2008)

05/13/2008

105 LODGED Proposed Second Amended Complaint re: 104 MOTION to Amend/Correct re Leave to File Second Amended Complaint. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Ehler, Karyn) (Entered: 05/13/2008)

05/16/2008

106 MOTION for Leave to File Excess Pages for PLAINTIFFS' UNOPPOSED MOTION FOR LEAVE TO FILE AN OVERSIZED BRIEF by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 05/16/2008)

05/19/2008 107 Notice re Notice of Filing Proposed Order Granting Plaintiffs' Unopposed Motion for Leave to File an Oversized Brief by Javier

Torres, Alma Santiago, Lia Rivadeneyra (Attachments: # 1 Text of Proposed Order Proposed Order)(Piers, Matthew) (Entered: 05/19/2008)

05/19/2008

108 REPLY in Support re 80 MOTION to Certify Class PLAINTIFFS' MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Piers, Matthew) (Entered: 05/19/2008)

05/19/2008

143 DECLARATION of Plaintiff Lia Rivadeneyra re 108 Reply in Support of Motion to Certify Class, by Plaintiffs Javier Torres, Lia Rivadeneyra. (LSP) (Entered: 09/09/2008)

05/23/2008

109 RESPONSE in Opposition re 104 MOTION to Amend/Correct re Leave to File Second Amended Complaint Renewed filed by Terry Goddard, Cameron Holmes. (Attachments: # 1 Exhibit Exhibit 1, Part 1 of 5, # 2 Exhibit Exhibit 1, Part 2 of 5, # 3 Exhibit Exhibit 1, Part 3 of 5, # 4 Exhibit Exhibit 1, Part 4 of 5, # 5 Exhibit Exhibit 1, Part 5 of 5, # 6 Exhibit Exhibit 2, Part 1 of 4, # 7 Exhibit Exhibit 2, Part 2 of 4, # 8 Exhibit Exhibit 2, Part 3 of 4, # 9 Exhibit Exhibit 2, Part 4 of 4, # 10 Exhibit Exhibit 3, Part 1 of 2, # 11 Exhibit Exhibit 3, Part 2 of 2, # 12 Exhibit Exhibit 4, Part 1 of 2, # 13 Exhibit Exhibit 4, Part 2 of 2, # 14 Exhibit Exhibit 5, Part 1 of 2, # 15 Exhibit Exhibit 5, Part 2 of 2, # 16 Exhibit Exhibit 6)(Hinson, Michael) (Entered: 05/23/2008)

05/23/2008 110 Notice re of Service by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 05/23/2008)

05/23/2008

111 Notice re Service of Defendants' Second Supplemental Rule 26 Disclosure Statement by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 05/23/2008)

05/27/2008

112 ORDER granting 106 Plaintiff's Motion for Leave to File Excess Pages. Plaintiffs shall have leave to file an eighteen-page reply memorandum in support of class certification, as filed at Dkt. 108. Signed by Judge Stephen M McNamee on 5/27/08.(TLJ) (Entered: 05/27/2008)

05/28/2008 113 ORDER denying 82 Plaintiff's Motion for Protective Order. Signed by Judge Stephen M McNamee on 5/27/08.(TLJ) (Entered: 05/28/2008)

06/02/2008

114 REPLY in Support re 104 MOTION to Amend/Correct re Leave to File Second Amended Complaint PLAINTIFFS' REPLY FOR MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 06/02/2008)

06/04/2008

115 LODGED Proposed Nunc Pro Tunc Amendment to Reply Memorandum re: 80 MOTION to Certify Class PLAINTIFFS' MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A)(Piers, Matthew) Modified on 6/5/2008 (TLJ). DOCUMENT FILED IN ERROR, ATTORNEY NOTICED TO REFILE WITH CORRECT PDF DOCUMENT. (Entered: 06/04/2008)

06/04/2008

116 MOTION for Leave to File Plaintiffs' Motion for Leave to File Nunc Pro Tunc Amendment to Reply Memorandum in Support of Class Certification by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A)(Piers, Matthew) (Entered: 06/04/2008)

06/05/2008

117 NOTICE TO FILER OF DEFICIENCY re 115 Lodged Proposed Document. Description of deficiency: Incorrect pdf document attached. (TLJ) (Entered: 06/05/2008)

06/05/2008

118 LODGED Proposed Lodged Proposed Nunc Pro Tunc Amendment to Plaintiffs' Reply Memorandum in Support of Class Certification re: 116 MOTION for Leave to File Plaintiffs' Motion for Leave to File Nunc Pro Tunc Amendment to Reply Memorandum in Support of Class Certification. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Piers, Matthew) (Entered: 06/05/2008)

06/09/2008 119 Notice re Service by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 06/09/2008)

06/12/2008

120 STIPULATION Stipulated Motion For Protective Order by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A: Proposed Stipulated Protective Order)(Karsh, Joshua) (Entered: 06/12/2008)

06/13/2008

121 Notice re of Service of Defendants' Third Supplemental Rule 26 Disclosure Statement by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 06/13/2008)

06/17/2008

122 ORDER granting 120 Stipulated Motion for Protective Order. Signed by Judge Stephen M McNamee on 6/17/08. (TLJ) (Entered: 06/17/2008)

06/20/2008

123 Notice re Service of Defendants' Fourth Supplemental Rule 26 Disclosure Statement by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 06/20/2008)

06/24/2008

124 Notice re Plaintiff's First Request for Production of Documents by Javier Torres, Alma Santiago, Lia Rivadeneyra (Karsh, Joshua) (Entered: 06/24/2008)

06/24/2008

125 Notice re Plaintiff's first set of Interrogatories to Defendant Terry Goddard in his official capacity by Javier Torres, Alma Santiago, Lia Rivadeneyra (Karsh, Joshua) (Entered: 06/24/2008)

06/24/2008

126 Notice re Plaintiff's second request for Production of Documents by Javier Torres, Alma Santiago, Lia Rivadeneyra (Karsh, Joshua) (Entered: 06/24/2008)

06/24/2008 127 Notice re Plaintiff's response to Defendants request for documents by Javier Torres, Alma Santiago, Lia Rivadeneyra (Karsh, Joshua) (Entered: 06/24/2008)

06/26/2008

128 ORDER that the parties shall submit to the Court written memoranda of law by 7/3/08. Signed by Judge Stephen M McNamee on 6/26/08. (TLJ) (Entered: 06/26/2008)

06/27/2008

129 Notice re of Service of Defendants' Second Supplemental Answers to Plaintiffs' Non-Uniform Interrogatories (First Set) and Defendants' Second Supplemental Responses to Plaintiffs' Request for Production of Documents (First Set) by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 06/27/2008)

06/27/2008

130 Notice re PLAINTIFFS' RESPONSE TO DEFENDANTS' SECOND REQUEST FOR PRODUCTION OF DOCUMENTS by Javier Torres, Alma Santiago, Lia Rivadeneyra (Piers, Matthew) (Entered: 06/27/2008)

06/27/2008

131 MOTION for Extension of Time OF THE COURT'S DEADLINE FOR FACT DISCOVERY (1st REQUEST) by Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 06/27/2008)

06/27/2008

132 Notice re OF Defendants' Fifth Supplemental Rule 26 Disclosure Statement by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 06/27/2008)

07/02/2008

133 RESPONSE to Motion re 131 MOTION for Extension of Time OF THE COURT'S DEADLINE FOR FACT DISCOVERY (1st REQUEST) PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO EXTEND FACT DISCOVERY filed by Javier Torres, Alma Santiago, Lia Rivadeneyra. (Karsh, Joshua) (Entered: 07/02/2008)

07/03/2008 134 Notice re of Supplemental Authority Re: Plaintfifs' Pending Motion for Leave to File Second Amended Complaint by Terry Goddard, Cameron

Holmes re 104 MOTION to Amend/Correct re Leave to File Second Amended Complaint (Hinson, Michael) (Entered: 07/03/2008)

07/03/2008

135 RESPONSE re 128 Order Plaintiffs' Brief in Response to June 26, 2008 Order Directing Submission of Written Memoranda Regarding Privilege Log Dispute by Plaintiffs Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Karsh, Joshua) (Entered: 07/03/2008)

07/03/2008

136 MEMORANDUM re: Discovery Dispute Over Privileged and Work Product Protected Materials by Defendants Terry Goddard, Cameron Holmes. (Attachments: # 1 Exhibit Index and Exhibits)(Richards, William) (Entered: 07/03/2008)

07/14/2008

137 Notice re NOTICE OF PLAINTIFFS' WITHDRAWAL OF OPPOSITION TO STRIKE PORTIONS OF PARAGRAPH 15 OF THE PROPOSED SECOND AMENDED COMPLAINT by Javier Torres, Alma Santiago, Lia Rivadeneyra (Karsh, Joshua) (Entered: 07/14/2008)

08/29/2008

138 STATEMENT of [Plaintiffs' 1st Supplemental Rule 26(a)(1) Disclosure Statement] by Plaintiffs Javier Torres, Alma Santiago, Lia Rivadeneyra. (Karsh, Joshua) (Entered: 08/29/2008)

08/29/2008

139 Notice by Javier Torres, Alma Santiago, Lia Rivadeneyra re 138 Statement [1st Supplemental Rule 26(a)(1) Disclosure] (Karsh, Joshua) (Entered: 08/29/2008)

09/08/2008

140 ORDER granting 104 Plaintiff's Motion for Leave to File Second Amended Complaint. The Clerk is directed to file 105 Plaintiffs' proposed Second Amended Complaint. IT IS FURTHER ORDERED granting 109 Defendants' Motion to Strike paragraph 15, lines 21 to 27. Signed by Judge Stephen M McNamee on 9/8/08.(LSP) (Entered: 09/08/2008)

09/08/2008

141 SECOND AMENDED COMPLAINT against Terry Goddard, Cameron Holmes; Plaintiff Alma Santiago terminated; Jury Demand, filed by Javier Torres, Lia Rivadeneyra.(LSP) (Entered: 09/08/2008)

09/09/2008

142 ORDER granting 116 Motion for Leave to File Nunc Pro Tunc Amendment to Reply Memorandum in Support of Class Certification. The Declaration of Plaintiff Lia Rivadeneyra will be considered in connection with the Motion for Class Certification. Signed by Judge Stephen M McNamee on 9/9/08.(LSP) (Entered: 09/09/2008)

09/10/2008

144 Notice re of Service of Defendants' Disclosure of Person Who May Provide Expert Evidence at Trial by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 09/10/2008)

09/22/2008 145 Defendants' ANSWER to 141 Amended Complaint (Second) by Terry Goddard, Cameron Holmes.(Hinson, Michael) (Entered: 09/22/2008)

10/01/2008

146 Notice re Notice of Service of Defendants' 6th Supplemental Disclosure Statement by Terry Goddard, Cameron Holmes (Richards, William) (Entered: 10/01/2008)

10/23/2008

147 Notice re Service of Defendants' 7th Supplemental Disclosure Statement by Terry Goddard, Cameron Holmes (Richards, William) (Entered: 10/23/2008)

11/06/2008

148 ORDER that Dfts have until Friday, November 21, 2008 to submit any additional briefing to the Court regarding the relevancy of the law enforcement officials' testimony. Signed by Judge Stephen M McNamee on 11/6/08. (KMG) (Entered: 11/06/2008)

11/21/2008

149 BRIEF re 79 MOTION to Certify Class Defendants' Supplemental Brief in Support of Request for Evidentiary Hearing on Motion for Class Certification by Defendants Terry Goddard, Cameron Holmes. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Richards, William) (Entered: 11/21/2008)

11/25/2008

150 ORDER that Plaintiffs have until Friday, December 12, 2008 to submit a Response to Defendants' Supplemental Brief. Signed by Judge Stephen M McNamee on 11/25/08. (ESL, ) (Entered: 11/25/2008)

12/12/2008

151 RESPONSE re 149 Brief (Non Appeal), Brief (Non Appeal) PLAINTIFFS' RESPONSE ADDRESSING DEFENDANTS' SUPPLEMENTAL BRIEF ON THE SUBJECT OF WHETHER A CLASS CERTIFICATION HEARING IS APPROPRIATE by Plaintiffs Javier Torres, Lia Rivadeneyra. (Karsh, Joshua) (Entered: 12/12/2008)

01/05/2009

152 Notice re of Service of Defendants' Eighth Supplemental Rule 26 Disclosure Statement by Terry Goddard, Cameron Holmes (Hinson, Michael) (Entered: 01/05/2009)

01/07/2009

153 ORDER, vacating the dispositive motion deadline set for 1/16/09; vacating the Final Pre-Trial Conference of 2/11/09; the deadlines in this case shall be reset upon the Court's ruling on the 79 , 80 Motions to Certify Class and 131 Motion for Extension of Time of the Court's

Deadline for Fact Discovery. Signed by Judge Stephen M McNamee on 1/7/09. (REW, ) (Entered: 01/07/2009)

01/26/2009

154 ORDER - IT IS HEREBY ORDERED that a class certification hearing will be held 2/25/2009 at 9:00AM before Judge Stephen M McNamee re 79 MOTION to Certify Class. Signed by Judge Stephen M McNamee on 1/26/09. (SAT) (Entered: 01/26/2009)

02/25/2009

155 Minute Entry. Proceedings held before Judge Stephen M McNamee: Apr. Joshua Karsh/Timothy Eckstein/Karyn Ehler for plas;William Richards for dfts, dft Cameron HolmesMotion Hearing held on 2/25/2009 re 79 MOTION to Certify Class filed by Alma Santiago, Lia Rivadeneyra, Javier Torres. Det. Daniel Kelly sworn and examined. Exhibits 1-4, 10 admitted for the purpose of this hearing.ORDERED taking under advisement 79 Motion to Certify Class.Court will issue an order. Court will grant the parties extension of the discovery deadline, order to issue. (Court Reporter Linda Schroeder/Elaine Cropper.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 02/25/2009)

02/25/2009 156 Exhibit List by Terry Goddard, Cameron Holmes.. (DMT, ) (Entered: 02/26/2009)

02/25/2009 157 Witness List by Terry Goddard, Cameron Holmes. (DMT, ) (Entered: 02/26/2009)

03/04/2009

158 TRANSCRIPT DESIGNATION AND ORDER FORM by Javier Torres, Lia Rivadeneyra for proceedings held on 2/25/09 before Judge Stephen M. McNamee. (Karsh, Joshua) (Entered: 03/04/2009)

03/10/2009

159 TRANSCRIPT DESIGNATION AND ORDER FORM by Terry Goddard, Cameron Holmes for proceedings held on 2/25/09 before Judge McNamee. (Richards, William) (Entered: 03/10/2009)

03/10/2009

160 TRANSCRIPT of Proceedings re: Motion Hearing A.M. Proceedings held on 2/25/09 before Judge Stephen M McNamee. Court Reporter: Linda Schroeder. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/31/2009. Redacted Transcript Deadline set for 4/10/2009. Release of Transcript Restriction set for 6/8/2009. (BAS, ) (Entered: 03/10/2009)

03/10/2009 161 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (BAS, ) (Entered: 03/10/2009)

03/11/2009

162 TRANSCRIPT of Proceedings re: Motion Hearing P.M. Session held on 2/25/09 before Judge Stephen M McNamee. Court Reporter: Elaine Cropper. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/1/2009. Redacted Transcript Deadline set for 4/13/2009. Release of Transcript Restriction set for 6/9/2009. (BAS, ) (Entered: 03/11/2009)

03/11/2009 163 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (BAS, ) (Entered: 03/11/2009)

03/25/2009

164 OBJECTION PLAINTIFFS' FILING TO CORRECT AN ERROR IN DEFENSE TESTIMONY AT THE FEBRUARY 25, 2009 CLASS CERTIFICATION HEARING by Plaintiffs Javier Torres, Alma Santiago, Lia Rivadeneyra. (Attachments: # 1 Exhibit Exhibit A and B)(Karsh, Joshua) (Entered: 03/25/2009)

03/30/2009

165 ORDER DENYING Defendants' Motion 131 for Extension of the Court's Deadline for Fact Discovery, without prejudice and with leave to refile upon the Court's ruling on class certification. Signed by Judge Stephen M McNamee on 3/27/09.(KMG) (Entered: 03/30/2009)

04/07/2009

166 RESPONSE re 164 Objection, by Defendants Terry Goddard, Cameron Holmes. (Attachments: # 1 Exhibit A-C)(Richards, William) (Entered: 04/07/2009)

04/07/2009

167 MOTION to Seal Document re Exhibit D to Response to Objection by Terry Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order)(Richards, William) (Entered: 04/07/2009)

04/07/2009

168 SEALED LODGED Proposed Exhibit D re: 167 MOTION to Seal Document re Exhibit D to Response to Objection. Document to be filed by Clerk if Motion to Seal is granted. Filed by Terry Goddard, Cameron Holmes. (Richards, William) (Entered: 04/07/2009)

04/10/2009

169 ORDER granting 167 Motion to File Under Seal Exhibit D to Defendants Response to Plaintiffs Filing to Correct Error in Defense Testimony at the 2/25/09 Class Certification Hearing FURTHER ORDERED that Exhibit D, lodged with the court as Document 168 , shall be filed under seal. Signed by Judge Stephen M McNamee on 4/9/09.(MAP) (Entered: 04/10/2009)

04/10/2009 170 Sealed Exhibit re 166 filed by Terry Goddard, Cameron Holmes. (MAP) (Entered: 04/10/2009)

06/30/2009

171 Emergency MOTION to Stay re of Case Proceedings (Contingent Upon Budget) by Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 06/30/2009)

07/09/2009

172 NOTICE of Withdrawal of Motion for Emergency Stay by Terry Goddard, Cameron Holmes. (Hinson, Michael) Modified on 7/10/2009 INCORRECT DOCUMENT EVENT SELECTED; THIS ENTRY HAS BEEN MODIFIED FROM (Motion to Withdraw) TO (Notice of Withdrawal) (REW, ). (Entered: 07/09/2009)

07/16/2009

173 Notice re NOTICE OF SUPPLEMENTAL AUTHORITY RE: PENDING MOTION FOR CLASS CERTIFICATION by Javier Torres, Alma Santiago, Lia Rivadeneyra (Attachments: # 1 Exhibit A)(Karsh, Joshua) (Entered: 07/16/2009)

07/28/2009

174 RESPONSE re 173 Other Notice to Relief Requested by Plaintiffs in Notice of Supplemental Authority Submitted July 16, 2009 by Defendants Terry Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 07/28/2009)

08/20/2009

175 Notice re of Service of 9th Supplemental Disclosure Statement by Terry Goddard, Cameron Holmes (Richards, William) (Entered: 08/20/2009)

09/11/2009

176 MOTION for Leave to File PLAINTIFFS' MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT by Lia Rivadeneyra, Javier Torres. (Karsh, Joshua) (Entered: 09/11/2009)

09/11/2009

177 LODGED Proposed THIRD AMENDED COMPLAINT re: 176 MOTION for Leave to File PLAINTIFFS' MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Lia Rivadeneyra, Javier Torres. (Karsh, Joshua) (Entered: 09/11/2009)

09/28/2009

178 RESPONSE in Opposition re 176 MOTION for Leave to File PLAINTIFFS' MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT filed by Terry L Goddard, Cameron Holmes. (Richards, William) (Entered: 09/28/2009)

10/16/2009

179 MOTION for Leave to File PLAINTIFFS' MOTION FOR LEAVE TO FILE INSTANTER THEIR REPLY TO DEFENDANTS' RESPONSE AND OBJECTION TO MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Plaintiffs' Motion for Leave to File Instanter Plaintiffs' Reply to

Defendants' Response and Objection to Motion for Leave to File a Third Amended Complaint)(Piers, Matthew) (Entered: 10/16/2009)

10/16/2009

180 LODGED Proposed PLAINTIFFS' REPLY TO DEFENDANTS' RESPONSE TO MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT re: 179 MOTION for Leave to File PLAINTIFFS' MOTION FOR LEAVE TO FILE INSTANTER THEIR REPLY TO DEFENDANTS' RESPONSE AND OBJECTION TO MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Lia Rivadeneyra, Javier Torres. (Piers, Matthew) (Entered: 10/16/2009)

10/19/2009

181 ORDER GRANTING Plaintiffs Motion for Leave to FileInstanter Their Reply to Defendants Response and Objection to Motion for Leave to FileThird Amended Complaint (Doc. 179).IT IS FURTHER ORDERED that the Clerk of Court file the lodged Reply (Doc.180).. Signed by Judge Stephen M McNamee on 10/19/2009.(TCA, ) (Entered: 10/19/2009)

10/19/2009

182 REPLY to Response to Motion re 176 MOTION for Leave to File PLAINTIFFS' MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT filed by Lia Rivadeneyra, Javier Torres. (TLJ) (Entered: 10/19/2009)

03/31/2010

183 ORDER denying 79 Motion to Certify Class (See Order for Details). Signed by Judge Stephen M McNamee on 3/30/2010.(TCA) (Entered: 03/31/2010)

06/15/2010

184 ORDER of 9th Circuit (certified copy) the court denies the petition for permission to appeal the district court's 3/31/10 order denying class action certification re appeal case number 10-80086. (Attachments: # 1 Notice of Docket Activity)(TLJ) (Entered: 06/15/2010)

06/16/2010

185 ORDER setting a telephonic status conference for 6/29/2010 02:00 PM before Judge Stephen M McNamee re order 183 . Signed by Judge Stephen M McNamee on 6/16/10. (TLJ) (Entered: 06/16/2010)

06/29/2010

186 Minute Entry. Proceedings held before Judge Stephen M. McNamee: Status Conference held on 6/29/2010.Apr: Joshua Karsh and Karyn Bass Ehler appear telephonically on behalf of plas;William Richards, appearing in person on behalf of dfts. Discussion held regarding remaining issues before the Court. Written order to follow. (Court Recorder: Vickie Reger.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAH) (Entered: 06/29/2010)

07/01/2010

187 MOTION to Withdraw, MOTION to Withdraw as Attorney by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Text of Proposed Order Order Granting Withdrawal of Osborn Maledon, P.A.)(Eckstein, Timothy) (Entered: 07/01/2010)

07/01/2010

188 Notice re Certificate of Compliance With LRCiv83.3(b)(2) by Lia Rivadeneyra, Javier Torres re 187 MOTION to Withdraw MOTION to Withdraw as Attorney (Eckstein, Timothy) (Entered: 07/01/2010)

07/02/2010

189 ORDER granting 187 Motion to Withdraw as Counsel. IT IS FURTHER ORDERED that Timothy J. Eckstein and Jean-Jacques Cabou of the law firm Osborn Maledon, P.A. are hereby withdrawn as counsel of record for Plaintiffs in this matter. Signed by Judge Stephen M McNamee on 7/2/10.(LAD) (Entered: 07/02/2010)

07/30/2010

190 ORDER denying 176 Motion for Leave to File 3rd Amended Complaint. IT IS FURTHER ORDERED that the documents in dispute between the parties are protected as work product, except as to the following: Attorney-Client Privilege: documents 9, 14, and 323 Law Enforcement Investigatory Privilege: documents 25, 81, 126, 130, 131, 132, 133, 166, 202, 213, 222, 228, 229, and 343. For these documents, Defendants must provide the Court with a further showing of the grounds for assertion of the attorney-client privilege and law enforcement investigatory privilege by August 20, 2010. IT IS FURTHER ORDERED that the parties have until September 24, 2010 to file any dispositive motions on the issue of standing. IT IS FURTHER ORDERED that the new discovery deadline will be set following the Courts ruling on the standing issues. (See document for full details). Signed by Judge Stephen M McNamee on 7/29/10.(LAD) (Entered: 07/30/2010)

08/20/2010

191 BRIEF on protection of documents required by order of July 29, 2010 by Defendants Terry L Goddard, Cameron Holmes. (Attachments: # 1 Affidavit of Cameron Holmes)(Richards, William) (Entered: 08/20/2010)

09/03/2010

192 ORDER that document 14 must be produced to Plaintiffs.FURTHER ORDERED that documents 81, 202, and 208 are protected fromdisclosure based upon the law enforcement investigatory privilege.FURTHER ORDERED that documents 166, 222, and 229 are protected fromdisclosure on relevancy grounds. As to these documents only, should Plaintiffs believe thatthey are relevant to an issue in this case, they may make an appropriate showing to theCourt.. Signed by Judge Stephen M McNamee on 9/3/2010. (TCA) (Entered: 09/03/2010)

09/09/2010

193 NOTICE re of Service of Defendants' 10th Supplemental Disclosure Statement by Terry L Goddard, Cameron Holmes. (Richards, William) (Entered: 09/09/2010)

09/23/2010

194 STIPULATION Motion to Extend the Dispositive Motion Deadline on the Issue of Standing by Terry L Goddard. (Attachments: # 1 Text of Proposed Order)(Richards, William) (Entered: 09/23/2010)

09/24/2010

195 ORDER granting 194 Stipulation : Dispositive motions on the issue of standing are due on October 1, 2010.. Signed by Judge Stephen M McNamee on 9/24/2010. (TCA) (Entered: 09/24/2010)

10/01/2010

196 MOTION for Summary Judgment on all claims (re: standing) by Terry L Goddard, Cameron Holmes. (Richards, William) (Entered: 10/01/2010)

10/01/2010

197 STATEMENT of Deft Separate Statement of Facts in Support of Motion for Summary Judgment re: Standing re 196 MOTION for Summary Judgment on all claims (re: standing) by Defendants Terry L Goddard, Cameron Holmes. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8 Part 1, # 9 Exhibit 8 Part 2, # 10 Exhibit 9)(Richards, William) (Entered: 10/01/2010)

10/01/2010

198 Additional Attachments to Main Document re 197 Statement, of Facts in Support of Motion for Summary Judgment by Defendants Terry L Goddard, Cameron Holmes. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15)(Richards, William) (Entered: 10/01/2010)

10/11/2010

199 MOTION for Extension of Time to File Response/Reply STIPULATED MOTION TO EXTEND DEADLINE FOR FILING OF PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT ON ALL CLAIMS (RE: STANDING) by Lia Rivadeneyra, Javier Torres. (Piers, Matthew) Modified on 10/12/2010 (ESL). (Entered: 10/11/2010)

10/12/2010

200 ORDER - IT IS ORDERED granting the parties' 199 Stipulated Motion to Extend Deadline for Filing of Pla's Response to Dfts' Motion for Summary Jgm on All Claims (RE:Standing). FURTHER ORDERED that Plas' response to Dfts 196 MOTION for Summary Judgment on all claims (re: standing) is due on 12/3/10. Signed by Judge Stephen M McNamee on 10/12/10. (SAT) (Entered: 10/12/2010)

12/03/2010

201 RESPONSE to Motion re 196 MOTION for Summary Judgment on all claims (re: standing) PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS (RE:

STANDING) filed by Lia Rivadeneyra, Javier Torres. (Piers, Matthew) (Entered: 12/03/2010)

12/03/2010

202 RESPONSE re 197 Statement, PLAINTIFFS' RESPONSES TO DEFENDANTS' SEPARATE STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS (RE: STANDING) by Plaintiffs Lia Rivadeneyra, Javier Torres. (Piers, Matthew) (Entered: 12/03/2010)

12/03/2010

203 STATEMENT PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS PRECLUDING SUMMARY JUDGMENT by Plaintiffs Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit A-E)(Piers, Matthew) (Entered: 12/03/2010)

12/03/2010

204 Additional Attachments to Main Document PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS PRECLUDING SUMMARY JUDGMENT by Plaintiffs Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit F PART I, # 2 Exhibit F PART II, # 3 Exhibit F PART III)(Piers, Matthew) (Entered: 12/03/2010)

12/03/2010

205 Additional Attachments to Main Document re 203 Statement, 204 Additional Attachments to Main Document, PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS PRECLUDING SUMMARY JUDGMENT by Plaintiffs Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit G)(Piers, Matthew) (Entered: 12/03/2010)

12/15/2010

206 MOTION for Extension of Time to File Response/Reply in support of Motion for Summary Judgment on all Claims (re: Standing) by Terry L Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order)(Richards, William) (Entered: 12/15/2010)

12/16/2010

207 ORDER GRANTING Defendants Stipulated Motion toExtend Deadline for Defendants to File a Reply in Support of Defendants Motion forSummary Judgment on All Claims (Re: Standing) (Doc. 206).FURTHER ORDERED that Defendants are to file any Reply in support ofDefendants Motion for Summary Judgment on All Claims (Re: Standing) (Doc. 196) byJanuary 7, 2011.. Signed by Judge Stephen M McNamee on 12/16/2010.(TCA) (Entered: 12/16/2010)

01/05/2011

208 STIPULATION re 196 MOTION for Summary Judgment on all claims (re: standing) (Second Request) by Terry L Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order Order for Extension for Filing of Defendants Reply in Support of Pending Motion for Summary Judgment)(Hinson, Michael) (Entered: 01/05/2011)

01/06/2011

209 ORDER GRANTING Defendants Stipulated Motion forExtension of Due Date for Filing of Defendants Reply in Support of Pending Motion for Summary Judgment (Doc. 208). FURTHER ORDERED that Defendants are to file any Reply in support ofDefendants Motion for Summary Judgment on All Claims (Re: Standing) (Doc. 196) byJanuary 14, 2011.Signed by Judge Stephen M McNamee on 1/5/2011. (TCA) (Entered: 01/06/2011)

01/06/2011

210 NOTICE of Attorney Substitution by Michael H Hinson (Hinson, Michael) Modified on 1/7/2011 to terminate attorney (SAT). (Entered: 01/06/2011)

01/07/2011

211 MOTION to Substitute Party: substituting Tomas C. Horne in place of Terry Goddard by Terry L Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 01/07/2011)

01/14/2011

212 MOTION to Exceed the Page Limitations for State Defendants' Reply Memorandum by Terry L Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order Proposed Order Granting State Defendants' Motion to Exceed Page Limitations for State Defendants' Reply Memorandum)(Hinson, Michael) (Entered: 01/14/2011)

01/14/2011

213 REPLY to Response to Motion re 196 MOTION for Summary Judgment on all claims (re: standing) filed by Terry L Goddard, Cameron Holmes. (Attachments: # 1 Exhibit Exhibit A (Affidavit of Cameron Holmes))(Hinson, Michael) (Entered: 01/14/2011)

01/18/2011

214 ORDER granting 212 Motion to Exceed Page Limitations for State Defendants' Reply Memorandum. Signed by Judge Stephen M McNamee on 1/18/2011.(TCA) (Entered: 01/18/2011)

01/20/2011

215 ORDER granting Dfts' 211 Motion for Substitution of Counsel of a Party; that the name "Thomas C. Horne" be substituted for that of Terry Goddard's in his official capacity as Attorney General of the State of Arizona; that Goddard will remain a Defendant in this case in his individual capacity; that the formal caption in all future filings in this matter be changed to reflect this substitution. Signed by Judge Stephen M McNamee on 01/20/11. (ESL) (Entered: 01/20/2011)

02/10/2011

216 ORDER denying 196 Motion for Summary Judgment(re: Standing). FURTHER ORDERED the parties have until Friday, May 13, 2011 to conduct discovery in accordance with the Court's earlier order(doc. 190). Signed by Judge Stephen M McNamee on 2/10/2011.(see order for details)(TCA) (Entered: 02/10/2011)

03/14/2011

217 MOTION for Admission Pro Hac Vice as to attorney Christopher J Wilmes on behalf of plaintiffs Lia Rivadeneyra and Javier Torres. (BAS) (Entered: 03/15/2011)

03/15/2011

PRO HAC VICE FEE PAID. $ 50, receipt number PHX107534 as to Christopher J Wilmes. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/15/2011)

03/15/2011

218 ORDER pursuant to General Order 05-25 granting 217 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 03/15/2011)

03/22/2011

219 NOTICE of Appearance by Christopher J Wilmes on behalf of Lia Rivadeneyra, Javier Torres (Wilmes, Christopher) (Entered: 03/22/2011)

04/26/2011

220 NOTICE re of Service of Defendants Offers of Judgment by Terry L Goddard, Cameron Holmes, Thomas C Horne. (Hinson, Michael) (Entered: 04/26/2011)

05/04/2011

221 First MOTION for Extension of Time of Deadline for Conclusion of Discovery (Stipulated) by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Text of Proposed Order)(Wilmes, Christopher) (Entered: 05/04/2011)

05/04/2011

222 ORDER granting 221 Motion for Extension of Time Discovery Deadline Discovery due by 5/27/2011.. Signed by Judge Stephen M McNamee on 5/4/2011.(TCA) (Entered: 05/04/2011)

06/03/2011

223 ORDER Status Conference set for 6/21/2011 11:00 AM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.. Signed by Judge Stephen M McNamee on 6/3/2011. (TCA) (Entered: 06/03/2011)

06/17/2011

224 MOTION to Allow Counsel to Appear by Telephone at the June 21, 2011 Status Hearing (Stipulated) by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Text of Proposed Order Granting Motion to Allow Counsel to Appear by Telephone at the June 21, 2011 Status Hearing)(Wilmes, Christopher) (Entered: 06/17/2011)

06/17/2011

225 ORDER granting 224 Motion to allow counsel to appear by telephone. Signed by Judge Stephen M McNamee on 6/17/2011.(TCA) (Entered: 06/17/2011)

06/17/2011

226 MOTION to Refer Case to Magistrate Judge for Settlement Conference by Terry L Goddard, Cameron Holmes, Thomas C Horne. (Hinson, Michael) (Entered: 06/17/2011)

06/21/2011

227 Minute Entry. Proceedings held before Judge Stephen M McNamee: Telephonic Appearances: Christopher Wilmes for plaintiffs; Michael Hinson for defendants Telephonic Status Conference held on 6/21/2011. Discussion held. Plaintiff not ready to proceed to settlement. ORDERED denying without prejudice 226 Motion to refer case to Magistrate Judge for Settlement Conference. (ECRO Vicki Reger.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 06/21/2011)

08/12/2011

228 NOTICE re Notice of Service of Defendants' Eleventh Supplemental Disclosure Statement by Terry L Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 08/12/2011)

09/02/2011

229 * MOTION for Summary Judgment as to Liability by Lia Rivadeneyra, Javier Torres. (Wilmes, Christopher) *Modified on 9/6/2011; document is not text searchable* (REW). (Entered: 09/02/2011)

09/02/2011

230 *MEMORANDUM in Support of 229 MOTION for Summary Judgment as to Liability by Plaintiffs Lia Rivadeneyra, Javier Torres. (Wilmes, Christopher) *Modified on 9/6/2011; document is not text searchable* (REW). (Entered: 09/02/2011)

09/02/2011

231 *STATEMENT of of Facts In Support of re 229 MOTION for Summary Judgment as to Liability by Plaintiffs Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit Index, # 2 Exhibit A1, A3, A4, A5, A6, # 3 Exhibit A7, A8, A9, A10, # 4 Exhibit A11, A12, # 5 Exhibit A13, A15, A18, A21, # 6 Exhibit B, C, D, E, # 7 Exhibit F, G, H, I, J, K, # 8 Exhibit L, M, N, O, # 9 Exhibit P, Q, R, S, # 10 Exhibit T, U, V, W, X, # 11 Exhibit Y, Z, AA, BB, CC, DD)(Wilmes, Christopher) *Modified on 9/6/2011; document is not text searchable* (REW). (Entered: 09/02/2011)

09/15/2011

232 First MOTION for Extension of Time to File Response/Reply as to 229 MOTION for Summary Judgment as to Liability Stipulated Motion for Extension of Time for State Defendants to File their Response to Plaintiffs' Motion for Summary Judgment by Terry L Goddard, Cameron Holmes, Thomas C Horne. (Attachments: # 1 Text of Proposed Order)(Hinson, Michael) (Entered: 09/15/2011)

09/16/2011

233 ORDER granting 232 Motion for Extension of Time to File Response re 229 MOTION for Summary Judgment as to Liability Defendant to file a response by 10/26/11. Signed by Judge Stephen M McNamee on 9/16/2011.(TCA) (Entered: 09/16/2011)

10/20/2011

234 Second MOTION for Extension of Time to File Response/Reply as to 229 MOTION for Summary Judgment as to Liability Stipulated Motion for Extension of Time for State Defendants' Response to Plaintiffs' Motion for Summary Judgment (Second Request) by Terry L Goddard, Cameron Holmes, Thomas C Horne. (Attachments: # 1 Text of Proposed Order)(Hinson, Michael) (Entered: 10/20/2011)

10/24/2011

235 ORDER granting 234 Motion for Extension of Time to File Response/Reply re 229 MOTION for Summary Judgment as to Liability. Defendants response due 11/2/2011. Signed by Judge Stephen M McNamee on 10/24/2011.(TCA) (Entered: 10/24/2011)

11/02/2011

236 *RESPONSE to Motion re 229 MOTION for Summary Judgment as to Liability filed by Terry L Goddard, Cameron Holmes. (Hinson, Michael) *Modified to reflect correct filers on 11/3/2011 (SAT). (Entered: 11/02/2011)

11/02/2011

237 *RESPONSE re 231 Statement,, by Defendants Terry L Goddard, Cameron Holmes. (Attachments: # 1 Exhibit Exhibit A to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 2 Exhibit Exhibit B to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 3 Exhibit Exhibit C to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 4 Exhibit Exhibit D to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 5 Exhibit Exhibit E to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 6 Exhibit Exhibit F to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 7 Exhibit Exhibit G to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 8 Exhibit Exhibit H to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 9 Exhibit Exhibit I to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 10 Exhibit Exhibit J to Response of Defendants

Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 11 Exhibit Exhibit K to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 12 Exhibit Exhibit L to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 13 Exhibit Exhibit M to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 14 Exhibit Exhibit N to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts, # 15 Exhibit Exhibit O to Response of Defendants Holmes and Goddard to Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment; and Defendants' Statement of Additional Facts)(Hinson, Michael) *Modified to reflect correct filers on 11/3/2011 (SAT). (Entered: 11/02/2011)

11/07/2011

238 First MOTION for Extension of Time to File Response/Reply as to 229 MOTION for Summary Judgment as to Liability Stipulated Motion for Extension of Time for Filing of Plaintiffs' Reply Memorandum in Support of Their Motion for Summary Judgment by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Text of Proposed Order)(Wilmes, Christopher) (Entered: 11/07/2011)

11/09/2011

239 ORDER granting 238 Motion for Extension of Time to File Reply re 229 MOTION for Summary Judgment as to Liability. IT IS FURTHER ORDERED that Plaintiffs must file any Reply to Defendants' Response to Plaintiffs' Motion for Summary Judgment by December 2, 2011. Signed by Judge Stephen M McNamee on 11/8/11.(LAD) (Entered: 11/09/2011)

11/10/2011 240 Cross MOTION for Summary Judgment by Terry L Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 11/10/2011)

11/14/2011

241 NOTICE re of Service of Defendants' Twelfth Supplemental Disclosure Statement by Terry L Goddard, Cameron Holmes . (Hinson, Michael) (Entered: 11/14/2011)

11/23/2011

242 MOTION to Amend/Correct 231 Statement,, Stipulated Motion for Leave to File Corrected Separate Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Text of Proposed Order)(Wilmes, Christopher) (Entered: 11/23/2011)

11/23/2011

243 LODGED Proposed Plaintiffs' Corrected Separate Statement of Facts in Support of Their Motion for Summary Judgment re: 242 MOTION to Amend/Correct 231 Statement,, Stipulated Motion for Leave to File Corrected Separate Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit Index, # 2 Exhibit A1, A2, A3, A4, A5, A6, # 3 Exhibit A7, A8, A9, A10, # 4 Exhibit A11, A12, # 5 Exhibit A13, A15, A18, A21, # 6 Exhibit B, C, D, E, # 7 Exhibit F, G, H, I, J, K, # 8 Exhibit L, M, N, O, # 9 Exhibit P, Q, R, S, # 10 Exhibit T, U, V, W, X, # 11 Exhibit Y, Z, AA, BB, CC, DD)(Wilmes, Christopher) (Entered: 11/23/2011)

11/23/2011

244 ORDER granting the parties' 242 Stipulated Motion for Leave to File a Corrected Separate Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment. Signed by Judge Stephen M McNamee on 11/23/11.(ESL) (Entered: 11/23/2011)

11/29/2011

245 STATEMENT of Plaintiffs' Separate Statement of Facts in Support of Their Motion for Summary Judgment re 229 MOTION for Summary Judgment as to Liability by Plaintiffs Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit Index, # 2 Exhibit A1, A2, A3, A4, A5, A6, # 3 Exhibit A7, A8, A9, A10, # 4 Exhibit A11, A12, # 5 Exhibit A13, A15, A18, A21, # 6 Exhibit B, C, D, E, # 7 Exhibit F, G, H, I, J, K, # 8 Exhibit L, M, N, O, # 9 Exhibit P, Q, R, S, # 10 Exhibit T, U, V, W, X, # 11 Exhibit Y, Z, AA, BB, CC, DD)(Wilmes, Christopher) (Entered: 11/29/2011)

11/30/2011

246 MOTION for Leave to File Excess Pages Stipulated Motion for Leave to File An Oversized Brief by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Text of Proposed Order)(Wilmes, Christopher) (Entered: 11/30/2011)

12/02/2011

247 ORDER granting 246 Stipulated Motion for Leave to File Oversized Brief. The Court grants leave for Plaintiffs to file a reply brief in support of their motion for summary judgment that is no more than fifteen (15) pages, exclusive of attachments. Signed by Judge Stephen M McNamee on 12/2/11.(LMR) (Entered: 12/02/2011)

12/02/2011

248 REPLY to Response to Motion re 229 MOTION for Summary Judgment as to Liability filed by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit A, B, C)(Wilmes, Christopher) (Entered: 12/02/2011)

12/12/2011

249 RESPONSE to Motion re 240 Cross MOTION for Summary Judgment filed by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit A)(Wilmes, Christopher) (Entered: 12/12/2011)

12/12/2011

250 RESPONSE re 237 Response,,,,,,,,,,,, to Defendants' Statement of Additional Facts in Support of Their Cross Motion for Summary Judgment by Plaintiffs Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit A, B)(Wilmes, Christopher) (Entered: 12/12/2011)

12/13/2011

251 MOTION to Amend/Correct 249 Response to Motion for Summary Judgment Stipulated Motion for Leave to File A Corrected Brief by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit A)(Karsh, Joshua) (Entered: 12/13/2011)

12/15/2011

252 ORDER GRANTING the parties' Stipulated Motion for Leave to File a Corrected Brief Doc. 251 . Within ten days of this Order, Plaintiffs shall file:"Plaintiff's Corrected Response to Defendants' Cross-Motion for Summary Judgment. Signed by Judge Stephen M McNamee on 12/14/2011.(KMG) (Entered: 12/15/2011)

12/20/2011

253 RESPONSE to Motion re 240 Cross MOTION for Summary Judgment Plaintiffs' Corrected Response to Defendants' Cross-Motion for Summary Judgment filed by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit A)(Karsh, Joshua) (Entered: 12/20/2011)

12/28/2011

254 First MOTION for Extension of Time to File Response/Reply Stipulated by Terry L Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order)(Hinson, Michael) (Entered: 12/28/2011)

01/04/2012

255 ORDER granting the parties' 254 Stipulated Motion for Extension of Time for Defendants' Reply re Defendants' Cross-Motion for Summary Judgment. Defendants' Reply in support of their Cross-Motion for Summary Judgment shall be filed on or before Tuesday, 01/10/12. Signed by Judge Stephen M McNamee on 01/04/12. (ESL) (Entered: 01/04/2012)

01/05/2012

256 STIPULATION Motion to Exceed Page Limit for Reply Memorandum by Terry L Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order)(Hinson, Michael) (Entered: 01/05/2012)

01/09/2012

257 ORDER granting the 256 Stipulation: to Exceed Page Limitations for State Defendants' Reply Memorandum (Doc. 256 .) Defendants' Reply Memorandum shall not exceed fifteen (15) pages in length, and is due for filing on or beforeTuesday, January 10, 2012. Signed by Judge Stephen M McNamee on 1/7/2012. (KMG) (Entered: 01/09/2012)

01/10/2012

258 REPLY to Response to Motion re 240 Cross MOTION for Summary Judgment filed by Terry L Goddard, Cameron Holmes. (Hinson, Michael) (Entered: 01/10/2012)

02/08/2012

259 NOTICE re Submission of New Legal Authority Relevant to Pending Motion by Terry L Goddard, Cameron Holmes re 236 Response to Motion for Summary Judgment, 229 MOTION for Summary Judgment as to Liability, 237 Response, 230 Memorandum. (Hinson, Michael) (Entered: 02/08/2012)

02/15/2012

260 RESPONSE re 259 Notice, Plaintiffs Response to Defendants Submission of New Legal Authority Relevant To Pending Motion by Plaintiffs Lia Rivadeneyra, Javier Torres. (Wilmes, Christopher) (Entered: 02/15/2012)

09/04/2012

261 *MEMORANDUM OF DECISION AND ORDER GRANTING Defendants' Cross-Motion for Summary Judgment. (Doc. 240 .) The Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED DENYING Plaintiffs Motion for Summary Judgment. (Doc. 229 .) Signed by Senior Judge Stephen M McNamee on 9/4/2012.(KMG) *Modified to include text on 9/4/2012 (KMG). (Entered: 09/04/2012)

09/04/2012

262 CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's order filed September 4, 2012, judgment is entered in favor of defendants and against plaintiffs. Plaintiffs to take nothing, and second amended complaint and action are dismissed. Signed on 9/4/2012. (KMG) (Entered: 09/04/2012)

09/19/2012

263 *NOTICE OF APPEAL to 9th Circuit, as to 262 Clerk's Judgment, 261 Memorandum of Decision and Order by Lia Rivadeneyra, Javier Torres. Filing fee received: $ 455.00, receipt number 0970-7247251. (Piers, Matthew) *Modified to add document number/link on 9/19/2012* (REW). (Entered: 09/19/2012)

09/19/2012 264 Ninth Circuit Case Number 12-17096 for 263 Notice of Appeal. (REW) (Entered: 09/19/2012)

10/19/2012 265 NOTICE re Transcripts for Appeal by Lia Rivadeneyra, Javier Torres . (Piers, Matthew) (Entered: 10/19/2012)

10/24/2012 266 NOTICE re No Transcripts Will Be Ordered by Lia Rivadeneyra, Javier Torres . (Piers, Matthew) (Entered: 10/24/2012)

10/26/2012

267 CERTIFICATE OF RECORD TRANSMITTED TO 9TH CIRCUIT COURT OF APPEALS re 263 Notice of Appeal. (VAR) (Entered: 10/26/2012)

10/31/2012 268 NOTICE of Attorney Substitution by David Daniel Weinzweig. (Weinzweig, David) (Entered: 10/31/2012)

08/10/2015

269 MANDATE of USCA affirming in part and reversing in part District Court decision and remanding re: 12-17096 as to 263 Notice of Appeal filed by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Opinion, # 2 NDA). (LSP) (Entered: 08/10/2015)

08/10/2015

270 MINUTE ORDER: The mandate in this case having been received from the Ninth Circuit Court of Appeals, Status Conference is set for 9/1/2015 at 03:00 PM in Courtroom 401, 401 West Washington Street, Phoenix, AZ 85003 before Senior Judge Stephen M McNamee. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LMR) (Entered: 08/10/2015)

08/26/2015

271 MOTION To Allow Counsel to Appear By Telephone at the September 1, 2015 Status Hearing Unopposed Motion To Allow Counsel To Appear By Telephone at the September 1, 2015 Status Hearing by Lia Rivadeneyra, Javier Torres. (Piers, Matthew) (Entered: 08/26/2015)

08/31/2015

272 ORDER granting 271 motion to allow counsel to appear by telephone. See order for details. Signed by Senior Judge Stephen M McNamee on 8/28/2015.(LMR) (Entered: 08/31/2015)

09/01/2015

273 MINUTE ENTRY for proceedings held before Senior Judge Stephen M McNamee: Status Conference held on 9/1/2015. Defendants' supplemental briefing regarding qualified immunity is due 10/9/2015. Plaintiffs' response is due 11/13/2015. Defendants' reply is due 12/4/2015.

APPEARANCES: Telephonic appearance by Matthew Piers for Plaintiffs. David Weinzweig for Defendants. (Court Reporter Linda Schroeder.) Hearing held 2:58 PM to 3:25 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LMR) (Entered: 09/01/2015)

09/18/2015

274 TRANSCRIPT REQUEST by Lia Rivadeneyra, Javier Torres for proceedings held on 9-1-2015, Judge Stephen M McNamee hearing judge(s). (Piers, Matthew) (Entered: 09/18/2015)

09/23/2015

275 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference proceedings held on 09/01/2015, before Judge Stephen M. McNamee. (Court Reporter: Linda Schroeder). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/14/2015. Redacted Transcript Deadline set

for 10/26/2015. Release of Transcript Restriction set for 12/22/2015. (RAP) (Entered: 09/28/2015)

10/09/2015

276 Supplemental MOTION for Summary Judgment Re Qualified Immunity by Terry L Goddard, Cameron Holmes. (Weinzweig, David) (Entered: 10/09/2015)

11/09/2015

277 MOTION for Admission Pro Hac Vice as to attorney Kate Schwartz on behalf of Lia Rivadeneyra and Javier Torres. (BAS) (Entered: 11/10/2015)

11/10/2015

PRO HAC VICE FEE PAID. $ 35, receipt number PHX164910 as to Kate Schwartz. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/10/2015)

11/10/2015

278 ORDER pursuant to General Order 09-08 granting 277 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 11/10/2015)

11/13/2015

279 MOTION for Leave to File Excess Pages for Plaintiffs' Motion to File Instanter an Oversized Memorandum in Response to Defendants' Supplemental Brief Re. Qualified Immunity by Lia Rivadeneyra, Javier Torres. (Attachments: # 1 Exhibit Plaintiffs' Response to Defendants' Supplemental Brief Re. Qualified Immunity)(Schwartz, Kate) (Entered: 11/13/2015)

11/23/2015

280 * MOTION for Extension of Time Deadline to File Reply Brief in Support of Motion for Summary Judgment re Qualified Immunity (First Request) by Terry L Goddard, Cameron Holmes. (Attachments: # 1 Text of Proposed Order Order)(Weinzweig, David) *Document is not in compliance with LRCiv 7.1(c); Attorney notified on 11/24/2015 (KMG). (Entered: 11/23/2015)

11/24/2015

281 ORDER: 279 Motion to file oversized brief is denied. Plaintiffs' response memorandum is governed by LR Civ 7.2(e), limiting the response to 17 pages, and is due on 12/11/2015. 280 Motion for an extension of time to file their reply brief in support of qualified immunity is granted. Defendants' reply brief is due 12/31/2015. Signed by Senior Judge Stephen M McNamee on 11/24/2015.(LMR) (Entered: 11/24/2015)

12/08/2015

282 RESPONSE BRIEF by Lia Rivadeneyra, Javier Torres Plaintiffs' Response to Defendants' Supplemental Brief Re Qualified Immunity. (Attachments: # 1 Exhibit A-TRO Hearing Transcript)(Schwartz, Kate) (Entered: 12/08/2015)

12/30/2015

283 REPLY re: 282 Brief - Response in Support of Motion for Summary Judgment re Qualified Immunity by Defendants Terry L Goddard, Cameron Holmes. (Attachments: # 1 Exhibit Exhibit A)(Weinzweig, David) (Entered: 12/30/2015)

07/01/2016

284 ORDER granting Defendants' 276 Supplemental Motion for Summary Judgment Re: Qualified Immunity. The Clerk of Court shall issue Judgment in favor of Defendants and terminate this case. The Clerk of Court shall forward this Order to the Ninth Circuit Court of Appeals (12-17096). Signed by Senior Judge Stephen M McNamee on 6/29/2016. (ATD) (Entered: 07/01/2016)

07/01/2016

285 CLERK'S JUDGMENT - Pursuant to the Court's Order filed July 1, 2016, and defendants' Supplemental Motion for Summary Judgment Re: Qualified Immunity having been granted, judgment is entered in favor of defendants and against plaintiffs. This action is hereby terminated. (ATD) (Entered: 07/01/2016)

07/27/2016

286 *NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 284 Order and 285 Clerks Judgment by Lia Rivadeneyra, Javier Torres. Filing fee received: $ 505.00, receipt number 0970-13219399. (Schwartz, Kate) *Modified to add document number on 7/28/2016 (EJA). (Entered: 07/27/2016)

07/29/2016

287 USCA Case Number re: 286 Notice of Appeal. Case number 16-16315, Ninth Circuit. (copies sent by the Ninth Circuit) (REW) (Entered: 07/29/2016)

08/03/2016 288 NOTICE re: Notice That No Transcripts Will Be Ordered by Lia Rivadeneyra, Javier Torres . (Schwartz, Kate) (Entered: 08/03/2016)

07/17/2018

290 MANDATE of USCA Affirming District Court decision re: 16-16315 as to 286 Notice of Appeal filed by Lia Rivadeneyra, Javier Torres. (Copies sent by Ninth Circuit) (Attachments: # 1 Memorandum)(DXD) (Entered: 07/17/2018)

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