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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Leslie Merritt, Jr., a single man,

Plaintiff,

vs.

State of Arizona, a body politic; Bill 

Montgomery, the elected Maricopa 

County Attorney and in his individual 

capacity; Maricopa County, a body 

politic; Heston Silbert, in his individual 

capacity; Christopher Kalkowski, in his 

individual capacity, Frank Milstead, in 

his individual capacity, Ken Hunter, in 

his individual capacity, Kelly M. Heape, 

in his individual capacity, Jennifer 

Pinnow, in her individual capacity, 

Anthony Falcone, in his individual 

capacity; Edward Leiter, in his individual 

capacity; Vanessa Losicco, in her 

individual capacity; John and Jane Does 

I-X; XYZ Companies I-X.

Defendants.

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NO.

(formerly Maricopa County Superior 

Court Case No. CV2016-013436 

consolidated with CV2017-010951)

EXHIBITS

Exhibit 1 Pleadings and Documents filed in CV2016-013436

Exhibit 2 Verification of Michele M. Iafrate

Exhibit 3 Notice to Superior Court regarding Notice of Removal
EXHIBIT 1 


COPY 

SEP 1 3 2016 

MICHAEL K. JEANES, CLERK 

B. RETH 

DEPUTY CLERK 

Jason D. Lamm (018454) 

Law Office of Jason Lamm 

2 6245 North 24th Pkwy, Ste. 208 

3 Phoenix, AZ 85016-2030 

Tel: (602) 222-9237 

4 Fax: (602) 222-2299 

Email: jlammPcyberlawaz.com 

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David J. Don (016462) 

LAW OFFICE OF DAVID J. DON, PLLC 

301 E. Bethany Home Rd., Suite B-100 

Phoenix, Arizona 85012 

Tel: 480-948-1212 

Fax: 480-696-7756 

Email: davidPazcivilrights.com 

Attorneys for Plaintiff Leslie Merritt, Jr. 

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

CV2016 - 0 13436 

15 LESLIE MERRITT, JR., a single man, ) Case No.: 

) 

16 Plaintiff, ) CERTIFICATE OF COMPULSORY 

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) ARBITRATION 

VS. 

18 STATE OF ARIZONA, a body politic; 

19 BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

20 MARICOPA COUNTY, a body politic; 

21 JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

22 CORPORATIONS I-X. 

23 Defendants. 

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The undersigned certifies that the largest award sought by Plaintiff, 

including punitive damages, but excluding interest attorney's fees and costs, 

includes injunctive relief and DOES exceed the limits set by Local Rule for 

compulsory arbitration. This case IS NOT subject to the Rules of Procedure for 

Arbitration. 

RESPECTFULLY SUBMITTED THIS 13th day of September, 2016. 

By: ( 

David J. Don 

Attorney for Plaintiff Leslie Merritt, Jr. 

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Jason D. Lamm (018454) 

Law Office of Jason Lamm 

6245 North 24th Pkwy, Ste. 208 

Phoenix, AZ 85016-2030 

Tel: (602) 222-9237 

Fax: (602) 222-2299 

Email : jl amm cyberlawaz. corn 

MICHAEL K. JEANES, CLERK B. RETH 

DEPUTY CLERK 

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David J. Don (016462) 

LAW OFFICE OF DAVID J. DON, PLLC 

301 E. Bethany Home Rd., Suite B-loo 

Phoenix, Arizona 85012 

Tel: 480-948-1212 

Fax: 480-696-7756 

Email: davidPazcivilrights.com 

Attorneys for Plaintiff Leslie Merritt, Jr. 

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

CV2016 -013436 

15 LESLIE MERRITT', JR., a single man, Case No.: 

16 Plaintiff, COMPLAINT 

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VS. (Tort- Non-Motor Vehicle) 

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STATE OF ARIZONA, a body politic; 

19 BILL MONTGOMERY, the elected 

Maricopa County Attorney; 20 MARICOPA COUNTY, a body politic; 

21 JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

22 CORPORATIONS I-X. 

23 Defendants. 

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Plaintiff alleges: 

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INTRODUCTION 

This case arises from the Defendants' false allegations against a young man 2 

3 whom they have wrongfully accused of being the notorious "I-10 Freeway 

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Shooter." 

JURISDICTION AND VENUE 

1. This case is brought pursuant to Arizona law. 

2. Plaintiff served on each Defendant a valid and timely notice of claim 

pursuant to ARS § 12-821.01. 

3. The Court has jurisdiction. 

4. Venue is proper pursuant to ARS § 12-822(B). 

5. Plaintiff demands a trial by jury. 

PARTIES 

6. Plaintiff Leslie Merritt, Jr. has been, at all relevant times, a resident of 

Maricopa County, Arizona. 

7. Defendant State of Arizona is a body politic with administrative jurisdiction 

over the Arizona Department of Public Safety (DPS) and the DPS Central Regional 

Crime Lab (CRCL). The State is responsible for the administration, operation, 

maintenance policies, procedures and functions of DPS and the CRCL. The State 

is the employer, master, and/or principal of each individual DPS and CRCL 

personnel who participated in the investigation and/or criminal prosecution of 

Leslie Merritt, Jr. 

8. Defendant Bill Montgomery is and was, at all times relevant to this lawsuit, 

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Montgomery is operation, maintenance, 

the elected Maricopa. County Attorney. As the Maricopa County Attorney, 

policies, procedures and functions of the Maricopa County Attorneys' Office, the 

implementation• of policies and procedures, the training and supervision of staff, 

and the provision of criminal justice to all residents of Maricopa County, including 

Leslie Merritt, Jr. Defendant Montgomery is the employer, master, and/or 

principal of each individual Deputy County Attorney and staff member in the 

Maricopa County Attorney's Office who participated in the investigation and/or 

criminal prosecution of Leslie Merritt, Jr. 

9. Defendant Maricopa County is a body politic. Maricopa County is also the 

employer, master, and/or principal of each individual Deputy County Attorney and 

staff member in the Maricopa County Attorney's Office who participated in the 

investigation and/or criminal prosecution of Leslie Merritt, Jr. 

10. Defendants John Does I-X and Jane Does I-X are fictitious persons whose 

identities are unknown to Plaintiff, but whose conduct may have caused or 

contributed to Plaintiffs damages herein. Plaintiff reserves the right to amend the 

pleadings with the names of said person(s) once their identities become known. 

11. Defendants ABC Partnerships I-X and XYZ Corporations I-X are fictitious 

entities whose identities are unknown to Plaintiff, but whose conduct may have 

caused or contributed to Plaintiffs damages herein. Plaintiff reserves the right to 

amend the pleadings with the names of said entities once their identities become 

known. 

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12. All acts and/or omissions of Defendants were done under color and pretense 

of the statutes, Sordinances, regulations customs, and usages of the State of 

3 Arizona. 

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COMMON :FACTS 

A. The State of Arizona undertakes to investigate the I-10 Freeway 

Shooting Case. 

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13. In the summer of 2015, Defendant State of Arizona, through the Department 

of Public Safety, undertook responsibility for investigating a series of shootings 9 

10 that occurred along or near the I-10 freeway in Phoenix, Arizona, which became 

11 known as the "I-io Freeway Shooting case." 

12 14. During its investigation, DPS retrieved bullets and/or bullet fragments from 

13 four separate shooting incidents: Incident A, B, e, and D. 

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15. Incident A occurred August 29, 2015 at approximately 1103 hours involving 

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16 a Cadillac Escalade travelling eastbound on the I-10 near 19th Avenue. 

17 16. Incident B occurred at approximately 1109 hours involving a passenger bus 

18 travelling westbound on the I-10 near 43rd Avenue. 

19 17. Incident C occurred at approximately 2215 hours involving a Kia travelling 

20 eastbound on the I-10 near the exit for northbound SR51 and eastbound SR 202. 

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18. Incident D occurred August 30, 2015, between 2145 and 2215 hours 

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23 involving a BMW travelling westbound on the I-10 near SR 51. 

24 19. Defendants have failed to produce any evidence that Incident D occurred at 

25 any other time other than between 2145 hours and 2215 hours on August 30, 2015. 

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the scene of any of the shooting incidents. 

20. Defendants have produced no evidence that Leslie Merritt Jr was at or near 

21. On August 31, 2015 DPS Detective Ron Baroldy requested that the DPS 

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crime lab, CRCL, analyze and compare the bullets and bullet fragments recovered 

from the four shooting incidents. 

22. DPS crime lab personnel told DF'S detectives that the evidentiary bullets and 

fragments from all four incidents all came from a single firearm with certain class 

characteristics. 

23. DPS crime lab personnel identified the evidentiary bullets and fragments as 

having been fired from a 9mm handgun that caused cartridges to spiral three 

times with a leftward twist as they emerged from the barrel. Based on these 

characteristics, crime lab personnel identified the make and model of the firearm 

as a Model C9 manufactured by Hi-Point. 

24. DPS crime lab personnel contacted Hi-Point, and learned that the company 

had produced about 286,800 Model C9 firearms that are capable of creating the 

characteristics that CRCL personnel purportedly found on the bullets and bullet 

fragments recovered in the various shooting incidents. 

B. The Pawn Shop Connection 

25. Meanwhile, DPS personnel were under intense public pressure and media 

scrutiny to solve the 1-10 Freeway Shooting Case. 

26. By September 2015, DPS personnel were working overtime on the 

investigation. Detectives normally assigned to other details within DPS were 

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Shooting Case. 

temporarily assigned to work on the I-io Freeway. Shooting Case as well. All the 

2 detectives in the General Investigations Unit were assigned to the I-10 Freeway 

27. On September 5, 2015, bPs officer Travis Graff started as a new detective on 

6 the General Investigations Squad. He was immediately assigned to the I-lo 

7 Freeway Shooting Case. 

8 28. Detective Graff had not at that time received any training in investigating 

9 weapons-related offenses, gun identification, or ballistics. 

10 29. While still being trained, Detective Graff was aware or became aware that 

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DPS had access to a computerized PAWN database. 12 

13 30. The PAWN database, which is designed to assist in the recovery of stolen 

14 property, identifies the items in possession of various pawn shops. 

15 31. Detective Graff asked his supervisor, Sgt. Tony Mapp, whether he could use 

16 the system to see if any Hi-Point 9 mm firearms were in pawn shops. 

17 32. Sgt. Mapp responded that "if you want to buy a lottery ticket to go ahead," or 

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words to that effect. 

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20 33. Accordingly, on September 17, 2015, Detective Graff travelled to various 

21 pawn shops to collect Hi-Point 9mm Model C9 firearms that were in pawn. DPS 

22 collected eight such firearms, including one from Mo Money Pawn Shop, located at 

23 1152 East Indian School Road, Phoenix, Arizona. 

24 34. The PAWN database contained information about the various eight 

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firearms, including the dates and times at which they were respectively pawned 

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and received by their owners. 

35. At the time that Detective Graff collected the Hi-Point C9 firearm from Mo 

Money Pawn, he knew from the PAWN database that it had been pawned by its 

owner on August 30, 2016 at approximately 5:31 p.m more than four hours 

before the occurrence of Incident D. 

36. Records from Mo Money Pawn Shop confirmed that the firearm which 

Detective Graff seized had been pawned there by Leslie Merritt, Jr. on August 30, 

2016 at about 5:31 p.m. 

37. On September 17, 2015, Detective Graff took the pawn shop firearms, 

including Leslie Merritt's, to the DPS crime lab. Criminalist Christopher J. 

Kalkowski was waiting for him. 

38. At around the same time, DPS personnel were searching Leslie Merritt's 

Facebook profile and saw that he had shared newspaper articles about the I-io 

Freeway Shooting case. 

39. DPS personnel told the crime lab to test Leslie Merritt's gun first. 

40. Crime lab personnel used flawed methodology to analyze the evidentiary 

bullets and fragments. 

41. The evidentiary bullets and fragments submitted to the DPS crime lab 

contained insufficient data for a firearm examiner to make a positive 

individualized match to any particular firearm. 

42. Despite their flawed methodology, on September 18, 2015, State criminalists 

told Detective Graff that the evidence bullets from all four shooting were a "100% 

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match" to Leslie Merritt's gun. 

43. Criminalists told Detective Graff that the "100% match" was true of all four 

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incidents with respect to Merritt's gun. 

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44. The opinion of the State's crime lab personnel that Merritt's gun was the 

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6 firearm that fired the bullets in all four shootings to a "l00% certainty" was the 

7 only evidence that linked Merritt to any of the shooting incidents. 

8 C. DPS Crhninalists Misled the Police About the Probability of an 

Identification 

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10 45. DPS criminalists intentionally misled detectives that they could identify 

11 Leslie Merritt's firearm as the source of the evidentiary bullets and fragments for 

12 all four incidents with "100% certainty." 

13 46. Individualized firearm identification is not like the more scientifically 

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rigorous field of forensic DNA analysis. Individualized firearm identification, as a 

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16 field, lacks sufficient statistical empirical foundations. The methodology is 

17 subjective in nature,. and based on the examiner's training and experience, and 

18 subject to bias. 

19 47. Accordingly, it is a practical impossibility, and contrary to the protocols of 

20 the Association of Firearm and Tool Mark Examiners (AFTE), of which DPS CRCL 

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criminalists had affirmative knowledge, to make a firearm identification with a 

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23 100% certainty to the exclusion of other firearms. 

24 48. DPS criminalists had only identified general class characteristics, but not 

25 individual characteristics of the evidence bullets. 

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3 • DPS Knew or Should Have Kit 

Botched the Identification 

wn that the Crime Lab Had 

49. The State criminalists intentionally relayed information to DPS personnel 

2 in a manner that lacked a scientific basis and violated their industry standards. 

50. On September 18, 2015, DPS detectives executed a search warrant at the MO 

6 Money Pawn Shop and picked up several pawn slips. 

7 51. DF'S detectives recognized that Leslie Merritt's gun was at the pawn shop on 8 

9 August 30, 2015 at 5:31 p.m. before the time of the fourth shooting, Incident D. 

10 52. DPS recognized that it was physically impossible for Leslie Merritt's firearm 

11 to have been used in Incident D when it was in the pawn shop. 

12 53. DPS detectives lacked any evidence that Leslie Merritt did not pawn his gun 

13 at 5:31 p.m. on August 30, 2015. 

14 54. Since the DPS criminalists identified each of the evidentiary bullets and 15 

16 fragments to Leslie Merritt's gun with l00% certainty for each of the four 

17 incidents, DPS recognized that if Incident D could not be linked Leslie Merritt's 

18 firearm, then none of the incidents could be linked to the firearm. 

19 55. In other words, DPS recognized that only one of two scenarios could be true: 

20 either (a) the crime lab had botched its identification or (b) Incident D did not 

21 occur when Merritt's gun was at the pawn shop. 22 

23 E. DPS Changed the Timeline to Fit Its Theory 

24 56. In response to their dilemma, DPS detectives chose to completely discount 

25 the first scenario and, rather, invented a theory that the tire involved in Incident D 

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must have been shot days earlier, with the bullet lodging in the sidewall of the tire, 

2 only to later dislodge and deflate the tire on the night of August 3o, 2015, after 

3 Leslie Merritt's gun was in the pawn shop. 

57. To bolster their theory, DPS detectives conducted a second interview of the 

driver of the BMW involved in Incident D, and suggested that he was incorrect in 

his timing of the fourth shooting. The BMW driver disregarded their suggestion, 

reiterating that he could tell that the tire deflated promptly upon being shot. 

58. DPS crime lab again fell below the standard of care by telling DPS detectives 

that it was possible that Plaintiff's gun could have been used in Incident D. 

59. During the pendency of the criminal case against Plaintiff, Defendants failed 

to test the vehicle or tire to see whether the detective's scenario was possible. 

60. During the pendency of the criminal case against Plaintiff, Defendants failed 

to test the vehicle or tire to see whether the timing of the shooting twice offered by 

the driver of the BMW in Incident D could be corroborated. 

61. DPS' criminalist indicated that it was possible, knowing that the detectives 

would arrest Leslie Merritt, Jr. 

62. In fact, the gouge marks on the BMW tire from Incident D establish that 

bullet passed immediately through the tire causing it to deflate almost 

instantaneously. 

63. In two separate interviews with DPS detectives, the driver of the vehicle of 

Incident D was adamant that the shooting occurred between approximately 9:45 

and 10:15 p.m. on Sunday, August, 30 2015, and that that the bullet did not lodge 

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in the sidewall based on all of his observation and knowledge 

2 64. DF'S knew or had reason to know that no objective evidence has ever 

3 supported the claim that the bullet was lodged in the tire for days before it finally 

caused the tire to deflate. 

6 F.Leslie Merritt, Jr. was Working and Taking Care of His Family 

65. On September 18, 2015, Leslie Merritt was 21 years old. He was working as a 

8 landscaper, and parenting two young children. 

9 66. At about 6:15 p.m., Leslie Merritt was driving to Walmart to buy some 

10 diapers and wipes for his five month old daughter. 

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67. After completing his purchase, he proceeded to the parking lot to return to 12 

13 his car. Suddenly, he saw Department of Public Safety SWAT officers rushing 

14 toward him, pointing their automatic rifles, and yelling at him to get on the 

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68. He could not understand why this was happening to him. 

69. Defendants forced him to face lay down on the parking lot. 

70. He could only think to ask why this is happening. 

71. The officers did not respond. 

72. Next, DPS drove him to an interrogation room. They placed him in a small 

room. 

73. They interrogated him for over an hour, accusing him of a crime he did not 

commit. 

74. Leslie repeatedly declared his innocence. 

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75. During the interrogation, DPS detectives lied to Leslie Merritt and told him 

that they had video of him. 

76. Leslie Merritt asked to see the alleged video. No such video exists. 

77. Leslie never asked for a lawyer. He thought that since he was answering all 

of their questions and has never fired a weapon at anyone, he would be going 

home. 

78. Instead, DPS officers booked Leslie Merritt into 4th Avenue jail. He would 

not be released for over two hundred days. 

79. The State arrested Leslie Merritt, Jr. without probable cause that he 

committed a crime. 

80. The State arrested Leslie Merritt, Jr. without an arrest warrant. 

81. Defendants failed to produce any evidence that Mr. Merritt was present at 

the scene of any of these shootings, let alone was a perpetrator. As Mr. Merritt was 

factually innocent of the charges there was no such evidence that could be 

produced. 

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G. The State and Prosecutors Suppressed Material Exculpatory 

19 Evidence Before the Grand Jury and Delayed Disclosure to 

20 Merritt's Counsel. 

21 82. After the warrantless arrest of Leslie Merritt, Defendants chose to bring the 

22 case before the Grand Jury. 

23 83. The Maricopa County prosecutor misled the grand jury that Incident D 

24 occurred between the dates of August 22, 2015 and August 27, 2015. 

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84. Defendants knew that Leslie Merritt did not have access to his gun at the 

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time of the fourth shooting incident. 

85. Defendants knew that zero evidence supported changing the timeline of 

Incident D. 

86. Defendants deliberately misled the grand jury that they had any evidence to 

support their theory that the bullet lodged in the inner sidewall of the BMW tire. 

87. Defendants deliberately failed to disclose to the grand jury the physical 

evidence of gouge marks on the BMW tire showing conclusively that the bullet 

passed right through the tire, and that the Defendants' theory of the bullet lodging 

in the tire was baseless. 

88. Defendants misled the Grand Jury that the crime lab had "definitively" and 

had "loo percent ballistically identified" Leslie Merritt's firearm to have fired the 

bullets from the four shooting incidents. 

89. Defendants deliberately misled the grand jury that the driver of the vehicle 

in Incident D was "assuming or guessing" or "unsure" about when his BMW tire 

sustained damage. 

90. Montgomery or Maricopa County or both deliberately suppressed material, 

exculpatory evidence during the prosecution, including the second interview of the 

BMW driver in Incident D and license plate reader (LPR) data. 

H. Montgomery Knew that Merritt was not the Freeway Shooter 

91. County attorneys working for Montgomery or Maricopa County or both 

recognized that the DPS Crime Lab had botched the identification. 

92. As a result, county attorneys retained Forensic Firearm Expert Lucien C. 

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Haag, an internationally-renowne expert in the area of firearm identification, 

who consulted with John E. Murdock, Forensic Consultant. 

93. On or about February 3, 2016, Haag collected Merritt's gun and the 

evidentiary bullets and bullet fragments from the DPS crime lab. 

94. Mr. Haag reviewed the DPS crirninalists' work and conducted his own 

investigation. He failed to match Leslie Merritt's gun as the source of any of the 

evidentiary bullets or bullet fragments in any of the shootings. 

95. On or about April i4, 2016, Haag issued a report stating results of the 

comparisons done by DPS were wrong and insufficient to constitute an 

identification. 

96. On or about April 19, 2016, Leslie Merritt, Jr. was released from jail. 

14 97. On April 22, 2016, Maricopa County Attorneys filed a motion to dismiss the 

criminal case against Leslie Merritt, J 

98. On April 25, 2016, the court dismissed the criminal case. 

99. On or about April 29, 2016, at the request of DPS, the Bureau of Alcohol, 

Tobacco, and Firearms completed a lab report based on its independent testing of 

Merritt's firearm and the evidentiary bullets. They found insufficient marks of 

value for comparison. 

rota. All the while, Leslie Merritt has suffered intensely and immensely from the 

false accusations which all Defendants have levied against him. 

101. As a result of Defendants' actions, Leslie Merritt, Jr. is afraid that DPS is 

continuing to conduct covert surveillance of him. He feels threatened and 

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vulnerable. He has• had difficulty sleeping and experienced loss of appetite. He 

tends to avoid social situations and is sometimes recognized in public and 

confronted by strangers. 

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102. Even after the dismissal of all charges against Merritt, at least one 

6 representative of DPS has publicly stated that DPS still believes that Merritt is the 

I-io Freeway Shooter. 

8 103. Defendant Montgomery still makes public comments that Leslie Merritt, Jr. 

9 is a suspect, although the evidence supporting his innocence is only getting 

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stronger. 

FIRST CAUSE OF ACTION — False Arrest 

12 (Against State of Arizona) 

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104. Plaintiffs re-allege each and every allegation contained above as though 

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more fully set forth herein. 

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16 105. This Cause of Action is brought pursuant to Arizona common law. 

17 106. On September 18, 2015, DPS officers arrested Leslie Merritt, Jr. without a 

18 warrant. 

19 107. The State is unable' to establish that the arrest was founded upon probable 

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cause. 

21 io8. The State of Arizona is liable under the doctrine of respondeat superior for 

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23 the tortious acts of its law enforcement and crime lab personnel committed within 

24 the scope of their employment. 

25 109. As a direct and proximate result of Defendants' misconduct, Leslie Merritt 

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suffered severe physical pain, mental anguish, and emotional distress, medical 

expenses, and lost wages in an amount to be proven at trial. 

SECOND CAUSIE OF ACTION- False Imrorisonment 

(Against All Defendants) 

no. Plaintiffs re-allege and re,incorporate by reference each and every allegation 

contained above as though More fully set forth herein. 

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in. This Cause of Action is brought pursuant to Arizona common law. 

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9 112. Defendants' actions as indicated above constitute false imprisonment. 

to 113. Defendants caused Leslie Merritt to be imprisoned against his will. 

11 114. As a direct and proximate result of Defendants' acts, omissions, and 

12 constitutional violations alleged above, Leslie Merritt suffered severe physical 

13 pain, mental anguish, and emotional distress, medical expenses, and lost wages in 

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an amount to be proven at trial. 

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THIRD CAUSE OF ACTION -Malicious Prosecution 

16 (Against All Defendants) 

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114. Plaintiffs re-allege by reference every allegation contained above as though 

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more fully set forth herein. 

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20 115. This Cause of Action is brought pursuant to Arizona law. 

21 116. Defendants initiated or caused a criminal proceeding to be brought against 

22 Leslie Merritt, Jr. 

23 117. The Defendants' criminal prosecution of Leslie Merritt, Jr. terminated in 

24 Leslie's favor. 

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118. The prosecution lacked probable cause. 

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119. In their investigatory process Defendants acted with malice, or a primary 

2 purpose other than to bring Leslie Merritt to justice. 

120. As a direct and proximate result of Defendants' acts, omissions, and 

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constitutional violations alleged above, Leslie Merritt suffered severe physical 

6 pain, mental anguish, and emotional distress, medical expenses, and lost wages in 

an amount to be proven at trial. 

8 FOURTH CAUSE OF ACTION- Negligence and/or Gross Negligence 

9 (Against All Defendants) 

10 121. Plaintiff re-alleges by reference every allegation contained above as though 

11 more fully set forth herein. 

12 122. This Cause of Action is brought .pursuant to Arizona common law. 

13 123. Defendants had a legal duty of care to Leslie Merritt, Jr. 

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124. Defendants and each of them fell below the standard of care in their 

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16 treatment of Leslie Merritt by, among other things, failing to follow accepted 

17 scientific methodology in the crime lab, concealing material fundamental evidence 

18 from the grand jury, failing to disclose material fundamental evidence during the 

19 course of the prosecution, and violating AZ CONST Art. 2 § 4. 

20 125. As a direct and proximate result of Defendants' acts, omissions, and 

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violations alleged above, Leslie Merritt suffered severe physical pain, mental 

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23 anguish, and emotional distress, medical expenses, and lost wages in an amount to 

24 be proven at trial. 

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FIFTH CAUSE OF ACTION- Intentional Infliction of Emotional Distress 

(Against All Defendants) 

126. Plaintiff re-alleges by reference every allegation contained above as 

4 though more fully set forth herein. 

5 127. This Cause of Action is brought pursuant to Arizona common law. 

6 128. As described above, the conduct of each Defendant was extreme and 

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outrageous. 

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9 129. Each Defendant either intend to cause emotional distress or recklessly 

10 disregard the near certainty that such distress will result from their conduct. 

11 130. As a result of each Defendants conduct, Leslie Merritt, Jr. was caused to 

12 incur severe emotional distress. 

13 131. In addition, as a direct and proximate result of Defendants' acts, omissions, 

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and violations alleged above, Leslie Merritt suffered severe physical pain, mental 

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16 anguish, and emotional distress, medical expenses, and lost wages in an amount to 

17 be proven at trial. 

18 SIXTH CAUSE OF ACTION- Aiding and Abetting Tortious Conduct 

(Against All Defendants) 

132. Plaintiff re-alleges by reference every allegation contained above as though 

more fully set forth herein. 

133. Each Defendant has aided and abetted others to commit tortious acts 

against Leslie Merritt. 

134. This Cause of Action is brought pursuant to Arizona common law. 

135. As expressed above in causes of action One through Five, each Defendant 

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has committed a tort or torts that has caused injury to Leslie Merritt, Jr. 

136. Defendants Montgomery and Maricopa County knew that the State of 

Arizona breached a duty of reasonable care to Leslie Merritt, Jr. 

137. Defendants Montgomery and Maricopa County provided substantial 

assistance or encouragement to the State of Arizona in the achievement of the 

breach of reasonable care to Leslie Merritt, Jr. 

8 138. Defendant State of Arizoha knew that Defendants Montgomery and 

9 Maricopa County breached a duty of reasonable care to Leslie Merritt, Jr. 

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139. Defendant State of Arizona provided substantial assistance or 

encouragement to Defendants Montgomery and Maricopa County in the 

achievement of the breach 'of reasonable care to Leslie Merritt, Jr. 

140. As a direct and proximate result of Defendants' acts, omissions, and 

constitutional violations alleged above, Leslie Merritt suffered severe physical 

pain, mental anguish, and emotional distress, medical expenses, and lost wages in 

an amount to be proven at trial. 

WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 

A. For general damages experienced by Leslie Merritt, Jr.; 

B. For such medical and medical expenses as may be reasonably 

incurred by Plaintiff in the future and as may be proven at the 

time of trial; 

C. For past and future loss of earnings/loss of earning capacity; 

D. For Plaintiffs court costs incurred herein and legal interest, 

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pursuantin'Part to AR5,§ 12-78 23;'and 

E. For such other and further relief as the Court may deem just 

and proper. 

Dated this -) day of September, 2016. 

LAW OFFICES OF DAVID J. DON, PLLC 

By: 

David J. Don 

Attorney for Plaintiff Leslie Merritt, Jr. 

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Ulises A. Ferragut, Jr. (018773)

THE FERRAGUT LAW FIRM, P.C.

2 North Central Avenue, Suite 1125

Phoenix, Arizona 85004

Tel. (602) 324-5300

Fax. (602) 258-4588

E-Mail: Ulises@FerragutLaw.com

Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 N. 24th Pkwy, Ste. 208 Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: Jlamm@cyberlawaz.com

David J. Don (016462)

Law Office of David J. Don,Pllc.

301 E. Bethany Home Rd., Ste., B-100

Tel: (480) 948-1212

Fax: (480) 696-7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie Merritt, Jr. 

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man, 

Plaintiff,

vs.

STATE OF ARIZONA, a body politic; BILL MONTGOMERY, the elected

Maricopa County Attorney;

MARICOPA COUNTY, a body politic;

JOHN DOES I-X; JANE DOES I-X;

ABC PARTNERSHIPS I-X AND XYZ

CORPORATIONS I-X.

Defendant. 

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Case No.: CR2016-013436

NOTICE OF ASSOCIATION 

COMES NOW, undersigned counsel, and hereby respectfully notifies court and

counsel that attorney Ulises A. Ferragut Jr., will be associating with Attorney’s Jason

D. Lamm and David J. Don in the above-captioned matter, who represent the Plaintiff,

Leslie Merritt Jr. 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

D. Sandoval, Deputy

9/27/2016 4:13:00 PM

Filing ID 7758477
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DATED this 27th day of September, 2016

Copy of the foregoing E-filed 

Delivered this 27th day of September, 2016 to: 

The Clerk of the Court

Maricopa County Superior Court

201 W. Jefferson St. 

Phoenix, AZ 85003

Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 N. 24th Pkwy, Ste. 208 Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: Jlamm@cyberlawaz.com

David J. Don (016462)

Law Office of David J. Don,Pllc.

301 E. Bethany Home Rd., Ste., B-100

Tel: (480) 948-1212

Fax: (480) 696-7756

Email: david@azcivilrights.com

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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

DEFENDANTS MARICOPA 

COUNTY AND WILLIAM 

MONTGOMERY’S CERTIFICATE 

OF AGREEMENT OF 

COMPULSORY ARBITRATION

(Assigned to the Honorable

David Gass)

Defendants Maricopa County and William Montgomery, certify that 

Defendants know the dollar limits and any other limitations set forth by the Local 

Rules of Practice for the applicable Superior Court and agree with Plaintiff’s 

/ /

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certification that this case is not subject to compulsory arbitration, as provided by 

Rules 72 through 76, Arizona Rules of Civil Procedure.

DATED this 26th day of October, 2016.

IAFRATE & ASSOCIATES

By: /s/Michele M. Iafrate

Michele M. Iafrate

Attorneys for Defendants Maricopa 

County and William Montgomery

ORIGINAL of the foregoing e-filed

this 26th day of October, 2016, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPY of the foregoing e-mailed via ECF

this 26th day of October, 2016, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing mailed

this 26th day of October, 2016, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff
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David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Edward F. Novak

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: /s/Jill Lafornara
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

DEFENDANTS MARICOPA 

COUNTY AND WILLIAM 

MONTGOMERY’S ANSWER TO 

PLAINTIFF’S COMPLAINT

(Assigned to the Honorable

David Gass)

Defendants Maricopa County and William Montgomery (“Defendants”) submit 

their Answer to Plaintiff’s Complaint. Defendants admit, deny and allege the 

following:

1. Defendants admit the allegations contained in paragraphs 1-5 of 

Plaintiff’s Complaint.

2. As to paragraph 6 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 6; therefore, 

Defendants deny the same.
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3. As to paragraph 7 of Plaintiff’s Complaint, Plaintiff makes no allegations 

against these Defendants. Should any allegations against these Defendants be 

found in paragraph 7, these Defendants deny any such allegations.

4. As to paragraph 8 of Plaintiff’s Complaint, Defendants admit that 

Defendant Montgomery is and was the elected Maricopa County Attorney. 

Defendants further admit that Defendant Montgomery is responsible for the 

administration, operation, maintenance, policies, procedures and functions of the 

Maricopa County Attorneys’ Office, the implementation of policies and procedures, 

the training and supervision of staff, and the provision of criminal justice to all 

residents of Maricopa County, including Leslie Merritt, Jr. Defendants deny the 

remaining allegations contained in paragraph 8 of Plaintiff’s Complaint.

5. As to paragraph 9 of Plaintiff’s Complaint, Defendants admit Maricopa 

County is a body politic. Defendants deny the remaining allegations contained in 

paragraph 9 of Plaintiff’s Complaint.

6. Defendants deny the allegations contained in paragraphs 10-12 of 

Plaintiff’s Complaint.

7. As to paragraphs 13-18 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 13-18, these Defendants deny any such 

allegations.

8. Defendants deny the allegations contained in paragraphs 19-20 of 

Plaintiff’s Complaint.
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9. As to paragraphs 21-68 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 21-68, these Defendants deny any such 

allegations.

10. Defendants deny the allegations contained in paragraph 69 of Plaintiff’s 

Complaint.

11. As to paragraphs 70-80 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 70-80, these Defendants deny any such 

allegations.

12. Defendants deny the allegations contained in paragraph 81 of Plaintiff’s 

Complaint.

13. As to paragraph 82 of Plaintiff’s Complaint, Defendants affirmatively 

allege these Defendants did not arrest Plaintiff. Defendants admit the case went 

before a Grand Jury. Defendants affirmatively allege the Grand Jury returned a true 

bill. Defendants deny the remaining allegations contained in paragraph 82 of 

Plaintiff’s Complaint.

14. Defendants deny the allegations contained in paragraphs 83-90 of 

Plaintiff’s Complaint.

15. Defendants deny the allegations contained in paragraph 91 of Plaintiff’s 

Complaint. Defendants affirmatively allege DPS retained Lucien Haag.
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16. Defendants deny the allegations contained in paragraph 92 of Plaintiff’s 

Complaint.

17. Defendants admit the allegations contained in paragraph 93 of 

Plaintiff’s Complaint.

18. As to paragraph 94 of Plaintiff’s Complaint, Defendants admit Mr. Haag 

reviewed the DPS criminalists’ work and conducted his own investigation. 

Defendants deny the remaining allegations contained in paragraph 94. Defendants 

affirmatively allege the results of Mr. Haag’s investigation was “inconclusive”.

19. As to paragraph 95 of Plaintiff’s Complaint, Defendants deny Mr. Haag 

issued a report stating the results of the comparisons done by DPS were wrong. 

Defendants admit Mr. Haag’s report stated the results were insufficient to constitute 

an identification. Defendants affirmatively allege the results of Mr. Haag’s 

investigation was inconclusive.

20. Defendants admit the allegations contained in paragraphs 96-98 of 

Plaintiff’s Complaint.

21. Defendants admit the allegations contained in paragraphs 99 of 

Plaintiff’s Complaint. Defendants affirmatively allege the lab report completed by the 

Bureau of Alcohol, Tobacco, and Firearms was received after the Court’s dismissal.

22. Defendants deny the allegations contained in paragraph 100 of 

Plaintiff’s Complaint.
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23. As to paragraph 101 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 101; therefore, 

Defendants deny the same.

24. As to paragraph 102 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraph 102, these Defendants deny any such 

allegations.

25. Defendants deny the allegations contained in paragraph 103 of 

Plaintiff’s Complaint.

FIRST CAUSE OF ACTION – False Arrest

(Against State of Arizona)

26. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 25 of this Answer.

27. As to paragraphs 105-109 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 105-109, these Defendants deny any such 

allegations.

SECOND CAUSE OF ACTION – False Imprisonment

(Against All Defendants)

28. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 27 of this Answer.

29. As to paragraph 111 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 111; therefore, 
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Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

30. Defendants deny the allegations contained in paragraph 112 of 

Plaintiff’s Complaint.

31. Defendants deny the allegations contained in paragraph 113 of 

Plaintiff’s Complaint. Defendants affirmatively allege imprisonment was based on 

probable cause.

32. Defendants deny the allegations contained in paragraph 114 of 

Plaintiff’s Complaint.

THIRD CAUSE OF ACTION – Malicious Prosecution

(Against All Defendants)

33. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 32 of this Answer.

34. As to paragraph 115 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 115, therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

35. Defendants admit the allegations contained in paragraph 116 of 

Plaintiff’s Complaint.

36. Defendants deny the allegations contained in paragraphs 117-118 of 

Plaintiff’s Complaint.
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37. As to paragraph 119 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraph 119, these Defendants deny any such 

allegations.

38. Defendants deny the allegations contained in paragraph 120 of 

Plaintiff’s Complaint.

FOURTH CAUSE OF ACTION – Negligence and/or Gross Negligence

(Against All Defendants)

39. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 38 of this Answer.

40. As to paragraph 122 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 122; therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

41. Defendants deny the allegations contained in paragraph 123 of 

Plaintiff’s Complaint. Defendants affirmatively allege a duty to all individuals in 

Maricopa County.

42. Defendants deny the allegations contained in paragraphs 124-125 of 

Plaintiff’s complaint.

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FIFTH CAUSE OF ACTION – Intentional Infliction of Emotional Distress

(Against All Defendants)

43. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 42 of this Answer.

44. As to paragraph 127 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 127, therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

45. Defendants deny the allegations contained in paragraphs 128-131 of 

Plaintiff’s complaint.

SIXTH CAUSE OF ACTION – Aiding and Abetting Tortious Conduct

(Against All Defendants)

46. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 45 of this Answer.

47. Defendants deny the allegations contained in paragraph 133 of 

Plaintiff’s Complaint.

48. As to paragraph 134 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 134, therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.
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49. Defendants deny the allegations contained in paragraphs 135-140 of 

Plaintiff’s complaint.

50. Defendants deny each and every allegation not specifically admitted 

herein.

AFFIRMATIVE DEFENSES

Defendants set forth the following affirmative defenses and reserve the right 

to supplement these affirmative defenses based on information learned during 

discovery:

1. Defendants affirmatively allege that Plaintiff’s Complaint, and each and 

every portion thereof, fails to state a claim upon which relief can be granted.

2. Defendants affirmatively allege that Plaintiff’s injuries and damages, if 

any, were caused in whole or in part by Plaintiff’s own actions or the actions of other 

parties or non-parties.

3. Defendants affirmatively allege that Plaintiff assumed the risk.

4. Defendants affirmatively allege they are entitled to absolute immunity 

and/or qualified immunity pursuant to A.R.S. §§ 12-280.01 and 12-820.02 and State 

v. Superior Court in and for Maricopa County, 186 Ariz. 294 (Arizona Ct. App 1996).

5. Defendants affirmatively allege Plaintiff is not entitled to punitive or 

exemplary damages pursuant to A.R.S. § 12-820.04.

6. Defendants affirmatively allege Guilt in Fact pursuant to Restatement of 

Torts § 657.
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7. Defendants affirmatively allege that Defendants were acting under legal 

process with good and sufficient probable cause to be so acting.

8. Defendants affirmatively allege that Defendants are not liable due to 

A.R.S. § 12-712.

9. Defendants affirmatively allege that Defendants are entitled to other 

immunities pursuant to A.R.S. § 12-820.05.

10. Defendants allege that additional facts may be revealed by future 

discovery which supports affirmative defenses presently available to, but not known 

by the Defendants. Accordingly, on information and belief, Defendants hereby 

incorporate by reference the affirmative defenses set forth in Rules 8 and 12, Ariz. 

R. Civ. P., as if set forth fully herein.

JURY DEMAND

Defendants make a demand for a Jury Trial.

WHEREFORE, having fully answered Plaintiff’s Complaint, Defendants 

respectfully request of this Court the following:

A. That Plaintiff’s Complaint be dismissed with prejudice as to these 

Defendants and that Plaintiff takes nothing thereby;

B. That Defendants be awarded their costs and reasonable attorney’s fees 

incurred herein; and

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C. For such other and further relief as this Court deems just and proper 

under the circumstances.

DATED this 26th day of October, 2016.

IAFRATE & ASSOCIATES

By: /s/Michele M. Iafrate

Michele M. Iafrate

Attorneys for Defendants Maricopa 

County and William Montgomery

ORIGINAL of the foregoing e-filed

this 26th day of October, 2016, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPY of the foregoing e-mailed via ECF

this 26th day of October, 2016, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing mailed

this 26th day of October, 2016, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff
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David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Edward F. Novak

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: /s/Jill Lafornara
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54927737.4 

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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Rebecca N. Cain (#025604) 

rcain@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendant State of Arizona 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff, 

vs. 

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X, 

Defendants. 

Case No. CV2016-013436 

DEFENDANT STATE OF ARIZONA’S 

RULE 12(B)(6) MOTION TO DISMISS 

(Assigned to the Honorable David Gass) 

(ORAL ARGUMENT REQUESTED) 

 Pursuant to Arizona Rule of Civil Procedure 12(b)(6), Defendant State of Arizona 

moves to dismiss Plaintiff Leslie Merritt, Jr.’s Complaint for failure to state a claim upon 

which relief can be granted. This Motion is supported by the following Memorandum of 

Points and Authorities. 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

C. Gray, Deputy

10/27/2016 4:03:00 PM

Filing ID 7837405
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54927737.4 

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Memorandum of Points and Authorities 

I. INTRODUCTION 

Just over a year ago, a serial shooter terrorized the Phoenix area, targeting vehicles 

as they travelled valley freeways. Plaintiff Leslie Merritt, Jr. was identified as a suspect 

because ballistics testing indicated that the gun used in at least some of the shootings was 

owned and possessed by Plaintiff at the time and that Plaintiff had, in fact, pawned that 

same gun around the time the shootings stopped. Plaintiff was arrested, detained, and 

subsequently indicted on charges related to four such shootings. The indictment was later 

voluntarily dismissed without prejudice. 

 Plaintiff now brings claims for false arrest, false imprisonment, malicious 

prosecution, negligence/gross negligence, intentional infliction of emotional distress, and 

aiding and abetting tortious conduct against the State of Arizona, Maricopa County, and 

Maricopa County Attorney Bill Montgomery.1 However, the facts plead in the Complaint 

establish that the State’s actions were supported by probable cause as a matter of law. As 

such, Plaintiff’s Complaint should be dismissed for failure to state a claim.2

II. RELEVANT FACTS3 

 In the summer of 2015, Defendant State of Arizona, through the Department of 

Public Safety (“DPS”), investigated a series of shootings that occurred along or near the 

Interstate 10 freeway (“I-10”) in Phoenix, Arizona (the “I-10 Shootings”). Complaint ¶ 13. 

During its investigation, DPS retrieved bullets and/or bullet fragments from four separate 

shooting incidents: Shootings A, B, C, and D (the “Evidentiary Bullets”). Id. ¶ 14.

Shootings A, B, C and D occurred between August 29 and August 30. Id. ¶¶ 15-18. 

 

1

 Plaintiff has plead all six claims against the State. The false arrest and false 

imprisonment claims are made against only the State. 

2

 The State does not waive any argument that Plaintiff’s A.R.S. § 12-821.01 Notice 

of Claim is insufficient. See, e.g., Jones v. Cochise Cty., 218 Ariz. 372, 375, 187 P.3d 97, 

100 (2008) (Holding that Motion to Dismiss raising issue of insufficiency of Notice of 

Claim was properly treated as Motion for Summary Judgment.) 

3

 While the factual allegations of Plaintiff’s Complaint must generally be taken as 

true for purposes of this Motion, the State expressly reserves all rights to contest the 

veracity of these facts. 
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54927737.4 

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DPS analyzed and compared the Evidentiary Bullets, determining that the 

Evidentiary Bullets from all four shootings were discharged from a single firearm with 

certain class characteristics. Id. ¶¶ 21-22. Specifically, DPS identified the Evidentiary 

Bullets as having been fired from a 9mm handgun that caused cartridges to spiral three 

times with a leftward twist as they emerged from the barrel. Id. ¶ 23. Based on these 

characteristics, DPS identified the make and model of the firearm as a 9mm Model C9 

manufactured by Hi-Point. Id. ¶ 23. 

 Using a computerized PAWN database, DPS located and collected eight Hi-Point 

9mm Model C9 firearms from various pawn shops. Id. ¶ 29-33. DPS located one such 

firearm at Mo Money Pawn Shop in Phoenix (“Merritt’s Gun”). Id. ¶ 33. The PAWN 

database contained information about the eight identified firearms, including the dates and 

times at which they were respectively pawned. Id. ¶ 34. The PAWN database revealed that 

Plaintiff had pawned the gun on August 30, 2015 at or about 5:31p.m. Id. ¶ 35-36. 

 On September 17, 2016, DPS seized and impounded the eight identified firearms, 

including Merritt’s Gun. Id. ¶ 37. After testing, the crime lab determined that the 

Evidentiary Bullets from all four shootings were a “100% match” to Merritt’s Gun. Id. ¶ 42. 

 Simultaneous searches of Plaintiff’s Facebook profile revealed that he had shared 

newspaper articles about the I-10 Shootings. Id. ¶ 38. 

On September 18, 2015, the State arrested Plaintiff without an arrest warrant and 

took him into custody. Id. ¶ 65, 78-79. The Grand Jury later indicted Plaintiff with four 

counts of Drive By Shooting, class 2 dangerous felonies; four counts of Aggravated 

Assault, class 3 dangerous felonies; two counts of Disorderly Conduct, class 6 

dangerous felonies; and two counts of Endangerment, class 6 dangerous felonies (the 

“Criminal Case”). Id. ¶ 82; Criminal Case Docket Re: State of Arizona v. Merritt, 

CR2015-144211, attached as Exhibit 1 hereto.4

 

4

 “A complaint’s exhibits, or public records regarding matters referenced in a 

complaint, are not ‘outside the pleading,’ and courts may consider such documents without 

converting a Rule 12(b)(6) motion into a summary judgment motion.” Strategic Dev. & 

Const., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 64, 226 P.3d 1046, 1050 (App. 

2010). The “conversion rule,” converting a motion to dismiss into a motion for summary 
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On or about April 14, 2016, Lucien Haag, an expert in the area of firearm 

identification, issued a report stating that DPS’ analysis of the Evidentiary Bullets was 

flawed. Id. ¶ 95. 

Four days later, on or about April 19, 2016, Plaintiff was released from jail. 

Complaint ¶ 96. Three days after that, on April 22, 2016, Defendant Maricopa County filed 

a motion to dismiss the Criminal Case. Id. at ¶ 97. The court dismissed the Criminal Case 

on April 25, 2016. Id. at ¶ 98. 

III. ARGUMENT 

A. Legal Standard for Dismissal 

Rule 12(b)(6) of the Arizona Rules of Civil Procedure provides for dismissal of a 

complaint for “[f]ailure to state a claim upon which relief can be granted.” When presented 

with a Rule 12(b)(6) motion to dismiss, “the court must look only to the pleading itself and 

consider its well-pleaded factual allegations, reasonable inferences from the alleged facts, 

and the complaint's exhibits.” Watts v. Medicis Pharm. Corp., 239 Ariz. 19, 365 P.3d 944, 

947 (2016). The Court may also consider public records regarding matters referenced in the 

complaint. Strategic Dev. & Const., 224 Ariz. at 64, 226 P.3d at 1050. “In determining if a 

complaint states a claim on which relief can be granted, courts must assume the truth of all 

well-pleaded factual allegations and indulge all reasonable inferences from those facts, but 

mere conclusory statements are insufficient.” Coleman v. City of Mesa, 230 Ariz. 352, 356, 

284 P.3d 863, 867 (2012). Allegations that are conclusory or speculative must be rejected. 

See id. Further, conclusions of law, standing alone, are insufficient to withstand a Rule 

12(b)(6) motion. Cullen v. Koty-Leavitt Ins. Agency, Inc., 216 Ariz. 509, 168 P.3d 917 

(2007), review granted in part, affirmed in part, vacated in part, 218 Ariz. 417, 189 P.3d 

344. 

 

judgment, avoids surprising a plaintiff with records it knew nothing about. The documents 

attached hereto as exhibits are court records related to the criminal case. See id. Both the 

criminal docket and filings in that case are public records with which the Plaintiff is 

intimately familiar and are therefore within the exception to the conversion rule. 
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B. Plaintiff’s Claims Fail as a Matter of Law 

The facts alleged in the Complaint defeat Plaintiff’s claims. Plaintiff has plead six 

claims against the State: (1) false arrest; (2) false imprisonment; (3) malicious prosecution;

(4) negligent/gross negligence; (5) intentional infliction of emotional distress; and (6) 

aiding and abetting tortious conduct. However, the Complaint establishes that the State 

acted with probable cause, which defeats these claims as a matter of law. And, while 

Plaintiff has alleged that the State acted without probable cause, the Court is not required to 

accept legal conclusions as true for purposes of determining this motion. See id. As such, 

Plaintiff has failed to state a claim upon which relief can be granted and his Complaint 

should be dismissed in its entirety. 

1. Plaintiff Fails to State a Claim for False Arrest. 

a. The facts alleged in the Complaint demonstrate that

 Plaintiff’s arrest was supported by probable cause. 

 Plaintiff alleges a claim for false arrest based upon his warrantless arrest on 

September 18, 2015. This claim fails as a matter of law. False arrest, a species of false 

imprisonment, is the detention of a person without his consent and without lawful authority. 

Slade v. City of Phoenix, 112 Ariz. 298, 299, 541 P.2d 550, 551 (1975). Where detention is 

pursuant to legal authority, the essential element of unlawful detention is lacking. Id. A 

plaintiff establishes a prima facie case by showing that he was arrested by the defendant 

without a warrant, and the burden then devolves upon the defendant to establish that the 

arrest was founded upon probable cause. Id. (citing Whitlock v. Boyer, 77 Ariz. 334, 271 

P.2d 484 (1954)). The existence of probable cause is a question of law to be determined by 

the court. Watzek v. Walker, 14 Ariz. App. 545, 485 P.2d 3 (1971). 

Probable cause to make an arrest exists when an arresting officer has reasonably 

trustworthy information of facts and circumstances sufficient to lead a reasonable man to 

believe an offense is being or has been committed and that the person to be arrested 

committed it. State v. Nelson, 129 Ariz. 582, 585, 633 P.2d 391, 395 (1981). Probable cause 

is something less than the proof needed to convict and more than an unsupported suspicion. 
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Hansen v. Garda, Fletcher, Lund & McVean, 148 Ariz. 205, 207, 713 P.2d 1263, 1265 

(1985). It is a practical, nontechnical concept acting as a compromise between society's 

need for effective law enforcement and an individual citizen's interest in liberty. Beck v. 

State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 226 (1964). Arresting officers are not required 

to conduct a trial before making an arrest. Hansen, 148 Ariz. at 207, 713 P.2d at 1265. 

Further, subsequent dismissal of the charges or a finding of innocence does not make an 

arrest made with probable cause unlawful. Cullison v. City of Peoria, 120 Ariz. 165, 168, 

584 P.2d 1156, 1159 (1978). Thus, the critical inquiry is to the facts as they existed at the 

time of the arrest, and not afterward. Reams v. City of Tucson, 145 Ariz. 340, 343, 701 P.2d 

598, 601 (App. 1985). 

Finally, the claim of false arrest focuses not on the probable cause to support each 

charge, but rather on the validity of the arrest. Lacy v. County of Maricopa, 631 F.Supp.2d 

1183, 1194 (D.Ariz.2008). In other words, if there was probable cause for any charge, then 

a false arrest claim fails as a matter of law. Id. 

Here, the Complaint’s allegations plainly demonstrate that the State had probable 

cause to arrest Plaintiff at the time of his arrest. As alleged in the Complaint, during its 

investigation, DPS collected Evidentiary Bullets from four separate shootings which DPS 

criminalists matched, first to each other, and then to a firearm that was owned by Plaintiff 

during the time period at issue in the investigation. Complaint ¶ 14, 21-37. Plaintiff pawned 

that same firearm within days, if not hours, of the shootings for which he was arrested. Id. 

¶¶ 35-36. Finally, the Plaintiff’s social media postings and interest related to the shootings 

constituted additional circumstantial evidence supporting probable cause for the arrest and 

prosecution. See id. ¶ 38. These facts provided the “reasonably trustworthy information of 

facts and circumstances sufficient to lead a reasonable man to believe” that the shootings 

had been committed and that Plaintiff had committed them. Nelson, 129 Ariz. at 585, 633 

P.2d at 395. 
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b. Additional factual allegations go to the issue of 

 Plaintiff’s guilt, not the determination of probable cause 

 underlying Plaintiff’s arrest. 

Plaintiff makes a number of additional factual allegations that go to the ultimate 

issue of Plaintiff’s guilt or innocence, such as alleged flaws in the methodology used to 

analyze the Evidentiary Bullets linking Merritt’s Gun to the shootings and supposed 

questions surrounding the timeline of events related to the shootings. See, e.g., Complaint at 

¶¶ 36, 40, 42-64. However, these facts, even taken as true for purposes of this motion, do 

not establish a lack of probable cause at the time of Plaintiff’s arrest and detention, or even 

at the instigation of the Criminal Case. 

It is well established under Arizona law that probable cause does not require facts 

sufficient to convict. See, e.g., Hansen, 148 Ariz. at 207, 713 P.2d at 1265; Reams, 145 Ariz. 

at 343, 701 P.2d at 601. The bar is much lower than that. Further, there is leeway within the 

concept of probable cause for subjective error. State v. Pederson, 102 Ariz. 60, 66, 424 P.2d 

810, 816 (1967). The United States Supreme Court has expressly recognized this fact, 

stating: “Because many situations which confront officers in the course of executing their 

duties are more or less ambiguous, room must be allowed for some mistakes on their part. 

But the mistakes must be those of reasonable men, acting on facts leading sensibly to their 

conclusions of probability.” Id. (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 

S.Ct. 1302, 1311 (1891). 

 For example, in Slade, 112 Ariz. at 300, 541 P.2d at 552, Jack Leavins, the exhusband of plaintiff Rita Slade, complained to Phoenix Police Officer Taylor that plaintiff 

Larry Slade, Rita’s current husband, had fired several shots at him with a pellet gun. 

Leavins gave Officer Taylor the name and address of an alleged eyewitness, and the names 

of two or three other possible witnesses. Id. Officer Taylor made notes of the interview with 

Leavins which he later used to write a Departmental Report. Id. Officer Taylor did not 

interview any of the alleged witnesses, nor did any other officer. Id. No further investigation 

was made. Id. Based on the information in Taylor’s report, the County Attorney’s office 

authorized a criminal complaint to be filed against Larry Slade, who was arrested and 
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confined until he made bond. Id. At the preliminary hearing, no witnesses appeared against 

Mr. Slade and the charge against him was dismissed. Id. 

The Slades sued the City of Phoenix and Officer Taylor for malicious prosecution, 

false arrest, and false imprisonment. Id. at 229, 551. The court, finding no showing of a lack 

of probable cause, dismissed the Slades’ claims, finding that it was reasonable for the 

officer to believe – based solely on the ex-husband’s account – that the new husband had 

committed an offense. Id. at 301, 553. The court noted that, while additional investigation 

might have avoided a mistake, which was the ideal, it was not required to meet the 

minimum standard for probable cause. Id. 

Here, like in Slade, the State was operating on information it possessed at the time of 

Plaintiff’s arrest. Indeed, many of the Complaint’s allegations concern events that happened 

long after Plaintiff’s initial arrest and even long after the instigation of the Criminal Case. 

For example, Plaintiff alleges that Lucien Haag, an expert in the area of firearm 

identification, conducted his own testing and wrote a report that called into question the 

State’s identification of Merritt’s Gun. Complaint ¶¶ 92-95. But that report was issued on 

April 14, 2016, nearly 8 months after Plaintiff’s arrest. Id. ¶¶ 65, 79, 95. The State did not 

have this information at the time it determined that there was sufficient probable cause to 

arrest Plaintiff. And notably, the report was issued only four days before Plaintiff was 

released from custody and eight days before the County Attorney moved to dismiss the 

indictment. Plaintiff’s assertions related to subsequent testing or investigation which 

allegedly cast doubt on his guilt are irrelevant to the determination of whether the State had 

a reasonable basis to believe Plaintiff was guilty of at least one of the shootings at the time 

of his arrest. Because the arrest was based on probable cause, Plaintiff’s claim for false 

arrest should be dismissed. 

2. Plaintiff Fails to State a Claim for False Imprisonment. 

Plaintiff alleges a claim for false imprisonment based on the same facts supporting 

his claim for false arrest. This claim too fails as a matter of law. False imprisonment, like 

false arrest, is the non-consensual detention of a person “without lawful authority.” Slade, 
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112 Ariz. at 300, 541 P.2d at 552. Thus, as with false arrest, the law is well settled that the 

existence of probable cause is a complete defense to the claim of false imprisonment. 

Cullison, 120 Ariz. 165 at 169, 584 P.2d at 1160. 

 Further, the tort of false imprisonment ends when the criminal defendant becomes 

held pursuant to legal process, i.e., when he is arraigned on charges. Wallace v. Kato, 549 

U.S. 384, 389; 127 S. Ct. 1091, 1096 (2007) (citing authority). After that point, “unlawful 

detention forms part of the damages for the ‘entirely distinct’ tort of malicious prosecution, 

which remedies detention accompanied, not by absence of legal process, but by wrongful 

institution of legal process.” Id. at 390, 1096. As such, the sole time period relevant to 

Plaintiff’s unlawful detention claim is from September 18, 2015, the date of arrest, through 

October 1, 2015, the date of his arraignment. See Exhibit 1. During that narrow window, the 

State clearly had probable cause for Plaintiff’s arrest and detention. See Section B.1, supra. 

Plaintiff fails to state a claim for false imprisonment. 

3. Plaintiff Fails to State a Claim for Malicious Prosecution. 

 Plaintiff makes his claim for malicious prosecution based on the instigation of the 

Criminal Case. As with false arrest and false imprisonment, this claim fails as a matter of 

law. To state a claim for malicious prosecution, a plaintiff must set forth: (1) a criminal 

prosecution, (2) that terminates in favor of the plaintiff, (3) with the defendants as 

prosecutors, (4) actuated by malice, (5) without probable cause, and (6) causing damages. 

See Slade, 112 Ariz. at 300, 541 P.2d at 552. Plaintiff fails to satisfy at least two of these 

elements.5

 First, like false arrest and false imprisonment, probable cause to institute a 

proceeding is a “complete and absolute defense to an action for malicious prosecution.” Id. 

at 301, 553 (citing McClinton v. Rice, 76 Ariz. 358, 265 P.2d 425 (1953)). “When ... the 

claim of malicious prosecution is based upon the initiation of a criminal prosecution, the 

 

5

 This claim is plead against all Defendants. The State does not waive any argument 

the State was not the “prosecutor” for purposes of this claim upon the development of an 

appropriate record. 
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question of probable cause is whether it was objectively reasonable for the defendant ... to 

suspect the plaintiff ... had committed a crime.” Conrad v. United States, 447 F.3d 760, 768 

(9th Cir. 2006) (citations omitted). The existence of probable cause for a prosecution is a 

question of law, not fact. Joseph v. Markovitz, 27 Ariz. App. 122, 124-25, 551 P.2d 571, 

573-74 (1976).6 Moreover, whether there is probable cause sufficient to constitute a defense 

to a malicious prosecution claim is tested from the perspective of the prosecuting party. 

See Lantay v. McLean, 2 Ariz. App. 22, 24, 406 P.2d 224, 226 (1965). The test is whether 

the facts as presented to the prosecutor would have caused a reasonable person to initiate 

the prosecution. Id. 

 The State’s determination of probable cause is further supported by the fact that the 

Grand Jury indicted Plaintiff on December 4, 2015. See Complaint ¶ 82; Exhibit 1. “The 

primary function of the Grand Jury is to determine whether probable cause exists to believe 

that a crime has been committed and the individual being investigated was the one who 

committed it.” State, 139 Ariz. at 424, 678 P.2d at 1388. “The indictment of the accused by 

a grand jury is evidence that the person who initiated the proceedings had probable cause 

for initiating them.” Restatement (Second) of Torts § 664 (1977); see also Williams v. 

Hartford Ins. Co., 147 Cal.App.3d 893, 195 Cal.Rptr. 448, 452 (1983) (“[U]nder California 

tort law, a grand jury indictment creates a presumption in favor of the malicious-prosecution 

defendant that probable cause existed for the underlying prosecution.”). 

 Second, the Criminal Case did not terminate in Plaintiff’s favor. There is no per se

rule whether a voluntary dismissal of the underlying complaint is a favorable termination 

for purposes of a malicious prosecution claim. Frey v. Stoneman, 150 Ariz. 106, 110-111, 

722 P.2d 274, 278-279 (1986). However, a termination prior to trial on the merits is 

favorable only if it “reflects on the merits of the matter.” Id. Here, Defendant Maricopa 

County moved to dismiss the case voluntarily and without prejudice. Motion to Dismiss 

 

6 Markovitz, like Frey and Lantay, infra, addresses the claim of malicious 

prosecution in the context of a civil prosecution. The Standard for favorable termination is 

the same. Restatement (Second) of Torts, § 674, cmt. J (1977). 
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without Prejudice, attached here at Exhibit 2. The Motion to Dismiss indicates only that 

dismissal was sought “in the interests of justice” and not in violation of Arizona Rule of 

Criminal Procedure 8. Id. Plaintiff then filed a Motion to Dismiss with Prejudice, arguing 

that prosecutors wrongfully sought dismissal without prejudice in violation of Rule 8. 

Motion to Dismiss with Prejudice, attached here at Exhibit 3. In that Motion, Plaintiff 

argued that the dismissal without prejudice had been obtained to allow prosecutors more 

time to build a case. Id. at pp. 2:14-23, 5:11-22. Plaintiff’s Motion to Dismiss with 

Prejudice was denied. Minute Entry Order dated May 10, 2016, attached here at Exhibit 4, 

p. 2. 

 Despite these facts, Plaintiff baldly alleges that “The Defendants’ criminal 

prosecution of Leslie Merritt, Jr. terminated in Leslie’s favor.” Complaint ¶ 117. However, 

the Court need not accept this conclusory and unsupported allegation where it is clear that 

the dismissal was not on the merits. Coleman, 230 Ariz. at 356, 284 P.3d at 867 (In 

determining if a complaint states a claim on which relief can be granted, courts must 

assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences 

from those facts, but mere conclusory statements are insufficient.). 

 As Plaintiff fails to plead facts sufficient to support at least two elements of his claim 

for malicious prosecution, this claim should be dismissed. 

4. Plaintiff Fails to State a Claim for Negligence or Gross Negligence. 

Plaintiff’s claim for negligence/gross negligence is founded upon his claim of an 

unlawful arrest, imprisonment, and prosecution. Since the arrest and prosecution were 

supported by probable cause, the State’s conduct did not depart from the standard of care 

mandated by state law. See Hansen 148 Ariz. at 207, 713 P.2d at 1265 (affirming dismissal 

of claim for negligence/gross negligence where claims were founded upon claim of 

unlawful arrest and court determined that arrest was made with probable cause). 

Further, the Complaint fails to allege facts rising to the level of gross negligence, 

which Arizona courts have described as “flagrant and evidenc[ing] a lawless and destructive 

spirit.” Cullison, 120 Ariz. at 169, 584 P.2d at 1160. Rather, the State conducted the 
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investigation under lawful authority and found probable cause to make the arrest, detention, 

and to initiate the Criminal Case. See Section B.1, supra. Plaintiff’s claims for 

negligence/gross negligence should therefore be dismissed. 

5. Plaintiff Fails to State a Claim for Intentional Infliction of 

 Emotional Distress. 

Plaintiff also pleads a claim for Intentional Infliction of Emotional Distress (“IIED”) 

based on his arrest, detention, and prosecution. Because the State’s actions were supported 

by probable cause, Plaintiff’s claim for Intentional Infliction of Emotional Distress (“IIED”) 

fails as a matter of law. Arizona adopted the Restatement § 46 (1965), which sets forth the 

elements of a claim for IIED: 

[F]irst, the conduct by the defendant must be “extreme” and “outrageous”; 

second, the defendant must either intend to cause emotional distress or 

recklessly disregard the near certainty that such distress will result from his 

conduct; and third, severe emotional distress must indeed occur as a result of 

defendant's conduct. 

Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987) (emphasis in original). 

 A claim for IIED requires proof that “the defendant's acts were so outrageous in 

character and so extreme in degree, as to go beyond all possible bounds of decency, and to 

be regarded as atrocious and utterly intolerable in a civilized community.” Mintz v. Bell Atl. 

Sys. Leasing Int'l, Inc., 183 Ariz. 550, 554, 905 P.2d 559, 563 (1995) (citations omitted). 

“Even if a defendant's conduct is unjustifiable, it does not necessarily rise to the level of 

‘atrocious' and ‘beyond all possible bounds of decency’ that would cause an average 

member of the community to believe it was ‘outrageous.’” Nelson v. Phoenix Resort 

Corp., 181 Ariz. 188, 199, 888 P.2d 1375, 1386 (App. 1994). The Arizona Supreme Court 

has made clear that “conduct necessary to sustain an intentional infliction claim falls at the 

very extreme edge of the spectrum of possible conduct.” Watts v. Golden Age Nursing 

Home, 127 Ariz. 255, 258, 619 P.2d 1032, 1035 (1980). Whether a defendant's conduct may 

be regarded as extreme and outrageous is initially examined by the court as a matter of law. 

Restatement § 46 cmt. h. 
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 The State’s actions in the Criminal Case do not go beyond all possible bounds of 

decency. The State conducted the investigation under lawful authority and found evidence 

that supported a determination of probable cause. See Section B.1, supra. The IIED claim 

therefore fails as a matter of law. See Rondelli v. Pima County, 120 Ariz. 483, 490, 586 

P.2d 1295, 1302 (App.1978) (rejecting intentional infliction of emotional distress claim as a 

matter of law by an appellant who claimed he was stereotyped as “Mafiosi,” detained with 

his family for an hour without explanation, searched and handcuffed outside his car in full 

view of [his] neighbors and friends, treated like a dangerous criminal for failing to file a tax 

return, and falsely arrested); Keates v. City of Vancouver, 73 Wash.App. 257, 869 P.2d 88, 

92 (Wash.Ct.App.1994) (holding as a matter of law that the police officer's yelling at a 

husband suspected of his wife's murder did not constitute outrageous conduct); Rhodes v. 

Smithers, 939 F.Supp. 1256, 1281 (S.D.W.Va.1995) (finding for defendant police officers 

on the intentional infliction claim as a matter of law because their conduct had failed to 

support a malicious prosecution claim). As such, Plaintiff’s IIED claim should be 

dismissed. 

6. Plaintiff Fails to State a Claim for Aiding and Abetting Tortious 

 Conduct. 

Plaintiff’s aiding and abetting claim is based upon his underlying claims for false 

arrest, false imprisonment, malicious prosecution, negligence/gross negligence, and 

intentional infliction of emotional distress. To prove a claim of aiding and abetting tortious 

conduct, a plaintiff must prove: (1) the primary tortfeasor committed a tort that caused 

injury to the plaintiff; (2) the defendant knew that the primary tortfeasor's conduct 

constituted a breach of duty; and (3) the defendant substantially assisted or encouraged the 

primary tortfeasor in the achievement of the breach. Federico v. Maric, 224 Ariz. 34, 36, 

226 P.3d 403, 405 (App. 2010) (internal citation and footnote omitted). As Plaintiff has 

failed to state a claim upon which relief can be granted with regard to any underlying tort, it 

follows he has failed to state a claim for aiding and abetting. 
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Additionally, “aiding and abetting liability is based on proof of a scienter ... the 

defendants must know that the conduct they are aiding and abetting is a tort.” Id. Here, as 

the Complaint establishes that the State’s actions were supported by probable cause, any 

allegation that the State substantially assisted the tortious conduct of another defendant with 

knowledge that that defendant’s conduct was tortious is not a reasonable inference and the 

Court must not accept such an allegation as true. See Cullen v. Auto-Owners Ins. Co., 218 

Ariz. 417, 189 P.3d 344, 347 (2008) (affirming dismissal of complaint based on speculative 

allegations that were not reasonable inferences drawn from well-pled facts). Accordingly, 

this claim must also be dismissed. 

C. Amendment Cannot Cure the Complaint’s Deficiencies 

A plaintiff can “plead himself out of court by pleading facts that undermine the 

allegations set forth in his complaint.” Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 

1999). Here, Plaintiff has done just that. Amendment will not cure the Complaint’s 

deficiencies. Therefore, leave to amend should not be granted. Walls v. Arizona Dep't of 

Pub. Safety, 170 Ariz. 591, 597, 826 P.2d 1217, 1223 (1991) (holding that denial of leave to 

amend was proper where amendment would be futile). 

IV. CONCLUSION 

The Complaint affirmatively demonstrates that the State’s actions giving rise to 

Plaintiff’s claims were supported by probable cause as a matter of law. Accordingly, 

Plaintiff cannot state a claim upon which relief can be granted and his Complaint should be 

dismissed in its entirety and without leave to amend. 

 RESPECTFULLY SUBMITTED this 27th day of October, 2016. 

POLSINELLI PC 

By: /s/ Rebecca N. Cain 

Edward F. Novak 

Melissa Ho 

Rebecca N. Cain 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 
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E-FILED this 27th day of October, 2016, 

with the Clerk of the Superior Court. 

COPY mailed this 27th day of October, 

2016, to: 

Jason D. Lamm 

Law Office of Jason Lamm 

6245 North 24th Pkwy., Ste. 208 

Phoenix, AZ 85016-2030 

(602) 222-9237 

jlamm@cyberlawaz.com

David J. Don 

Law Offices of David J. Don, PLLC 

301 E. Bethany Home Rd., Suite B-100 

Phoenix, AZ 85012 

(480) 948-1212 

david@azcivilrights.com

Attorneys for Plaintiff Leslie Merritt, Jr. 

By: /s/ Dawn M. Coppens 

































Docket Code

 CME/CAN

Person Filing: Rebecca N. Cain 

Address: One East Washington Street, Suite 1200 

City, State, Zip: Phoenix, Arizona 85004 

State Bar: 025604

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

vs

STATE OF ARIZONA, a body politic;

BILL MONTGOMERY, the elected

Maricopa County Attorney;

MARICOPA COUNTY, a body politic;

JOHN DOES I-X; JANE DOES I-X;

ABC PARTNERSHIPS I-X and XYZ

CORPORATIONS I-X,

Defendants.

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CREDIT MEMO

CASE NO. CV2016-013436

RECEIVED FROM: Rebecca N. Cain DATE RECEIVED: 10/27/2016

PAYMENT FOR: State of Arizona 

PAYMENT IS FOR THE FOLLOWING:

 600 TRANSMITTAL FEE FOR CHANGE OF VENUE

 JUDGMENT DEBTOR EXAM INTERVENOR

 ANSWER/APPEARANCE MEDIATION

 OPEN NEGOTIATION PARENTING CONFERENCE FEE

 OTHER: 

AMOUNT PAID: $237 CO-CHARGE

RECEIPT#25551696 CLERK NAME: CJG

HOW PAID

 CASH:

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

C. Diaz, Deputy

11/1/2016 3:03:53 PM

Filing ID 7847506
Docket Code

 CME/CAN

 BUSINESS CHECK CHECK# BANK NAME:

 MONEY ORDER

 MASTER CARD VISA AMERICAN EXPRESS
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

DEFENDANTS MARICOPA 

COUNTY AND WILLIAM 

MONTGOMERY’S FIRST 

AMENDED ANSWER TO 

PLAINTIFF’S COMPLAINT

(Assigned to the Honorable

David Gass)

Defendants Maricopa County and William Montgomery (“Defendants”) submit 

their First Amended Answer to Plaintiff’s Complaint. Defendants admit, deny and 

allege the following:

1. Defendants admit the allegations contained in paragraphs 1-5 of 

Plaintiff’s Complaint.

2. As to paragraph 6 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 6; therefore, 

Defendants deny the same.
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3. As to paragraph 7 of Plaintiff’s Complaint, Plaintiff makes no allegations 

against these Defendants. Should any allegations against these Defendants be 

found in paragraph 7, these Defendants deny any such allegations.

4. As to paragraph 8 of Plaintiff’s Complaint, Defendants admit that 

Defendant Montgomery is and was the elected Maricopa County Attorney. 

Defendants further admit that Defendant Montgomery is responsible for the 

administration, operation, maintenance, policies, procedures and functions of the 

Maricopa County Attorneys’ Office, the implementation of policies and procedures, 

the training and supervision of staff, and the provision of criminal justice to all 

residents of Maricopa County, including Leslie Merritt, Jr. Defendants deny the 

remaining allegations contained in paragraph 8 of Plaintiff’s Complaint.

5. As to paragraph 9 of Plaintiff’s Complaint, Defendants admit Maricopa 

County is a body politic. Defendants deny the remaining allegations contained in 

paragraph 9 of Plaintiff’s Complaint.

6. Defendants deny the allegations contained in paragraphs 10-12 of 

Plaintiff’s Complaint.

7. As to paragraphs 13-18 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 13-18, these Defendants deny any such 

allegations.

8. Defendants deny the allegations contained in paragraphs 19-20 of 

Plaintiff’s Complaint.
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9. As to paragraphs 21-68 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 21-68, these Defendants deny any such 

allegations.

10. Defendants deny the allegations contained in paragraph 69 of Plaintiff’s 

Complaint.

11. As to paragraphs 70-80 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 70-80, these Defendants deny any such 

allegations.

12. Defendants deny the allegations contained in paragraph 81 of Plaintiff’s 

Complaint.

13. As to paragraph 82 of Plaintiff’s Complaint, Defendants affirmatively 

allege these Defendants did not arrest Plaintiff. Defendants admit the case went 

before a Grand Jury. Defendants affirmatively allege the Grand Jury returned a true 

bill. Defendants deny the remaining allegations contained in paragraph 82 of 

Plaintiff’s Complaint.

14. Defendants deny the allegations contained in paragraphs 83-90 of 

Plaintiff’s Complaint.

15. Defendants deny the allegations contained in paragraph 91 of Plaintiff’s 

Complaint that the DPS Crime “botched the investigation” and further deny that 

Defendants “recognized” that the DPS Crime Lab had “botched” anything. 
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Defendants affirmatively allege Maricopa County Attorney’s Office retained Lucien 

Haag.

16. Defendants admit the MCAO retained Expert Lucien Haag. Defendants 

deny they retained Mr. Haag “as a result” of allegations in paragraph 91. 

Defendants deny the remaining allegations contained in paragraph 92 of Plaintiff’s 

Complaint.

17. Defendants admit the allegations contained in paragraph 93 of 

Plaintiff’s Complaint.

18. As to paragraph 94 of Plaintiff’s Complaint, Defendants admit Mr. Haag 

reviewed the DPS criminalists’ work and conducted his own investigation. 

Defendants deny the remaining allegations contained in paragraph 94. Defendants 

affirmatively allege the results of Mr. Haag’s investigation was “inconclusive”.

19. As to paragraph 95 of Plaintiff’s Complaint, Defendants deny Mr. Haag 

issued a report stating the results of the comparisons done by DPS were wrong. 

Defendants admit Mr. Haag’s report stated the results were insufficient to constitute 

an identification. Defendants affirmatively allege the results of Mr. Haag’s 

investigation was inconclusive.

20. Defendants admit the allegations contained in paragraphs 96-98 of 

Plaintiff’s Complaint.

21. Defendants admit the allegations contained in paragraphs 99 of 

Plaintiff’s Complaint. Defendants affirmatively allege the lab report completed by the 

Bureau of Alcohol, Tobacco, and Firearms was received after the Court’s dismissal.
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22. Defendants deny the allegations contained in paragraph 100 of 

Plaintiff’s Complaint.

23. As to paragraph 101 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 101; therefore, 

Defendants deny the same.

24. As to paragraph 102 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraph 102, these Defendants deny any such 

allegations.

25. Defendants deny the allegations contained in paragraph 103 of 

Plaintiff’s Complaint.

FIRST CAUSE OF ACTION – False Arrest

(Against State of Arizona)

26. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 25 of this Answer.

27. As to paragraphs 105-109 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 105-109, these Defendants deny any such 

allegations.

SECOND CAUSE OF ACTION – False Imprisonment

(Against All Defendants)

28. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 27 of this Answer.
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29. As to paragraph 111 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 111; therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

30. Defendants deny the allegations contained in paragraph 112 of 

Plaintiff’s Complaint.

31. Defendants deny the allegations contained in paragraph 113 of 

Plaintiff’s Complaint. Defendants affirmatively allege imprisonment was based on 

probable cause.

32. Defendants deny the allegations contained in paragraph 114 of 

Plaintiff’s Complaint.

THIRD CAUSE OF ACTION – Malicious Prosecution

(Against All Defendants)

33. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 32 of this Answer.

34. As to paragraph 115 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 115, therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

35. Defendants admit the allegations contained in paragraph 116 of 

Plaintiff’s Complaint.
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36. Defendants deny the allegations contained in paragraphs 117-118 of 

Plaintiff’s Complaint.

37. As to paragraph 119 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraph 119, these Defendants deny any such 

allegations.

38. Defendants deny the allegations contained in paragraph 120 of 

Plaintiff’s Complaint.

FOURTH CAUSE OF ACTION – Negligence and/or Gross Negligence

(Against All Defendants)

39. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 38 of this Answer.

40. As to paragraph 122 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 122; therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

41. Defendants deny the allegations contained in paragraph 123 of 

Plaintiff’s Complaint. Defendants affirmatively allege a duty to all individuals in 

Maricopa County.

42. Defendants deny the allegations contained in paragraphs 124-125 of 

Plaintiff’s complaint.

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FIFTH CAUSE OF ACTION – Intentional Infliction of Emotional Distress

(Against All Defendants)

43. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 42 of this Answer.

44. As to paragraph 127 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 127, therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

45. Defendants deny the allegations contained in paragraphs 128-131 of 

Plaintiff’s complaint.

SIXTH CAUSE OF ACTION – Aiding and Abetting Tortious Conduct

(Against All Defendants)

46. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 45 of this Answer.

47. Defendants deny the allegations contained in paragraph 133 of 

Plaintiff’s Complaint.

48. As to paragraph 134 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 134, therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.
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49. Defendants deny the allegations contained in paragraphs 135-140 of 

Plaintiff’s complaint.

50. Defendants deny each and every allegation not specifically admitted 

herein.

AFFIRMATIVE DEFENSES

Defendants set forth the following affirmative defenses and reserve the right 

to supplement these affirmative defenses based on information learned during 

discovery:

1. Defendants affirmatively allege that Plaintiff’s Complaint, and each and 

every portion thereof, fails to state a claim upon which relief can be granted.

2. Defendants affirmatively allege that Plaintiff’s injuries and damages, if 

any, were caused in whole or in part by Plaintiff’s own actions or the actions of other 

parties or non-parties.

3. Defendants affirmatively allege that Plaintiff assumed the risk.

4. Defendants affirmatively allege they are entitled to absolute immunity 

and/or qualified immunity pursuant to A.R.S. §§ 12-280.01 and 12-820.02 and State 

v. Superior Court in and for Maricopa County, 186 Ariz. 294 (Arizona Ct. App 1996).

5. Defendants affirmatively allege Plaintiff is not entitled to punitive or 

exemplary damages pursuant to A.R.S. § 12-820.04.

6. Defendants affirmatively allege Guilt in Fact pursuant to Restatement of 

Torts § 657.
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7. Defendants affirmatively allege that Defendants were acting under legal 

process with good and sufficient probable cause to be so acting.

8. Defendants affirmatively allege that Defendants are not liable due to 

A.R.S. § 12-712.

9. Defendants affirmatively allege that Defendants are entitled to other 

immunities pursuant to A.R.S. § 12-820.05.

10. Defendants allege that additional facts may be revealed by future 

discovery which supports affirmative defenses presently available to, but not known 

by the Defendants. Accordingly, on information and belief, Defendants hereby 

incorporate by reference the affirmative defenses set forth in Rules 8 and 12, Ariz. 

R. Civ. P., as if set forth fully herein.

JURY DEMAND

Defendants make a demand for a Jury Trial.

WHEREFORE, having fully answered Plaintiff’s Complaint, Defendants 

respectfully request of this Court the following:

A. That Plaintiff’s Complaint be dismissed with prejudice as to these 

Defendants and that Plaintiff takes nothing thereby;

B. That Defendants be awarded their costs and reasonable attorney’s fees 

incurred herein; and

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C. For such other and further relief as this Court deems just and proper 

under the circumstances.

DATED this 1st day of November, 2016.

IAFRATE & ASSOCIATES

By: /s/Michele M. Iafrate

Michele M. Iafrate

Attorneys for Defendants Maricopa 

County and William Montgomery

ORIGINAL of the foregoing e-filed

this 1st day of November, 2016, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPY of the foregoing e-mailed via ECF

this 1st day of November, 2016, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing mailed

this 1st day of November, 2016, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff
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David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Ulises A. Ferragut, Jr.

The Ferragut Law Firm, PC

2 North Central Ave., Ste. 1125

Phoenix, Arizona 85004

Attorney for Plaintiff

Edward F. Novak

Melissa Ho

Rebecca Cain

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: /s/Jill Lafornara
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

NOTICE OF ERRATA

(Assigned to the Honorable

David Gass)

Defendants Maricopa County and William Montgomery (“Defendants”) notify 

the Court that Defendants clarified their Answer to paragraphs 15 and 16 with more 

specificity. Therefore, pursuant to Rule 15(a)(1)(A), Arizona Rules of Civil 

Procedure, Defendants will amend their Answer to Plaintiff’s Complaint.

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Defendants attach to this notice an Amended Answer as Exhibit 1 indicating in 

what respect the Amended Answer differs from the original Answer Defendants filed 

on October 26, 2016. Defendants also simultaneously file their First Amended 

Answer to Plaintiff’s Complaint without the indicators.

DATED this 1st day of November, 2016.

IAFRATE & ASSOCIATES

By: /s/Michele M. Iafrate

Michele M. Iafrate

Attorneys for Defendants Maricopa 

County and William Montgomery

ORIGINAL of the foregoing e-filed

this 1st day of November, 2016, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPIES of the foregoing e-mailed via AZ Turbo

this 1st day of November, 2016, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing mailed

this 1st day of November, 2016, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff
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David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Ulises A. Ferragut, Jr.

The Ferragut Law Firm, PC

2 North Central Ave., Ste. 1125

Phoenix, Arizona 85004

Attorney for Plaintiff

Edward F. Novak

Melissa Ho

Rebecca Cain

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: /s/Jill Lafornara
EXHIBIT 1 
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

DEFENDANTS MARICOPA 

COUNTY AND WILLIAM 

MONTGOMERY’S FIRST 

AMENDED ANSWER TO 

PLAINTIFF’S COMPLAINT

(Assigned to the Honorable

David Gass)

Defendants Maricopa County and William Montgomery (“Defendants”) submit 

their First Amended Answer to Plaintiff’s Complaint. Defendants admit, deny and 

allege the following:

1. Defendants admit the allegations contained in paragraphs 1-5 of 

Plaintiff’s Complaint.

2. As to paragraph 6 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 6; therefore, 

Defendants deny the same.
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3. As to paragraph 7 of Plaintiff’s Complaint, Plaintiff makes no allegations 

against these Defendants. Should any allegations against these Defendants be 

found in paragraph 7, these Defendants deny any such allegations.

4. As to paragraph 8 of Plaintiff’s Complaint, Defendants admit that 

Defendant Montgomery is and was the elected Maricopa County Attorney. 

Defendants further admit that Defendant Montgomery is responsible for the 

administration, operation, maintenance, policies, procedures and functions of the 

Maricopa County Attorneys’ Office, the implementation of policies and procedures, 

the training and supervision of staff, and the provision of criminal justice to all 

residents of Maricopa County, including Leslie Merritt, Jr. Defendants deny the 

remaining allegations contained in paragraph 8 of Plaintiff’s Complaint.

5. As to paragraph 9 of Plaintiff’s Complaint, Defendants admit Maricopa 

County is a body politic. Defendants deny the remaining allegations contained in 

paragraph 9 of Plaintiff’s Complaint.

6. Defendants deny the allegations contained in paragraphs 10-12 of 

Plaintiff’s Complaint.

7. As to paragraphs 13-18 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 13-18, these Defendants deny any such 

allegations.

8. Defendants deny the allegations contained in paragraphs 19-20 of 

Plaintiff’s Complaint.
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9. As to paragraphs 21-68 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 21-68, these Defendants deny any such 

allegations.

10. Defendants deny the allegations contained in paragraph 69 of Plaintiff’s 

Complaint.

11. As to paragraphs 70-80 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 70-80, these Defendants deny any such 

allegations.

12. Defendants deny the allegations contained in paragraph 81 of Plaintiff’s 

Complaint.

13. As to paragraph 82 of Plaintiff’s Complaint, Defendants affirmatively 

allege these Defendants did not arrest Plaintiff. Defendants admit the case went 

before a Grand Jury. Defendants affirmatively allege the Grand Jury returned a true 

bill. Defendants deny the remaining allegations contained in paragraph 82 of 

Plaintiff’s Complaint.

14. Defendants deny the allegations contained in paragraphs 83-90 of 

Plaintiff’s Complaint.

15. Defendants deny the allegations contained in paragraph 91 of Plaintiff’s 

Complaint that the DPS Crime “botched the investigation” and further deny that 

Defendants recognized “that the DPS Crime Lab had “botched” anything. 
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Defendants affirmatively allege Maricopa County Attorney’s Office DPS retained 

Lucien Haag.

16. Defendants admit the MCAO retained Expert Lucient Haag. 

Defendants deny they retained Mr. Haag “as a result” of the allegations in paragraph 

91. Defendants deny the remaining allegations contained in paragraph 92 of 

Plaintiff’s Complaint.

17. Defendants admit the allegations contained in paragraph 93 of 

Plaintiff’s Complaint.

18. As to paragraph 94 of Plaintiff’s Complaint, Defendants admit Mr. Haag 

reviewed the DPS criminalists’ work and conducted his own investigation. 

Defendants deny the remaining allegations contained in paragraph 94. Defendants 

affirmatively allege the results of Mr. Haag’s investigation was “inconclusive”.

19. As to paragraph 95 of Plaintiff’s Complaint, Defendants deny Mr. Haag 

issued a report stating the results of the comparisons done by DPS were wrong. 

Defendants admit Mr. Haag’s report stated the results were insufficient to constitute 

an identification. Defendants affirmatively allege the results of Mr. Haag’s 

investigation was inconclusive.

20. Defendants admit the allegations contained in paragraphs 96-98 of 

Plaintiff’s Complaint.

21. Defendants admit the allegations contained in paragraphs 99 of 

Plaintiff’s Complaint. Defendants affirmatively allege the lab report completed by the 

Bureau of Alcohol, Tobacco, and Firearms was received after the Court’s dismissal.
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22. Defendants deny the allegations contained in paragraph 100 of 

Plaintiff’s Complaint.

23. As to paragraph 101 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 101; therefore, 

Defendants deny the same.

24. As to paragraph 102 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraph 102, these Defendants deny any such 

allegations.

25. Defendants deny the allegations contained in paragraph 103 of 

Plaintiff’s Complaint.

FIRST CAUSE OF ACTION – False Arrest

(Against State of Arizona)

26. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 25 of this Answer.

27. As to paragraphs 105-109 of Plaintiff’s Complaint, Plaintiff makes no

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraphs 105-109, these Defendants deny any such 

allegations.

SECOND CAUSE OF ACTION – False Imprisonment

(Against All Defendants)

28. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 27 of this Answer.
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29. As to paragraph 111 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 111; therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

30. Defendants deny the allegations contained in paragraph 112 of 

Plaintiff’s Complaint.

31. Defendants deny the allegations contained in paragraph 113 of 

Plaintiff’s Complaint. Defendants affirmatively allege imprisonment was based on 

probable cause.

32. Defendants deny the allegations contained in paragraph 114 of 

Plaintiff’s Complaint.

THIRD CAUSE OF ACTION – Malicious Prosecution

(Against All Defendants)

33. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 32 of this Answer.

34. As to paragraph 115 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 115, therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

35. Defendants admit the allegations contained in paragraph 116 of

Plaintiff’s Complaint.
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36. Defendants deny the allegations contained in paragraphs 117-118 of 

Plaintiff’s Complaint.

37. As to paragraph 119 of Plaintiff’s Complaint, Plaintiff makes no 

allegations against these Defendants. Should any allegations against these 

Defendants be found in paragraph 119, these Defendants deny any such 

allegations.

38. Defendants deny the allegations contained in paragraph 120 of 

Plaintiff’s Complaint.

FOURTH CAUSE OF ACTION – Negligence and/or Gross Negligence

(Against All Defendants)

39. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 38 of this Answer.

40. As to paragraph 122 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 122; therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

41. Defendants deny the allegations contained in paragraph 123 of 

Plaintiff’s Complaint. Defendants affirmatively allege a duty to all individuals in 

Maricopa County.

42. Defendants deny the allegations contained in paragraphs 124-125 of 

Plaintiff’s complaint.

/ / /
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FIFTH CAUSE OF ACTION – Intentional Infliction of Emotional Distress

(Against All Defendants)

43. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 42 of this Answer.

44. As to paragraph 127 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 127, therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.

45. Defendants deny the allegations contained in paragraphs 128-131 of 

Plaintiff’s complaint.

SIXTH CAUSE OF ACTION – Aiding and Abetting Tortious Conduct

(Against All Defendants)

46. Defendants admit, deny and allege as previously set forth in 

paragraphs 1 through 45 of this Answer.

47. Defendants deny the allegations contained in paragraph 133 of 

Plaintiff’s Complaint.

48. As to paragraph 134 of Plaintiff’s Complaint, Defendants lack sufficient 

information to form a belief as to the truth or falsity of paragraph 134, therefore, 

Defendants deny the same. Defendants affirmatively allege all common law has 

been subsumed by Arizona Revised Statutes and constitutions. See A.R.S. § 1-

201.
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49. Defendants deny the allegations contained in paragraphs 135-140 of 

Plaintiff’s complaint.

50. Defendants deny each and every allegation not specifically admitted 

herein.

AFFIRMATIVE DEFENSES

Defendants set forth the following affirmative defenses and reserve the right 

to supplement these affirmative defenses based on information learned during 

discovery:

1. Defendants affirmatively allege that Plaintiff’s Complaint, and each and 

every portion thereof, fails to state a claim upon which relief can be granted.

2. Defendants affirmatively allege that Plaintiff’s injuries and damages, if 

any, were caused in whole or in part by Plaintiff’s own actions or the actions of other 

parties or non-parties.

3. Defendants affirmatively allege that Plaintiff assumed the risk.

4. Defendants affirmatively allege they are entitled to absolute immunity 

and/or qualified immunity pursuant to A.R.S. §§ 12-280.01 and 12-820.02 and State 

v. Superior Court in and for Maricopa County, 186 Ariz. 294 (Arizona Ct. App 1996).

5. Defendants affirmatively allege Plaintiff is not entitled to punitive or 

exemplary damages pursuant to A.R.S. § 12-820.04.

6. Defendants affirmatively allege Guilt in Fact pursuant to Restatement of 

Torts § 657.
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7. Defendants affirmatively allege that Defendants were acting under legal 

process with good and sufficient probable cause to be so acting.

8. Defendants affirmatively allege that Defendants are not liable due to 

A.R.S. § 12-712.

9. Defendants affirmatively allege that Defendants are entitled to other 

immunities pursuant to A.R.S. § 12-820.05.

10. Defendants allege that additional facts may be revealed by future 

discovery which supports affirmative defenses presently available to, but not known 

by the Defendants. Accordingly, on information and belief, Defendants hereby 

incorporate by reference the affirmative defenses set forth in Rules 8 and 12, Ariz. 

R. Civ. P., as if set forth fully herein.

JURY DEMAND

Defendants make a demand for a Jury Trial.

WHEREFORE, having fully answered Plaintiff’s Complaint, Defendants 

respectfully request of this Court the following:

A. That Plaintiff’s Complaint be dismissed with prejudice as to these 

Defendants and that Plaintiff takes nothing thereby;

B. That Defendants be awarded their costs and reasonable attorney’s fees 

incurred herein; and

/ / /

/ / /

/ / /
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C. For such other and further relief as this Court deems just and proper 

under the circumstances.

DATED this 1st day of November, 2016.

IAFRATE & ASSOCIATES

By: /s/Michele M. Iafrate

Michele M. Iafrate

Attorneys for Defendants Maricopa 

County and William Montgomery

ORIGINAL of the foregoing e-filed

this 1st day of November, 2016, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPY of the foregoing e-mailed via ECF

this 1st day of November, 2016, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing mailed

this 1st day of November, 2016, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff
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David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Ulises A. Ferragut, Jr.

The Ferragut Law Firm, PC

2 North Central Ave., Ste. 1125

Phoenix, Arizona 85004

Attorney for Plaintiff

Edward F. Novak

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: /s/Jill Lafornara
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Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

LAW OFFICE OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Suite B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie Merritt, Jr.

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff,

vs.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X.

Defendants.

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Case No.: CV2016-013436

PLAINTIFF’S RESPONSE IN 

OPPOSITION TO DEFENDANT

STATE OF ARIZONA’S MOTION 

TO DISMISS

(Assigned to Hon David Gass)

(Oral Argument Requested)

Leslie Merritt, Jr. filed a valid Complaint against the State of Arizona with 

facts that to support his claims in accordance with Ariz.R.Civ.P 8(a). This Court 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

K. Laird, Deputy

12/2/2016 5:16:00 PM

Filing ID 7922472
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should thus deny the State’s motion to dismiss in its entirety.

Memorandum of Points and Authorities

I. Background

Defendant State of Arizona recognizes that “[j]ust over a year ago, a serial shooter 

terrorized the Phoenix area. (Motion, at p.2). The State began investigating 

shootings that became known as the “I-10 Freeway Shooting case.” (Complaint. 

at ¶ 13). Defendant operates the Arizona Department of Public Safety (DPS) and 

the DPS Central Regional Crime Lab (CRCL), and employs the people who work in 

those entitities (Id. at ¶ 7). The State’s personnel were under intense public 

pressure and media scrutiny to solve the I-10 Freeway Shooting Case. (Id. at ¶ 25).

Under this pressure, the State failed to apply the rules of prudent police work to this 

case. 

During its investigation, DPS retrieved bullets and/or bullet fragments from four 

separate shooting incidents: Incident A, B, C, and D. (Id. at ¶ 14). Incidents A, B, 

and C occurred on August 29, 2015. (Id. at ¶ 15-17). Incident D occurred August 

30, 2015, between 2145 and 2215 hours, involving a BMW travelling westbound on 

the I-10 near SR 51. (Id. at ¶ 18 and 19). 

Defendant believed the evidentiary bullets were produced by a Hi-Point C9 

firearm, a common firearm. (Id. at ¶ 23). Defendant had no information linking 

the Hi-Point C9 used in the freeway shootings to a pawn shop. A rookie detective 

decided to check pawn shops for a Hi-Point C9. (Id at ¶ 25-36). Indeed, when 
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told of the plan to collect Hi-Point C9s from pawn shops, DPS Sgt. Mapp told a 

subordinate officer that “if you want to buy a lottery ticket to go ahead,” or words to 

that effect. (¶ 32). 

Plaintiff Leslie Merritt, Jr. happened to have pawned his Hi-Point C9 firearm on 

August 30, 2016 at approximately 5:31 p.m., more than four hours before the 

occurrence of Incident D. Nothing links Leslie Merritt, Jr. to any crime other than 

he was an owner of one of almost 286,000,000 owners of the type of firearm 

allegedly used in the freeway shootings. (¶ 24). Clearly, if Merritt’s firearm was in 

the pawn shop, it could not have been used in Incident D, or for that matter, any of 

the other Incidents insofar as Defendant has taken the position that the same gun 

fired the bullets in Incidents A,B,C, and D – to a “100% certainty.” 1

Defendants have produced no evidence that Merritt was at or near the scene of 

any of the shooting incidents. (Id. at ¶ 20). Yet, they made a warrantless arrest of 

Merritt for the shootings.

Defendant argues that these allegations and the others contained within the 

Complaint, taken as true, are factually insufficient to meet the pleading 

requirements of Arizona Rule of Civil Procedure 8(a)(2). As this Response will 

establish, Defendant’s theory is flawed.

II. Standard of review for the motion.

 

1 Indeed, the facts of this case create a logical syllogism which is fatal to Defendant’s 

position. The State claims with 100% certainty that because all of the bullets came 

from the same gun, in essence A=B=C=D. But, given that Merritt’s gun was in the 

pawnshop of the time of Incident D, D must be false. Therefore, if D is false, so too 

must A, B, and C be false.
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Arizona courts do not look with favor upon motions to dismiss for failure to 

state a claim for relief. Maldonado v. Southern Pac. Transp. Co., 129 Ariz. 165, 166, 

629 P.2d 1001, 2002 (App. 1981). In deciding such a motion, this Court must accept 

all factual allegations in the complaint as true and construe the allegations in the 

complaint in the light most favorable to the plaintiff. Mack v. McDonnell Douglas 

Helicopter Co, 179 Ariz. 627, 628 (App. 1994). 

The Arizona Rules of Civil Procedure embrace a notice-pleading standard. All 

that is required to survive a Rule 12(b)(6) motion is “a short and plain statement of 

the claim showing that the pleader is entitled to relief.” Ariz.R.Civ.P 8(a)(2). The 

purpose of notice-pleading is to give the opponent fair notice of the nature and basis 

of the claim, and indicate generally the type of litigation involved. Cullen v. AutoOwners Ins. Co, 218, Ariz, 417, 419, 189 P.3d 344, 346 (2008). The test is whether 

enough is stated to entitle the pleader to relief on some theory of law susceptible of 

proof under the allegations made. Verdeuzco v. American Valet, 2401 Ariz. 221, 

223, 377 P.3d 1016, 1019 (App. 2016). Indeed, a complaint need not anticipate, and 

attempt to negate or avoid, affirmative defenses. Keck v. Kelley, 16 Ariz. App. 163,

166, 492 P.2d 412, 415 (App 1972).

III. Discussion

Leslie Merritt, Jr. has filed valid causes of action against the State of Arizona for 

false arrest, false imprisonment, malicious prosecution, negligence/gross 

negligence, intentional infliction of emotional distress, and aiding and abetting
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tortious conduct. Defendant seeks dismissal of Merritt’s Complaint in its entirety. 

Plaintiff will address in turn each cause of action.

1. Merritt has properly pled a valid claim for False Arrest.

A plaintiff establishes a prima facie case of false arrest by showing that he was

arrested by the defendant without a warrant. Slade v. City of Phoenix, 112 Ariz. 298, 

299, 541 P.2d 550, 551 (1975). Once a plaintiff establishes the prima facie elements 

for a false arrest, defendant bears the burden of proving that the arrest was founded 

upon probable cause. Id. 

Here, Merritt has alleged---and the State concedes ---that the State’s SWAT 

officers arrested Merritt without a warrant. (Response at 3:19-20, Complaint at ¶ 

67, 80, 106). Taken together with his allegations of jurisdiction and right to relief, 

Merritt has thus satisfied the pleading requirements of Ariz. R. Civ. P. 8(a)(2) for 

his prima facie case for false arrest This Court need look no further to determine 

that the motion to dismiss the false arrest claim should be denied. 

The State nonetheless urges that dismissal is warranted here because it claims 

to have established probable cause to justify Merritt’s arrest. Defendant’s argument 

is wrong for several reasons. 

First, the presence or absence of probable cause is not an element that 

plaintiffs must plead in a claim for false arrest. A complaint need not anticipate, 

and attempt to negate or avoid, affirmative defenses. Keck, 16 Ariz. App. at 166.

Whether the State can establish an affirmative defense of probable cause (which it 

cannot) is irrelevant to whether Merritt has satisfied his Rule 8 pleading 

requirements for his false arrest claim. By arguing about probable cause in a motion 

to dismiss, the State is improperly attempting to impose on Merritt an erroneous 

burden of pleading. 
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Second, even under the State’s erroneous pleading standard, the State’s 

argument fails because it lacks probable cause. Plaintiff will address the absence of 

probable cause in the section below on malicious prosecution.

Accordingly, Defendant’s citation to Slade v. City of Phoenix is 

distinguishable. (Motion at page 7). In Slade, unlike Merritt, the plaintiff was 

arrested under a duly-issued arrest warrant. Because the parties conceded the 

existence of a valid arrest warrant, Slade was unable to satisfy his prima facie case

for false arrest, and the court properly dismissed the claim. Contrary to the State’s 

argument (Motion 8:4-7), the Slade court’s dismissal of the false arrest and false 

imprisonment claims did not involve a finding of lack of probable cause. In short, 

since Merritt has properly alleged his prima facie case for false arrest, the Court 

should deny this aspect of Defendant’s motion.

2. Merritt has properly pled a valid claim for False Imprisonment.

A plaintiff establishes a prima facie case for false imprisonment by showing that 

defendant has conducted an arrest without a warrant. The burden then rests on 

defendant to plead and prove a proper justification. Whitlock v. Boyer, 77 Ariz. 334, 

339, 271 P2d 484, 487 (1954). As with the claim for false arrest, Merritt has properly 

alleged the elements of false imprisonment in his pleading in satisfaction of 

Ariz.R.Civ.P. 8. Nothing more is required. Defendant’s argument about the 

existence of a justification is not an element required to be pled by plaintiff. Nor is 

the State’s citation to Slade v. City of Phoenix availing for the identical reasons 

stated above. Thus, Defendant’s motion to dismiss the claim of false imprisonment 

should be denied.
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3. Merritt has properly pled a valid claim for Malicious Prosecution

The State correctly identifies the elements of a plaintiff’s malicious prosecution 

claim (Motion at page 9), but incorrectly argues that Merritt’s fails to satisfy the 

pleading standard for two necessary elements, namely: the absence of probable 

cause and the termination of a criminal prosecution in his favor. Merritt will 

address each of the alleged flaws in turn.2

a. Merritt has properly pled the absence of probable cause.

Arizona courts define probable cause as “a reasonable ground of suspicion, 

supported by circumstances sufficient to warrant an ordinarily prudent man in 

believing the accused is guilty of the offense.... The test generally applied is: upon 

the appearances presented to the defendant, would a reasonably prudent man have 

instituted or continued the proceeding?” Gonzales v. City of Phoenix, 203 Ariz. 152, 

155, 52 P.3d 184, 187 (Ariz. 2002). Whether probable cause exists depends on all of 

the facts and circumstances collectively known by all of the officers involved in the 

case. State v. Keener, 206 Ariz. 29, 75 P.3d 119 (App. 2003). Courts usually decide 

“as matter of law whether the facts are sufficient to establish probable cause.” Id. 

“However, where there is a conflict as to the facts involved, the factual basis may be 

determined by the trier of fact.” Hockett v. City of Tucson, 139 Ariz. 317, 320, 678 

P.2d 502, 505 (App. 1983). 

 

2 Merritt will not address how he satisfied the other elements of malicious 

prosecution claim since these do not form a basis for the State’s motion.
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Here, Merritt has specifically pled the absence of probable cause. (Complaint 

at ¶ 118 and ¶ 79). He has further supported that assertion with specific factual 

allegations throughout his twenty-page complaint, including showing that the State

has failed to produce any the following categories of information: 

 Anything linking Leslie Merritt, Jr. to any crime other than his 

happening to own one of about 286,800 of the type of firearm 

purportedly used in the freeway shootings. (¶ 24)

 Anything linking any Hi-Point C9 used in the freeway shootings to a 

pawn shop. (¶ 25-36). 

 Anything linking Merritt’s firearm to a firearm used in any shooting 

since the crime lab botched the investigation. ¶ 40-¶ 43. 

 Anything linking Leslie Merritt, Jr. to the scene of any shooting. ¶ 81.

 Anything supporting the changing of timeline of Incident D. (¶ 64). 

In addition, Merritt has supported the assertion with specific factual 

allegations that negate any prudent person from reasonably believing that Leslie 

Merritt, Jr. was the freeway shooter including that: 

 The State criminalists intentionally relayed information to DPS 

personnel in a manner that lacked a scientific basis and violated their 

industry standards. ¶ 49

 DPS knew that the crime lab had botched the identification. (¶ 54-55)

 Defendants knew from the PAWN database that it had been pawned by 

its owner on August 30, 2016 at approximately 5:31 p.m., more than 

four hours before the occurrence of Incident D. ( ¶ 35)

 DPS fabricated evidence about the timeline to the Grand Jury
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 Defendants knew that Leslie Merritt did not have access to his gun at 

the time of the fourth shooting incident. (¶ 84)

On these well-pled factual allegations, which the Court must accept as true in

deciding the motion to dismiss, no reasonable person could consider that the State 

ever developed probable cause to arrest or prosecute Leslie Merritt, Jr. 3

For its part, the State argues that this Court should ignore consideration of 

the “alleged flaws in the methodology used to analyze the Evidentiary Bullets linking 

Merritt’s Gun to the shootings and supposed questions surrounding the timeline of 

events related to the shootings” because these factual allegations ”do not establish a 

lack of probable cause” to arrest or prosecute. (Motion at 7:3-9). The State’s 

rationale for believing that the law permits cherry-picking factual allegations in the 

Complaint is unclear. The State’s fabrication of evidence at its crime lab and the 

creation of a bogus timeline all occurred before Leslie Merritt’s arrest and formed 

the basis of the criminal prosecution.

As in the false arrest and false imprisonment claims, Defendant’s citation to 

Slade v. City of Phoenix regarding the malicious prosecution claims is no avail. In 

Slade, the officer developed probable cause from a witness identification made from 

the victim of the crime. The Court held that the officer could rely on the eyewitness 

account for probable cause. Here, the State had no eyewitness account that Merritt 

had committed any crime. Instead, the State itself literally created “the evidence” 

in the form of a fabricated firearm identification and a bogus timeline of events in 

an effort to create probable cause. Indeed, the State never had any evidence that 

Merritt was at the scene of any of the shootings.

 

3 If necessary, Plaintiff requests an opportunity to amend his Complaint to include 

other facts that negate probable cause to arrest or prosecute, including facts 

concerning cell phone records, absence of gunshot residue, alibi witnesses, bullet 

trajectories, and license plate reader information.
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The State argues that the Grand Jury indictment creates a presumption of 

probable cause. (Motion at p.10). Defendant cites no authority that a Grand Jury 

indictment insulates the State from damages for the malicious prosecution. Indeed, 

Defendant’s argument about the Grand Jury is particularly unavailing here, where 

the State deliberately misled and fabricated evidence to the Grand Jury. (¶ 82-90).

b. Merritt has properly pled the favorable termination of the 

criminal case. 

Merritt alleges that the court dismissed his criminal case pursuant to the 

Maricopa County Attorney’s motion to dismiss, and that the prosecution terminated 

in his favor. (Complaint at ¶ 97-98, 117). Contrary to Defendant’s argument, the 

termination was in Merritt’s favor. 

Arizona has long followed the rule set for in the Restatement of Torts, Section 

659, dealing with the final termination of criminal proceedings in connection with 

malicious prosecution suits. Overson v. Lynch, 83 Ariz. 158, 162, 317 P.2d 948, 950-

951 (1957). As in Merritt, the defendant in Overson argued that plaintiff’s malicious 

prosecution claim should fail because the underlying criminal proceeding had not 

terminated in his favor when the dismissed complaint could be re-filed within the 

statute of limitations for burglary. Overson, 83 Ariz. at 162, 317 P.2d at 950. The 

court rejected the defendant's argument, finding that the dismissal and 

abandonment of further prosecution was sufficient to find a favorable termination

for purposes of malicious prosecution. See id., 83 Ariz, at 162-63, 317 P.2d at 951.
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The Overson court noted that to properly state a claim for malicious prosecution 

it is not necessary that the criminal “proceedings should have gone so far as to 

preclude further prosecution on the ground of double jeopardy.” Id. The Court went 

on to note:

‘One against whom criminal proceedings have been instituted may 

be discharged by a magistrate at a preliminary hearing because the 

evidence produced against him is not such as to warrant his being 

held for further proceedings to determine his guilt or innocence. 

In such a case, the discharge is a final termination of the 

proceedings in favor of the accused, unless it appears that further 

proceedings growing out of the same misconduct on his part have 

been instituted. * * *’

Id. 

The same rule for favorable termination applies in Merritt. Construing the 

allegations in the complaint as true and in the light most favorable to the plaintiff, 

the Court may infer that Merritt’s criminal case was dismissed based on the lack of 

substantive evidence after the State’s ballistic evidence was revealed to have been 

false by Mr. Haag. (Complaint at ¶ 94). Further support for viewing the dismissal 

of the criminal prosecution as based on lack of substantive evidence as opposed to a 

procedural issue is revealed by exculpatory ballistic testing evidence performed by 

Bureau of Alcohol, Tobacco, and Firearms (Complaint at ¶ 99).4

In short, Merritt has properly alleged all the elements of the malicious 

prosecution claim, the Defendant’s motion should be denied on this point. 

 

4 If necessary, Plaintiff seeks leave to amend the complaint to include further 

support for favorable termination based on yet additional exculpatory ballistic 

evidence commissioned by the State by John Murdock, which, likewise, fails to 

support the State’s crime lab. 
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4. Plaintiff has Properly Pled His Claim for Negligence and/or Gross 

Negligence.

Arizona recognizes negligence and/or gross negligent claims based on 

misconduct of law enforcement personnel and government employees. Arizona also

recognizes the tort of grossly negligent investigation. Cullison v. City of Peoria, 120 

Ariz. 165, 584 P.2d 1156 (1978); Landeros v. City of Tucson, 171 Ariz. 474, 831 P.2d 

850 (App. 1992). Plaintiff’s claim for negligence and/or gross negligence is likewise 

properly pled and based on the breach of a legal duty that was a cause of injury to 

Merritt. (Complaint at ¶ 123-125). As factual support, Plaintiff reincorporates his

previous arguments regarding the State’s investigation. Most notably, as set forth 

above, the State (1) made incredible illogical leaps in the investigation, (2) fabricated 

evidence in the crime lab below industry standards, and (3) created a bogus timeline 

to account for Merritt’s firearm being in the pawn shop at the time of Incident D. 

Those allegations, take as true, satisfy findings of negligence and/or gross 

negligence, and the State’s motion on this point should be denied. 

5. Plaintiff has Properly Pled His Claim for Intentional Infliction of 

Emotional Distress

Plaintiff alleges all the elements of the tort of intentional infliction of emotion 

distress. (Complaint at ¶ 126-131). As factual support for the claim, Plaintiff 

reincorporates its previous factual support showing the absence of probable cause. 

The allegations of fabricated evidence and the bogus timeline in the context of social 

frenzy to close the freeway shooting case is the types of conduct that is beyond the 

pale of decency to support the claim for IIED. For its part, Defendant argues that 
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the IIED claim is precluded as a matter of law because of the existence of probable 

cause. (Motion at 12:7-9). Defendant cites no authority to support its position that 

probable cause is a defense to a claim for IIED. Moreover, the argument is 

unavailing to Defendants, because the State never developed probable cause to 

arrest or prosecute Leslie Merritt, Jr. Thus, the Court should deny this aspect of the 

motion to dismiss. 

6. Plaintiff has Properly Pled His Claim for Aiding and Abetting 

Tortious Conduct

Each Defendant has aided and abetted others to commit tortious acts against 

Leslie Merritt. (¶ 133). This Cause of Action is brought pursuant to Arizona common 

law. (¶ 134). As expressed above in causes of action One through Five, each 

Defendant has committed a tort or torts that has caused injury to Leslie Merritt, Jr. 

IV. MOTION TO AMEND

If the Court finds that Merritt’s Complaint is somehow insufficient, Plaintiff 

moves for the opportunity to amend the Complaint to cure any such deficiency 

identified by the Court.

V. CONCLUSION

Leslie Merritt, Jr. has satisfied the notice pleading requirements of Ariz. 

R.Civ. P. 8 (a)92), by providing fair notice of his claims. Defendant propounds 

incorrect pleading requirements and chooses to ignore its liability for the 

misconduct of its crime lab and officers. Thus, Mr. Merritt respectfully asks the 

Court to deny Defendant’s motion to dismiss. 
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DATED this 2nd day of December 2, 2016

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/David J. Don

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.

The original of the foregoing was 

E-filed and Emailed this 2nd day of December, 2016.

to:

Michele Iafrate, Esq.

Iafrate & Associates

649 North Second Avenue

Phoenix, Arizona 85003

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

Edward F. Novak, Esq.

Melissa Ho, Esq.

Rebecca N. Cain, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

Email: enovak@polsinelli.com; mho@polsinelli.com, rcain@polsinelli.com

Attorneys for Defendant State of Arizona

By: /s/David J. Don
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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Rebecca N. Cain (#025604) 

rcain@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendant State of Arizona 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff, 

vs. 

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X, 

Defendants. 

Case No. CV2016-013436 

DEFENDANT STATE OF ARIZONA’S 

REPLY IN SUPPORT OF RULE 12(B)(6) 

MOTION TO DISMISS 

(Assigned to the Honorable David Gass) 

Plaintiff’s Opposition to the State’s Motion to Dismiss misses the mark in two 

critical ways. First, Plaintiff misconstrues the State’s argument, contending that the State 

has improperly attempted to impose on Plaintiff an erroneous burden of pleading. Rather, 

the State argues that, regardless of the applicable notice pleading standard, Plaintiff has 

affirmatively alleged facts sufficient to establish that Plaintiff’s arrest and prosecution were 

founded in probable cause. Second, Plaintiff attempts to hold the State to a higher standard 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

K. Dyer, Deputy

12/21/2016 3:50:00 PM

Filing ID 7968934
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of probable cause than what is required under the law. The State must not satisfy such a 

high burden. As such, the Court should dismiss Plaintiff’s Complaint in its entirety. 

I. Plaintiff Affirmatively Pled Facts that Defeat His Claims 

 Plaintiff contends that the State has “improperly attempt[ed] to impose on Plaintiff 

an erroneous burden of pleading” by arguing in its Motion that the Complaint establishes 

that probable cause supported the arrest and prosecution. However, Plaintiff’s argument 

misconstrues the State’s position and the applicable case law with respect to Plaintiff’s 

claims. 

A. False Arrest 

 The State does not contest the principle that a plaintiff establishes a prima facie case 

for false arrest by showing that he was arrested by the defendant without a warrant, and the 

burden is then put upon the defendant to establish that the arrest was founded upon probable 

cause. The State, in fact, cited cases standing for this proposition in its Motion. Motion at 

5:18-21. Further, the State does not contend that a complaint must anticipate affirmative 

defenses. See Opposition at 5:19-21. But where, as here, the well-pled facts alleged in the 

Complaint establish that the arrest was founded upon probable cause, Plaintiff cannot state a 

claim that requires a lack of probable cause. 

 The facts alleged in Plaintiff’s Complaint establish that, at the time Plaintiff was 

arrested, the arrest was founded in probable cause. As argued in the Motion, the critical 

inquiry is to the facts as they existed at the time of the arrest, and not afterward. Motion p. 

5:24-6:10 (citing authority). Probable cause to make an arrest exists when an arresting 

officer has reasonably trustworthy information of facts and circumstances sufficient to lead 

a reasonable man to believe that the person to be arrested committed an offense. Id.

Probable cause is a lower standard than proof needed to convict and, critically, arresting 

officers are not required to conduct a trial before making an arrest. Id. Logically, then, 

dismissal of the charges or a finding of innocence does not make an arrest made with 

probable cause unlawful. Id. 

/ / / 
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Plaintiff’s Opposition does not, and cannot, cite to well-pled facts sufficient to defeat 

the State’s argument that the arrest was founded in probable cause. Plaintiff argues that the 

State failed to produce anything linking Plaintiff or his weapon to the shootings. Opposition 

at 2:22-24. But this argument is belied by the allegations in Plaintiff’s Complaint, which 

establish that the State criminologists had opined that Plaintiff’s gun was the firearm that 

fired the bullets in all four shootings to a “100% certainty.” Complaint ¶ 44. 

Here, the well-pled facts set forth in Plaintiff’s Complaint allege that: 

• DPS analyzed the bullets and bullet fragments recovered from shootings A, B, 

C, and D (the “Evidentiary Bullets”) (Complaint ¶ 14);

• DPS determined that the Evidentiary Bullets came from a single firearm with 

certain class characteristics (Id. ¶ 22);

• DPS identified the Evidentiary bullets as having been fired from a 9mm 

handgun that caused cartridges to spiral three times with a leftward twist as 

they emerged from the barrel (Id. ¶ 23);

• Based on these characteristics, DPS identified the make and model of the gun 

as a Model C9 manufactured by Hi-Point (Id.);

• DPS contacted Hi-Point and learned that the company had produced 286,800 

Model C9 firearms capable of creating the characteristics observed on the 

Evidentiary Bullets (Id. ¶ 24);

• DPS had access to a computerized PAWN database (Id. ¶ 29);

• The PAWN database identifies the items in possession of various pawn shops 

(Id.);

• DPS identified and seized eight Hi-Point 9mm Model C9 guns that were in 

pawn shops, including one from Mo Money Pawn Shop (Id. ¶ 33);

• The PAWN database included information about the guns including who 

owned them and when they were pawned (Id. ¶);

• The PAWN database indicated that the Hi Point C9 firearm collected from Mo 

Money Pawn had been pawned by its owner within hours of the time Incident 

D was believed to have occurred (Id. ¶ 35);

• Mo Money’s records showed that Plaintiff had pawned the gun at that time 

(Id. ¶ 36);

• DPS tested Plaintiff’s gun and determined that the Evidentiary Bullets were 

conclusively matched to Plaintiff’s gun (Id. ¶ 41-44);
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• DPS also found that Plaintiff had shared newspaper articles related to the case 

on social media (Id. ¶38);

• DPS believed that the tire involved in Incident D must have been shot before 

Plaintiff pawned the gun, with the bullet lodging in the sidewall of the tire and 

DPS repeatedly questioned the victim regarding his timeline (Id. ¶ 56-57);

• DPS’ investigation indicated to DPS that it was possible that the timeline 

reported by the victim in Incident D was inaccurate (Id. ¶ 61); 

• Based on these facts, DPS arrested Plaintiff without an arrest warrant (Id. ¶ 

80);

• DPS and the county then brought the case before the Grand Jury (Id. ¶82);

• DPS reported to the Grand Jury the results of the ballistics testing, which 

matched the Evidentiary Bullets to Plaintiff’s gun (Id. ¶ 88);

• On or about February 3, 2016, forensic consultant Lucien Haag collected 

Plaintiff’s gun and the Evidentiary Bullets (Id. ¶¶ 92-93);

• Haag failed to match Plaintiff’s gun as the source of the Evidentiary Bullets 

(Id. ¶ 94);

• On or about April 14, 2016, Haag issued a report stating that the results of the 

comparisons done by DPS were wrong and insufficient to constitute an 

identification (the “Haag Report”) (Id. ¶ 95);

• On April 19, 2016, Plaintiff was released from jail (Id. ¶ 96);

• On April 22, 2016, the County filed a motion to dismiss the criminal case (Id. 

¶ 97);

• On April 25, 2016, the Court dismissed the criminal case (Id. ¶ 98);

• On April 29, 2916, the Bureau of Alcohol issued a report finding that 

Plaintiff’s gun and the Evidentiary Bullets contained insufficient marks of 

value for comparison (Id. ¶ 99). 

The only reasonable inference to be drawn from these factual allegations is that the 

State believed, at least until the Haag Report dated April 14, 2016, that it had conclusively 

matched the Evidentiary Bullets to a gun Plaintiff owned and then pawned in very close 

proximity to the subject shootings. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419-20, 

189 P.3d 344, 346-47 (2008). This provided the “reasonably trustworthy information of 

facts and circumstances sufficient to lead a reasonable man to believe” that the shootings 

had been committed and that Plaintiff had committed them. Nelson, 129 Ariz. at 585, 633 

P.2d at 395. 
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Finally, Plaintiff dedicates a significant portion of his Opposition taking issue with 

the State’s citation to Slade v. City of Phoenix, 112 Ariz. 298, 299, 541 P.2d 550, 551 

(1975). Opposition at 6:4-12, 6:22-24, 9:15-23. These arguments are red-herrings. The 

Slade court analyzed claims for false arrest, false detention, and malicious prosecution. 

While Plaintiff correctly notes that the Slade arrest was made with a warrant and thus it was 

not necessary to analyze probable cause with respect to the first two claims, the court’s 

examination of probable cause in the context of malicious prosecution is both extensive and 

instructive here.1

As such, Plaintiff’s claim for false arrest should be dismissed. 

B. False Imprisonment 

Plaintiff again argues that the State has argued an improper burden of pleading in 

seeking the dismissal of Plaintiff’s claim for false imprisonment and that the State lacked 

probable cause for Plaintiff’s arrest and detention. For the reasons discussed above, 

Plaintiff’s arguments do not spare this claim from dismissal. 

C. Malicious Prosecution 

1. The Prosecution was Founded in Probable Cause 

As discussed in the Motion, under well-established Arizona law, probable cause does 

not require facts sufficient to convict. Motion at 7:10-12 (citing e.g., Hansen, 148 Ariz. at 

207, 713 P.2d at 1265; Reams, 145 Ariz. at 343, 701 P.2d at 601.). The bar is much lower 

than that. And there is leeway within the concept of probable cause for subjective error. Id. 

at 7:12-14 (citing State v. Pederson, 102 Ariz. 60, 66, 424 P.2d 810, 816 (1967)). Plaintiff 

points to a number of allegations in his Complaint which set forth evidence the State 

allegedly failed to produce during the criminal case. Even assuming the State did not 

produce such evidence, this argument puts upon the State a higher burden than that required 

under the probable cause standard. See Section 1.A, supra. 

/ / / 

 

1

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Here, the State’s testing supported its reasonable belief that Plaintiff had committed 

the shootings. Although that testing was not supported by private examiners, that 

information, learned after additional testing, does not negate probable cause at the time of 

the arrest. Plaintiff acknowledges that the charges were dismissed after the additional 

testing results were reported. Complaint ¶¶ 93-95, 97, 98. 

Plaintiff further argues that the following allegations negate any prudent person from 

reasonably believing that Plaintiff had committed the shootings: 

• “The State criminalists intentionally relayed information to DPS personnel in 

a manner that lacked a scientific basis and violated their industry standards”;

• “DPS knew that the crime lab had botched the identification”;

• “Defendants knew from the PAWN database that it had been pawned by its 

owner on August 30, 2016 at approximately 5:30 p.m., more than four hours 

before the occurrence of Incident D” (emphasis omitted); 

• “DPS fabricated evidence about the timeline to the Grand Jury”; and

• “Defendants knew that [Plaintiff] did not have access to his gun at the time of 

the fourth shooting incident.” 

Opposition at 8:15-9:2. But again, such conclusory, speculative “facts” are not of the kind 

the court is required to treat as true for purposes of this Motion. Plaintiff provides no factual 

support for these speculative musings other than: (1) the State’s ballistics testing was 

allegedly not supported when subsequent testing was completed and reported by a third 

party many months after the fact; and (2) an alleged conflict in the timing of Plaintiff’s sale 

of the gun and the final shooting, which Plaintiff implicitly acknowledges that the State 

believed occurred earlier than reported. 

Perhaps Plaintiff’s allegations would have met the old Federal standard established 

in Conley v Gibson, which allowed claims to proceed unless “it appear[e]d beyond doubt 

that the plaintiff can prove no set of facts in support of his claim.” 355 U.S. 41, 78 (1957). 

But Arizona does not and never did follow that standard, as the Arizona Supreme Court 

specifically pointed out in Cullen, 218 Ariz. at 419-20, 189 P.3d at 346-47 (2008) (affirming 

dismissal of complaint based on speculative allegations). Cullen distinguished the overly 
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permissive Conley standard from Arizona’s “reasonable inferences that can be drawn from 

well-pled facts” standard. Id. 

Here, the only reasonable inferences to be drawn from the well-pled facts in 

Plaintiff’s Complaint are: first, that the defendants believed DPS had matched the 

Evidentiary Bullets to Plaintiff’s gun and second, that the defendants believed there was a 

logical explanation for any questions surrounding the timeline of events up until the point 

when the Haag Report failed to support the State’s ballistic testing results. As Plaintiff has 

pled specific facts that support a finding of probable cause and failed to demonstrate that his 

speculative allegations can be reasonably inferred from these well-pled facts, the Court 

should find that the prosecution was founded in probable cause. 

 Finally, Plaintiff takes issue with the notion that the Grand Jury indictment supports 

the State’s belief that the prosecution was founded in probable cause. Motion at 10:1-4. But 

this argument, albeit brief, misconstrues the argument made by the State and ignores the 

case law cited in its Motion. The State does not argue that the Grand Jury indictment 

insulates it from damages for malicious prosecution, but rather, that the Grand Jury 

indictment provides further support for the argument that the prosecution was not malicious 

because it was based on probable cause. See Motion at 10:10-19 (citing authority).2

2. The Prosecution Did Not Terminate in Plaintiff’s Favor 

The State’s Motion acknowledges that Arizona employs no per se rule as to whether 

a voluntary dismissal of the underlying complaint is a favorable termination for purposes of 

a malicious prosecution claim. Motion at 10:20-22 (citing authority). Plaintiff’s Opposition 

cites to a 1957 opinion of the Arizona Supreme Court for the proposition that the discharge 

of criminal proceedings is a final termination in favor of the accused, unless it appears that 

further proceedings have been instituted. Opposition at 11:1-10 (citing Overson v. Lynch, 83 

Ariz. 158, 162, 317 P.2d 938, 950-951 (1957). Overson is easily distinguishable, however, 

 

2

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Grand Jury is not supported by any well-pled facts, only speculation not reasonably inferred 

from those facts that are well-pled. 
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because in Overson, the criminal complaint was dismissed by the justice court and further 

prosecution was subsequently abandoned. 83 Ariz. 162, 317 P.2d 948. Here, the criminal 

proceeding was voluntarily dismissed on the prosecution’s motion. Motion at 10:24-25. 

In Frey v. Stoneman, 150 Ariz. 106, 110-111, 722 P.2d 274, 278-279 (1986), the 

Arizona Supreme Court addressed whether voluntary dismissal is a favorable termination, 

noting that it was a matter of first impression in Arizona though other forms of termination 

had been considered. As discussed in the State’s Motion, the Frey court determined that 

there is no per se rule whether a voluntary dismissal of the underlying complaint is a 

favorable termination for purposes of a malicious prosecution claim. Frey v. Stoneman, 150 

Ariz. 106, 110-111, 722 P.2d 274, 278-279 (1986). However, a termination prior to trial on 

the merits is favorable only if it “reflects on the merits of the matter.” Id. Here, Defendant 

Maricopa County moved to dismiss the case voluntarily and without prejudice. Motion at 

10:24-25. Plaintiff filed a Motion to Dismiss with Prejudice, which argued that prosecutors 

wrongfully sought dismissal without prejudice to allow prosecutors more time to build a 

case against Plaintiff, was denied. Motion at 11:5-9. As such, despite Plaintiff’s conclusory 

allegation to the contrary, the criminal prosecution did not terminate in Plaintiff’s favor. 

 As the Complaint demonstrates that Plaintiff cannot satisfy at least two elements of 

his claim for malicious prosecution, this claim should be dismissed. 

D. Negligence/Gross Negligence 

Where there is probable cause for an arrest and prosecution, such acts do not form 

the basis for a claim for negligence or gross negligence. Motion 11:26-12:3. It is not 

material that the person arrested may turn out to be innocent and the arresting officer is not 

required to conduct a trial before determining whether or not the make the arrest. Cullison v. 

City of Peoria, 120 Ariz. 165, 584 P.2d 1156, 1158 (1978). In order to state a claim for 

negligence/gross negligence, Plaintiff must plead facts that establish that the conduct of law 

enforcement was outside the duty and standard of care required of them in that they had 

reason to believe that the information on which they based their arrest was not trustworthy.

Id. Plaintiff argues that Arizona recognizes the tort of grossly negligent investigation and 
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negligence and/or gross negligence claims based on misconduct of law enforcement 

personnel. Opposition at 12:4-9. Plaintiff does not argue, nor do the cases he cites suggest, 

that a different standard applies to these types of claims (nor do the cases suggest a separate 

cause of action apart from negligence/gross negligence exists). As the Complaint 

establishes that Plaintiff’s arrest and prosecution were founded in probable cause, the 

State’s actions were not outside the standard of care and this claim should be dismissed. 

E. Intentional Infliction of Emotional Distress 

Plaintiff implicitly acknowledges that a showing of probable cause would defeat his 

claim for intentional infliction of emotional distress (“IIED”). Opposition at 12:21-23. As 

set forth above and in the State’s Motion, the Complaint establishes that Plaintiff’s arrest 

and prosecution were based on probable cause. Accordingly, Plaintiff’s claim for IIED 

should be dismissed. 

F. Aiding and Abetting Tortious Conduct 

The tort of aiding and abetting cannot stand where there is no underlying tort. As 

Plaintiff has pled facts that defeat his remaining claims, this claim too must be dismissed. 

II. CONCLUSION 

Plaintiff’s own factual allegations reveal that the State’s actions were founded in 

probable cause. For this reason, and for the reasons set forth herein and in the State’s 

Motion, Plaintiff’s Complaint should be dismissed. 

 RESPECTFULLY SUBMITTED this 21st day of December, 2016. 

POLSINELLI PC 

By: /s/ Rebecca N. Cain 

Edward F. Novak 

Melissa Ho 

Rebecca N. Cain 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 

E-FILED this 21st day of December, 

2016, with the Clerk of the Superior 

Court. 
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COPY mailed this 21st day of December, 

2016, to: 

Jason D. Lamm 

Law Office of Jason Lamm 

6245 North 24th Pkwy., Ste. 208 

Phoenix, AZ 85016-2030 

(602) 222-9237 

jlamm@cyberlawaz.com

David J. Don 

Law Offices of David J. Don, PLLC 

301 E. Bethany Home Rd., Suite B-100 

Phoenix, AZ 85012 

(480) 948-1212 

david@azcivilrights.com 

Ulises A. Ferragut, Jr. 

The Ferragut Law Firm, P.C. 

2 North Central Avenue, Suite 1125 

Phoenix, AZ 85004 

(602) 324-5300 

Ulises@FerragutLaw.com

Attorneys for Plaintiff Leslie Merritt, Jr. 

Michele M. Iafrate 

Iafrate & Associates 

649 North Second Avenue 

Phoenix, AZ 85003 

(602) 234-9775 

miafrate@iafratelaw.com

Attorneys for Defendants, Maricopa County 

and William Montgomery 

By: /s/ Dawn M. Coppens 
Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/06/2017 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2016-013436 01/04/2017

Docket Code 019 Form V000A Page 1

CLERK OF THE COURT

HONORABLE DAVID B. GASS L. Stogsdill

Deputy

LESLIE MERRITT JR. DAVID J DON

v.

STATE OF ARIZONA, et al. REBECCA N CAIN

MICHELE M IAFRATE

JASON D LAMM

ULISES FERRAGUT JR.

RULING

The Court has read and considered the following:

 The Complaint filed September 13, 2016 (Docket # 1); 

 Defendant State of Arizona’s Rule 12(B)(6) Motion to Dismiss filed October 27, 

2016 (Docket #12); 

 Plaintiff’s Response in Opposition to Defendant State of Arizona’s Motion to 

Dismiss filed December 2, 2016 (Docket #17); and

 Defendant State of Arizona’s Reply in Support of Rule 12(B)(6) Motion to 

Dismiss filed December 21, 2016 (Docket #18).

Analysis

Arizona is a notice pleading state. See Coleman v. City of Mesa, 284 P.3d 863, 867 (Ariz. 

2012). A petition or complaint will survive dismissal if it states a claim on which relief can be 

granted. See id. All well-pled allegations are presumed true and all reasonable inferences are 

drawn from those alleged facts, “but mere conclusory statements are insufficient.” See id. 
SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2016-013436 01/04/2017

Docket Code 019 Form V000A Page 2

Dismissal is appropriate “only if as a matter of law Plaintiff would not be entitled to relief under 

any interpretation of the facts susceptible of proof.” See id. Such a finding is appropriate here.

A motion to dismiss must be resolved based on the pleadings. See id. If the parties raise 

matters outside the pleading, the motion to dismiss becomes a motion for summary judgment. 

See id. However, exhibits to a complaint or related public records are not outside the pleading, so 

such documents do not convert “a Rule 12(b)(6) motion into a summary judgment motion.” See 

id. A motion to dismiss may be granted “only if as a matter of law plaintiffs would not be 

entitled to relief under any interpretation of the facts susceptible of proof.” See id.

Such a finding is not appropriate here. The Complaint presents sufficient "well-pled" 

facts to satisfy Plaintiff’s burden as set forth in Coleman, 230 Ariz. at 356, 284 P.3d at 867. 

Defendants also argue matters outside the pleadings, including inferences that can be drawn from 

the facts alleged in the Complaint.

IT IS THEREFORE ORDERED denying Defendant State of Arizona’s Rule 12(B)(6) 

Motion to Dismiss (Docket #12). Defendants shall file an answer to the complaint in accordance 

with the Arizona Rules of Civil Procedure.

IT IS FURTHER ORDERED denying Plaintiff’s request for attorney fees and costs 

associated with responding to Defendant State of Arizona’s Rule 12(B)(6) Motion to Dismiss 

(Docket #12). Any award of attorney fees and costs regarding this motion will abide the final 

resolution of this matter.
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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Rebecca N. Cain (#025604) 

rcain@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendant State of Arizona 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff, 

vs. 

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X, 

Defendants. 

Case No. CV2016-013436 

DEFENDANT STATE OF ARIZONA’S 

MOTION TO EXPEDITE RULING ON 

MOTION TO STAY DEPOSITIONS 

PENDING RULING ON MOTION TO 

DISMISS AND MOTION TO QUASH 

NOTICES OF DEPOSITION 

 (Assigned to the Honorable David Gass) 

 Defendant State of Arizona respectfully requests that the Court expedite 

consideration of the State’s Motion to Stay Depositions Pending Ruling on Motion to 

Dismiss and Motion to Quash Notices of Deposition (the “Motion”) filed concurrently 

herewith. Expedited relief is appropriate as Plaintiff has noticed the depositions of two key 

party witnesses for January 26 and 27, 2016 and has indicated his intent to notice the 

depositions of 2-3 additional witnesses in the coming weeks. The State’s Motion requests 
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the Court stay depositions and quash the outstanding notices pending determination of the 

State’s Motion to Dismiss, fully briefed as of December 21, 2016, and pending a Rule 16 

Scheduling Conference. An expedited ruling will permit the parties and witnesses to 

economize time and resources. There are no outstanding Court-ordered pre-trial deadlines 

that will be impacted by the requested stay. The State therefore respectfully requests that 

the Court grant expedited relief on the Motion. 

 RESPECTFULLY SUBMITTED this 5th day of January, 2017. 

POLSINELLI PC 

By: /s/ Rebecca N. Cain 

Edward F. Novak 

Melissa Ho 

Rebecca N. Cain 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 

E-FILED this 5th day of January, 2017, 

with the Clerk of the Superior Court. 

COPY mailed this 5th day of January, 

2017, to: 

Jason D. Lamm 

Law Office of Jason Lamm 

6245 North 24th Pkwy., Ste. 208 

Phoenix, AZ 85016-2030 

(602) 222-9237 

jlamm@cyberlawaz.com

David J. Don 

Law Offices of David J. Don, PLLC 

301 E. Bethany Home Rd., Suite B-100 

Phoenix, AZ 85012 

(480) 948-1212 

david@azcivilrights.com 
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Ulises A. Ferragut, Jr. 

The Ferragut Law Firm, P.C. 

2 North Central Avenue, Suite 1125 

Phoenix, AZ 85004 

(602) 324-5300 

Ulises@FerragutLaw.com

Attorneys for Plaintiff Leslie Merritt, Jr. 

Michele M. Iafrate 

Iafrate & Associates 

649 North Second Avenue 

Phoenix, AZ 85003 

(602) 234-9775 

miafrate@iafratelaw.com 

Attorneys for Defendants, Maricopa County 

and William Montgomery 

By: /s/ Dawn M. Coppens 
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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Rebecca N. Cain (#025604) 

rcain@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendant State of Arizona 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff, 

vs. 

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X, 

Defendants. 

Case No. CV2016-013436 

[PROPOSED] ORDER RE DEFENDANT 

STATE OF ARIZONA’S MOTION TO 

EXPEDITE RULING ON MOTION TO 

STAY DEPOSITIONS PENDING RULING 

ON MOTION TO DISMISS AND MOTION 

TO QUASH NOTICES OF DEPOSITION 

 (Assigned to the Honorable David Gass) 

 Pursuant to Defendant State of Arizona’s Motion to Expedite Ruling on Motion to 

Stay Depositions Pending Ruling on Motion to Dismiss and Motion to Quash Notices of 

Deposition, and for good cause appearing, 

 IT IS ORDERED that the Motion to Expedite Ruling on Motion to Stay Depositions 

Pending Ruling on Motion to Dismiss and Motion to Quash Notices of Deposition is 

granted. 
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 IT IS FURTHER ORDERED that Plaintiff shall file a response no later than 

_______________, 2017 and that Defendants shall file a reply by ________________, 

2017. 

 DATED this _____ day of ________________, 2017. 

_____________________________________ 

Honorable David Gass 
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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Rebecca N. Cain (#025604) 

rcain@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendant State of Arizona 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff, 

vs. 

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X, 

Defendants. 

Case No. CV2016-013436 

DEFENDANT STATE OF ARIZONA’S 

MOTION TO STAY DEPOSITIONS 

PENDING RULING ON MOTION TO 

DISMISS 

-AND- 

 MOTION TO QUASH NOTICES OF 

DEPOSITION 

(EXPEDITED DISPOSITION 

REQUESTED) 

(Assigned to the Honorable David Gass) 

 Defendant State of Arizona respectfully requests that the Court stay depositions in 

this matter pending resolution of the State’s Motion to Dismiss (“MTD”), filed October 27, 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

T. Hays, Deputy

1/5/2017 4:39:00 PM

Filing ID 7996098
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2016 and pending a Rule 16 Scheduling Conference. Additionally, the State asks the Court 

to Quash the two Notices of Deposition Plaintiff served on two key party witnesses. The 

State’s request is made pursuant to Rules 1 and 16 of the Arizona Rules of Civil Procedure 

and the Court’s inherent powers. Staying depositions in this proceeding until resolution of 

the MTD will serve the interests of judicial economy and avoid undue hardship and 

prejudice to the State. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION 

Plaintiff filed his Complaint for, among other things, false arrest and malicious 

prosecution, on September 13, 2016. Co-Defendants Maricopa County and William 

Montgomery filed their Answer on October 26, 2016. On October 27, 2016, the State timely 

moved to dismiss all claims, pursuant to Arizona Rule of Civil Procedure 12(b)(6) (the 

“MTD”). Shortly thereafter, Plaintiff requested and the State agreed to extend the deadline 

for Plaintiff’s response to the MTD through December 2, 2016. Exhibit 1, p. 2. 

In mid-November, Plaintiff requested to take the depositions of Deputy County 

Attorneys Vanessa Losicco Cuevas and Ed Leiter (the “County Attorneys”). Exhibit 2, p. 6. 

During those discussions, the State made clear its objection to the depositions proceeding at 

such an early stage in the case.1Id. at p. 1. On December 9, 2016, Plaintiff served Notices 

of Deposition, setting the County Attorneys’ depositions for January 26 and 27. Exhibit 3. 

Subsequent to service of the Notices of Deposition, the parties continued to 

correspond regarding the depositions. See, e.g., Exhibit 4. Further, on December 20, 2016, 

Plaintiff requested counsel’s availability for 2-3 “civilian witness” depositions. Exhibit 5. 

Plaintiff did not identify the proposed witnesses, nor had Plaintiff served any disclosure 

statement at this time. The State objected to Plaintiff’s request for non-party depositions of 

unidentified witnesses citing the fact that the State’s MTD had yet to be resolved, disclosure 

statements were yet to be exchanged, and the State could not evaluate the request pursuant 

to Rule 30(a) without the identities of the witnesses. Exhibit 4, p. 1. 

 1

 Co-Defendants also objected to the depositions for a variety of reasons. 
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Plaintiff served his Rule 26.1 Initial Disclosure Statement on December 22, 2016.2 

On December 29, 2016, the parties met and conferred to discuss case management 

pursuant to Rule 16(b). At that time, the parties conferred regarding the currently-noticed 

County Attorney depositions and the additionally requested non-party depositions. The 

parties agreed at that time to request a scheduling conference with the Court.3 The parties 

further agreed that Defendants would serve their Initial Disclosures by January 31, 2017. 

The parties, however, did not agree that depositions should be postponed pending resolution 

of the MTD and pending a scheduling conference with the Court. 

II. LEGAL ARGUMENT 

A. This Court has the Power to Order a Stay as the Circumstances Warrant. 

This Court has independent, broad discretion to manage its docket, and therefore it 

holds the power to stay proceedings. See F. C. Y. Const. & Equip. Co. v. Superior Court,

In & For Yavapai Cnty., 24 Ariz. App. 596, 597 (1975) (discussing court’s discretion to 

grant a stay absent an authorizing statute and upon a “proper showing of necessity.”); 

Tonnemacher v. Touche Ross & Co., 186 Ariz. 125, 130 (Ct. App. 1996) (finding that 

staying a state court action while its corresponding federal action pends avoids increased 

costs to the parties, the burden on judicial resources, piecemeal litigation, and conflicting 

judgments). Here, the State does not request a broad stay of proceedings, or even 

discovery, but rather, a more narrow stay of depositions pending the resolution of the 

State’s MTD and/or until the Court has the opportunity to address the issue with the parties 

during a scheduling conference pursuant to Rule 16.

 2

 Plaintiff’s Initial Disclosure listed some 97 witnesses. 

3

 The Parties will timely file their Joint Report, with request for a scheduling 

conference, on January 10, 2017. 
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B. Staying the Depositions Will Conserve Witness Time and the Parties’ 

 Resources. 

A stay will serve the interests of judicial economy, conserving the resources of both 

the parties, witnesses, and, potentially, the Court. The County Attorneys whose depositions 

have been noticed are believed to have been two of the primary responsible parties in the 

prosecution of Plaintiff on behalf of the Maricopa County Attorneys’ Office. As such, these 

witnesses are expected to be key witnesses in the trial of this matter and the issues about 

which these witnesses have knowledge and are expected to testify are inextricably 

intertwined with issues relevant to the State’s defense of this action. 

The additional non-party depositions Plaintiff has requested are premature prior to 

Plaintiff’s identification of the witnesses, sufficient disclosure and discovery to allow 

Defendants to evaluate the requests pursuant to Rule 30(a), without the agreement of all 

parties, and prior to the anticipated scheduling conference at which the parties anticipate 

addressing such matters with the Court. 

 If any of these depositions proceed prior to sufficient disclosure, document 

exchange, and written discovery and prior to the resolution of the State’s MTD, the State 

will be prejudiced in two key ways. First, the State will not have ample opportunity to 

prepare for these depositions, including the review of documents yet to be produced. As 

such, the witnesses will almost certainly be required to appear unnecessarily for a second 

round of depositions. Second, the State will be forced to incur the costs of preparation and 

participation in the depositions while there remains a possibility that Plaintiff’s claims 

against the State could be dismissed. 

Finally, Plaintiff has represented that he will oppose any request for a stay of 

depositions, but Plaintiff will suffer no prejudice delaying these depositions for a short 

time to allow for the parties and the Court to better plan and manage this litigation. 

C. The Outstanding Notices of Deposition Should be Quashed 

For the same reason that all depositions should be stayed, the Court should quash the 

outstanding Notices of Deposition for the County Attorneys. Further, Rule 30(a)(1) 

provides that a party may depose any party, any disclosed expert witness, and any records 
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custodian. Rule 30(a)(1) further provides that “[u]nless all parties agree or the court orders 

otherwise for good cause, a party may not depose any other person.” Ariz. R.Civ. P. 

30(a)(1). Here, the County Attorneys are not parties, expert witnesses, or records 

custodians. Therefore, Plaintiff cannot depose the County Attorneys without agreement of 

all parties or an order of the Court. The State does not agree to these depositions. As such, 

Plaintiff cannot depose the County Attorneys absent an order of this Court. 

III. CONCLUSION 

Because the State will be prejudiced if the depositions of the County Attorneys and 

additional non-party witnesses proceed at this early juncture, the State respectfully requests 

that: (1) all depositions be stayed pending resolution of the State’s MTD and a scheduling 

conference before the Court, and (2) that the outstanding Notices of Deposition related to 

Assistant County Attorneys Losicco Cuevas and Leiter be quashed. 

 RESPECTFULLY SUBMITTED this 5th day of January, 2017. 

POLSINELLI PC 

By: /s/ Rebecca N. Cain 

Edward F. Novak 

Melissa Ho 

Rebecca N. Cain 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 

E-FILED this 5th day of January, 2017, 

with the Clerk of the Superior Court. 

COPY mailed this 5th day of January, 

2017, to: 

Jason D. Lamm 

Law Office of Jason Lamm 

6245 North 24th Pkwy., Ste. 208 

Phoenix, AZ 85016-2030 

(602) 222-9237 

jlamm@cyberlawaz.com
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David J. Don 

Law Offices of David J. Don, PLLC 

301 E. Bethany Home Rd., Suite B-100 

Phoenix, AZ 85012 

(480) 948-1212 

david@azcivilrights.com 

Ulises A. Ferragut, Jr. 

The Ferragut Law Firm, P.C. 

2 North Central Avenue, Suite 1125 

Phoenix, AZ 85004 

(602) 324-5300 

Ulises@FerragutLaw.com

Attorneys for Plaintiff Leslie Merritt, Jr. 

Michele M. Iafrate 

Iafrate & Associates 

649 North Second Avenue 

Phoenix, AZ 85003 

(602) 234-9775 

miafrate@iafratelaw.com 

Attorneys for Defendants, Maricopa County 

and William Montgomery 

By: /s/ Dawn M. Coppens 


























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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Rebecca N. Cain (#025604) 

rcain@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendant State of Arizona 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff, 

vs. 

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X, 

Defendants. 

Case No. CV2016-013436 

[PROPOSED] ORDER RE DEFENDANT 

STATE OF ARIZONA’S MOTION TO 

STAY DEPOSITIONS PENDING RULING 

ON MOTION TO DISMISS AND MOTION 

TO QUASH NOTICES OF DEPOSITION 

(Assigned to the Honorable David Gass) 

 Pursuant to Defendant State of Arizona’s Motion to Stay Depositions Pending 

Ruling on Motion to Dismiss and Motion to Quash Notices of Deposition, and for good 

cause appearing, 

 IT IS ORDERED that the Motion to Stay Depositions Pending Ruling on Motion to 

Dismiss is granted. 

 IT IS FURTHER ORDERED that the Motion to Quash Notices of Deposition is 
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granted. 

 DATED this _____ day of ________________, 2017. 

_____________________________________ 

Honorable David Gass 
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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Rebecca N. Cain (#025604) 

rcain@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendant State of Arizona 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff, 

vs. 

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X, 

Defendants. 

Case No. CV2016-013436 

DEFENDANT STATE OF ARIZONA’S 

NOTICE OF CLARIFICATION 

REGARDING MOTION TO STAY 

DEPOSITIONS PENDING RULING ON 

MOTION TO DISMISS AND MOTION TO 

QUASH NOTICES OF DEPOSITION 

 (Assigned to the Honorable David Gass) 

 Given the Court’s Ruling denying the State’s Motion to Dismiss, filed January 6, 

2017, Defendant State of Arizona files this clarification regarding its Motion to Stay 

Depositions Pending Resolution of Motion to Dismiss and Motion to Quash Deposition 

Notices (the “Motion”). As set forth in the Motion, the State requested that the Court stay 

depositions in this matter and quash certain outstanding Notices of Deposition pending 

resolution of the State’s Motion to Dismiss and pending a Rule 16 Scheduling Conference. 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

T. Hays, Deputy

1/6/2017 1:06:00 PM

Filing ID 7998327
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For the reasons set forth in the Motion, the State maintains that depositions should be stayed 

pending a Scheduling Conference before this Court.1 

 RESPECTFULLY SUBMITTED this 6th day of January, 2017. 

POLSINELLI PC 

By: /s/ Rebecca N. Cain 

Edward F. Novak 

Melissa Ho 

Rebecca N. Cain 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 

E-FILED this 6th day of January, 2017, 

with the Clerk of the Superior Court. 

COPY mailed this 6th day of January, 

2017, to: 

Jason D. Lamm 

Law Office of Jason Lamm 

6245 North 24th Pkwy., Ste. 208 

Phoenix, AZ 85016-2030 

(602) 222-9237 

jlamm@cyberlawaz.com

David J. Don 

Law Offices of David J. Don, PLLC 

301 E. Bethany Home Rd., Suite B-100 

Phoenix, AZ 85012 

(480) 948-1212 

david@azcivilrights.com 

Ulises A. Ferragut, Jr. 

The Ferragut Law Firm, P.C. 

2 North Central Avenue, Suite 1125 

Phoenix, AZ 85004 

(602) 324-5300 

Ulises@FerragutLaw.com

Attorneys for Plaintiff Leslie Merritt, Jr. 

 

1

 In light of the denial of the Motion to Dismiss, the stay will further allow the State 

the opportunity to file its answer prior to commencing depositions. 
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Michele M. Iafrate 

Iafrate & Associates 

649 North Second Avenue 

Phoenix, AZ 85003 

(602) 234-9775 

miafrate@iafratelaw.com 

Attorneys for Defendants, Maricopa County 

and William Montgomery 

By: /s/ Dawn M. Coppens 
Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/10/2017 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2016-013436 01/09/2017

Docket Code 906 Form V000A Page 1

CLERK OF THE COURT

HONORABLE DAVID B. GASS L. Stogsdill

Deputy

LESLIE MERRITT JR. DAVID J DON

v.

STATE OF ARIZONA, et al. REBECCA N CAIN

MICHELE M IAFRATE

EDWARD F NOVAK

ULISES FERRAGUT JR.

JASON D LAMM

MINUTE ENTRY

The court has received the State of Arizona’s Motion to Stay Depositions Pending Ruling 

on Motion to Dismiss and Motion to Quash Notices of Deposition (Expedited Disposition 

Requested) filed January 5, 2017.

IT IS ORDERED granting the request for expedited disposition.

IT IS FURTHER ORDERED that responses to the motion shall be filed by January 

13, 2017 and the State’s reply shall be filed by January 18, 2017.
-1-

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Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

LAW OFFICE OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Suite B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie Merritt, Jr.

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff,

vs.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X.

Defendants.

)

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Case No.: CV2016-013436

PLAINTIFF’S RESPONSE IN 

OPPOSITION TO DEFENDANT

STATE OF ARIZONA’S MOTION 

TO STAY AND MOTION TO 

QUASH NOTICES OF 

DEPOSITIONS

(Assigned to Hon David Gass)

(Expedited Oral Argument 

Requested)

Arizona law provides for depositions occurring within thirty days of 
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commencing an action, if not sooner. Here, nearly four months after filing his 

action, Leslie Merritt, Jr. has served notices for two depositions scheduled to occur 

on January 26 and 27, 2017. Since Merritt's notices are valid and timely and the 

State's objections are moot and unfounded, the Court should deny the State’s 

Motion to Stay and Quash Notices of Depositions, and permit discovery to proceed

as scheduled. 

Memorandum of Points and Authorities

I. Background

Plaintiff's Complaint was filed on September 13, 2016. Beginning November 

18, 2016, Merritt's counsel began obtaining from defendants' counsel dates of 

availability for counsel and witnesses for depositions. Once mutually agreeable 

dates were obtained, written notices were issued in accordance with Ariz.R.CivP. 

30. The deponents at issue are Deputy County Attorneys, Edward Leiter, Esq., 

presently scheduled for January 26, 2017, and Vanessa Marie Losicco Cuevas, 

Esq., presently scheduled for January 27, 2017.

The State concedes that the two deputy county attorneys at issue in its 

motion are "two key party witnesses." (Motion at p.2:2). And further recognizes 

that these deponents are among "the primary responsible parties in the 

prosecution of Plaintiff on behalf of the Maricopa County Attorneys' Office." (Id. at 

p.4:4-5)

Now, the State is seeking a stay of the depositions pending the resolution of 

the State's motion to dismiss and/or until a scheduling conference. (Motion at 
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p.3:18-21). The Court has since denied the Motion to Dismiss, and no basis or 

authority exists to preclude the noticed depositions. Accordingly, undersigned 

counsel requested that the State of Arizona withdraw its motions since its primary 

objections aew moot. The State refused.1

II. Standard of review for the motion.

A court's ruling on a discovery motion is reviewed for an abuse of 

discretion. Brown v. Superior Court, 137 Ariz. 327, 331–32, 670 P.2d 725, 729–30 

(1983). See also State ex rel. Babbitt v. Arnold, 26 Ariz.App. 333, 334, 548 P.2d 

426, 427 (1976) (holding “[t]he trial court is vested with wide discretion 

concerning discovery”).

III. Discussion

Defendant proposes three arguments to support its motion: (1) the Court 

has the power to order a stay of discovery; (2) that prejudice would occur without a 

stay; and (3) that the State objects to the deposition of non-party witnesses. None 

of these arguments support State's request to stay discovery. Plaintiff will address 

each in turn.

1. The Court's Authority to Order a Stay is Not a Rationale to 

Order a Stay. 

Arizona Rules of Civil Procedure permit oral depositions to occur as soon as 

thirty days after the filing of the Complaint, if not sooner. Ariz.R.Civ.P30(a)(2). 

Contrary to the State's urging, no rule or other authoritative provision requires the 

 

1 The State's motion also mentions objections to as yet unidentified deponents. Plaintiff's counsel 

have merely requested dates of availability for scheduling future depositions. The State's 

objection to providing dates of availability for these depositions is premature.
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additional delay of depositions until the serving of a disclosure statement or the 

conduct of a scheduling conference. 

Here, Merritt consulted with Defendants' counsel to obtain dates of 

availability for both counsel and witnesses, and defense counsel provided them. 

As noted supra, written notices have been provided for the taking of the two 

depositions at issue. This Court need not conduct any further inquiry, and the 

State's motions should be denied.

Notwithstanding the rules permitting the depositions of "key party 

witnesses," the State argues that the depositions should be delayed because the 

Court has discretion to order a stay of discovery. However, a court's having 

authority to order a stay is no substitute for the State's lack of good cause to justify

one. 

Similarly, the State’s argument to toll or cancel depositions until a Rule 16 

Scheduling Conference occurs further runs afoul of Ariz.R.Civ.P30(a)(2), which

specifically authorizes depositions within thirty days of the Complaint. Said rule

does not predicate the taking of depositions upon a Scheduling Conference. 

Therefore, the Court should reject the State's motions and attempted dilatory 

tactics.

2. The State's request for delay fails to conserve witness time or

the parties' resources.

Two primary reasons belie the State's claim of prejudice by having to 

cooperate with the normal discovery process. First, Plaintiff has already provided 

the State with substantial and meaningful disclosure and the opportunity to review 

it. Indeed, Defendants themselves authored and generated virtually all of the 
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liability-oriented materials disclosed by Plaintiff. Merritt simply disclosed the very 

same materials that Defendants generated and disclosed during the pendency of 

the now-defunct criminal case against him.

Second, the State's argument that witnesses may have to return for 

additional depositions absent a stay is both vague and speculative. Indeed, similar 

concerns could be raised in any litigation and should not justify unnecessary 

delays. Thus, Defendant’s motion to stay and quash the depositions on grounds of 

conservation of resources should therefore be denied.

3. The State's failure to consent to the depositions is no reason 

for delay.

The State argues that because it objects, the two noticed depositions of 

attorneys Leiter and Cuevas should not proceed. (Motion at p.4-5.) The State's 

argument should be rejected for two reasons. 

First, Ariz.R.Civ.P 30(a)(1) provides for the depositions of parties. Here, the 

State concedes that the depositions of the deputy county attorneys are for "two key 

party witnesses." (Motion at p.2:2). Further, the State's position the deponents are 

"two key party witnesses" is consistent with the only plausible reading of 

Ariz.R.Civ.P 30(a)(1) where, as here, the named defendants are corporate or 

governmental parties. In such cases, the provision of "party" should be read in 

conjunction with Ariz.R.Civ.P. 30(b)(6). 

The purpose of the rule limiting depositions is to encourage informal and 

less expensive witness interviews. However, where the acts of the employees of 
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corporate adversaries give rise to the litigation, opposing counsel are precluded 

from direct contact with the employees. Lang v. Superior Court, In and For 

County of Maricopa, 170 Ariz. 602, 826 P.2d 1228 (App. 1992). As a result of this 

preclusion, the liability producing employees should be considered "parties" for 

purposes of Ariz.R.Civ.P. 30(a). See Danile J. McAuliffe, et. al., Arizona Practice 

Series, Civil Proc. Rule 30, Sect. 16.23 Oral Depositions. For this reason, the 

deputy county attorneys at issue should be considered parties for the purposes of 

Ariz.R.Civ.P. 30(a), and the State’s argument should be rejected.

Even if these deputy county attorneys were considered non-parties under 

the rule, they are central witnesses whose depositions should go forward. 

Notwithstanding any objection from the State, good cause exists for permitting the 

depositions to proceed. Merritt's counsel are precluded under Lang from 

contacting these witnesses. The only plausible means of discovery is a deposition. 

A party’s objection to the deposition of a “key person” cannot be viewed as being 

made in good faith, and is legally insufficient to deny the taking of the deposition. 

IV. Conclusion

Arizona rules of civil procedure do not contemplate unwarranted delays in 

litigation. The primary argument of the State to delay the depositions is moot 

given that the Court has denied its Motion to Dismiss and Plaintiff has already 

produced his disclosure statement. Finally, the key witnesses are considered 

parties under Rule 30(a)(1) because they cannot otherwise be contacted under 

Lang, and even if not parties, they are central witnesses to the events of the case. 

For these reasons, Leslie Merritt, Jr. respectfully requests that the Court deny 
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Defendant’s motion to stay and motion to quash notices of depositions, and permit 

the duly noticed depositions to proceed. 

DATED this 9th day of January, 2017.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/David J. Don

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.

The original of the foregoing was 

E-filed and Emailed this 9th day of January, 2017, to:

Michele Iafrate, Esq.

Iafrate & Associates

649 North Second Avenue

Phoenix, Arizona 85003

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

Edward F. Novak, Esq.

Melissa Ho, Esq.

Rebecca N. Cain, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

Email: enovak@polsinelli.com; mho@polsinelli.com, rcain@polsinelli.com

Attorneys for Defendant State of Arizona

By: /s/David J. Don
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LAW OFFICES OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Tel: 480.948.1212

Fax: 480.696.7756

Email: david@azcivilrights.com

David J. Don, Esq. (#016462)

Attorneys for Plaintiff Leslie Merritt, Jr.

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE MARICOPA COUNTY

LESLIE MERRITT, JR., an individual,

Plaintiff,

vs.

STATE OF ARIZONA, et. al.

Defendants.

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Case No.: CV2016-013436

JOINT REPORT

(Assigned to Hon. David Gass)

The parties signing below certify that they have conferred about the matters set forth 

in Rule 16(d), and that this case is not subject to the mandatory arbitration provisions of Rule 

72. With regard to matters upon which the parties could not agree, they have set forth their 

positions separately in item 14 below. The parties are submitting a Proposed Scheduling 

Order with this Joint Report. Each date in the Joint Report and in the Proposed Scheduling 

Order includes a calendar month, day, and year.

1. BRIEF DESCRIPTION OF THE CASE

This case arises out of the arrest, incarceration, and prosecution of Plaintiff Leslie 

Merritt Jr. in connection with a series of shootings along Phoenix-area highways during the 

summer of 2015. Plaintiff filed his Complaint for false arrest, false imprisonment, malicious 

prosecution, negligent/gross negligence, intentional infliction of emotional distress, and 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

C. Gray, Deputy

1/10/2017 3:41:00 PM

Filing ID 8008100
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aiding and abetting tortious conduct related to these events on September 13, 2016, naming 

the State of Arizona, Maricopa County, and Maricopa County Attorney Bill Montgomery as 

defendants. Plaintiff alleges that Defendants are liable for damages caused by their 

actions. Defendants Montgomery, Maricopa County, and the State of Arizona deny any 

liability or damages. 

2. CURRENT CASE STATUS

All parties have been served. Defendant State of Arizona has filed a Motion to 

Dismiss. The Motion was denied on January 6, 2017. The State’s answer is due January 24, 

2016. Defendants Montgomery and Maricopa County filed an Answer.

3. AMENDMENTS

The parties do not presently anticipate any amendments to the pleadings.

4. SPECIAL CASE MANAGEMENT

The parties do not presently anticipate any special case management procedures are 

required. 

5. SETTLEMENT

The parties will engage in settlement discussions with a private mediator. The 

parties will be ready for a mediation by January 8, 2018.

6. READINESS

This case will be ready for trial by March 19, 2018.

7. JURY

A trial by jury is demanded.

8. LENGTH OF TRIAL

Plaintiff estimates that the length of trial is ten days. 

Defendant State of Arizona estimates that the length of trial is fifteen days.
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9. SUMMARY JURY

The parties do not agree to a summary jury trial.

10. PREFERENCE

This case is not entitled to a preference for trial

11. SPECIAL REQUIREMENTS

The parties do not anticipate any special requirements for trial. 

12. SCHEDULING CONFERENCE

The parties do request an Arizona Rule of Civil Procedure 16(d) scheduling 

conference.

13. OTHER MATTERS

None contemplated by the parties.

14. ITEMS UPON WHICH THE PARTIES DO NOT AGREE

The parties were unable in good faith to agree upon the following items, and the 

position of each party as to each item is as follows:

* The scope of Defendants' claim to discovery privileges, written discovery and 

protective order or stipulation regarding depositions of prosecutors including work 

product, deliberate process, and attorney/client privilege. The parties also do not agree as 

to the early scheduling of certain non-party depositions.

DATED this of 10th day of January, 2017.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

LAW OFFICES OF JASON LAMM

By: /s/David J. Don 

David J. Don

Attorneys for Plaintiff Leslie Merritt, Jr.
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Polsinelli PC

By: /s/David J. Don with permission 

Edward F. Novak

Melissa Ho

Rebecca N. Cain

Attorney for Defendant State of Arizona

Iafrate & Associate

By: /s/David J. Don with permission 

Michele Iafrate

Attorneys for Defendants Maricopa County and 

William Montgomery

The original of the foregoing was 

e-filed 10th day of January, 2017 to:

/s/David J. Don 
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

DEFENDANTS MARICOPA 

COUNTY AND WILLIAM

MONTGOMERY’S MOTION FOR 

A PROTECTIVE ORDER, 

REQUEST TO STAY, AND 

JOINDER IN STATE’S MOTION 

TO STAY DEPOSITIONS AND 

QUASH NOTICES OF 

DEPOSITION

(EXPEDITED RULING 

REQUESTED RE: REQUEST TO 

STAY)

(Assigned to the Honorable

David Gass)

Pursuant to Rule 26(c), Arizona Rules of Civil Procedure and Local Rule 7.2, 

Defendants Maricopa County and William Montgomery move this Court for a 

Protective Order that limits the scope of Plaintiff’s deposition questioning and

discovery of Maricopa County Deputy County Attorneys, Vanessa Losicco Cuevas 

and Edward Leiter. Additionally, Defendants request that the Court stay the 

proposed January 26 and 27, 2017 depositions pending the Court’s ruling on the 

Motion for Protective Order. Defendants support their motion with the following 

memorandum of points and authorities.
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MEMORANDUM OF POINTS AND AUTHORITIES

I. LAW AND ARGUMENT

A. Rule 30 Does Not Allow Plaintiff to Depose Non-parties Ms. 

Losicco Cuevas and Mr. Leiter.

On December 9, 2016, Plaintiff noticed the depositions of Ms. Losicco Cuevas 

and Mr. Leiter pursuant to Arizona Rule of Civil Procedure 30. (See Notices of 

Deposition attached as Exhibit A, B). Rule 30(a)(1) provides that a party may 

depose any party, any disclosed expert witness, and any records custodian. Here, 

Ms. Losicco Cuevas and Mr. Leiter are not parties, expert witnesses, or records 

custodians. Therefore, Plaintiff cannot, by right, depose Ms. Losicco Cuevas and 

Mr. Leiter. Rule 30(a)(1) further provides that “[u]nless all parties agree or the court 

orders otherwise for good cause, a party may not depose any other person. Ariz. 

R.Civ. P. 30(a)(1); see also In re Conservatorship of Westover, 2009 WL 15300814 

¶20 (holding that none of the exceptions in Rule 30 applied, therefore the noticed 

deponent could not be deposed). Defendants Maricopa County and Bill 

Montgomery do not agree to these depositions. Rule 30 does not allow Plaintiff to 

depose non-parties to litigation; therefore, Plaintiff cannot depose Ms. Losicco 

Cuevas and Mr. Leiter.

B. Protective Order to Prohibit Plaintiff from Delving into Privileged 

Communications or Documents is Appropriate.

Ms. Losicco Cuevas and Mr. Leiter were assigned to prosecute Plaintiff. 

Defendants Maricopa County and William Montgomery ask that the Court disallow

Plaintiff from questioning non-party witnesses Ms. Losicco Cuevas and Mr. Leiter 
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about their written preparation for trial, mental impressions, professional judgment, 

communications with supervisors, prosecution policies, or any discussions between 

them, undersigned defense counsel and the State of Arizona in their common legal 

interest, or any other privileged matter. See Salvation Army v. Bryson, 229 Ariz. 

204, 208, 273 P.3d 656, 660 (App. 2012) (privilege of work product); Arizona 

Independent Redistricting Comn. v. Fields, 206 Ariz. 130, 141, 75 P.3d 1088, 1099 

(2003); Upjohn Co. v. United States, 449 U.S. 383, 401 (1981)(attorney-client 

privilege) and Grimm v. The Arizona Bd. of Pardons and Paroles, 115 Ariz. 260, 

269, 564 P.2d 1227, 1236 (1977)(applying the deliberative process privilege).

C. The Deliberative Process Privilege Protects Communications and 

Documents, Including Prosecution Policies Between the County 

Attorney, a Public Official and His Subordinates, Deputy County 

Attorneys.

Parties may obtain discovery regarding any matter, not privileged that is 

relevant to the subject matter involved in the pending action. Ariz. R. Civ. P. 

26(b)(1)(A) (emphasis added). Here, where Plaintiff seeks to depose Deputy 

County Attorneys about a case they prosecuted (and which continues to be an open 

investigation), the likelihood is great that absent a protective order, Plaintiff will 

encroach on privileged information. For example, should Plaintiff ask Ms. Losicco 

Cuevas or Mr. Leiter to explain his/her decision-making process regarding whether 

or not to prosecute, such questions violate the deliberative process privilege and will 

chill the forthright and candid discussion of ideas that the privilege is designed to 

foster and protect. See Assembly of the State of Cal. V. United States Dep’t of 

Commerce, 968 F.2d 916, 920 (9th Cir. 1992). The privilege’s purpose is not only to 
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promote open discussion among government decision-makers, but also to reduce

“fears that ‘each remark is a potential item of discovery and front page news.”’

Arizona Independent Redistricting Comn. v. Fields, 206 Ariz. 130, 141, 75 P.3d 

1088, 1099 (2003) quoting Dep’t of the Interior v. Klamath Water Users Protective 

Assoc., 532 U.S. 1, 8–9 (2001). The privilege protects from disclosure “materials 

that are pre-decisional and reflective of a government official’s deliberative process.”

Examples are opinions, recommendations, advice about agency policies, or intraagency correspondence. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-54 

(1975). See also United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000) 

(overruling district court’s order requiring the government to disclose its predecisional death penalty evaluation form and prosecution memorandum). This 

reasoning is consistent with that of the Arizona Supreme Court’s reasoning in 

Grimm v. The Arizona Bd. of Pardons and Paroles, 115 Ariz. 260, 269, 564 P.2d 

1227, 1236 (1977). The court upheld the granting of a protective order, not for the 

same reasons that the trial court did, but because the information sought focused on 

the deliberative process. In doing so, the court agreed with the reasoning and 

holding in United States v. Morgan, 313 U.S. 409 (1941). Grimm v. The Arizona Bd. 

of Pardons and Paroles, 115 Ariz at 269. There, the court protected from disclosure

an administrative decision maker’s mental processes and the manner and extent of 

his study of the administrative record and his consultation with subordinates. United 

States v. Morgan, 313 U.S. at 422. The Grimm plaintiffs wanted to depose parole 

board members. The court ruled that “any inquiry into the mental processes of a 
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parole decision is improper. Insofar as the requested depositions were to inquire 

into the deliberations, discussions and communications during Board proceedings, a 

restrictive protective order would be proper.” Grimm at 269. Here, the same 

protection of the deliberative process is warranted. It is paramount that prosecutors 

be able to candidly confer with other prosecutors, supervisors, and the public official 

who heads their office about policies, legal strategies, case strengths or 

weaknesses. As such, any questions regarding these consultations should be 

included in a protective order. (See Exhibit C).

Similarly, any documents that are pre-decisional and part of the deliberative 

process should be protected. United States v. Fernandez, 231 F.3d 1240, 1246 (9th

Cir. 2000) (overruling district court’s order requiring the government to disclose its 

pre-decisional death penalty evaluation form and prosecution memorandum). 

Defendant Montgomery has directed prosecutors and the office’s Custodian of 

Records not to produce certain Maricopa County Attorney’s Office policies absent a 

court’s entry of an appropriate order shielding the policies from public disclosure. 

Disclosure of such policies would invite criminal defendants to dispute the 

application of the policies to their unique situations to delay final dispositions of their 

case to the detriment and burden of the State, crime victims, and the criminal justice 

system. For these reasons, Defendants Maricopa County and William Montgomery 

are entitled to a protective order limiting Plaintiff’s deposition and discovery of 

Vanessa Losicco Cuevas and Edward Leiter.

/ / /
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D. The Work-Product Privilege Protects Ms. Losicco Cuevas and Mr. 

Leiter’s Mental Processes, Conclusions, and Communications 

Made in Preparation for Trial.

To the extent that Plaintiff intends to question Ms. Losicco Cuevas and Mr. 

Leiter about witness interviews, their mental processes, conclusions, legal theories, 

or communications in preparation for trial, the work product privilege protects 

against such questions. Dean v. Superior Court in and for Maricopa County, 84 

Ariz. 104, 111-13 (1958) ((adopting rationale of Hickman v. Taylor, 329 U.S. 495, 

511-13 (1947) in holding that work product of an attorney to provide an account of 

what witnesses told him absent a showing of good cause)). Furthermore, any 

reports prepared by legal or investigative staff, including experts that Ms. Losicco 

Cuevas or Mr. Leiter retained in preparation of prosecution are protected from 

disclosure as work product. See State ex rel. Corbin v. Ybarra, 161 Ariz. 188, 192-

93, 777 P.2d 686, 690-91 (1989). Therefore, the Court should preclude Plaintiff 

from asking about such preparatory materials.

E. The Attorney-Client and Common Interest Privileges Protect 

Communications Between Undersigned Counsel, Ms. Losicco 

Cuevas, Mr. Leiter and the State.

Should Plaintiff ask questions of Ms. Losicco Cuevas and Mr. Leiter about 

communications with undersigned counsel, those communications are privileged 

and protected. A.R.S. § 12-2234 (protecting “any communication” made by the 

client to the attorney or the attorney’s advice given to the client).

Further, to the extent that Plaintiff intends to ask Ms. Losicco Cuevas and Mr. 

Leiter questions regarding discussions with any Defendant in this case, and their 
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counsel, the common-interest doctrine protects such communications. The 

common-interest doctrine allows persons with common interests to share privileged 

attorney-client and work product communications to coordinate their respective 

positions without destroying the privilege. See Lund v. Donahoe, 227 Ariz. 572, 

580, 261 P.3d 456, 464 (App. 2011). The common interest doctrine is not a 

privilege but an exception to the rule that “communications between a person and a 

lawyer representing another person are not privileged.” Indep. Redist. Comm’n v. 

Fields, 206 Ariz. 130, 143, 75 P.3d 1088, 1101 (App.2003). The exception applies 

to “legal, factual, or strategic” communications that “further the legal interests of 

each client.” Id. See also A.R.S. § 12-2234 (protecting “any communication” made 

by the client to the attorney or the attorney’s advice given to the client). Here, 

Defendants Maricopa County, William Montgomery, and the State share a common

interest, and therefore, any attorney-client, work product, or otherwise privileged 

information shared between them and their counsel is protected. Defendants, 

therefore, ask for a protective order expressly protecting documents and 

communications shared within their common interest. (Ex. C).

F. Defendants Maricopa County and William Montgomery Join in 

Defendant State of Arizona’s Motion to Stay Depositions and 

Quash Notices of Deposition Pending a Rule 16 Scheduling 

Conference.

Defendants Maricopa County and William Montgomery join in and adopt by 

reference Defendant State of Arizona’s January 6, 2016 Motion to Stay Depositions 

and Motion to Quash Notices of Deposition, for all of the reasons asserted therein.
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II. CONCLUSION

Based on the law and argument asserted above, Defendants Maricopa 

County and William Montgomery respectfully request that this Court disallow Plaintiff 

from deposing Ms. Losicco and Mr. Leiter. Alternatively, Defendants Maricopa 

County and William Montgomery request that the Court issue a Protective Order 

limiting Plaintiff from questioning Vanessa Losicco Cuevas and Edward Leiter about 

their written preparation for trial, mental impressions, professional judgment, 

communications with supervisors, or any discussions or documents that comprise 

the deliberative process, or any discussions between Defendants Maricopa County, 

William Montgomery, Ms. Losicco Cuevas, Mr. Leiter, undersigned defense counsel 

and the State of Arizona and counsel in their common legal interest, or any other 

privileged matter. Finally, Defendants ask that the Court stay the January 26 and 27 

depositions and/or quash the Notices of Deposition pending its ruling on the instant 

motion.

DATED this 10th day of January, 2017.

IAFRATE & ASSOCIATES

By: /s/Michele M. Iafrate

Michele M. Iafrate

Attorneys for Defendants Maricopa 

County and William Montgomery
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ORIGINAL of the foregoing e-filed

this 10th day of January, 2017, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPY of the foregoing e-mailed via AZ Turbo

this 10th day of January, 2017, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing e-mailed and/or mailed

this 10th day of January, 2017, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff

Ulises A. Ferragut, Jr.

The Ferragut Law Firm, PC

2 North Central Ave., Ste. 1125

Phoenix, Arizona 85004

Attorney for Plaintiff

David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Edward F. Novak

Melissa Ho

Rebecca Cain

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: /s/Jill Lafornara
EXHIBIT A



EXHIBIT B



EXHIBIT C
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

PROTECTIVE ORDER

(Assigned to the Honorable

David Gass)

To facilitate the prompt resolution of disputes over confidentiality and 

adequately protect non-party witnesses Vanessa Losicco Cuevas and Edward Leiter

during a deposition, it is, pursuant to the Court’s authority under Arizona Rule of 

Civil Procedure, 26(c),

ORDERED:

1. Plaintiff is limited to deposing non-party witnesses Vanessa Losicco 

Cuevas and Edward Leiter and shall not question about their written preparation for 

trial, mental impressions, professional judgment, communications with supervisors, 
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prosecution policies, or any discussions between them, defense counsel for 

Defendants William Montgomery, Maricopa County, and the State of Arizona in their 

common legal interest, or any other privileged matter.

2. Plaintiff is limited to deposing non-party witnesses Vanessa Losicco 

Cuevas and Edward Leiter and shall not question Vanessa Losicco Cuevas and 

Edward Leiter about their discussions with other prosecutors, supervisors, and the 

public official who heads their office about policies, legal strategies, case strengths 

or weaknesses. As such, any questions regarding these consultations are 

privileged.

3. Plaintiff is limited to deposing non-party witnesses Vanessa Losicco 

Cuevas and Edward Leiter and shall not question them about or have them produce 

any documents that are pre-decisional and part of the deliberative process such as 

certain Maricopa County Attorney’s Office policies Defendant Montgomery has 

directed prosecutors and the office’s Custodian of Records not to produce absent a 

court’s entry of an appropriate order shielding the policies from public disclosure.

4. Plaintiff is limited to deposing non-party witnesses Vanessa Losicco 

Cuevas and Edward Leiter and shall not question Vanessa Losicco Cuevas and 

Edward Leiter about witness interviews, their mental processes, conclusions, legal 

theories, or communications in preparation for trial. Furthermore, Plaintiff is limited 

to deposing non-party witnesses Vanessa Losicco Cuevas and Edward Leiter and 

shall not question them about any reports prepared by legal or investigative staff, 
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including experts that Vanessa Losicco Cuevas and/or Edward Leiter retained in 

preparation of prosecution.

DATED this day of , 2017.

Honorable David Gass

Judge of the Superior Court
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Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

LAW OFFICE OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Suite B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie Merritt, Jr.

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff,

vs.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X.

Defendants.

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Case No.: CV2016-013436

PLAINTIFF’S MOTION TO 

QUASH SUBPOENA 

(Assigned to Hon David Gass)

(Oral Argument Requested)

Plaintiff Leslie Merritt, Jr., by and through counsel undersigned, hereby 

moves this Court to quash the subpoena ducus tecum that Defendant Maricopa 
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County/Bill Montgomery has had issued for service upon the Maricopa County 

Sheriff's Office. The subpoena is designed to discover privileged information 

between Merritt and members of his criminal defense team. Accordingly, Merritt 

urges this Court to quash the subpoena.

Memorandum of Points and Authorities

On January 3, 2017, Defendant's counsel had issued a subpoena duces tecum

to Maricopa County Sheriff's Office. (See Exhibit 1, attached). The subpoena 

demands that MCSO produce the following:

Any and all inmate phone recordings and video visitation 

from February 9, 2016 to April 19, 2016 for Leslie Merritt, 

Jr., T213901

Defendants' blanket request is designed to discover privileged information 

between Merritt and members of his criminal defense team. The subpoena makes 

no distinction between items that are subject to attorney-client privilege or workproduct privilege and those that are not. 

Defendants had Leslie Merritt, Jr. incarcerated in the Maricopa County Jails 

from approximate September 14, 2015 until his release on April 19, 2016. Curiously, 

Defendants' subpoena targets only a subset of inmate phone recordings and video 

visitations in possession of MCSO. However, privileged phone calls and visitations 

occurred throughout the incarceration, and should not be discoverable.

Conclusion

Any conversations between Merritt and his attorneys or their agents is subject 

to protection under attorney-client privilege and/or work-product privilege. Since 
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the subpoena clearly seeks privileged information, Plaintiff Leslie Merritt, Jr. seeks 

this Court's Order to Quash the Subpoena Duces Tecum dated January 3, 2017 to 

Maricopa County Sheriff's Office. 

DATED this 10th day of January, 2017.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/David J. Don

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.

The original of the foregoing was 

E-filed and Emailed this 10th day of January, 2017, to:

Michele Iafrate, Esq.

Iafrate & Associates

649 North Second Avenue

Phoenix, Arizona 85003

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

Edward F. Novak, Esq.

Melissa Ho, Esq.

Rebecca N. Cain, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

Email: enovak@polsinelli.com; mho@polsinelli.com, rcain@polsinelli.com

Attorneys for Defendant State of Arizona

By mail to: 

Maricopa County Sheriff's Office

Attention: Lisa Evans

5215 S. 39th Street

Phoenix, Arizona 85040

By: /s/David J. Don
Exhibit

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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-e775

Michele M. lafrate, #0151 15

m iafrate@ i afratelaw. com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

V.

STATE OF ARIZONA, a bodY Politic;

BILL MONTGOMERY, the elected

Maricopa County Attorney; MARICOPA

COUNTY, a body Politic; JOHN DOES

l-X; JANE DOES l-X; ABC

PARTNERSHIPS I-X and XYZ

CORPORATIONS I-X,

NO. CV2016-013436

SUBPOENA

(Assrgn ed to the Honorable

David Gass)

Defendants.

TO: Name: Maricopa Gounty Sheriffs Office

Attention: Lisa Evans

Address: 5215 S. 39th Street

City, State, Zip Code: Phoenix, Arizona 85040

1' I For Attendance of Witnesses at Hearing or Trial:

you ARE ORDERED TO APPEAR in the superior court of Arizona in Maricopa

@nty, at the time, date and time specified below to testify at a n Hearing

I]ii;fi;in" .rre named above, before: - ----.r I I

Judicial Officer:

(at) Address:

Floor:

Date:

Room #

Time:
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YOUR RIGHTS AND DUTIES CONGERNING THIS SUBPOENA FOLLOW.

2. t] For Taking of Depositions:

you ARE oRDERED TO AppEAR at the place, date and time specified below to

testify at the taking of a deposition in the case named above:

Place of Deposition:

(at) Address:

Floor:

Date:

Room #

Time:

Method of Recording:

SUBPOENA DUCES TECUM

3. tr For Production of Documentary Evidence or lnspection of Premises:

YOU ARE ORDERED to produce and permit inspection, copying, testing, or

sampling of the following designated documents, electronically stored information or

tangible things, or to permit inspection of premises at the place, date, and time

specified below:

Any and alt inmate phone recordings and video visitation from February 9,

2016 to April 19, 2016 for Leslie Merritt, Jr., T213901 .

[] TO BRING WITH YOU to the court proceeding or deposition listed above, OR

Place of Production or lnsPection:

(at) Address:

lafrate & Associate

649 N. 2nd Avenue

Phoenix. Arizona 85003

Floor: Room #

Date: Januarv 17, 20{7 Time:@

youR APPEARANCE tS NOT REQUIRED ff the items ordered to be produced

are delivered to the requesting party within the time allowed AND you are not

otherwise ordered to aPPear.

lssued this date:

EUS&'iorcourt ,5;;W
Your Duties in Respondins To This Subpoena*

*See Arizona Rules of Civil Procedure (A.R.C.P.), Rules 45(b), (c), and (e), and

Arizona Rules of Family Law Procedure (A.R.F.L.P.) Rule 52, and the "Your

Right to Object to this Subpoena" section below.

ATTENDANCE AT A TRIAL: If this subpoena commands you to appear at a

trlal, Vou must appear at the place, date and time designated in the subpoena

unless you file a timely motion with the court and the court quashes or

modifies the subpoena. Unless a court orders otherwise, you are required to

travet to any part of the state to attend and give testimony at a trial.

ATTENDANCE AT A HEARTNG OR DEPOSITION: tf this subpoena commands

Vou to appear at a hearing or deposition, you must appear at the place, date

and time designated in this subpoena unless either:

(1) you file a timely motion with the court and the court quashes or

modifies the subpoena; or

(2) you are not a party or a party's officer and this subpoena commands

you to travel to a place other than: (a) the county in which you reside or you

transact business in Person; or

(b) the county in which you were served with the subpoena or

within forty (40) miles from the place of service; or

(c) such other convenient place fixed by a court order.

pRoDucTIoN oF DoGUMENTARY EYIDENCE. TAN,GIBLE OBJECT. OE

wr pRrnalses: If this subpoena commands you to produce and

permit inspection, copying, testing or sampling of designated documents,

electronicatty stored information, or tangible things, you must make the items

availabte at the ptace, date and time designated in this subpoena, and in the

case of electronically stored information, in the form or forms requested,

unless you provide a good faith written objection to the party or aftorney who

seryed ttre subpoelta. Similarly, if this subpoena commands you to make

certain premises availabte for inspection, you must make the designated

premises avaitable for inspection on the date and time designated in this

subpoena unless you provide a good faith written objection to the party or

attorney who served the subPoena'

you should note that a command to produce certain designated materials, or

to permit the inspection of premises, may be combined with a command to

appear at a trial, hearing or deposition. You do not, however' need to appear

in person at the place of production or inspection unless the subpoena also

states that you must appear for and give testimony at a hearing, trial or

deposition.
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lf the subpoena commands you to produce documents, you have the duty to

produce the designated documents as they are kept by you in the usual

course of business, or you may organize the documents and label them to

correspond with the categories set forth in the subpoena.

YOUR RIGHT TO OBJEGT TO THIS SUBPOENA

Generally, if you have concerns or questions about this subpoena, you should first

contact the party or attorney who served the subpoena. The party or attorney

serving the subpoena has a duty to take reasonable steps to avoid imposing an

undue burden or expense on you. The superior court enforces this duty and may

impose sanctions upon the party or attorney serving the subpoena if this duty is

breached.

PROCEDURE FOR OBJECTING TO A SUBPOENA FOR ATTENDANCE AT A

HEARING, TRIAL OR DEPOSITION:

. You must file a motion to quash or modify the subpoena with the court

to obtain a court order excusing you from complying with this

subpoena.*

o The motion must be filed in superior court of the county in which the

case is pending or in the superior court of the county which the

subpoena was issued.*

. The motion must be fifed before the time specified for compliance or

within 14 days after the subpoena is served, whichever is earlier.*

. You must send a copy of any motion to quash or modify the subpoena

to the party or attorney who served the subpoena.

The court mustquash or modify a subpoena if . . ,

(1) if the subpoena does not provide a reasonable time for compliance;

(Z) the subpoena commands your attendance at a trial and if the subpoena

commands you to travel to a place other than:

(a) the county in which you reside or transact business in person;

(b) the county in which you were served with a subpoena, or within forty

(40) miles from the place of service; or

(c) such other convenient place fixed by a court order, or

(3) the subpoena requires disclosure of privileged or other protected

matter, if no exception or waiver applies; or

(4) the subpoena subjects you to undue burden.
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The Court MAY quash or modify a subpoena if. . .

(1) the subpoena requires you to disclose a trade secret or other

confidential research, development or commercial information;

(2) you are an unretained expert and the subpoena requires you to

disclose your opinion or information resulting form your study that you

have not been requested by any party to give on matters that are

specific to the dispute;

(3) you are not a party or a party's officer and the subpoena would

require you to incur substantial travel expense; or

(4) 

Xf"""n""f"l;:l[,'ff" 

that justice requires the subpoena to be

ln these last four circumstances, a court ffi?y, instead of quashing or

modifying a subpoena, order your appearance or order the production of

material under specified conditions if:

(1) the serving party or attorney shows a substantial need for the testimony or

material that cannot be othenrvise met without undue hardship; and

(2) tt your travel expenses or the expenses resulting form the production are

at issue, the court ensures that you will be reasonably compensated.

PROGEDURE FOR OBJECTING TO SUBPOENA FOR PRODUCTION OF

DOCUMENTARY EVIDENCE, RECORD, TANGIBLE OBJECT OR INSPECTION

OF PREMISES:

lf you wish to object to a subpoena commanding you to produce documents,

electronically stored information or tangible items, or to permit the inspection

of premises, you may send a good faith written objection to the party or

attorney serving the subpoena that obiects to:

(1) producing, inspecting, copying, testing or sampling any or all of the

materials designated in the subpoena;

(2) inspecting the premises; or producing electronically stored information in

the form or forms requested.

You must send your written objection to the party or attorney who

serued the subpoena before the time specified for compliance or within

14 days after the subpoena is served, whichever is earlier.
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lf you object because you claim the information requested is privileged, protected, or

subject to protection as trial preparation material, you must express the objection

clearly, and support each objection with a description of the nature of the document,

communication or item not produced so that the demanding party can contest the

claim.

lf you object to the subpoena in writing, you do not need to comply with the

subpoena until a court orders you to do so. lt will be up to the party or attorney

serving the subpoena to first personally consult with you and engage in good faith

efforts to resotve your objection and, if the objection cannot be resolved, to seek an

order from the court to compel you to provide the documents or inspection

requested, after providing notice to you.

lf you are not a party to the litigation, or a party's officer, the court will issue an order

to protect you from any significant expense resulting from the inspection and

copying commanded. See Rule as(cXGXB) of the Arizona Rules of Civil Procedure.

lnstead of sending a written objection to the party or attorney who served the

subpoena, you also have the option of raising your objections in a motion to quash

or modify the subpoena. See Rule a5(p)(2) of the Arizona Rules of Civil Procedure.

The procedure and grounds for doing so are described in the section above entitled

"procedure for Objecting to a Subpoena for Attendance at a Hearing, Trial or

Deposition."

lf the subpoena a/so commands your attendance at a hearing, trial or deposition,

sending a written objection to the party or attorney who served the subpoena does

not suspend or modify your obligation to attend and give testimony at the date, time

and place specified in the subpoena. See Rule 4s(cXSXAXiii) of the Arizona Rules

of Civit procedure. lf you wish to object to the portion of this subpoena requiring

your attendance at a hearing, trial or deposition, you must file a motion to quash or

modify the subpoena as described in the section above entitled "Procedure for

Objeciing to a Subpoena for Attendance al a Hearing, Trial or Deposition." See

Rule 45(bX5) and 4s(cXsxiii) of the Arizona Rules of Civil Procedure.

ADA Notification

Requests for reasonable accommodation for persons with disabilities must be

made to the office of the iudge or commissioner assigned to the case by the

parties at least ten (10) judicial days in advance of a scheduled court

proceeding.

I nterpreter Notification

Requests for an interpreter for persons with limited English proficiency must

be made to the office of the judge or commissioner assigned to the case by

the parties at least ten (10) judicial days in advance of a scheduled court

proceeding.
Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/18/2017 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2016-013436 01/17/2017

Docket Code 028 Form V000A Page 1

CLERK OF THE COURT

HONORABLE DAVID B. GASS L. Stogsdill

Deputy

LESLIE MERRITT JR. DAVID J DON

v.

STATE OF ARIZONA, et al. REBECCA N CAIN

MICHELE M IAFRATE

JASON D LAMM

MINUTE ENTRY

The court has received and reviewed the pending motions.

IT IS ORDERED Defendants’ responses to all pending motions shall be filed by 

January 20, 2017 and Plaintiff’s replies to all pending motions shall be filed by January 25, 

2017.

IT IS FURTHER ORDERED setting this matter for an in person Status Conference on 

January 27, 2017 at 2:30 p.m. (time allotted: 60 minutes.) The in person Status Conference is 

set before:

Honorable David Gass

East Court Building, Courtroom 514

101 West Jefferson Street

Phoenix, AZ 85003

(602) 372-3592
SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2016-013436 01/17/2017

Docket Code 028 Form V000A Page 2

The parties/attorneys are advised that the failure to appear for the hearing may 

result in sanctions, including dismissal of the action per Rule 16(F), Arizona Rules of Civil 

Procedure.

NOTE: This Court utilizes FTR for an electronic record of the proceedings. 

However, any party may request the presence of a court reporter by contacting this 

division three (3) court business days before the scheduled hearing.

NOTE: All court proceedings are recorded digitally and not by a court 

reporter. Pursuant to Local Rule 2.22, if a party desires a court reporter for any 

proceeding in which a court reporter is not mandated by Arizona Supreme Court Rule 30, 

the party must submit a written request to the assigned judicial officer at least ten (10) 

judicial days in advance of the hearing, and must pay the authorized fee to the Clerk of the 

Court at least two (2) judicial days before the proceeding. The fee is $140 for a half-day 

and $280 for a full day.

PLEASE NOTE: If/when a party files a pleading within 48 hours of a scheduled event, 

the party should also e-mail same to the Court’s Judicial Assistant at 

ldupuis@superiorcourt.maricopa.gov. and to fiskd@superiorcourt.maricopa.gov.

NOTE: COUNSEL SHALL UPLOAD AND E-FILE ALL PROPOSED ORDERS 

IN WORD FORMAT ONLY TO ALLOW FOR POSSIBLE MODIFICATIONS BY THE 

COURT. 

IMPORTANT NOTICE REGARDING ONLINE PROFILE

Judge Gass maintains an online profile that answers many questions about courtroom and 

division procedures. Litigants and their attorneys should familiarize themselves with the online 

profile. You can find the online profile at the following link:

https://www.superiorcourt.maricopa.gov/JudicialBiographies/judges/profile.asp?jdgID=2

60&jdgUSID=9111.
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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Rebecca N. Cain (#025604) 

rcain@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendant State of Arizona 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff, 

vs. 

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X, 

Defendants. 

Case No. CV2016-013436 

NOTICE OF WITHDRAWAL OF STATE 

OF ARIZONA’S MOTION TO STAY 

DEPOSITIONS AND MOTION TO QUASH 

NOTICES OF DEPOSITION PENDING 

JANUARY 27 STATUS CONFERENCE 

 (Assigned to the Honorable David Gass) 

 On January 17, 2017, the Court issued its Minute Entry Order setting a Status 

Conference for January 27, 2017. In light of that Order, the parties have agreed that Plaintiff 

will withdraw the notices of deposition that are the subject of the State’s Motion to Stay 

Depositions and Motion to Quash Notices of Deposition pending the Scheduling 

Conference. As such, the State’s Motion is now moot and is hereby withdrawn. The State 

anticipates discussing the orderly scheduling of depositions during the upcoming 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

K. Dyer, Deputy

1/18/2017 1:32:00 PM

Filing ID 8027362
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Scheduling Conference. 

 RESPECTFULLY SUBMITTED this 18th day of January, 2017. 

POLSINELLI PC 

By: /s/ Rebecca N. Cain 

Edward F. Novak 

Melissa Ho 

Rebecca N. Cain 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 

E-FILED this 18th day of January, 2017, 

with the Clerk of the Superior Court. 

COPY mailed this 18th day of January, 

2017, to: 

Jason D. Lamm 

Law Office of Jason Lamm 

6245 North 24th Pkwy., Ste. 208 

Phoenix, AZ 85016-2030 

(602) 222-9237 

jlamm@cyberlawaz.com

David J. Don 

Law Offices of David J. Don, PLLC 

301 E. Bethany Home Rd., Suite B-100 

Phoenix, AZ 85012 

(480) 948-1212 

david@azcivilrights.com 

Ulises A. Ferragut, Jr. 

The Ferragut Law Firm, P.C. 

2 North Central Avenue, Suite 1125 

Phoenix, AZ 85004 

(602) 324-5300 

Ulises@FerragutLaw.com

Attorneys for Plaintiff Leslie Merritt, Jr. 
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Michele M. Iafrate 

Iafrate & Associates 

649 North Second Avenue 

Phoenix, AZ 85003 

(602) 234-9775 

miafrate@iafratelaw.com 

Attorneys for Defendants, Maricopa County 

and William Montgomery 

By: /s/ Dawn M. Coppens 
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

DEFENDANTS MARICOPA 

COUNTY AND WILLIAM 

MONTGOMERY’S MOTION TO 

STRIKE

(Assigned to the Honorable

David Gass)

Defendants Maricopa County and William Montgomery (“MC Defendants”) 

respectfully move the Court to Strike Plaintiff’s Motion to Quash filed January 10, 

2017, pursuant to Arizona Rules of Civil Procedure, Rule 12(f). MC Defendants 

move to strike Plaintiff’s Motion to Quash for the following reasons: 1) Rule 45 

allows only persons to whom a subpoena is directed to object or move to quash a 

subpoena Ariz.R.Civ.P. 45(c)(5); and 2) Plaintiff is misinformed regarding both the 

information the MC Defendants seek and the telephone calls that the Maricopa 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

E. Hailes, Deputy

1/20/2017 4:56:00 PM

Filing ID 8036487
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County Sheriff’s Office records. MC Defendants support their Motion to Strike with 

the following Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

Pursuant to Arizona Rules of Civil Procedure, Rule 12(f), “the Court may strike 

from a pleading an insufficient defense or any redundant, immaterial, impertinent, or 

scandalous matter.” Here, Plaintiff Merritt’s Motion to Quash is not allowed pursuant 

to the Arizona Rules of Civil Procedure and therefore is immaterial and impertinent.

I. Plaintiff Merritt May not Move to Quash

Plaintiff Merritt moved to quash a subpoena not served or addressed to him. 

MC Defendants served a subpoena on Maricopa County Sheriff’s Office custodian 

of records employee Lisa Evans for recorded phone communications and video 

communications. (See January 3, 2017 Subpoena attached as Exhibit A). Pursuant 

to Rules of Civil Procedure, Rule 45(c)(5), the person who may object to the 

production of documents, is the person who is commanded to produce the 

documents. Here, the custodian at the Maricopa County Sheriff’s Office was the 

person who was commanded to produce the documents pursuant to the subpoena. 

Therefore, Maricopa County Sheriff’s Office, not Plaintiff, has the ability to object, 

which they did not.

II. Privileged Information was not Subpoenaed

Even if Plaintiff Merritt was the proper part to object to the subpoena, which 

he is not, Plaintiff is misinformed regarding the documents requested. MC 

Defendants requested those jail audio and video conversations that were recorded. 
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Maricopa County Sheriff’s Office does not record attorney-client conversations; 

therefore, no privileged attorney-client information could be produced. Further, if 

there were such recorded conversations, it would be the responsibility of the 

Maricopa County Sheriff’s Office to object and/or provide a privilege log. See

Ariz.R.Civ.P. 45. No such objection and/or privilege log is required because no such 

recordings exist to be produced.

III. Conclusion

For the foregoing reasons, Plaintiff Merritt’s Motion to Quash should be 

stricken and/or denied.

DATED this 20th day of January, 2017.

IAFRATE & ASSOCIATES

By: s/Michele M. Iafrate

Michele M. Iafrate

Attorneys for Defendants Maricopa 

County and William Montgomery

ORIGINAL of the foregoing e-filed

this 20th day of January, 2017, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003
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COPIES of the foregoing e-mailed via AZ Turbo

this 20th day of January, 2017, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing e-mailed and/or mailed

this 20th day of January, 2017, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff

Ulises A. Ferragut, Jr.

The Ferragut Law Firm, PC

2 North Central Ave., Ste. 1125

Phoenix, Arizona 85004

Attorney for Plaintiff

David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Edward F. Novak

Melissa Ho

Rebecca Cain

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: s/Tracy Cryan
EXHIBIT A






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Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

LAW OFFICE OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Suite B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie Merritt, Jr.

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff,

vs.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X.

Defendants.

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Case No.: CV2016-013436

PLAINTIFF’S RESPONSE IN 

OPPOSITION TO DEFENDANT

MARICOPA COUNTY AND 

WILLIAM MONTGOMERY'S 

MOTION FOR A PROTECTIVE 

ORDER, REQUST TO STAY, 

AND JOINDER IN STATE'S 

MOTION TO STAY 

DEPOSITIONS AND QUASH 

NOTICES OF DEPSOITIONS

(Assigned to Hon David Gass)

(Expedited Oral Argument 

Requested)
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A discovery privilege cannot work to effectively eliminate malicious 

prosecution as a cause of action all together. Arizona law permits plaintiffs to 

pursue claims for malicious prosecution where, as here, public officials have made 

wrongful accusations. Here, Defendants seek to limit the scope of permissible 

discovery so narrowly as to transform plaintiff's rights into meaninglessness. For 

these reasons, this Court should reject the Defendant's Motion for a Protective 

Order. Plaintiff incorporates by reference his Response to Defendant State of 

Arizona's Motion to Stay. 1 

Memorandum of Points and Authorities

I. Background

Defendant's Motion seeks to limit questioning of deputy county attorneys 

about "their written preparation for trial, mental impressions, professional 

judgment, communications with supervisors, prosecution policies, or any 

discussions between them, undersigned defense counsel and the State of Arizona in 

their common legal interest, or any other privileged matter." (Motion at p3:1:4). 

Since Defendants have failed to identify with any specificity the documents they seek 

to withhold or the specific harm they predict through disclosure, and further 

simultaneously seek to use a discovery privilege to effectively eliminate plaintiff's 

right to bring a claim for malicious prosecution, the motion for a protective order 

should be denied. 

 

1 The County incorrectly cites Local Rule 7.2, a local federal rule, as its source of 

authority.
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Defendants identify four primary arguments to limit discovery: (1) The 

deliberative process privilege; (2) Work-Product doctrine (3) Attorney-Client 

Privilege and (4) Common-Interest Doctrine. Plaintiff will address each in turn.

II. Standard of review for the motion.

In discovery matters, including rulings on assertion of the privilege, the trial 

judge has broad discretion that is reviewed only for abuse. See Brown v. Superior 

Court, 137 Ariz. 327, 331, 670 P.2d 725, 729 (1983). “The discretion, however, is a 

legal discretion. It includes the right to decide controverted factual issues, to draw 

inferences where conflicting inferences are possible and to weigh competing 

interests. It does not include the privilege of incorrect application of law or of a 

decision predicated upon irrational bases.” Id. at 332, 670 P.2d at 730 (emphasis 

added).

III. Discussion

A. Arizona Courts Have Never Recognized the Deliberative 

Process Privilege.

The deliberative process privilege is a federal common law privilege to a 

public records request made under the Freedom of Information Act. See Arizona 

Independent Redistricting Comn. v. Fields, 206 Ariz. 130, 141, 75 P.3d 1088, 1099 

(2003). The privilege protects from disclosure items reflecting intra-governmental 

information showing policymaking decisions. Id. The federal privilege has no 

application to the present case.
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First, Arizona courts have never recognized the privilege, even according to 

the case cited by Defendants. See Arizona Independent Redistricting Comn. v. 

Fields, 206 Ariz. 130, 141, 75 P.3d 1088, 1099 (2003)("noting Arizona courts have 

not passed on viability of deliberative process privilege"). Second, even if Arizona 

recognized the deliberative process privilege, it would have no application to these

facts because it governs legislative decision making; it does not address the subject 

matter of our case, which is the wrongful prosecution in a single case.

Defendant also suggest that the criminal prosecution against Mr. Merritt is 

"an ongoing investigation." (Motion at 3:16-17) and that discussion of the failed 

prosecution "will chill the forthright and candid discussion of ideas." Defendant's 

claim that the criminal prosecution against Mr. Merritt is ongoing is untrue. To 

provide protection from discovery, Defendant is required to produce some evidence 

of an ongoing criminal investigation, which they are unable to do. 

Similarly, Defendant's citation to Grimm v. The Arizona Bd of Pardons and 

Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977) is distinguishable. The plaintiff in 

Grimm sought to pursue a claim of gross negligence against members of the Board 

of Parole. Unlike the present case, which includes an element of malice, the Grimm

case did not place the defendants' mental state at issue. 

Further, Defendants suggest that a protective order might be warranted, 

prohibiting public disclosure of Maricopa County Attorney's Office Policies and 

Procedures. Plaintiff would agree to a protective order limiting public disclosure of 

Maricopa County Attorney's Office Policies and Procedures. Aside from this 
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limitation, the court should reject defendants' argument for a deliberative process 

privilege.

B. The Work-Product Privilege Has No Application in a Malicious 

Prosecution Case

Arizona's work-product rule 26(b)(3) provides in pertinent part:

Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) 

of this rule, a party may obtain discovery of documents and tangible things 

otherwise discoverable under subdivision (b)(1) of this rule and prepared in 

anticipation of litigation or for trial...".

The essence of the work-product privilege is that the party seeking the 

privilege must have a legitimate anticipation of litigation or a trial. In the context of 

a malicious prosecution claim, therefore, the work-product privilege has little if any 

application. Since the underlying criminal prosecution is defunct, there is generally 

no expectation of trial. In the present case, Defendants have failed in the underlying 

criminal case to produce any evidence to support its claim of an ongoing 

investigation. Therefore, the work-product privilege should not apply.

Moreover, even when the privilege might apply, the privilege is not absolute 

and remains subject to waiver. Materials are still subject to disclosure, 

notwithstanding a claim of work-product privilege, upon a showing of a "substantial 

need" and "undue hardship" exception to the work-product doctrine. Lumber 

Country, Inc. V. Superior Court of State in and For Mariocpa County, 155 Ariz. 98, 

745 P.2d 156 (App. 1987). In the present case, Defendant has failed to identify any 

particular material that it believes is subject to work-product privilege. The Court 

should thus reject this aspect of the motion. 
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Furthermore, Defendants have likely waived the privilege. Even where the 

privilege might apply, litigants cannot with one hand "wield the sword" by asserting 

as a defense that, as the law requires it made a reasonable investigation into the facts 

of Mr. Meritt's criminal liability, and with the other hand "raise the shield" that 

using a privilege to keep plaintiff from finding out what it actually did, learned, and 

did with results of that investigation. See State Farm Mutual Automobile Insurance 

Company v. Lee, 199 Ariz. 52, 58, 13 P.3d 1169, 1175(2011)(our courts have found 

reliance on a privilege unfair when used as both a sword and a shield"). Here, 

Defendants intend to assert as a defense a lack of malice and the existence of 

probable cause. It cannot simultaneously use the privilege to prevent discovery on 

these same issues. Therefore, the claim of work-product should be rejected. 

The cases cited by Defendant do not apply. In Dean v Superior Court in and 

For Mariocpa County, 84 Ariz. 104, 111-13(1958), the claim involved a privately 

retained attorney in an automobile case. It did not involve a prosecutor in a 

malicious prosecution case where state of mind is at issue. Likewise inapplicable is

State ex rel. Corbin v. Ybarra, 161 Ariz. 188 (1989), where the Court addressed 

work-product privilege involving documents of a retained expert, not information 

involving disclosed experts, such as those disclosed in the present case, including 

firearms examiners Haag, Murdock, and the ATF. 

Most courts from other jurisdiction that have addressed the issue recognize 

that work-product privilege has no application in subsequent civil litigation because 

the criminal case is dead. See Klein v. Jefferson Parish School Bd., 2003 WL 
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1873909, *2-3 (E.D.La. Apr. 10, 2003) (no work-product privilege applied in 

subsequent civil litigation where plaintiff sought district attorney’s written notes 

from plaintiff’s prior criminal investigation); Ostrowski v. Holem, 2002 WL 

31956039, at *3 (N.D.Ill. Jan. 21, 2002) (work product privilege did not apply; civil 

plaintiff could obtain production of prosecutorial files from her prior criminal 

prosecution); Carter v. City of Philadelphia, 2000 WL 632988, at *1-2 (E.D.Pa. 

May 5, 2000) (work product privilege did not apply where, during course of 

subsequent civil litigation, plaintiff sought documents generated in connection with 

the underlying but already-concluded criminal case); Hernandez v. Longini, 1997 

WL 754041, at *2 (N.D.Ill. Nov. 13, 1997) (plaintiff asserting a §1983 claim could 

obtain production of the prosecutor's criminal files from her prior prosecution; work 

product privilege did not apply); Doubleday v. Ruh, 149 F.R.D. 601, 606 

(E.D.Cal.1993) (no work-product privilege where the fruits of public prosecutor’s 

completed investigation became relevant to a subsequent civil litigation to which 

prosecutor was not a party); Schultz v. Talley, 152 F.R.D. 181, 185 (W.D. Mo.1993) 

(district attorney cannot assert work-product privilege because not a party to the 

present suit).

In short, Defendant has not made a sufficient showing to show that the work 

product doctrine applies in this case. The motion for protective order on this point 

should be denied.
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C. Defendants Fail to Make a Sufficient Showing that Attorney-Client 

Privilege Exists. 

For government lawyers, the attorney-client privilege applies only when the

communication is either (1) for the purpose of providing legal advice to the entity; 

or, (2) for the purpose of obtaining information to provide legal advice to the entity. 

A.R.S. ¶ 12–2234. Here, Defendant has failed to show how either of those 

applications apply to scenarios facing the deputy county attorneys in the present 

case. 

In Arizona, prosecutors are public servants; there is no client to protect: "The 

prosecutor does not represent the victim of a crime, the police, or any individual. 

Instead, the prosecutor represents society as a whole." State ex rel. Romley v. 

Superior Court in and For County of Maricopa, 181 Ariz. 378, 382, 891 Pl2d 246, 

250 (App. 1995)(internal citations omitted). Hence, the attorney-client privilege 

does not apply.

Moreover, even if the privilege applies it can be impliedly waived in cases 

similar to the present case. Burch & Cracchiolo, P.A. v. Myers, 237 Ariz. 369, 375, 

351 P.3d 376, 382 (App. 2015)(" Implied waiver can occur where a party advances a 

claim or affirmative defense premised upon otherwise privileged information, such 

as the reasonableness of its evaluation of the law, which directly relates to the heart 

of the litigation."). The Burch court further cited cases showing implied waiver of 

attorney-client privilege in cases involving a party's assertion of "good faith based 

upon its interpretation of the law" and "good faith immunity defense to civil rights 
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violations.") Here, Defendants are asserting a lack of malice and the existence of 

probable cause. These defenses go to the heart of the litigation, and their assertions 

constitutes a waiver of any attorney-client privilege.

D. The Common Interest Privilege Does Not Apply

The common interest privilege applies "where an occasion arises in which one 

is entitled to learn from his associates what is being done in a matter in which he 

has an interest in common with them.” Green Acres Trust v. London, 141 Ariz. 609, 

617, 688 P.2d 617, 625 (1984).(citations omitted). The court went on to describe 

how this privilege might apply to associates in a commercial enterprise. Id. 

Moreover, the "doctrine does not create a privilege, but is an exception to the rule 

that communications between a person and a lawyer representing another person 

are not privileged." Arizona Independent Redistricting Comn. v. Fields, 206 Ariz. 

130, 141, 75 P.3d 1088, 1099 (2003). 

Here, Defendants fail to provide any authority showing the application of the 

common interest privilege applies in the case of a malicious prosecution type claim 

against law enforcement. Moreover, Defendants seek to impermissibly piggy-back 

and expand on a statutory privilege of ARS § 12-2234 beyond the plain language of 

the statute. For these reasons, the Court should reject Defendants' motion for a 

protective order.

E. The Deputy County Attorneys are Considered Parties and 

Necessary Witnesses.
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The County argues that because it objects, the two noticed depositions of 

attorneys Leiter and Cuevas should not proceed. (Motion at p.4-5.) The State's 

argument should be rejected for two reasons. 

First, Ariz.R.Civ.P 30(a)(1) provides for the depositions of parties. Here, the 

State concedes that the depositions of the deputy county attorneys are for "two key 

party witnesses." (Motion at p.2:2). Further, the State's position the deponents are 

"two key party witnesses" is consistent with the only plausible reading of 

Ariz.R.Civ.P 30(a)(1) where, as here, the named defendants are corporate or 

governmental parties. In such cases, the provision of "party" should be read in 

conjunction with Ariz.R.Civ.P. 30(b)(6). 

The purpose of the rule limiting depositions is to encourage informal and less 

expensive witness interviews. However, where the acts of the employees of 

corporate adversaries give rise to the litigation, opposing counsel are precluded 

from direct contact with the employees. Lang v. Superior Court, In and For County 

of Maricopa, 170 Ariz. 602, 826 P.2d 1228 (App. 1992). As a result of this 

preclusion, the liability producing employees should be considered "parties" for 

purposes of Ariz.R.Civ.P. 30(a). See Danile J. McAuliffe, et. al., Arizona Practice 

Series, Civil Proc. Rule 30, Sect. 16.23 Oral Depositions. For this reason, the deputy 

county attorneys at issue should be considered parties for the purposes of 

Ariz.R.Civ.P. 30(a), and the State’s argument should be rejected.

Even if these deputy county attorneys were considered non-parties under the 

rule, they are central witnesses whose depositions should go forward. 
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Notwithstanding any objection from the State, good cause exists for permitting the 

depositions to proceed. Merritt's counsel are precluded under Lang from contacting 

these witnesses. The only plausible means of discovery is a deposition. A party’s 

objection to the deposition of a “key person” cannot be viewed as being made in 

good faith, and is legally insufficient to deny the taking of the deposition. 

Conclusion

For these reasons, Leslie Merritt, Jr. respectfully requests that the Court deny 

Defendants' Motion for a Protective Order. 

DATED this 20th day of January, 2017.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/David J. Don

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.

The original of the foregoing was 

E-filed and Emailed this 20th day of January, 2017, to:

Michele Iafrate, Esq.

Iafrate & Associates

649 North Second Avenue

Phoenix, Arizona 85003

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

Edward F. Novak, Esq.

Melissa Ho, Esq.

Rebecca N. Cain, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

Email: enovak@polsinelli.com; mho@polsinelli.com, rcain@polsinelli.com

Attorneys for Defendant State of Arizona
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By: /s/David J. Don
1 

55821005.1 

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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Rebecca N. Cain (#025604) 

rcain@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendant State of Arizona 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff, 

vs. 

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X, 

Defendants. 

Case No. CV2016-013436 

DEFENDANT STATE OF ARIZONA’S 

JOINDER IN DEFENDANTS MARICOPA 

COUNTY AND WILLIAM 

MONTGOMERY’S MOTION FOR A 

PROTECTIVE ORDER, REQUEST TO 

STAY, AND JOINDER IN STATE’S 

MOTION TO STAY DEPOSITIONS AND 

QUASH NOTICES OF DEPOSITION 

(Assigned to the Honorable David Gass) 

 To the extent the arguments set forth in Defendants Maricopa County and William 

Montgomery’s Motion for a Protective Order, Request to Stay, and Joinder in State’s 

Motion to Stay Depositions and Quash Notices of Deposition (the “Motion”) relate to 

interactions between those defendants and the State of Arizona or their counsel, the State 

hereby joins in the Motion and requests that the Court disallow Plaintiff from questioning 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

E. Hailes, Deputy

1/20/2017 4:03:00 PM

Filing ID 8036077
2 

55821005.1 

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witnesses Vanessa Losicco Cuevas and Edward Leiter about discussions between them and 

the State of Arizona or counsel in their common legal interest or about any other privileged 

matter. This request is made for the reasons set forth in the Motion. 

 RESPECTFULLY SUBMITTED this 20th day of January, 2017. 

POLSINELLI PC 

By: /s/ Rebecca N. Cain 

Edward F. Novak 

Melissa Ho 

Rebecca N. Cain 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 

E-FILED this 20th day of January, 2017, 

with the Clerk of the Superior Court. 

COPY mailed this 20th day of January, 

2017, to: 

Jason D. Lamm 

Law Office of Jason Lamm 

6245 North 24th Pkwy., Ste. 208 

Phoenix, AZ 85016-2030 

(602) 222-9237 

jlamm@cyberlawaz.com

David J. Don 

Law Offices of David J. Don, PLLC 

301 E. Bethany Home Rd., Suite B-100 

Phoenix, AZ 85012 

(480) 948-1212 

david@azcivilrights.com 

Ulises A. Ferragut, Jr. 

The Ferragut Law Firm, P.C. 

2 North Central Avenue, Suite 1125 

Phoenix, AZ 85004 

(602) 324-5300 

Ulises@FerragutLaw.com

Attorneys for Plaintiff Leslie Merritt, Jr. 
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55821005.1 

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Michele M. Iafrate 

Iafrate & Associates 

649 North Second Avenue 

Phoenix, AZ 85003 

(602) 234-9775 

miafrate@iafratelaw.com

Attorneys for Defendants, Maricopa County 

and William Montgomery 

By: /s/ Dawn M. Coppens 
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Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

LAW OFFICE OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Suite B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie Merritt, Jr.

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff,

vs.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X.

Defendants.

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Case No.: CV2016-013436

PLAINTIFF’S RESPONSE IN 

OPPOSITION TO DEFENDANT

MARICOPA COUNTY AND 

WILLIAM MONTGOMERY'S 

MOTION TO STRIKE

(Assigned to Hon David Gass)

(Expedited Oral Argument 

Requested)

Plaintiff Leslie Merritt, Jr., through counsel, responds in opposition to 
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Defendant Maricopa County and Montgomery's Motion to Strike filed January 20, 

2017. Defendants seek to strike Plaintiff's Motion to Quash Subpoena filed January 

10, 2017. The Motion to Strike should be denied because Merritt is authorized to 

object to a subpoena ducus tecum that seeks to discover privileged attorney-client 

communications. 

I. Merritt Is Entitled to Move to Quash the Subpoena

The Arizona Supreme Court has rejected Defendants' argument that a party

lacks standing to object to a subpoena directed to a non-party, instead holding that 

that "where a party can make a claim to some personal right to privilege in respect 

to the subject matter of a subpoena ducus tecum directed to a non-party witness the 

party has a right to contest the subpoena." Lipschultz v. Superior Court, In and For 

Maricopa County, 128 Ariz. 16, 19-20, 623 P.2d 805, 808-809 (1981)(citing 

MacDonald v. Hyder, 12 Ariz. App. 411, 417,471 P.2d 296, 302 (App. 1970)). 

Further, Ariz.R.Civ.P., 45(e)(2)(A)(iii) indicates that "on timely motion, the court in 

the county where the case is pending or from which a subpoena was issued must 

quash or modify a subpoena if it requires disclosure of privileged or other protected 

matter." 

Here, Merritt timely filed his Motion to Quash the Defendants' subpoena to 

the Maricopa County Sheriff's Office. Merritt's authority for objecting was the rule 

of Lipschultz v. Superior Court, In and For Maricopa County. His objection is 

based on an assertion of his personal right to the attorney-client privilege governing 
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his communications with his attorneys and their assistants. It was those 

communications that are covered by the broad language of Defendants' subpoena. 

Accordingly, the court should find that Merritt has standing to move to quash the 

subpoena, and issue an order under Ariz.R.Civ.P 45 to quash or modify the 

subpoena. 

II. The Subpoena Seeks Attorney-Client Privileged Information.

Defendants' subpoena fails to distinguish between privileged and nonprivileged conversations involving Merritt. It is a blanket attempt to discover all 

communications involving Merritt during certain periods of confinement in the 

Maricopa County Jails. Contrary to Defendants' suggestion, the attorney-client 

privilege is not a privilege that is held by the recipients of the subpoena ducus tecum, 

the Maricopa County Sheriff's Office. Accordingly, Merritt would be neither 

justified nor required to rely on the skill of the Maricopa County Sheriff's Office to 

correctly identify which conversations are subject to privilege and which may be 

discoverable. Defendants' subpoena is simply too broadly worded, and includes 

within it attorney-client privileged information. 

III. Conclusion

For these reasons, Leslie Merritt, Jr. respectfully requests that the Court deny 

Defendants' Motion to Strike, and issue an order to quash or modify the subpoena 

ducus tecum. 
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DATED this 23rd day of January, 2017.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/David J. Don

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.

The original of the foregoing was 

E-filed and Emailed this 23rd day of January, 2017, to:

Michele Iafrate, Esq.

Iafrate & Associates

649 North Second Avenue

Phoenix, Arizona 85003

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

Edward F. Novak, Esq.

Melissa Ho, Esq.

Rebecca N. Cain, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

Email: enovak@polsinelli.com; mho@polsinelli.com, rcain@polsinelli.com

Attorneys for Defendant State of Arizona

By: /s/David J. Don
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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Rebecca N. Cain (#025604) 

rcain@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendant State of Arizona 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff, 

vs. 

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X, 

Defendants. 

Case No. CV2016-013436 

STATE OF ARIZONA’S ANSWER 

(Assigned to the Honorable David Gass) 

 For its Answer to Plaintiff’s Complaint, Defendant State of Arizona (“the State”) 

hereby admits, denies, and alleges as follows: 

1. The State admits the allegations set forth in Paragraph 1 of the Complaint. 

2. As to Paragraph 2 of the Complaint, the State admits that Plaintiff served a 

timely notice of claim pursuant to A.R.S. § 12-821.01 but denies the remaining allegations 

set forth in Paragraph 2. 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

K. Dyer, Deputy

1/23/2017 5:08:00 PM

Filing ID 8040359
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3. The State admits the allegations set forth in Paragraph 3 of the Complaint. 

4. The State admits that venue in this Court is proper. 

5. Paragraph 5 of the Complaint requires no response. 

6. The State admits the allegations set forth in Paragraph 6 of the Complaint 

upon information and belief. 

7. The State’s responsibility and authority over the Arizona Department of 

Public Safety and the DPS Regional Crime Lab are set forth in statutes and regulations. To 

the extent the allegations in Paragraph 7 are inconsistent with those statutes and regulations, 

the State denies them. 

8. As to Paragraph 8 of the Complaint, Plaintiff makes no allegation against the 

State. To the extent any allegation against the State is found in Paragraph 8, the State denies 

any such allegation. 

9. As to Paragraph 9 of the Complaint, Plaintiff makes no allegation against the 

State. To the extent any allegation against the State is found in Paragraph 9, the State denies 

any such allegation. 

10. Paragraph 10 of the Complaint requires no response. To the extent any 

response is required, the State denies the allegations set forth in Paragraph 10 of the 

Complaint. 

11. Paragraph 11 of the Complaint requires no response. To the extent any 

response is required, the State denies the allegations set forth in Paragraph 11 of the 

Complaint. 

12. The Arizona Department of Public Safety operates pursuant to statute and 

regulation. To the extent Paragraph 12 is inconsistent with those statutes and regulations, 

the State denies the allegations. 

13. As to Paragraph 13 of the Complaint, the State admits that, in the summer of 

2015, the State of Arizona, through the Department of Public Safety, investigated a series of 

shootings that occurred along or near the I-10 freeway in Phoenix, Arizona. The State 

denies the remainder of the allegations set forth in Paragraph 13. 
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14. As to Paragraph 14 of the Complaint, the State admits that DPS retrieved 

bullets and/or bullet fragments from four separate shooting incidents. The State denies the 

remainder of the allegations set forth in Paragraph 14. 

15. As to Paragraph 15 of the Complaint, the State is without sufficient 

information to confirm or deny the allegations set forth therein and therefore denies the 

same. 

16. As to Paragraph 16 of the Complaint, the State is without sufficient 

information to confirm or deny the allegations set forth therein and therefore denies the 

same. 

17. As to Paragraph 17 of the Complaint, the State is without sufficient 

information to confirm or deny the allegations set forth therein and therefore denies the 

same. 

18. As to Paragraph 18 of the Complaint, the State is without sufficient 

information to confirm or deny the allegations set forth therein and therefore denies the 

same. 

19. The State denies the allegations set forth in Paragraph 19 of the Complaint. 

20. The State denies the allegations set forth in Paragraph 20 of the Complaint. 

21. The State admits the allegations set forth in Paragraph 21 of the Complaint. 

22. The State admits the allegations set forth in Paragraph 22 of Plaintiff’s 

Complaint. 

23. The State admits the allegations set forth in Paragraph 23 of Plaintiff’s 

Complaint. 

24. The State admits the allegations set forth in Paragraph 24 of the Complaint. 

25. The State admits that the case described in Plaintiff’s Complaint received 

significant public and media attention but denies the remaining allegations of Paragraph 25. 

26. As to Paragraph 26 of the Complaint, the State admits that DPS personnel 

were working diligently on the investigation. The State denies the remaining allegations as 

they are stated in Paragraph 26. 
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27. The State denies the allegations set forth in Paragraph 27 as they are stated in 

the Complaint. 

28. The State denies the allegations set forth in Paragraph 28 of the Complaint. 

29. As to Paragraph 29 of the Complaint, the State admits that Detective Graff 

received knowledge of computerized information related to pawned merchandise. The 

State denies the remaining allegations of Paragraph 29. 

30. The State admits the allegations of Paragraph 30. 

31. As to Paragraph 31 of the Complaint, the State admits that Detective Graff 

sought permission to use the database for investigative purposes. The State denies the 

remaining allegations of Paragraph 31. 

32. As to Paragraph 32 of the Complaint, Paragraph 32 is vague and ambiguous. 

The State admits that Sgt. Mapp authorized the use of the database for investigative 

purposes. The State denies the remaining allegations as set forth in Paragraph 32. 

33. The State is without sufficient information to confirm or deny the allegations 

of Paragraph 33. 

34. As to Paragraph 34 of the Complaint, The State admits that the database 

contained information on various handguns, but denies the remaining allegations set forth in 

Paragraph 34 of the Complaint. 

35. The State denies the allegations set forth in Paragraph 35 of the Complaint. 

36. As to Paragraph 36 of the Complaint, the State affirmatively alleges that the 

subject records speak for themselves. The State denies all remaining allegations as set forth 

in Paragraph 36. 

37. The State is without sufficient information to confirm or deny the allegations 

of Paragraph 37 of the Complaint. 

38. As to Paragraph 38 of the Complaint, the State admits it reviewed Plaintiff’s 

Facebook page and that Plaintiff had shared articles related to the shootings that were the 

subject of its investigation. The State denies the remaining allegations as set forth in 

Paragraph 38. 
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39. The State denies the allegations set forth in Paragraph 39 of the Complaint. 

40. The State denies the allegations set forth in Paragraph 40 of the Complaint. 

41. The State denies the allegations set forth in Paragraph 41 of the Complaint. 

42. The State denies the allegations set forth in Paragraph 42 of the Complaint. 

43. As to Paragraph 43 of the Complaint, the State is without sufficient 

information to confirm or deny the allegations set forth therein and therefore denies the 

same. 

44. The State denies the allegations set forth in Paragraph 44 of the Complaint. 

45. The State denies the allegations set forth in Paragraph 45 of the Complaint. 

46. The State denies the allegations set forth in Paragraph 46 of the Complaint. 

47. The State denies the allegations set forth in Paragraph 47 of the Complaint. 

48. The State denies the allegations set forth in Paragraph 48 of the Complaint. 

49. The State denies the allegations set forth in Paragraph 49 of the Complaint. 

50. The State admits the allegations set forth in Paragraph 50 of the Complaint. 

51. The State denies the allegations set forth in Paragraph 51 of the Complaint. 

52. The State denies the allegations set forth in Paragraph 52 of the Complaint. 

53. The State denies the allegations set forth in Paragraph 53 of the Complaint. 

54. The State denies the allegations set forth in Paragraph 54 of the Complaint. 

55. The State denies the allegations set forth in Paragraph 55 of the Complaint. 

56. The State denies the allegations set forth in Paragraph 56 of the Complaint. 

57. As to the allegations set forth in Paragraph 57 of the Complaint, the State 

admits it conducted a second interview of the driver of the BMW involved in one of the 

shooting incidents. The State denies the remainder of the allegations set forth in Paragraph 

57. 

58. The State denies the allegations set forth in Paragraph 58 of the Complaint. 

59. The State denies the allegations set forth in Paragraph 59 of the Complaint. 

60. The State denies the allegations set forth in Paragraph 60 of the Complaint. 

61. As to Paragraph 61 of the Complaint, the State contends that the allegation is 
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vague and not susceptible to an accurate answer and therefore denies the same. 

62. The State denies the allegations set forth in Paragraph 62 of the Complaint. 

63. The State denies the allegations set forth in Paragraph 63 of the Complaint. 

64. The State denies the allegations set forth in Paragraph 64 of the Complaint. 

65. As to Paragraph 65 of the Complaint, Plaintiff makes no allegation against the 

State. To the extent any allegation against the State is found in Paragraph 65, the State is 

without sufficient information to confirm or deny the allegations set forth therein and 

therefore denies the same. 

66. As to Paragraph 66 of the Complaint, Plaintiff makes no allegation against the 

State. To the extent any allegation against the State is found in Paragraph 66, the State is 

without sufficient information to confirm or deny the allegations set forth therein and 

therefore denies the same. 

67. As to Paragraph 67 of the Complaint, the State admits that Department of 

Public Safety officers interviewed Plaintiff on September 18, 2015. The State denies the 

remaining allegations of Paragraph 67. 

68. As to Paragraph 68 of the Complaint, the State is without sufficient 

information to admit or deny the allegations set forth in Paragraph 68 of the Complaint and 

therefore denies same. 

69. At to Paragraph 69 of the Complaint, the State admits that Plaintiff was 

directed to lie down in a parking lot. The State denies the remaining allegations as set forth 

in Paragraph 69. 

70. As to Paragraph 70 of the Complaint, the State is without sufficient 

information to admit or deny the allegations set forth in Paragraph 70 of the Complaint and 

therefore denies same. 

71. The State denies the allegations set forth in Paragraph 71 of Plaintiff’s 

Complaint. 

72. The State admits that it transported Plaintiff, but denies the remaining 

allegations of Paragraph 72 of the Complaint. 
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73. The State admits it interviewed Plaintiff for over an hour but denies the 

remaining allegations of Paragraph 73 of the Complaint. 

74. The State admits the allegations set forth in Paragraph 74 of the Complaint. 

75. The State denies the allegations set forth in Paragraph 75 of the Complaint. 

76. As to Paragraph 76 of the Complaint, the State is without sufficient 

information to confirm or deny the allegations set forth therein and therefore denies the 

same. 

77. As to Paragraph 77 of the Complaint, the State admits that Plaintiff did not 

request a lawyer. The State denies the remaining allegations set forth in Paragraph 77 of the 

Complaint. 

78. As to Paragraph 78 of the Complaint, the State admits that Plaintiff was taken 

into custody at a Maricopa County Jail known as the 4th Avenue Jail, where he remained for 

over two hundred days. The State denies the remaining allegations set forth in Paragraph 

78. 

79. The State denies the allegations set forth in Paragraph 79 of the Complaint. 

80. The State admits the allegations set forth in Paragraph 80 of the Complaint. 

81. The State denies the allegations set forth in Paragraph 81 of Plaintiff’s 

Complaint. 

82. As to Paragraph 82 of the Complaint, the State admits that Plaintiff was 

arrested without a warrant. The State admits that the Maricopa County Attorney’s Office 

presented the case to the Grand Jury. The State affirmatively alleges the Grand Jury 

returned a true bill. Defendants deny the remaining allegations set forth in Paragraph 82 of 

the Complaint. 

83. As to Paragraph 83 of the Complaint, Plaintiff makes no allegation against the 

State. To the extent any allegation against the State is found in Paragraph 83, the State 

denies any such allegation. 

84. The State denies the allegations set forth in Paragraph 84 of the Complaint. 

85. The State denies the allegations set forth in Paragraph 85 of the Complaint. 
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86. To the extent Paragraph 86 contains any allegations directed at the 

State, the State denies those allegations. 

87. To the extent Paragraph 87 contains any allegations directed at the State, the 

State denies those allegations. 

88. To the extent Paragraph 88 contains any allegations directed at the State, the 

State denies those allegations. 

89. To the extent Paragraph 89 contains any allegations directed at the State, the 

State denies those allegations. 

90. As to Paragraph 90 of the Complaint, Plaintiff makes no allegation against the 

State. To the extent any allegation against the State is found in Paragraph 90, the State 

denies any such allegation. 

91. As to Paragraph 91 of the Complaint, the State denies that the DPS crime lab 

had “botched” the identification. The remaining allegations of Paragraph 91 are not directed 

at the State and the State therefore denies the same. 

92. The State admits that Maricopa County retained Lucien C. Haag. The State 

denies the remaining allegations set forth in Paragraph 92 of the Complaint. 

93. The State admits the allegations set forth in Paragraph 93 of the Complaint. 

94. As to Paragraph 94 of the Complaint, the State admits that Mr. Haag reviewed 

the DPS criminalists’ work and conducted his own investigation. The State denies the 

remaining allegations set forth in Paragraph 94. The State affirmatively alleges the results 

of Mr. Haag’s investigation were “inconclusive”. 

95. The State admits that Haag issued a report on or about April 14, 2016. The 

State denies the remaining allegations set forth in Paragraph 95. 

96. The State admits the allegations set forth in Paragraph 96 of the Complaint. 

97. The State admits the allegations set forth in Paragraph 97 of the Complaint 

and further affirmatively alleges that the motion to dismiss was filed without prejudice. 

98. The State admits the allegations set forth in Paragraph 98 of the Complaint 

and further affirmatively alleges that the dismissal was entered without prejudice. 
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99. As to Paragraph 99 of the Complaint, the State admits that DPS requested the 

Bureau of Alcohol, Tobacco, and Firearms (“ATF”) to test Merritt’s firearm and the 

evidentiary bullets. The State affirmatively alleges that ATF found limited or insufficient 

marks of value for comparison. The State further affirmatively alleges that the lab report 

completed by the Bureau of Alcohol, Tobacco, and Firearms was dated after the dismissal 

described at Paragraph 98 of the Complaint. The State denies all remaining allegations of 

Paragraph 99 of the Complaint. 

100. The State denies the allegations set forth in Paragraph 100 of the Complaint. 

101. The State denies the allegations set forth in Paragraph 101 of the Complaint. 

102. The State denies the allegations set forth in Paragraph 102 of the Complaint. 

103. As to Paragraph 103 of the Complaint, Plaintiff makes no allegation against 

the State. To the extent any allegation against the State is found in Paragraph 103, the State 

denies any such allegation. 

104. The State admits, denies, and alleges as set forth above. 

105. Paragraph 105 of Plaintiff’s Complaint requires no response. To the extent a 

response is required, the State denies the allegations set forth at Paragraph 105. 

106. The State admits the allegations set forth in Paragraph 106 of the Complaint. 

The State affirmatively alleges that the arrest was founded in probable cause. 

107. The State denies the allegations set forth in Paragraph 107 of the Complaint. 

108. The State denies the allegations set forth in Paragraph 108 of the Complaint. 

109. The State denies the allegations set forth in Paragraph 109 of the Complaint. 

110. The State admits, denies, and alleges as set forth above. 

111. Paragraph 111 of Plaintiff’s Complaint requires no response. To the extent a 

response is required, the State denies the allegations set forth at Paragraph 111. 

112. The State denies the allegations set forth in Paragraph 112 of the Complaint. 

113. As to Paragraph 113 of the Complaint, the State admits that Plaintiff was 

imprisoned. The State denies the remaining allegations set forth in Paragraph 113 of the 

Complaint. The State affirmatively alleges that the imprisonment was founded in probable 
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cause. 

114. The State denies the allegations set forth in Paragraph 114 of the 

Complaint. 

114. The State admits, denies, and alleges as set forth above. 

115. Paragraph 115 of Plaintiff’s Complaint requires no response. To the extent a 

response is required, the State denies the allegations set forth at Paragraph 115. 

116. The State admits the allegations set forth in Paragraph 116 of the Complaint 

but affirmatively alleges that the prosecution was founded in probable cause. 

117. The State denies the allegations set forth in Paragraph 117 of the Complaint. 

118. The State denies the allegations set forth in Paragraph 118 of the Complaint. 

119. The State denies the allegations set forth in Paragraph 119 of the Complaint. 

120. The State denies the allegations set forth in Paragraph 120 of the Complaint. 

121. The State admits, denies, and alleges as set forth above. 

122. Paragraph 122 of Plaintiff’s Complaint requires no response. To the extent a 

response is required, the State denies the allegations set forth at Paragraph 122. 

123. The State denies the allegations set forth in Paragraph 123 but affirmatively 

alleges a duty to all individuals in the State of Arizona. 

124. The State denies the allegations set forth in Paragraph 124 of the Complaint. 

125. The State denies the allegations set forth in Paragraph 125 of the Complaint. 

126. The State admits, denies, and alleges as set forth above. 

127. Paragraph 127 of Plaintiff’s Complaint requires no response. To the extent a 

response is required, the State denies the allegations set forth at Paragraph 127. 

128. The State denies the allegations set forth in Paragraph 128 of the Complaint. 

129. The State denies the allegations set forth in Paragraph 129 of the Complaint. 

130. The State denies the allegations set forth in Paragraph 130 of the Complaint. 

131. The State denies the allegations set forth in Paragraph 131 of the Complaint. 

132. The State admits, denies, and alleges as set forth above. 

133. The State denies the allegations set forth in Paragraph 133 of the Complaint. 
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134. Paragraph 134 of Plaintiff’s Complaint requires no response. To the extent a 

response is required, the State denies the allegations set forth at Paragraph 134. 

135. The State denies the allegations set forth in Paragraph 135 of the Complaint. 

136. The State denies the allegations set forth in Paragraph 136 of the Complaint. 

137. The State denies the allegations set forth in Paragraph 137 of the Complaint. 

138. The State denies the allegations set forth in Paragraph 138 of the Complaint. 

139. The State denies the allegations set forth in Paragraph 139 of the Complaint. 

140. The State denies the allegations set forth in Paragraph 140 of the Complaint. 

AFFIRMATIVE DEFENSES 

The State sets forth the following affirmative defenses and reserves the right to 

supplement these affirmative defenses based on information learned during discovery: 

1. The State asserts that Plaintiff’s Complaint fails to state a claim for which 

relief can be granted against it. 

2. The State asserts that Plaintiff’s Notice of Claim is deficient, which bars all 

claims against the State. 

3. The State asserts that Plaintiff’s damages, if any, were wholly or partially 

caused by Plaintiff’s own actions or the actions of other parties or non-parties. 

4. The State asserts that Plaintiff assumed the risk. 

5. The State asserts that it is entitled to absolute immunity and/or qualified 

immunity pursuant to A.R.S. §§ 12-820.01 and 12-820.02. 

6. That State asserts that the State is entitled to other immunities pursuant to 

A.R.S. § 12-820.05. 

7. The State asserts that Plaintiff’s claims are barred by A.R.S. §12-712. See 

also Restatement of Torts § 657. 

8. The State asserts that reasonable suspicion and probable cause existed for the 

arrest, detention, and prosecution of Plaintiff. 

9. The State asserts that Plaintiff is not entitled to punitive or exemplary 

damages pursuant to A.R.S. § 12-820.04. 
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10. Discovery has not begun in earnest in this case and therefore the State alleges 

that additional facts may be revealed by future discovery which supports affirmative 

defenses presently available to, but not known, by the State. Accordingly, on information 

and belief, the State hereby asserts each and every affirmative defense set forth in Rules 

8(c) and 12, Arizona Rules of Civil Procedure, including, but in no way limited to, accord 

and satisfaction, statute of limitations, estoppel, collateral estoppel, res judicata, fraud, 

failure of consideration, laches, payment, release, lack of privity, statute of frauds, and 

waiver, in order that they not be deemed waived. 

JURY DEMAND

The State makes a demand for a Jury Trial. 

WHEREFORE, having fully answered Plaintiff’s Complaint, the State requests 

entry of judgment as follows: 

A. Plaintiff’s Complaint be dismissed with prejudice as to the State and that 

Plaintiff takes nothing thereby; 

B. That the State be awarded its costs and reasonable attorneys’ fees incurred 

herein pursuant to applicable Arizona law including but not limited to A.R.S. § § 12-349 

and Rules 11 and 37, Arizona Rules of Civil Procedure; and 

C. For such other relief as this Court deems appropriate under the circumstances. 

RESPECTFULLY SUBMITTED this 23rd day of January, 2017. 

POLSINELLI PC 

By: /s/ Rebecca N. Cain 

Edward F. Novak 

Melissa Ho 

Rebecca N. Cain 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 
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55779667.2 

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E-FILED this 23rd day of January, 2017, 

with the Clerk of the Superior Court. 

COPY mailed this 23rd day of January, 

2017, to: 

Jason D. Lamm 

Law Office of Jason Lamm 

6245 North 24th Pkwy., Ste. 208 

Phoenix, AZ 85016-2030 

(602) 222-9237 

jlamm@cyberlawaz.com

David J. Don 

Law Offices of David J. Don, PLLC 

301 E. Bethany Home Rd., Suite B-100 

Phoenix, AZ 85012 

(480) 948-1212 

david@azcivilrights.com 

Ulises A. Ferragut, Jr. 

The Ferragut Law Firm, P.C. 

2 North Central Avenue, Suite 1125 

Phoenix, AZ 85004 

(602) 324-5300 

Ulises@FerragutLaw.com

Attorneys for Plaintiff Leslie Merritt, Jr. 

Michele M. Iafrate 

Iafrate & Associates 

649 North Second Avenue 

Phoenix, AZ 85003 

(602) 234-9775 

miafrate@iafratelaw.com 

Attorneys for Defendants, Maricopa County 

and William Montgomery 

By: /s/ Dawn M. Coppens 
Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/26/2017 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2016-013436 01/25/2017

Docket Code 073 Form V000A Page 1

CLERK OF THE COURT

HONORABLE DAVID B. GASS L. Stogsdill

Deputy

LESLIE MERRITT JR. DAVID J DON

v.

STATE OF ARIZONA, et al. REBECCA N CAIN

MICHELE M IAFRATE

JASON D LAMM

ULISES FERRAGUT JR.

MOTION WITHDRAWN

Pursuant to a Notice of Withdrawal of the State of Arizona’s Motion to Stay Depositions 

and Motion to Quash Notices of Depositions, filed on January 18, 2017,

IT IS ORDERED that said Motion, filed on January 18, 2017, is considered withdrawn 

and no further action will be taken by the court.
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LAW OFFICES OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Tel: 480.948.1212

Fax: 480.696.7756

Email: david@azcivilrights.com

David J. Don, Esq. (#016462)

Attorneys for Plaintiff Leslie Merritt, Jr.

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE MARICOPA COUNTY

LESLIE MERRITT, JR., an individual,

Plaintiff,

vs.

STATE OF ARIZONA, et. al.

Defendants.

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Case No.: CV2016-013436

PLAINTIFF'S ADDENDUM TO 

JOINT REPORT OF 01/10/17

(Assigned to Hon. David Gass)

Plaintiff, Leslie Merritt, Jr., through counsel, submits the following separate 

addendum to the parties' Joint Report in preparation for the Rule 16 Scheduling Conference 

set for Friday, January 27, 2017, at 2:30 p.m. Plaintiff seeks to add the following item, at 

paragraph 14, entitled "Items Upon Which the Parties Do Not Agree":

* Defendants Maricopa County and Montgomery have failed to timely respond or 

object to plaintiff's discovery requests. On November 18, 2016, Plaintiff propounded to 

these defendants his First Request for Production of Documents. The Response was due 

January 2, 2017. Defendants failed to respond or object and provide a privilege log. On 

January 10, 2017, Plaintiff emailed defense counsel Michele Iafrate to resolve the discovery

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

E. Hailes, Deputy

1/25/2017 11:10:00 AM

Filing ID 8045979
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dispute. On January 13, 2017, Ms. Iafrate emailed back that she believes a protective order 

is necessary before responding. 

DATED this of 25th day of January, 2017.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

LAW OFFICES OF JASON LAMM

By: /s/David J. Don 

David J. Don

Attorneys for Plaintiff Leslie Merritt, Jr.

The original of the foregoing was 

E-filed and Emailed this 23rd day of January, 2017, to:

Michele Iafrate, Esq.

Iafrate & Associates

649 North Second Avenue

Phoenix, Arizona 85003

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

Edward F. Novak, Esq.

Melissa Ho, Esq.

Rebecca N. Cain, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

Email: enovak@polsinelli.com; mho@polsinelli.com, rcain@polsinelli.com

Attorneys for Defendant State of Arizona

Hon. David Gass

Ms. Lena Dupuis

Email: ldupuis@superiorcourt.maricopa.gov

By: /s/David J. Don
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

DEFENDANTS MARICOPA 

COUNTY AND WILLIAM 

MONTGOMERY’S REPLY IN 

SUPPORT OF THEIR MOTION 

FOR A PROTECTIVE ORDER, 

REQUEST TO STAY, AND 

JOINDER IN STATE’S MOTION 

TO STAY DEPOSITIONS AND 

QUASH NOTICES OF 

DEPOSITION

(Assigned to the Honorable

David Gass)

Plaintiff’s Response opposing Maricopa County and William Montgomery’s 

Motion (“County Defendants”) for a Protective Order, Request to Stay, and Joinder 

in the State’s Motion to Stay Depositions and Quash Notices of Deposition fails 

because: 1) Plaintiff fails to cite persuasive authority that would allow him to 

circumvent the rules and depose Mr. Leiter and Ms. Losicco Cuevas who are not

parties to the lawsuit; 2) Plaintiff merely states that “good cause exists for permitting 

the deposition to proceed” yet, Plaintiff fails to identify any good cause; and 3) 
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Plaintiff still fails to disclose the purpose and substance of testimony he seeks from 

Ms. Losicco Cuevas and Mr. Leiter, thus evidencing the need for a protective order 

to protect the privileges that County Defendants identified in their motion (work 

product, deliberative process, common defense, and attorney-client).

I. LAW AND ARGUMENT

A. The Plain Meaning Rule Supports the County Defendants’ 

Argument.

The language in Rule 30(a) is clear and unambiguous. Only parties, experts, 

and custodians of records may be deposed as a matter of right once an action 

commences. Ariz. R. Civ. P. 30(a). Arizona courts interpret court rules according to 

the principles of statutory construction. Bolding v. Hantman, 214 Ariz. 96, 148 P.3d 

1169, 1173 (App.2006). “If the language is clear and unambiguous, we give effect 

to that language and do not employ other methods of . . . construction.” Fragoso v. 

Fell, 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030 (App.2005). In his Response, Plaintiff 

asserts that the words “party” and “witness” are interchangeable. (Response at 

10:5-12). The rule does not include the terms “key witnesses” or “central witnesses” 

as those whom a party may depose. Ariz. R. Civ. P. 30(a). Alternatively, Plaintiff 

urges the Court to allow the depositions of non-parties Losicco Cuevas and Leiter, 

arguing that the rule’s purpose is to encourage less expensive and informal witness 

interviews. (Response at 10:13-14). Yet, Plaintiff’s actions belie his argument. 

Plaintiff has not sought to conduct informal witness interviews or agreed to a 

protective order to facilitate such interviews. (See State’s Motion to Stay at 2:15-
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19). Instead, Plaintiff formally noticed Ms. Losicco Cuevas and Mr. Leiter’s 

depositions.

Furthermore, although Plaintiff states that good cause exists for him to 

depose the two prosecutors, Plaintiff does not explain what the good cause is nor 

does he cite to any persuasive authority for his assertion. Therefore, where Plaintiff 

has invoked Rule 30 procedures, the Court should order Plaintiff to abide by them 

and confine his depositions to parties only.

B. A Protective Order is Necessary Should the Court Allow the 

Depositions.

In Plaintiff’s Response, he argues that the Court should not grant a protective 

order because “Defendants have failed to identify with any specificity the documents 

they seek to withhold or the specific harm they predict through disclosure. . .” 

Plaintiff is correct that in Defendants’ motion they did not specifically identify any 

documents they seek to withhold. This is because Plaintiff has not been 

forthcoming as to what documents they may seek or what areas they would

question Ms. Losicco Cuevas and Mr. Leiter regarding. Plaintiff ended the 

discussion about possible discovery by issuing notices of deposition. Additionally, if 

Plaintiff identified subject areas of questions and documents needed, the County 

Defendants could more specifically identify testimony and documents that are 

privilege-protected. Moreover, the County Defendants identified the harm they 

predict if Plaintiff is allowed to depose Ms. Losicco Cuevas and Mr. Leiter without a 

protective order in place—a chilling of discourse amongst prosecutors and their 
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supervisors about case strategies, etc., given that Plaintiff is the subject of an 

ongoing criminal investigation. (Motion for Protective Order at 3:16-17).

II. CONCLUSION

Based on the arguments in the County Defendants’ Motion and those above, 

the County Defendants respectfully request that the Court disallow Plaintiff from 

deposing non-parties, Ms. Losicco Cuevas and Mr. Leiter. Should the Court allow 

the depositions to go forward, the County Defendants ask that the Court issue a 

Protective Order limiting Plaintiff’s questions regarding Ms. Losicco Cuevas and 

Edward Leiter’s their written preparation for trial, mental impressions, professional 

judgment, communications with supervisors, or any discussions or documents that 

comprise the deliberative process, or any discussions between Defendants 

Maricopa County, William Montgomery, Ms. Losicco Cuevas, Mr. Leiter, 

undersigned defense counsel and the State of Arizona and counsel in their common 

legal interest, or any other privileged matter

DATED this 25th day of January, 2017.

IAFRATE & ASSOCIATES

By: /s/Michele M. Iafrate

Michele M. Iafrate

Attorneys for Defendants Maricopa 

County and William Montgomery
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ORIGINAL of the foregoing e-filed

this 25th day of January, 2017, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPIES of the foregoing e-mailed via AZ Turbo

this 25th day of January, 2017, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing e-mailed and/or mailed

this 25th day of January, 2017, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff

Ulises A. Ferragut, Jr.

The Ferragut Law Firm, PC

2 North Central Ave., Ste. 1125

Phoenix, Arizona 85004

Attorney for Plaintiff

David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff
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Edward F. Novak

Melissa Ho

Rebecca Cain

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: /s/Jill Lafornara
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

Renee J. Waters, #031691

miafrate@iafratelaw.com

rwaters@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

NOTICE OF ASSOCIATION

(Assigned to the Honorable

David Gass)

Pursuant to Rule 5.3(a)(1)(A), Arizona Rules of Civil Procedure, Michele M. 

Iafrate gives notice that Renee J. Waters (Bar No. 031691) be associated with 

Michele M. Iafrate as counsel of record for Defendants Maricopa County and William 

Montgomery in the above-entitled cause. Ms. Iafrate respectfully requests the Court 

and all counsel include Ms. Waters’ information on their respective mailing

/ / /

/ / /

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

K. Dyer, Deputy

1/26/2017 12:51:00 PM

Filing ID 8050309
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lists and mailing certificates. The current address and e-mail address for Ms. 

Waters is:

Iafrate & Associates

649 N. 2nd Avenue

Phoenix, Arizona 85003

rwaters@iafratelaw.com

DATED this 26th day of January, 2017.

IAFRATE & ASSOCIATES

By: s/Michele M. Iafrate

Michele M. Iafrate

Renee J. Waters

Attorneys for Defendants Maricopa 

County and William Montgomery

ORIGINAL of the foregoing e-filed

this 26th day of January, 2017, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPIES of the foregoing e-mailed via AZ Turbo

this 26th day of January, 2017, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003
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COPIES of the foregoing e-mailed and/or mailed

this 26th day of January, 2017, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff

Ulises A. Ferragut, Jr.

The Ferragut Law Firm, PC

2 North Central Ave., Ste. 1125

Phoenix, Arizona 85004

Attorney for Plaintiff

David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Edward F. Novak

Melissa Ho

Rebecca Cain

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: s/Tracy Cryan
Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

02/01/2017 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2016-013436 01/27/2017

Docket Code 029 Form V000A Page 1

CLERK OF THE COURT

HONORABLE DAVID B. GASS P. Culp/L. Stogsdill

Deputy

LESLIE MERRITT JR. DAVID J DON

ULISES FERRAGUT JR.

JASON D LAMM

v.

STATE OF ARIZONA, et al. REBECCA N CAIN

MICHELE M IAFRATE

RENEE J WATERS

MINUTE ENTRY

Courtroom 514 - ECB

2:32 a.m. This is the time set for a Status/Scheduling Conference. Plaintiff Leslie 

Merritt Jr. is represented by counsel, David J. Don, Jason D. Lamm and Ulisses Ferragut. 

Defendant State of Arizona and State of Arizona Attorney Generals Office are represented by 

counsel, Rebecca N. Cain and Melissa Ho. Defendant Bill Montgomery and Maricopa County 

are represented by counsel, Michele M. Iafrate.

A record of the proceedings is made digitally in lieu of a court reporter.

LET THE RECORD REFLECT Defendant Arizona Attorney Generals Office is 

represented by Rebecca N. Cain. 

Case status is discussed regarding pleadings filed by both parties and a review of dates

and modifications to dates provided in the Joint Scheduling Report. 
SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2016-013436 01/27/2017

Docket Code 029 Form V000A Page 2

Exhibit 1 marked for identification and received in evidence by the court for purposes of 

record only. 

For the reasons stated on the record,

IT IS ORDERED Defendants Bill Montgomery and Maricopa County’s Motion to 

Strike is denied.

IT IS FURTHER ORDERED that Defendants Bill Montgomery and Maricopa 

County’s reply to Plaintiff’s Motion to Quash shall be filed by February 2, 2017. Plaintiff

Leslie Merritt’s response to the reply shall be filed by February 9, 2017. 

IT IS FURTHER ORDERED granting Defendants Bill Montgomery and Maricopa 

County’s Protective Order request. The proposed Protective Order shall be filed with the court 

by February 2, 2017. 

IT IS FURTHER ORDERED that Bill Montgomery and Maricopa County‘s counsel 

shall exchange Initial Disclosure 2 weeks after the Protective Order is issued by the court.

3:32 p.m. Matter concludes.

IMPORTANT NOTICE REGARDING ONLINE PROFILE

Judge Gass maintains an online profile that answers many questions about courtroom and 

division procedures. Litigants and their attorneys should familiarize themselves with the online 

profile. You can find the online profile at the following link:

https://www.superiorcourt.maricopa.gov/JudicialBiographies/judges/profile.asp?jdgID=2

60&jdgUSID=9111.
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

Renee J. Waters, #031691

miafrate@iafratelaw.com

rwaters@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

NOTICE OF SUPPLEMENTING 

DEFENDANT MARICOPA 

COUNTY AND WILLIAM 

MONTGOMERY’S REPLY IN 

SUPPORT OF THEIR MOTION 

FOR PROTECTIVE ORDER, 

REQUEST TO STAY

(Assigned to the Honorable

David Gass)

Defendants Maricopa County and William Montgomery (“Maricopa County 

Defendants”) supplement their Reply Supporting their Motion for Protective Order

and Request to Stay. The Maricopa County Defendants supplement their Motion 

with a compact disc containing the For the Record digital recording of a January 13, 

2017 proceeding in State of Arizona v. Leslie Allen Merritt Jr., CR2015-144211-001 

in which discussion took place regarding the ongoing investigation of Mr. Merritt, 

despite Plaintiff’s denial of such to this Court. (Pl’s Response to the Motion for 
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Protective Order at 4:9-15). Maricopa County Defendants are hand delivering the 

referenced compact disc to the Honorable David Gass’s chambers.

DATED this 27th day of January, 2017.

IAFRATE & ASSOCIATES

By: /s/Michele M. Iafrate

Michele M. Iafrate

Renee J. Waters

Attorney for Defendants Maricopa 

County and William Montgomery

ORIGINAL of the foregoing e-filed

this 27th day of January, 2017, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPY of the foregoing hand-delivered

this 27th day of January, 2017, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing e-mailed

this 27th day of January, 2017, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff
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Ulises A. Ferragut, Jr.

The Ferragut Law Firm, PC

2 North Central Ave., Ste. 1125

Phoenix, Arizona 85004

Attorney for Plaintiff

David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Edward F. Novak

Melissa Ho

Rebecca Cain

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: /s/Jill Lafornara
Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

02/06/2017 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2016-013436 01/30/2017

Docket Code 023 Form V000A Page 1

CLERK OF THE COURT

HONORABLE DAVID B. GASS P. Culp/L. Stogsdill

Deputy

LESLIE MERRITT JR. DAVID J DON

v.

STATE OF ARIZONA, et al. REBECCA N CAIN

MICHELE M IAFRATE

RENEE J WATERS

MINUTE ENTRY

A clerical error having been made,

IT IS ORDERED correcting the minute entry dated January 27, 2017, page 2, 3

rd order, 

to reflect:

IT IS FURTHER ORDERED granting Defendants Bill Montgomery and Maricopa 

County’s Protective Order request. The proposed Protective Order shall be provided to the 

Plaintiff by February 2, 2017.

The minute entry dated January 27, 2017, is available for viewing at: 

http://www.courtminutes.maricopa.gov.
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

Renee J. Waters, #031691

miafrate@iafratelaw.com

rwaters@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, et al.,

Defendants.

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NO. CV2016-013436

DEFENDANTS MARICOPA 

COUNTY AND WILLIAM 

MONTGOMERY’S RESPONSE 

TO PLAINTIFF’S MOTION TO 

QUASH

(Assigned to the Honorable

David Gass)

Pursuant to Rule 45(c), Defendants Maricopa County and William 

Montgomery (“MC Defendants”) respond to Plaintiff’s Motion to Quash filed January 

10, 2017. MC Defendants agree to modify the subpoena duces tecum to the 

Maricopa County Sheriff’s Office for Plaintiff Leslie Merritt, Jr.’s inmate telephone 

and video visitation recordings. Although no language in the subpoena sought 

privileged communications, MC Defendants will re-issue the subpoena specifying 

that they seek only non-privileged, non-legal telephone calls and visitation video.

DATED this 31st day of January, 2017.

IAFRATE & ASSOCIATES

By: /s/Michele M. Iafrate

Michele M. Iafrate

Renee J. Waters

Attorneys for Defendants Maricopa 

County and William Montgomery
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ORIGINAL of the foregoing e-filed

this 31st day of January, 2017, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPIES of the foregoing e-mailed via AZ Turbo

this 31st day of January, 2017, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing e-mailed and/or mailed

this 31st day of January, 2017, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff

Ulises A. Ferragut, Jr.

The Ferragut Law Firm, PC

2 North Central Ave., Ste. 1125

Phoenix, Arizona 85004

Attorney for Plaintiff

David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Edward F. Novak

Melissa Ho

Rebecca Cain

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: /s/Jill Lafornara
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IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE MARICOPA COUNTY

LESLIE MERRITT, JR., an individual,

Plaintiff,

vs.

STATE OF ARIZONA, et. al.

Defendants.

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Case No.: CV2016-013436

SCHEDULING ORDER 

(Assigned to Hon. David Gass)

Upon consideration of the parties’ Joint Report, the Court orders as follows:

1. INITIAL DISCLOSURE

Plaintiff served his initial disclosure on December 22, 2016. The State of Arizona 

and Maricopa County/Montgomery will exchange their disclosure statements no 

later than January 25, 2017.

2. EXPERT WITNESS DISCLOSURE

The parties will exchange the subject matter of expert opinions by July 1, 2017.

Plaintiff shall disclose the identity and opinions of experts by September 15, 2017.

Defendants shall disclose the identity and opinions of experts by October 20, 2017.

The parties shall disclose any rebuttal expert opinions by November 17, 2017.

3. LAY (NON-EXPERT) WITNESS DISCLOSURE

The parties shall disclose all lay witnesses by November 1, 2017.

Granted with Modifications

***See eSignature page***

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

P. Culp, Deputy

2/2/2017 8:00:00 AM

Filing ID 8064634
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4. FINAL SUPPLEMENTAL DISCLOSURE

Each party shall provide final supplemental disclosure by December 1, 2017. This 

order does not replace the parties’ obligation to seasonably disclose Arizona Rule of 

Civil Procedure 26.1 information on an on-going basis and as it becomes available.

No party shall use any lay witness, expert witness, expert opinion, or exhibit at 

trial not disclosed in a timely manner, except upon order of the court for good 

cause shown or upon a written or an on-the-record agreement of the parties.

5. DISCOVERY DEADLINES

The parties will propound all discovery undertaken pursuant to Arizona Rules of 

Civil Procedure 33 through 36 by November 7, 2017. The parties will complete the 

depositions of parties and lay witnesses by December 1, 2017. The parties will 

complete all other discovery by December 22, 2017. (“Complete discovery” 

includes conclusion of all depositions and submission of full and final responses to 

written discovery.)

6. SETTLEMENT CONFERENCE

Private mediation: The parties shall participate in mediation using a private 

mediator agreed to by the parties. The parties shall complete the mediation by 

January 8, 2018.

All attorneys and their clients, or the person who has full and complete 

authority to settle this case shall personally appear and participate in good 

faith in this mediation, even if no settlement is expected. However, if a nonattorney representative requests a telephonic appearance and the mediator 

grants the request prior to the mediation date, a non-attorney representative 

may appear telephonically.

7. DISPOSITIVE MOTIONS
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The parties shall file all dispositive motions by January 8, 2018.

8. TRIAL SETTING CONFERENCE

On Monday, January 22, 2018 at 9:00 a.m., the Court will conduct a fifteen 

minute telephonic trial setting conference. Attorneys and self-represented parties 

shall have their calendars available for the conference. 

Plaintiff will initiate the conference call by arranging for the presence of all other 

counsel and self-represented parties, and by calling this division at (602) 372-3592

at the scheduled time.

9. FIRM DATES

No stipulation of the parties that alters a filing deadline or a hearing date contained 

in this scheduling order will be effective without an order of this Court approving 

the stipulation. Dates set forth in this order that govern court filings or hearings are 

firm dates, and may be modified only with this Court’s consent and for good cause. 

This Court ordinarily will not consider a lack of preparation as good cause.

10. FURTHER ORDERS

The court further orders as follows: None.

Electronically dated and signed
Granted with Modifications

/S/ David Gass Date: 2/1/2017 _____________________________

Judicial Officer of Superior Court

eSignature Page 1 of 1

 Filing ID: 8064634 Case Number: CV2016-013436

 Original Filing ID: 8008100

_______________________________________________________________________________
ENDORSEMENT PAGE

CASE NUMBER: CV2016-013436 SIGNATURE DATE: 2/1/2017

E-FILING ID #: 8064634 FILED DATE: 2/2/2017 8:00:00 AM

DAVID J DON

JASON D LAMM

MICHELE M IAFRATE

REBECCA N CAIN

RENEE J WATERS

ULISES FERRAGUT JR.
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IAFRATE & ASSOCIATES

649 North Second Avenue

Phoenix, Arizona 85003

(602) 234-9775

Michele M. Iafrate, #015115

Renee J. Waters, #031691

miafrate@iafratelaw.com

rwaters@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

LESLIE MERRITT, JR., a single man,

Plaintiff,

v.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; MARICOPA 

COUNTY, a body politic; JOHN DOES 

I-X; JANE DOES I-X; ABC 

PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X,

Defendants.

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NO. CV2016-013436

NOTICE OF SUBMITTAL OF 

STIPULATED PROTECTIVE 

ORDER

(Assigned to the Honorable

David Gass)

Pursuant to the Court’s January 27, 2017 Minute Entry, Defendants Maricopa 

County and William Montgomery submit a Stipulated Protective Order agreed to by 

all parties for the Court’s authorization.

DATED this 6th day of February, 2017.

IAFRATE & ASSOCIATES

By: /s/Michele M. Iafrate

Michele M. Iafrate

Renee J. Waters

Attorney for Defendants Maricopa 

County and William Montgomery
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ORIGINAL of the foregoing e-filed

this 6th day of February, 2017, with:

Clerk of the Court

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson Street

Phoenix, Arizona 85003

COPY of the foregoing e-mailed via AZTurbo

this 6th day of February, 2017, to:

Honorable David Gass

MARICOPA COUNTY SUPERIOR COURT

201 W. Jefferson, ECB-514

Phoenix, Arizona 85003

COPIES of the foregoing e-mailed

this 6th day of February, 2017, to:

Jason D. Lamm

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, Arizona 85016

Attorney for Plaintiff

Ulises A. Ferragut, Jr.

The Ferragut Law Firm, PC

2 North Central Ave., Ste. 1125

Phoenix, Arizona 85004

Attorney for Plaintiff

David J. Don

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Attorney for Plaintiff

Edward F. Novak

Melissa Ho

Rebecca Cain

Polsinelli PC

One E. Washington, Ste. 1200

Phoenix, Arizona 85004

Attorney for State of Arizona

By: /s/Jill Lafornara

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Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

LAW OFFICE OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Suite B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie Merritt, Jr.

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA 

LESLIE MERRITT, JR., a single man, 

Plaintiff,

vs.

STATE OF ARIZONA, a body politic; 

BILL MONTGOMERY, the elected 

Maricopa County Attorney; 

MARICOPA COUNTY, a body politic; 

JOHN DOES I-X; JANE DOES I-X; 

ABC PARTNERSHIPS I-X and XYZ 

CORPORATIONS I-X.

Defendants.

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Case No.: CV2016-013436

PLAINTIFF’S REPLY IN 

SUPPORT OF MOTION TO 

QUASH SUBPOENA 

(Assigned to Hon David Gass)

Defendant Maricopa County and William Montgomery's subpoena duces 

tecum to the Maricopa County Sheriff's Office should be modified. In their 
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Response, Defendants agree to amend their original subpoena. However, 

Defendants' proposed amendment does not go far enough. Defendants now specify 

that they seek recordings of only non-privileged telephone calls and visitation videos 

involving Merritt's incarceration. But Defendants fail to address the problem of who 

is entitled to identify the privileged communications. Merritt should not be required 

to rely on the ability of the Maricopa County Sheriff's Office to correctly identify 

which recordings are subject to privilege and which may be discoverable. 

Merritt thus requests that the Court modifies Defendants' subpoena duces 

tecum to require Defendants and the Maricopa County Sheriff's Office, before 

reviewing or producing any recordings, to generate a list of alleged non-privileged 

recordings identifying the telephone numbers and participants involved. Plaintiff's 

counsel will then have an opportunity to detect and object to any privileged items. 

A proposed form of order is attached. 

Conclusion

Attorney-client privilege governs many of Merritt's communications during 

his incarceration. Since he should not be required to rely on the Maricopa County 

Sheriff's Office to accurately identify the privileged material, the Defendant's 

subpoena should be modified as requested. 
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DATED this 9th day of February, 2017.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/David J. Don

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.

The original of the foregoing was 

E-filed and Emailed this 9th day of February, 2017, to:

Michele Iafrate, Esq.

Iafrate & Associates

649 North Second Avenue

Phoenix, Arizona 85003

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

Edward F. Novak, Esq.

Melissa Ho, Esq.

Rebecca N. Cain, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

Email: enovak@polsinelli.com; mho@polsinelli.com, rcain@polsinelli.com

Attorneys for Defendant State of Arizona

By: /s/David J. Don
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Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don, Esq. (#016462)

LAW OFFICES OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Tel: 480.948.1212

Fax: 480.696.7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie Merritt, Jr.

IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA

IN AND FOR THE MARICOPA COUNTY

LESLIE MERRITT, JR., an individual,

Plaintiff,

vs.

STATE OF ARIZONA, et. al.

Defendants.

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Case No.: CV2016-013436

PLAINTIFF’S MEMORANDUM RE: 

PENDING DISCOVERY DISPUTE

(Assigned to Hon. David Gass)

Plaintiff, through undersigned counsel, moves this Court for an order 

requiring the State to cooperate in the discovery process. At issue is the State’s 

unwillingness to schedule the depositions of three (3) fact witnesses.1

INTRODUCTION

 

1

In the informal email to the Court’s judicial assistant concerning this issue, it was stated that the 

Defendants object to the scheduling of the depositions that will be discussed herein. For 

purposes of clarification, it is the State (only) that objects, and not Maricopa County. 

Undersigned counsel apologizes for any confusion that may have been created in this regard.

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

K. Laird, Deputy

2/10/2017 4:33:00 PM

Filing ID 8091511
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 Near the conclusion of a scheduling conference held on January 27, 2017, 

counsel for the State of Arizona asked the Court for permission to delay the 

scheduling of depositions, other than those of the two deputy county attorneys for 

which Maricopa County had sought a protective order. The Court denied the 

State's request for delay on the record. 

 Now, the State is seeking an end-around of the Court’s Order to get a 

second bite of the apple in its efforts to delay discovery by refusing to schedule the 

depositions of three (3) fact witnesses in this case. 

PROCEDURAL HISTORY

 On February 3, 2017, undersigned counsel sent an email to defense 

counsel (Exhibit 1) requesting the depositions of Department of Public Safety Sgt. 

Anthony Mapp, Alfred Hackbarth, Lucien Haag, and John Murdock.2

Alfred Hackbarth was the driver of one of the vehicles which was shot in the 

I-10 Freeway Shootings. Mr. Hackbarth gave two short audio-recorded 

statements to police, both of which were turned over by DPS to MCAO, and in 

turn, to Plaintiff’s criminal defense team. Plaintiff has re-disclosed them as part of 

his Initial Disclosure in this case. Both the State and Plaintiff have identified 

Hackbarth as a witness in their Initial Rule 26.1 Disclosure Statements of January 

26, 2017 and December 22, 2016, respectively. 

 Lucien Haag is a firearms examiner who examined Plaintiff’s gun during the 

criminal prosecution. Plaintiff has obtained the entirety of his file and provided it to 

Defendants as part of his Initial Disclosure Statement.

 

2 The State has agreed to set the deposition of Sgt. Mapp, although it has failed as of yet to 

provide any dates of availability
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 John Murdock is another firearms examiner who also examined Plaintiff’s 

gun during the criminal investigation. Plaintiff has similarly disclosed his report in 

conjunction with Plaintiff's Initial Disclosure Statement.

 In response to Plaintiff’s email request for deposition dates, the State 

countered that it needed more time before the depositions could be scheduled 

(Exhibit 2). Plaintiff then replied with a letter dated February 8, 2017 (Exhibit 3). 

Finally, DPS responded in an email of February 8, 2017 (Exhibit 4). Plaintiff 

respectfully submits that the contents of Exhibits 3 and 4 speak for themselves, 

and that there is no need to elaborate further upon them.

THE UNSUCCESSFUL ‘MEET AND CONFER'

 On Thursday, February 9, 2017, all counsel participated in a conference call 

to attempt in good faith to resolve the issue. The parties agree to the necessity of 

taking these three depositions. As noted, supra, Maricopa County does not 

oppose the scheduling of the depositions at issue. The dispute is that the State is 

seeking to delay progression of discovery. 

The State's argument for delay is similar for all three witnesses. As an 

illustrative example, the State claims that even Mr. Hackbarth's testimony is 

“technical in nature” and that it would have to conduct an investigation and confer 

with experts before his deposition could be taken. 

Concerning Haag and Murdock, as is noted in Exhibit 3, Plaintiff was 

amenable to scheduling their depositions in approximately 60 days to afford the 

State the additional time that it sought to prepare for the depositions. During the 

parties' meet and confer, Plaintiff’s counsel amended its proposal and offered to 

set Haag and Murdock’s depositions in 90 days so long as the State would be 

willing to commit to a date certain. The State refused to set a date for the
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depositions even 90 days out and would not commit to a time frame in which it 

would agree to their being scheduled.

ARGUMENT

It appears that the State is engaging in bad faith conduct by ignoring the 

Court’s Order during the Rule 16 Scheduling Conference that depositions, other 

than those of the two deputy county attorneys, will not be delayed. The fact that 

the State will not even commit to conducting depositions of these three fact

witnesses and provide a date three months from now (May of 2017) is troubling 

and evident of what Plaintiff perceives to be intentional dilatory tactics.

Alfred Hackbarth is a straightforward percipient witness. His testimony 

involves his observations and use of his vehicle and his statements given to the 

State's officers. There is nothing technical in nature about his testimony, and 

there is no just reason for the State's delay. 

Messrs. Haag and Murdock are fact witnesses concerning their findings and 

the events surrounding the examinations of Plaintiff's gun. Their role is no more 

complicated than that of treating physicians in a run-of-the-mill medical 

malpractice case. Their reports have been disclosed. Counsel for the State 

should be competent to participate in their depositions without delay. 

While the State may suggest that Plaintiff may depose some other 

witnesses who have been disclosed, Ariz.R.Civ.P 26(d) permits discovery in any 

sequence. Moreover, it is not the State's prerogative to dictate to Plaintiff the 

order in which witnesses should be deposed, or for that matter, if they should be 

deposed at all. 

In short, Plaintiff is seeking to move this case forward efficiently and 

consistently with the orders of this Court. The State is seeking delay. The three 

depositions that are in dispute are of fact witnesses, the substance of whose 
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testimony is readily known to all parties and which already have been 

memorialized through prior proceedings and long-ago disclosed.

CONCLUSION

 For the above reasons, Plaintiff asks this Court to order the State to provide 

dates of availability for the deposition of Alfred Hackbarth in 30 days, and the 

depositions of Lucien Haag and John Murdoch in 60 days (subject to the 

respective witness’ availability).

DATED this 10th day of February, 2017.

LAW OFFICE OF JASON LAMM

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/Jason D. Lamm 

Jason D. Lamm

Attorneys for Plaintiff Leslie Merritt, Jr.

Original of the foregoing efiled this same

date and copies provided electronically to:

Edward F. Novak

Melissa Ho

Rebecca N. Cain

Polsinelli PC

Attorneys for Defendant State of Arizona

Michele M. Iafrate

Renee J. Waters

Iafrate & Associates

Attorneys for Defendants Maricopa County

 Attorney’s Office and Bill Montgomery

By /s/ Kathryn A. Miller

Kathryn A. Miller
EXHIBIT “1”

EXHIBIT “2”