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SCOTTSDALE CITY ATTORNEY’S OFFICE 

3939 North Drinkwater Boulevard 

Scottsdale, Arizona 85251 

Telephone (480) 312-2405 

Facsimile (480) 312-2548 

Joshua M. Crum (SBN 027302) 

legal@scottsdaleaz.gov

Attorneys for City Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

The Satanic Temple and Michelle Shortt, 

 Plaintiffs, 

vs. 

City of Scottsdale, Arizona, by its City Council, 

consisting of the Mayor and council members, 

WJ Jim Layne, Suzanne Klapp, Virginia Korte, 

Kathy Littlefield, Guy Phillips, David Smith, 

 Defendants. 

Case No. 18-cv-00621-DGC 

REPLY IN SUPPORT OF 

DEFENDANTS’ MOTION TO 

DISMISS 

Plaintiffs’ response to Defendants’ motion to dismiss only makes clear the infirmities in 

their claims. Plaintiffs concede that their state law claim is untimely, and offer no real argument 

that their duplicative individual official capacity claims can survive dismissal. And because 

Plaintiffs’ Establishment Clause and Equal Protection Clause claims are unsupported by the facts 

and fatally flawed, they cannot be salvaged by any amendment. As a result, the Court should 

dismiss Plaintiffs’ complaint in full, with prejudice. 

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Argument 

I. Defendants’ motion complied with Local Rule 12.1. 

As required by LRCiv 12.1, before filing Defendants’ motion to dismiss, Defendants’ 

counsel notified Plaintiffs’ counsel by email of the issues Defendants intended to raise in their 

motion as well as Defendants’ belief that those issues were not curable by any amendment. 

Accordingly, Defendants’ motion included (at footnote 1) a certification specifically recounting 

the requirements under the local rule. Nevertheless, Plaintiffs now argue (at 2) that Defendants 

failed to comply with LRCiv 12.1 because Plaintiffs were notified only 29 minutes in advance of 

filing, and because Defendants “made no attempt to solicit an amendment ‘offered by the 

pleading party.’” 

By its plain language, Local Rule 12.1 does not require any specific amount of notice or 

require that the moving party solicit an amendment before filing. Regardless, Defendants sent an 

email to Plaintiffs’ counsel not at 3:10, as Plaintiffs say, but at 2:11, and filed their motion nearly 

an hour-and-a-half later at 3:39. [See Ex. 1 (Email from J. Crum to S. de Haan) and Ex. 2 (Notice 

of Electronic Filing)] Nor is there any indication that additional notice or an attempt to solicit an 

amendment would have been fruitful. Plaintiffs do not argue they would have offered any 

amendment in response to an earlier notice and tellingly, have not taken the opportunity to file 

an amended complaint in the weeks since Defendants’ motion. And Defendants continue to 

believe that Plaintiffs’ complaint is not curable by any amendment and must be dismissed in full. 

Defendants complied with all requirements under the rule, and the Court should consider 

Defendants’ motion on its merits. 

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II. Plaintiffs concede their state law claim is untimely. 

Plaintiffs’ response fails to address Defendants’ argument that Plaintiffs’ state law claim 

is barred by the statute of limitations. Plaintiffs’ failure to respond to that point waives the 

argument. See LRCiv 7.2(i) (failure to respond to a motion to dismiss may be deemed a consent 

to the motion); see also, e.g., Patterson v. Pima Cty. Sheriff’s Dept., CV-13-01779-TUC-RM E, 

2014 WL 5792941, at *3-4 (D. Ariz. Nov. 6, 2014) (dismissing claim where plaintiff conceded 

point by failing to address argument raised in motion to dismiss and citing LRCiv 7.2(i)); 

Stephenson v. Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002) (“[W]hen a plaintiff files a response 

to a motion to dismiss but fails to address certain arguments made by the defendant, the court 

may treat those arguments as conceded, even when the result is dismissal of the entire case.”); 

Mariscal v. Graco, Inc., 52 F.Supp.3d 973, 984 (N.D. Cal. 2014) (“Defendant moves for 

summary judgment on Plaintiff's claims for breach of warranty. Plaintiff failed to address these 

arguments in his opposition brief, and therefore conceded these claims.”). 

III. Plaintiffs’ claims against the individual defendants must be dismissed. 

Plaintiffs’ claims against the individual defendants are brought against the members of the 

City Council only in their official capacities [Compl. ¶ 13]. It is well-settled that “if individuals 

are being sued in their official capacity as municipal officials and the municipal entity itself is 

also being sued, then the claims against the individuals are duplicative and should be dismissed.” 

Sweet v. City of Mesa, CV-17-00152-PHX-GMS, 2018 WL 2464111, at *3 (D. Ariz. June 1,

2018) (dismissing official capacity claims as duplicative of claims against municipality) 

(quotation omitted). 

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Rather than cite any caselaw in their favor, Plaintiffs argue (at 3-4) only that the official 

capacity claims are valid and not duplicative because they specifically included an allegation that 

the defendants acted under color of state law and requested different relief. It is not clear what 

different relief Plaintiffs have requested based on this claim, but because the individual claims 

are official capacity claims, the only remedies available are the same remedies available against 

the City. Similarly, Plaintiffs’ attempt to rely on a hollow recitation of the statutory language 

“under color of state law,” while characteristic of their complaint, does not make Plaintiffs’ 

claims well-pleaded or keep them from being duplicative. See Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007) (“[A] formulaic recitation of the elements of a cause of action will not do.”). 

Plaintiffs’ official capacity claims, regardless of the remedy sought or the statutory language 

invoked, are duplicative of their claim against the City, and as a result must be dismissed. 

IV. Plaintiffs’ Establishment Clause claim must be dismissed. 

Plaintiffs concede that even sectarian legislative prayer does not violate the Constitution, 

so long as there is no policy of discrimination. See Town of Greece v. Galloway, 134 S. Ct. 1811, 

1824 (2014). Nevertheless, Plaintiffs argue (at 4-6) that the City’s policy of allowing only those 

with substantial connections to the City to give invocations unconstitutionally discriminated 

against them. But Plaintiffs fail to support that claim with any well-pleaded facts. 

Plaintiffs do not, and cannot, allege that the policy itself is unconstitutional or that their 

exclusion was not justified under the plain language of the policy. Instead, they argue (at 5) that 

“all available evidence suggests the policy was created immediately prior to the email” notifying 

the Plaintiffs that they would not be permitted to give the invocation. But Plaintiffs do not point 

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to any facts to support this argument, and the only evidence, the email itself, says the opposite: 

that the City, after review by the City Manager, decided not to deviate from its “long standing 

practice.” [Compl., Ex. 7] Plaintiffs likewise do not point to any violations of the policy or allege 

any well pleaded facts to show that other groups were not subject to the same requirement of 

substantial community ties. 

But even if Plaintiffs’ argument were taken as true, the length of time that the policy was 

in place does not determine its constitutionality. Even a newly enacted, but facially neutral and 

evenly applied policy requiring substantial community ties would not violate the Establishment 

Clause. See, e.g., Rubin v. City of Lancaster, 710 F.3d 1099-1100 (9th Cir. 2013) (approving 

facially neutral prayer policy); Simpson v. Chesterfield Cty. Bd. of Sup’rs, 404 F.3d 276, 279 (4th 

Cir. 2005) (approving policy under which Board of Supervisors invited religious leaders from 

congregations within Chesterfield County by taking addresses from phone book); Atheists of Fla., 

Inc. v. City of Lakeland, 779 F. Supp. 2d 1330, 1342 (M.D. Fla. 2011) (approving a policy 

allowing invocations from “all religious congregations with an established presence in the local 

community”); Jones v. Hamilton Cty., 891 F. Supp. 2d 870, 887 (E.D. Tenn. 2012), aff’d sub 

nom. Jones v. Hamilton Cty. Gov’t, 530 F. App’x 478 (6th Cir. 2013) (same).

V. Plaintiffs’ Equal Protection claim must also be dismissed. 

Plaintiffs give no reason why this case should be decided on Equal Protection Clause 

grounds, given the weight of authority limiting legislative prayer cases to Establishment Clause 

analysis only. Plaintiffs also fail to explain why the Establishment Clause is not sufficient to 

remedy their claims or how an Equal Protection claim would afford them any different relief, 

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other than Plaintiffs’ belief (at 7) that they can avoid precedent against them by having the Court 

“unmired” by prior Establishment Clause caselaw. And while there may not be a Ninth Circuit 

case directly holding that Plaintiffs are not entitled to maintain an Equal Protection claim on these 

facts, there is a reason why other courts have addressed similar challenges only under the 

Establishment Clause. As the Fourth Circuit has explained, and other courts have agreed, 

invocations at government meetings, even when given by private citizens, are government speech 

“subject only to the proscriptions of the Establishment Clause.” Simpson v. Chesterfield Cty. Bd. 

of Sup’rs, 404 F.3d 276, 288 (4th Cir. 2005). Plaintiffs’ only response to these cases, a law review 

article arguing that the Equal Protection Clause is generally “underutilized,” does not address 

legislative prayer or require this Court to break with other courts and decide that legislative 

invocations are not government speech. 

But even if the Equal Protection Clause applied, Plaintiffs cannot allege that they have 

been treated differently from other similarly situated groups. Plaintiffs have not alleged that other 

groups with no substantial ties to Scottsdale have been permitted to give invocations despite the 

policy. Nor do Plaintiffs allege that they are similarly situated to the leaders of local, Scottsdalebased faith groups who have given invocations under the City’s policy. Plaintiffs are not 

“arguably indistinguishable” from those local groups that have given and continue to give 

invocations. See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008) (parties allegedly 

treated differently in violation of the Equal Protection Clause are similarly situated only when 

they are “arguably indistinguishable”). 

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Conclusion 

Because Plaintiffs’ claims are barred by the statute of limitations, duplicative, and fail to 

state valid claims for relief, the Plaintiffs’ complaint must be dismissed in full. And because no 

amendment would allow Plaintiffs to revive their claims, the Court should dismiss them with 

prejudice. 

DATED this 6th day of July, 2018. 

SCOTTSDALE CITY ATTORNEY’S OFFICE 

By: /s/ Joshua M. Crum 

Joshua M. Crum, Assistant City Attorney 

3939 North Drinkwater Boulevard 

Scottsdale, Arizona 85251 

Attorneys for City Defendants 

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CERTIFICATE OF SERVICE

 I hereby certify that on this 6th day of July, 2018, I electronically transmitted the attached 

document to the Clerk’s office using CM/ECF System for filing, and transmittal of a Notice of 

Electronic Filing to the following CM/ECF registrants: 

Stuart P. de Haan 

de Haan Law Firm, PLLC 

100 N Stone Ave., Suite 512 

Tucson AZ, 85701 

Attorneys for Plaintiffs 

By: /s/ Laura Hougard 

An Employee of the Scottsdale City Attorney’s Office 

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