[00:00:00] Speaker 05: All right, we're ready to proceed, Mr. Harris. [00:00:04] Speaker 01: Thank you, Your Honor. [00:00:04] Speaker 01: And may I reserve six minutes for rebuttal? [00:00:07] Speaker 05: How long? [00:00:09] Speaker 01: Six minutes, please. [00:00:10] Speaker 01: Six. [00:00:12] Speaker 05: Six? [00:00:13] Speaker 01: Six. [00:00:13] Speaker 05: Are you saying six? [00:00:14] Speaker 05: I'm sorry. [00:00:15] Speaker 05: OK. [00:00:16] Speaker 05: Well, aspirationally, you can, if you have that amount of time left. [00:00:20] Speaker 05: But I don't know what our questions are going to be. [00:00:22] Speaker 05: So go ahead. [00:00:25] Speaker 01: Thank you. [00:00:26] Speaker 01: May it please the court, Marty Harris, on behalf [00:00:30] Speaker 01: Phil Martinez and Jorge Soria. [00:00:33] Speaker 01: I want to start off with four points that I think are important. [00:00:37] Speaker 01: First, in the brief, we had discussed that the notice of claim was jurisdictional. [00:00:43] Speaker 01: Additional research in preparation for this morning is no longer considered jurisdictional in Arizona. [00:00:49] Speaker 01: It's more like a statute of limitations, and we'll get back to that later. [00:00:52] Speaker 01: So I wanted to clear that up first. [00:00:54] Speaker 01: Second, the Pelley's motion to dismiss, which raised preclusion based on the notice of claim, is at the 12b6 stage an affirmative defense on which they had the burden. [00:01:11] Speaker 01: But they concede in briefing to this court that the 12B6 order from the Arizona Superior Court was not an adjudication on the merits. [00:01:21] Speaker 01: That's at ECF 29.1 in this court at page 14, where the appellees say, quote, dating back to 2012, well before the filing of the lawsuit, federal courts applying Arizona law have held that a dismissal due to a failure to comply with notice of claim statute [00:01:38] Speaker 01: not an adjudication on merits. [00:01:40] Speaker 05: So Mr. Harris, do you agree that the issue presented here, whether notice of claim defects are final decisions on the merit, is an unsettled issue under Arizona law? [00:01:52] Speaker 05: Do you agree with that? [00:01:55] Speaker 01: I agree that at the time it was an unsettled issue under Arizona law, but subsequently in 2023 that issue had been resolved under Arizona law. [00:02:07] Speaker 00: What case do you think resolved it? [00:02:12] Speaker 01: That case was the River, it was a long name. [00:02:26] Speaker 01: Lawrence V. Salt River Project Agricultural Improvement and Power Distribution, which [00:02:35] Speaker 01: talked about the notice of claim not being a adjudication on the merits. [00:02:40] Speaker 01: Is it a published case? [00:02:47] Speaker 04: That case was about respondeat superior, though, and the defendants were not the same in the two cases. [00:02:54] Speaker 04: So I'm not sure if you're right that it really resolved this question, because there there was a question of whether you were suing the same parties. [00:03:03] Speaker 04: the employee or the supervisor. [00:03:09] Speaker 01: And I. To that extent, yes, when the 2023 when that came out and there was a 2023 case that was the appeal of Salt River and that dealt with vicarious liability, which was in it. [00:03:26] Speaker 01: That was an argument that was made in the district court and discussed in the appellees response to the [00:03:33] Speaker 01: to this appeal. [00:03:34] Speaker 01: So to that end, the interpretation of the federal courts had been that there is a adjudication on the merits that is not satisfied by the Notice of Plan. [00:03:46] Speaker 01: And so if it's not settled under Arizona law, that has been the interpretation of the federal courts at the time. [00:03:53] Speaker 00: All right. [00:03:53] Speaker 00: So I think, counsel, it may be fair to say that's a helpful case for your side. [00:03:57] Speaker 00: But I think to Judge Callahan's question, I don't think it's an open and shut case. [00:04:02] Speaker 00: Is that fair? [00:04:04] Speaker 01: I would say that is fair, yes. [00:04:06] Speaker 00: So let me ask you a more preliminary question in this case. [00:04:09] Speaker 00: And I apologize, this came to me yesterday, and sometimes it happens when you're reviewing cases. [00:04:15] Speaker 00: When I was looking at the actual state court judgments in this case, that ER 139 to 140 and then ER 142 to 143, [00:04:27] Speaker 00: I'm not sure we actually have final judgments from those Arizona courts. [00:04:30] Speaker 00: So if you could turn to the Saria ER 139 to 140. [00:04:35] Speaker 00: And this is going to be a question for all counsel, because in my book, this may mean we have a problem with this whole appeal. [00:04:44] Speaker 00: If you look at the order in Saria, let me know when you're there. [00:04:47] Speaker 01: I'm there, Your Honor. [00:04:49] Speaker 00: All right. [00:04:50] Speaker 00: So in Saria, the order cites Rule 54C. [00:04:56] Speaker 00: but it does not have the language no further matters pending. [00:05:03] Speaker 00: So it has 54C but no further matters pending. [00:05:07] Speaker 00: Now if you look at the Martinez order at 142 to 143, it does have the no further matters pending, but it doesn't cite rule 54C. [00:05:21] Speaker 00: It cites rule 54B. [00:05:24] Speaker 00: Now I'm not a [00:05:26] Speaker 00: Arizona practitioner, but my understanding that the Arizona courts take this very strictly, their interpretation of what a final judgment is under Arizona law, and that if an order from a trial court does not have both of those things, it is not a final order under Arizona law. [00:05:45] Speaker 00: And the procedure normally is, if you want to appeal it, you have to go back to the trial court, have them effectively issue a new order or amend their order, [00:05:55] Speaker 00: which then gives the court jurisdiction. [00:05:58] Speaker 00: So I know this is kind of out of left field and none of this has been briefed and it wasn't before the district court on the federal side. [00:06:04] Speaker 00: But can you speak to this at all because it seems to me that if we don't have a final judgment, I'm not sure where we are in this case. [00:06:12] Speaker 00: Because if it's not a final judgment, it's certainly not preclusive, then maybe it's a split claim. [00:06:16] Speaker 00: I don't know where we are. [00:06:19] Speaker 00: But for my comfort in this case, I do need that question answered. [00:06:23] Speaker 00: If you're not prepared to answer it today, [00:06:24] Speaker 00: We can maybe order issue supplemental briefing on this point. [00:06:27] Speaker 00: But if you could speak as much as you can about do these two orders satisfy rule 54C? [00:06:33] Speaker 01: Based on your question and my understanding of Arizona law to that point, which obviously is not researched, I would agree that there may be an issue that that is not a final order for either Mr. Soria or Mr. Martinez. [00:06:52] Speaker 01: And I would welcome the opportunity to do additional briefing on that issue. [00:06:58] Speaker 01: And I think that that might be dispositive because if there's not a final order as to the superior court, then just as we've been arguing in the appeal right now, there would not have been a legal basis for a preclusion to be applied by the district court in this case. [00:07:18] Speaker 01: So I think that additional briefing would be necessary there. [00:07:22] Speaker 00: Because again, I'm with my other colleagues are better in civil procedure than I am but there could be another problem with What exactly we're reviewing here because normally we have to review an entire judgment not a partial judgment the district court have to certify Under whatever that rule is that we can certify Judge Friedland knows this much better than I do [00:07:38] Speaker 00: It seems to me there could be a lot of problems here. [00:07:40] Speaker 00: I understand if you're not prepared to argue today, this occurred to me and I think we'll conference afterwards and I may ask the panel to send an order asking for supplemental briefing on this question, unless one of the other lawyers has the magical answer that solves this problem for me. [00:07:57] Speaker 04: Can I just ask a follow-up? [00:07:58] Speaker 04: It sounds like we might need supplemental briefing. [00:08:00] Speaker 04: Is it your understanding that the state court actions are still ongoing? [00:08:05] Speaker 04: Because it would be your clients with those actions. [00:08:07] Speaker 04: And I'm wondering whether your clients have ongoing actions in state court and federal court. [00:08:14] Speaker 01: No, there are no ongoing actions in the state court. [00:08:26] Speaker 05: Okay, you can proceed on that. [00:08:28] Speaker 05: Okay, thank you. [00:08:30] Speaker 05: I know, that's a surprise, but that's the joy of court. [00:08:36] Speaker 01: Gotta love it. [00:08:38] Speaker 01: So moving on, to the extent that the court were to consider the waiver issue that was raised by the appellees here. [00:08:48] Speaker 01: That is really the only question because the appellees seem to have conceded that the notice of claim was not an adjudication on the merits. [00:08:57] Speaker 05: So if we conclude that you waive the argument that procedural dismissal in this case was not a ruling on the merits, what exception to the waiver rule would you have us apply? [00:09:07] Speaker 01: Sure. [00:09:09] Speaker 01: Howell at 627 and Emmert at 986 talk about waivers discretionary if it's a pure question of law. [00:09:17] Speaker 01: or if there's a fully developed factual record. [00:09:19] Speaker 01: We have both of those. [00:09:21] Speaker 01: The notice of claim dismissal for preclusion is a question of law, and the facts to answer that question are already in the record. [00:09:29] Speaker 01: At ER 136, you have the Superior Court 12b6 order. [00:09:34] Speaker 01: It says not only has Plano voluntarily dismissed the unnamed employees from this lawsuit [00:09:39] Speaker 01: But as noted above, plaintiff cannot pursue claims against the employees because plaintiff did not serve the employees with a notice of claim. [00:09:46] Speaker 01: And also at ER 140 says that without the notice of claim being served on the officers, the plaintiff's claims against the City of Phoenix cannot proceed. [00:09:56] Speaker 01: Those are the facts needed to actually determine the issue of law. [00:10:00] Speaker 01: And based on those facts, as we discuss in the brief, there would be a legal, necessary legal determination that the notice of claim dismissal was not an adjudication on merits. [00:10:12] Speaker 01: Secondly, there was the issue of voluntary dismissal and whether the voluntary dismissal was with or without prejudice. [00:10:19] Speaker 01: And that is also a pure issue of law. [00:10:21] Speaker 01: And it's also an issue where the facts are fully developed. [00:10:24] Speaker 01: If you look at ER 134, the Superior Court lists everything that it received and considered in relation to its order. [00:10:33] Speaker 01: There was nothing about the answer. [00:10:35] Speaker 01: There was nothing about a motion for summary judgment. [00:10:38] Speaker 01: And the Superior Court did specifically consider the rule 41A1A, notice of voluntary dismissal against the Doe defendants. [00:10:47] Speaker 01: And then when you look at ER 104, [00:10:49] Speaker 01: that establishes for purposes of the record that the notice of voluntary dismissal was a notice without prejudice. [00:10:55] Speaker 01: And if you look at ER-7, the record shows that the district court acknowledged that the appellants voluntarily dismissed the dose from the Superior Court case and that a notice had not been filed. [00:11:10] Speaker 01: When you combine all of that together, what you have is a fully developed legal question with all of the facts necessary on two different levels. [00:11:19] Speaker 05: So you're down to four minutes. [00:11:21] Speaker 05: Let me find out if my colleagues have any questions. [00:11:23] Speaker 05: We don't have any questions right now. [00:11:25] Speaker 05: Do you want to reserve the balance? [00:11:28] Speaker 01: Yes, please. [00:11:28] Speaker 01: Thank you. [00:11:31] Speaker 05: All right. [00:11:31] Speaker 05: We'll proceed to Ms. [00:11:33] Speaker 05: Caballero-Daltry. [00:11:36] Speaker 03: Good morning, Your Honors. [00:11:37] Speaker 03: May it please the Court? [00:11:38] Speaker 03: My name is Ashley Caballero-Daltrey, and I represent Lieutenant Moore in this matter. [00:11:43] Speaker 03: I'm going to start, I think, right where we left off with the waiver issue and the exceptions to waiver, because I want to bring to this Court's attention a recent en banc decision from the Court. [00:11:53] Speaker 03: This Court may be aware it came out two weeks ago on January 13th. [00:11:57] Speaker 03: United States versus Gomez. [00:11:59] Speaker 03: That's number 23435. [00:12:02] Speaker 03: There's no federal reporter site for it yet. [00:12:05] Speaker 03: That case is a criminal case analyzing these waiver exceptions that we're talking about and explicitly doing away with the pure law exception that plaintiffs were just discussing. [00:12:16] Speaker 03: So the genesis of the pure law exception is that it comes from a series of criminal cases that we're trying to find a way for [00:12:23] Speaker 03: cases to still be heard to and it got around the plain error standard and in Gomez this court said that it had created the plain the pure law exception Completely out of whole cloth and that it was time to do away with the fact that it had done that Because it conflicted with United States Supreme Court precedent and the criminal rules of procedure Of course that we were not dealing with the criminal rules of procedure here. [00:12:47] Speaker 03: Are we? [00:12:47] Speaker 03: Exactly. [00:12:48] Speaker 03: That was what I was just getting to. [00:12:49] Speaker 03: Thank you, Your Honor. [00:12:50] Speaker 03: So the criminal rules of procedure don't apply here, but the problem that we have is the pure law exception comes entirely from cases that have now been explicitly overruled. [00:13:04] Speaker 04: So I think this panel — But if they were overruled in the criminal context based on the criminal rules of procedure, I don't know how that would have any bearing on the civil context. [00:13:13] Speaker 03: I think that it means that the cases, the civil cases that are using it are now on shaky ground, because a lot of those civil cases had only ever picked it up repeating what the criminal cases had said without analyzing the reason for the exception. [00:13:27] Speaker 03: And, in fact, there's a split in waiver cases in this court. [00:13:30] Speaker 03: Some of the cases just say if a litigant fails to raise the issue below, there's that they've waived the issue and they stop there. [00:13:38] Speaker 03: And we saw that recently in this court's opinion in Doe vs. Horn. [00:13:42] Speaker 03: That's 115. [00:13:43] Speaker 03: F41083. [00:13:45] Speaker 03: That's a 2024 case. [00:13:47] Speaker 03: And the court, in a footnote, tried to clean this up a little bit in footnote 19 to discuss the fact that there are these series of cases that say things like, it is claims that are deemed waived or forfeited, not arguments. [00:14:01] Speaker 03: We saw a lot of that case law in plaintiffs' reply briefs, some cases like Yee versus City of Escondido. [00:14:10] Speaker 03: But in [00:14:11] Speaker 03: Doe versus Horan, this court said those cases do not alter our general rule that we will ordinarily not consider arguments raised for the first time on appeal. [00:14:20] Speaker 03: So we've got two different sets of waiver case law. [00:14:23] Speaker 03: We've got cases like Doe that just say we don't [00:14:26] Speaker 03: review cases for the first – arguments made for the first time on appeal. [00:14:30] Speaker 03: And then we've got a couple of civil cases citing a series of criminal cases that have now been overruled that create these exceptions to waiver. [00:14:40] Speaker 03: And even within those civil cases that are citing the now overruled criminal cases, there is a split of what the question of pure law [00:14:49] Speaker 03: what the exception actually is. [00:14:51] Speaker 03: It's meant to be a narrow exception, and I think that Raich versus Gonzalez, which we cited in our brief, which also cited – we also cited United States versus Flores-Payne, which is now overruled, but that same test appears in Raich – is that the party will suffer no prejudice as a result of the failure to raise the issue in the trial court is the correct way to look at it, because the articulation that we just heard from plaintiffs that as long as it's somewhere in the record wouldn't mean that the pure law exception would [00:15:19] Speaker 03: essentially swallow the rule on any legal argument, it makes sense in a criminal context, because at the end of a trial, you want to make sure that everything had come out in trial to be able to review it on appeal, or at least it did make sense in a criminal context before the United States versus Gomez. [00:15:35] Speaker 05: But in a case like this – So would you agree that the issue presented here, whether notice of claim defects or final decisions on the merits, is unsettled under Arizona law? [00:15:48] Speaker 03: We took the position that Lawrence settled the issue. [00:15:51] Speaker 03: I understand that Lawrence is a respondeat superior case, but in that case, the Arizona Supreme Court used a language like this, that judgment is not a final judgment on the merits. [00:16:01] Speaker 03: They talked about dismissals under Rule 41. [00:16:03] Speaker 03: They talked about other kinds of dismissals. [00:16:05] Speaker 03: I think that was the position we took in the brief that it was, in fact, settled by Lawrence. [00:16:10] Speaker 00: So, counsel, I raised the question about whether we even have jurisdiction in this case. [00:16:15] Speaker 00: to begin with, or maybe we would have jurisdiction, but what path we go down. [00:16:19] Speaker 00: Can you speak to the Rule 54C issue that I raised? [00:16:24] Speaker 03: I can speak to the Rule 54C issue that you raised, although this is a new question for us, so I'll do it to the best of my ability. [00:16:32] Speaker 03: I see in the record that the first judgment, the judgment in the Soraya case, has the 54C [00:16:39] Speaker 03: reference it is signed but it doesn't have the proper language i think an arizona court would find that that's not proper under rule 54c the second judgment the martinez judgment has the correct language under 54b so it is a final judgment under 54b there may be a question as to whether [00:16:56] Speaker 03: it should have been under 54c but to me it reads that it has the magic language either way it has both the no reason for just delay that's the 54b language and it has the no further matters remain pending that's the rule 54c language so i think that particular one in arizona court of appeals may see as a final judgment under either standard um it certainly is a rule 54b judgment and that is a final judgment um it just a 54b judgment typically only covers [00:17:25] Speaker 03: certain claims or certain parties, it looks like it's trying to cover all of them, but it is a valid 54-B judgment. [00:17:29] Speaker 03: Do you think that was a typo, or what do you think? [00:17:31] Speaker 03: It may have. [00:17:32] Speaker 03: I don't know. [00:17:33] Speaker 03: I wasn't part of that case. [00:17:34] Speaker 03: It may have been a typo, but I think even if it was, it doesn't matter because it has the magic language under both Rule 54-C and Rule 54-B. [00:17:42] Speaker 00: Right, but if it's a 54-B, that means there are other claims floating around somewhere. [00:17:47] Speaker 03: correct correct if it were a 54b but i have seen in arizona courts where there's a sign 54b but there's not actually other claims remaining anywhere as a practical matter it's essentially it's still a final judgment as to the claims that are mentioned in the judgment the fact that there's no other claims there's just nothing else to be [00:18:07] Speaker 00: Right, but normally if something was going to be a final judgment on Arizona law under 54C, it would say 54C. [00:18:14] Speaker 00: And the rule says it has to say 54C, and this one didn't. [00:18:19] Speaker 03: But a 54B judgment is appealable. [00:18:21] Speaker 03: So it is a final judgment as to what is... Right, as to something. [00:18:26] Speaker 00: So I guess what I'm saying is it seems to me there's a lot of stuff that got mixed up in this case at the beginning that's never really been sorted out. [00:18:33] Speaker 00: And so now we have it, and we're trying to figure out [00:18:35] Speaker 00: Are these judgments preclusive or not? [00:18:38] Speaker 00: You've said, I think, correctly, as to one of the plaintiffs, it's not a final judgment. [00:18:44] Speaker 00: And maybe it is for the other one, but we have to kind of do these gymnastics to get there. [00:18:47] Speaker 00: So I think normally in Arizona what happens is you go back to the trial court and you get this corrected before you go forward, correct? [00:18:55] Speaker 03: Yes, that's correct. [00:18:55] Speaker 03: But I think for your purposes, and I would request further supplemental briefing on this issue, but I think [00:19:02] Speaker 03: I don't know that the technical problems of the judgments in the Arizona state courts, whether or not that should necessarily change your claim preclusion analysis, although ultimately our argument is that they waived this issue. [00:19:16] Speaker 03: So it kind of doesn't matter at this point. [00:19:19] Speaker 00: If we agree with you, it may not matter. [00:19:21] Speaker 00: But under Arizona law, a judgment is only preclusive if it's final. [00:19:26] Speaker 00: I mean, that banner makes that very clear. [00:19:29] Speaker 05: Yes. [00:19:31] Speaker 05: All right. [00:19:32] Speaker 05: All right. [00:19:32] Speaker 05: Your time has expired. [00:19:34] Speaker 05: You're over time. [00:19:35] Speaker 05: So we'll go on to Ms. [00:19:39] Speaker 05: Burke and you have eight minutes. [00:19:48] Speaker 02: Thank you your honors. [00:19:49] Speaker 02: May it please the court. [00:19:51] Speaker 02: I am Lori Burke and I'm here on behalf of defendants City of Phoenix Douglas McBride Joseph Gage Jeffrey Meal and Eric Selvius. [00:20:00] Speaker 02: There were other. [00:20:02] Speaker 02: Former parties mentioned by plaintiffs in their opening brief, but those plaintiffs were dismissed with prejudice pursuant to stipulation So they are not part of this lawsuit any longer Let me address judge Owens astute Bringing up of this issue. [00:20:20] Speaker 02: I think you are correct. [00:20:21] Speaker 02: I see this most commonly in family law cases I also do family law and the court is very serious about the [00:20:28] Speaker 02: having the correct language and no further matters remaining pending. [00:20:33] Speaker 02: But I would like the opportunity to brief that for the reasons that Ms. [00:20:39] Speaker 02: Caballero-Daldre brought up. [00:20:41] Speaker 02: But I agree with you. [00:20:42] Speaker 02: That could be an issue in terms of the finality of that in state court. [00:20:46] Speaker 02: But I agree with her that it doesn't really affect this appeal, at least as to my clients. [00:20:51] Speaker 02: My clients were granted summary judgment [00:20:57] Speaker 02: clearly established, for instance. [00:20:59] Speaker 02: And that was not appealed. [00:21:01] Speaker 02: The summary judgment ruling by the court was not appealed. [00:21:06] Speaker 02: So in terms of the federal claims, we can still get final judgment from this court, an affirmance of the final judgment. [00:21:14] Speaker 02: We may be back in state court on state law claims, but I think that's a separate issue. [00:21:21] Speaker 02: Plaintiffs do not dispute that [00:21:25] Speaker 02: or appellants do not dispute that the City of Phoenix Monell claim was dismissed by their stipulation in the response to the motion for summary judgment. [00:21:37] Speaker 02: We did get final judgment, 54B language, on that issue. [00:21:40] Speaker 02: They did not timely appeal it. [00:21:42] Speaker 02: So the Monell claim is gone. [00:21:44] Speaker 02: That should be affirmed. [00:21:47] Speaker 02: In terms of the [00:21:51] Speaker 02: First Amendment retaliation claim, same thing. [00:21:55] Speaker 02: The court found that both that my clients were entitled to qualified immunity, both on no constitutional violation and not clearly established. [00:22:04] Speaker 02: So that should be affirmed. [00:22:06] Speaker 02: And in the event the court does not find a waiver in this case, I think that the court can still find that the false arrest claim should not come back based on the district courts [00:22:21] Speaker 02: clearly established analysis because that goes directly to the issue of probable cause for arrest, that my clients did not need to make an independent determination that the unlawful assembly order was valid and did not need to make an independent determination as to whether there was probable cause for arrest. [00:22:41] Speaker 02: So regardless of what happens with the waiver issue, the false arrest claim would not [00:22:48] Speaker 02: come back into this case or should not come back into this case. [00:22:53] Speaker 05: So what should come back? [00:22:54] Speaker 05: The Fourth Amendment excessive force? [00:22:57] Speaker 02: That would be the only possible one that would not be addressed by the court's ruling, yes. [00:23:04] Speaker 02: But that's only if the court finds there was no waiver. [00:23:07] Speaker 02: It's our position that there was a waiver and that nothing should come back. [00:23:13] Speaker 02: But if there was no final [00:23:15] Speaker 04: Well, so you're saying we don't even talk about whether there's a final judgment because you think there was a waiver of the whole issue. [00:23:21] Speaker 02: Correct. [00:23:23] Speaker 04: But if we don't agree with you about the waiver, then we're going to have to sort out this final judgment question. [00:23:29] Speaker 02: Correct. [00:23:29] Speaker 02: Well, yes, but only for my clients. [00:23:33] Speaker 02: And that accepts McBride because the district court also found that Sergeant McBride had no involvement in the arrest, the decision to arrest, the arresting itself, so he cannot [00:23:45] Speaker 02: have committed excessive force or false arrest. [00:23:48] Speaker 02: So he shouldn't come back either. [00:23:49] Speaker 02: So really, the only issue that could potentially come back for my clients, if the court finds that there was no waiver, would be the excessive force claim against the individual defendants other than McBride, which would be Jeffrey Mill, Selvius, and Joseph Gage. [00:24:13] Speaker 02: Those would be the only claims that [00:24:15] Speaker 02: could potentially come back. [00:24:29] Speaker 02: And again, plaintiffs did not address the clearly established element in their answering brief. [00:24:36] Speaker 02: They waived that and didn't appeal it in the first place. [00:24:43] Speaker 02: And so the officers who have been dismissed by stipulation and cannot come back in are McGee, Kozad, Pineda, and Lewis. [00:24:53] Speaker 02: There are issues as to the pleading of the excessive force claim, but obviously that's something we would need to address if that was revived as a result of this court's order. [00:25:02] Speaker 05: So I never quite heard, would you, do you agree that the notice of claim defects [00:25:09] Speaker 05: whether their final judgments or not is unsettled under Arizona law? [00:25:14] Speaker 02: I don't think so. [00:25:15] Speaker 02: I think under the Lawrence versus Salt River Project agricultural improvement case, I agree with Ms. [00:25:22] Speaker 02: Caballero-Daltry that that's pretty much settled under that case. [00:25:27] Speaker 02: They overruled the graph and they made it clear that [00:25:37] Speaker 02: dismissal with, and I'm quoting the case at paragraph 47, a dismissal with prejudice is not a final determination if based upon some ground which does not go to the merits. [00:25:51] Speaker 02: And so that's really what the discussion was about. [00:25:53] Speaker 02: They did talk about the district court cases that had addressed that issue, one of them being Strickler. [00:26:00] Speaker 02: that specifically dealt with notice of claim. [00:26:03] Speaker 02: So even though Lawrence V. Salt River Project was a respondeat superior case not involving a notice of claim, I think that case still answers the question and makes it clear that as of that date in 2023, the law in Arizona is that any dismissal with prejudice that does not address the merits can't be used again. [00:26:31] Speaker 04: And you think the notice of claim issue is not a merits issue? [00:26:35] Speaker 04: So the argument you're making is against your interest, except for the fact that you have your waiver point. [00:26:40] Speaker 04: Am I right? [00:26:41] Speaker 02: Correct. [00:26:42] Speaker 02: That is correct. [00:26:43] Speaker 02: Yeah. [00:26:45] Speaker 02: Unless the court has further questions for me. [00:26:49] Speaker 02: Thank you for your argument. [00:26:51] Speaker 02: Thank you. [00:26:57] Speaker 05: All right. [00:26:57] Speaker 05: Mr. Harris, you have [00:27:00] Speaker 05: Three minutes and 57 seconds left on the clock. [00:27:07] Speaker 01: You need to unmute. [00:27:14] Speaker 01: First I start off with agreeing with Ms. [00:27:19] Speaker 01: Burke that based on the summary judgment adjudication of qualified immunity that the only thing that should come back is excessive force as opposed to excessive force and unlawful arrest. [00:27:33] Speaker 01: I think the qualified immunity determination at summary judgment probably would cross apply to that. [00:27:40] Speaker 01: When you look at the [00:27:42] Speaker 01: fact that in this procedural posture, whether or not waiver occurred is a question that you answer by looking at the record. [00:27:50] Speaker 01: At 12b6, the appellees had the burden to establish, based on the face of the complaint and whatever else is available in the record, whether or not preclusion applies. [00:28:01] Speaker 01: That's their burden. [00:28:02] Speaker 01: And when you consider Whitaker at 515, there is no bright line for whether preservation has or has not occurred. [00:28:11] Speaker 01: And at 2ER95, the motion dismissed response at issue in this case stated that right for exploration is whether the dismissal based on the failure to properly serve a notice of claim is purely a resolution on the merits supporting a final judgment. [00:28:27] Speaker 01: And then when you look at the response to the surreply at 2ER87, the appellees argued that the Superior Court judgment was on the merits in response [00:28:38] Speaker 01: the plaintiff's or reply argument that the notice of claim failure was merely a technical defense. [00:28:44] Speaker 04: And the way that links to... So sorry, can I ask a question? [00:28:46] Speaker 04: Yes. [00:28:46] Speaker 04: I think that one of the arguments that was just made is that the excessive force issue that you think is the issue we should consider, that you also waive that by not briefing it to us. [00:28:56] Speaker 04: Do you have a response to that? [00:28:59] Speaker 01: I don't... I didn't understand the argument to me that we waived excessive force by not briefing it to us. [00:29:06] Speaker 01: We argued that the excessive force and the unlawful arrest should be remanded. [00:29:14] Speaker 01: I am saying now that excessive force definitely would be remanded because their argument only applied to unlawful arrest vis-a-vis the qualified immunity determination at summary judgment. [00:29:25] Speaker 01: They didn't make an argument that excessive force should also not be remanded or should be upheld based on qualified immunity at the summary judgment. [00:29:37] Speaker 01: So going back to the two ER87, when the appellees are arguing that the superior court decision was, you know, in response to our saying that it was a technical defense, that links back to the opening brief on appeal when we cite Strickler and Hobbiter, where in our brief at pages six and seven, that the dismissal is not on the merits, but it's more like a statute of limitations. [00:30:06] Speaker 01: And that flows back into the argument that Ms. [00:30:10] Speaker 01: Burke was making that whether there was a statute of limitations issue, whether there was a notice of claim issue, that doesn't tell anybody whether or not the underlying facts actually occurred, whether there was excessive force. [00:30:22] Speaker 04: And the district court at... But statute of limitations has been treated as a merits issue in Arizona, hasn't it? [00:30:31] Speaker 01: I'm not sure if it has been treated as a merits issue, but I was analyzing that in the sense that whether the statute of limitations did or did not pass doesn't establish whether excessive force occurred, whether the notice of claim issue was or was not timely, doesn't establish whether excessive force occurred. [00:30:51] Speaker 01: When I hear merits, I'm thinking merits of the underlying claim, not the merits of a particular affirmative defense that doesn't go towards the underlying facts. [00:31:02] Speaker 01: The district court in this case at 1ER9 citing Cheney also addressed the elements. [00:31:08] Speaker 01: And because the appellees had the affirmative burden at 12B6, the fact that the district court found that preclusion applies, I think covers the issue, I think covers waiver because even if a particular argument wasn't raised, the claim that preclusion doesn't apply was raised. [00:31:27] Speaker 01: And under Yee and LeBron, [00:31:29] Speaker 01: even if a argument was expressly disavowed in the lower courts and not raised until cert was granted, it's not waived because claims are waived, not arguments. [00:31:39] Speaker 01: Thank you. [00:31:40] Speaker 05: All right. [00:31:40] Speaker 05: Thank you. [00:31:41] Speaker 05: Unless my colleagues have any questions, that will conclude argument in this matter. [00:31:48] Speaker 05: Now, I'm going to submit the matter as of this date, but as we realized that we asked a question that [00:31:57] Speaker 05: may require supplemental briefing. [00:31:59] Speaker 05: We don't conference on our cases until after we hear oral argument. [00:32:03] Speaker 05: So if, in fact, we do decide we're going to have supplemental briefing, sometimes we do withdraw submission. [00:32:11] Speaker 05: And all that that means is because we like to decide our cases within a certain period of time, but if we're going to open up briefing again. [00:32:19] Speaker 05: And I don't know whether we will, but you'll be notified to that. [00:32:22] Speaker 05: But I'm going to submit it as of this date. [00:32:26] Speaker 05: All right. [00:32:26] Speaker 05: Thank you.