Paul Mohr, Jr. v. Murphy Elementary School District , 449 F. App'x 650 ( 2011 )

FILED
NOT FOR PUBLICATION SEP 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PAUL MOHR, JR., and LYDIA No. 10-16275
BUSTAMANTE MOHR,
D.C. No. 2:10-cv-00153-DGC
Plaintiffs - Appellants,
v. MEMORANDUM *
MURPHY ELEMENTARY SCHOOL
DISTRICT 21 OF MARICOPA
COUNTY, THOMAS M. GRIMES, TERI
SWANSON,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted July 18, 2011
San Francisco, California
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
In October 2009, the Governing Board (the “Board”) of the Murphy
Elementary School District (the “District”) initiated termination proceedings
against Paul Mohr, the District Superintendent, after he was arrested for shoplifting
a bottle of wine from a local grocery store. In January 2010, Mohr and his wife
filed an Amended Complaint in Arizona state court asserting claims for breach of
contract, tortious interference, violation of Mohr’s right to procedural due process,
and violation of the Arizona Open Meeting Law. On January 25, 2010, defendants
removed the case to the District Court for the District of Arizona (Campbell, J.),
which, by Order dated February 19, 2010, denied the Mohrs’ motion to remand the
case to state court. Thereafter, defendants-appellees moved to dismiss the
Amended Complaint, and the district court, by Order dated May 5, 2010, dismissed
the tortious interference, procedural due process, and Open Meeting law claims,
and remanded the breach of contract claim to Arizona state court. The instant
appeal followed. We affirm.
We review de novo a district court’s grant of a motion to dismiss as well as a
district court’s denial of a motion to remand a removed case. See Whitman v.
Mineta, 541 F.3d 929, 931 (9th Cir. 2008); Ethridge v. Harbor House Rest., 861
F.2d 1389, 1393 (9th Cir. 1988). To survive a motion to dismiss, a complaint must
allege a plausible set of facts sufficient to “raise a right to relief above the
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speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Turning first to Mohr’s claim alleging violations of Arizona Open Meeting
Law, that law provides that “[a]ll meetings of any public body shall be public
meetings” and that “[a]ll legal action of public bodies shall occur during a public
meeting.” Ariz. Rev. Stat. § 38-431.01(A). A “meeting” is defined as the
gathering of a “quorum of members of a public body at which they discuss,
propose, or take legal action[.]” A.R.S. § 38-431(4). Arizona courts have
interpreted Arizona’s Open Meeting law as only applying to instances in which a
quorum of a public body’s members is present. See Boyd v. Mary E. Dill Sch.
Dist. No. 51, 631 P.2d 577, 579-80 (Ariz. Ct. App. 1981) (affirming dismissal of
Open Meeting law claim where the alleged legal action was taken by less than a
quorum of board members). Because the Amended Complaint does not allege that
a quorum of members took legal action outside of a public meeting, we agree with
the district court that the Amended Complaint fails to state a claim for a violation
of the Open Meeting law.
Turning next to Mohr’s due process claims, we first note that procedural due
process requires only that, before a public employee is terminated for cause, “he is
entitled to oral or written notice of the charges against him, an explanation of the
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employer’s evidence, and an opportunity to present his side of the story.” Hufford
v. McEnaney, 249 F.3d 1142, 1151 (9th Cir. 2001). Moreover, “the combination
of judging and investigating functions is not a denial of due process.” Withrow v.
Larkin, 421 U.S. 35, 51 (1975).
The Court concludes that Mohr has failed to allege that “more” is present in
the circumstances of the instant case. While Mohr alleges that the Board “has not
made adequate disclosure of the evidence and witnesse[s]” in his termination
proceedings, he did not provide any supporting facts to substantiate this wholly
speculative allegation. He also declined to attend his termination hearing.
Moreover, with regard to Mohr’s claim that the District’s actions have affected his
name, reputation, and standing in the community, this Court has expressly limited
such claims to “extreme” circumstances that are nowhere present in the instant
case. See Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 998 (9th Cir. 2007) (“It is
not enough that the [defendant’s] stigmatizing conduct has some adverse effect on
[the plaintiff’s] job prospects; instead, [the plaintiff] must show that the
stigmatizing actions make it virtually impossible for [him] to find new employment
in his chosen field.”) aff’d 553 U.S. 591 (2008). As to Mohr’s allegation of bias --
which is predicated on the notion that the Board is biased against him because it
has a fiscal interest in not paying his salary -- this is facially implausible, given that
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Mohr was the Superintendent of the District, and therefore the natural consequence
of his termination would be his prompt replacement by another individual drawing
an equivalent salary. Pavlik v. Chinle Unified Sch. Dist., 985 P.2d 633, 638 (Ariz.
Ct. App. 1999) (“A party who seeks to establish institutional bias on the basis of
pecuniary interest must show that interest is direct and personal, not generalized
and speculative.”) (citation omitted). More generally, the argument proves too
much, because it would be true in every case of termination for cause.
Finally, we conclude that the defendants-appellees timely removed this case
to federal court because the original Complaint, on its face, asserted no federal
claims and made no reference, express or implied, to federal law, and therefore the
time for removal did not commence to run until the filing of the Amended
Complaint raising federal claims. See Proctor v. Vishay Intertechnology, Inc., 584
F.3d 1208, 1218 (9th Cir. 2009).
We have considered all of Mohr’s other arguments and find them without
merit.
Accordingly, the judgment of the district court is AFFIRMED.
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