William Platt v. Jason Moore ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM TERENCE PLATT; MARIA B. No. 19-15610
PLATT,
Plaintiffs-Appellants, D.C. No.
3:16-cv-08262-
v. BSB
JASON S. MOORE, in his official
capacity as Deputy Navajo County
Attorney; BRAD CARLYON, in his
official capacity as Navajo County
Attorney; NAVAJO COUNTY DRUG
TASK FORCE, AKA Major Crimes
Apprehension Team; COUNTY OF
NAVAJO; K. C. CLARK, in his official
capacity as Navajo County Sheriff;
CITY OF WINSLOW, a municipal
corporation; CHRIS VASQUEZ, in his
official capacity as Chief of Police for
the City of Winslow; CITY OF
HOLBROOK, a municipal corporation;
MARK JACKSON, in his official
capacity as the Chief of Police for the
City of Holbrook; TOWN OF
SNOWFLAKE, a municipal corporation;
TOWN OF TAYLOR, a municipal
corporation; LARRY SCARBER, in his
official capacity as Chief of Police of
Snowflake-Taylor Police Department;
CITY OF SHOW LOW, a municipal
2 PLATT V. MOORE
corporation; JOE SHELLEY, in his
official capacity as Chief of Police for
the City of Show Low; TOWN OF
PINETOP-LAKESIDE, a municipal
corporation; DAVID SARGENT, in his
official capacity as the Chief of Police
for the Town of Pinetop-Lakeside,
Defendants-Appellees,
and
STATE OF ARIZONA,
Intervenor-Defendant-Appellee.
WILLIAM TERENCE PLATT; MARIA B. No. 19-15732
PLATT,
Plaintiffs-Appellees, D.C. No.
3:16-cv-08262-
v. BSB
JASON S. MOORE, in his official
capacity as Deputy Navajo County OPINION
Attorney; BRAD CARLYON, in his
official capacity as Navajo County
Attorney; NAVAJO COUNTY DRUG
TASK FORCE, AKA Major Crimes
Apprehension Team; COUNTY OF
NAVAJO; K. C. CLARK, in his official
capacity as Navajo County Sheriff;
CITY OF WINSLOW, a municipal
corporation; CHRIS VASQUEZ, in his
official capacity as Chief of Police for
the City of Winslow; CITY OF
PLATT V. MOORE 3
HOLBROOK, a municipal corporation;
MARK JACKSON, in his official
capacity as the Chief of Police for the
City of Holbrook; TOWN OF
SNOWFLAKE, a municipal corporation;
TOWN OF TAYLOR, a municipal
corporation; LARRY SCARBER, in his
official capacity as Chief of Police of
Snowflake-Taylor Police Department;
CITY OF SHOW LOW, a municipal
corporation; JOE SHELLEY, in his
official capacity as Chief of Police for
the City of Show Low; TOWN OF
PINETOP-LAKESIDE, a municipal
corporation; DAVID SARGENT, in his
official capacity as the Chief of Police
for the Town of Pinetop-Lakeside,
Defendants,
and
STATE OF ARIZONA,
Intervenor-Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Bridget S. Bade, Magistrate Judge, Presiding
Argued and Submitted June 5, 2020
Portland, Oregon
Filed October 4, 2021
4 PLATT V. MOORE
Before: A. Wallace Tashima, Marsha S. Berzon, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Collins
SUMMARY *
Civil Rights
The panel affirmed in part and reversed in part the
district court’s dismissal of plaintiffs’ state law claims, and
remanded, in an action alleging that the seizure of plaintiffs’
car pursuant to Arizona’s civil forfeiture statutes and the
deprivation of its use for five months violated plaintiffs’
right to due process under the federal and state constitutions.
Plaintiffs loaned their vehicle to their son who was
subsequently arrested during a traffic stop for the presence
of marijuana in the vehicle. Jason Moore, a Deputy Navajo
County Attorney and the “asset forfeiture attorney” for
Navajo County, directed that the car be seized and
impounded. He then mailed to plaintiffs a notice of pending
forfeiture. The Arizona statutes at the time provided two
avenues for contesting forfeiture: filing a claim with the
court or filing with the attorney for the state a petition for
remission or mitigation of forfeiture within thirty days of
notice. The statute explicitly made these options mutually
exclusive; those who choose to file petitions for remission or
mitigation could not file a claim against the property with
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PLATT V. MOORE 5
the court until after the state’s attorney issued a written
declaration of forfeiture in response to the petition.
Plaintiffs contested the forfeiture by filing a petition for
remission or mitigation. Moore unilaterally determined that
the petition was defective, and without notifying plaintiffs of
any defect or affording an opportunity to correct it, he
proceeded as though the forfeiture was uncontested. When
a forfeiture is uncontested, the state need only establish
probable cause to believe that the property is subject to
forfeiture; it need not prove the factual basis for forfeiture by
clear and convincing evidence, as required for contested
forfeiture proceedings. Moore represented to the Superior
Court in his application for forfeiture that no timely claim or
petition for remission had been filed. When plaintiffs
learned that Moore had applied for uncontested forfeiture,
they filed a claim against the property in Arizona state court
and also filed a civil rights action against Moore and various
co-defendants. Two weeks later, Moore withdrew his
application for forfeiture and the car was returned to the
plaintiffs.
Plaintiffs’ civil rights action alleged that Arizona’s
uncontested forfeiture regime denied them due process
because it: (1) allows attorneys for the state to adjudicate,
without meaningful review, forfeiture proceedings in which
the state’s attorney, in his official capacity, has a pecuniary
interest (the “biased adjudicator” claims); and (2) awards all
interests in property forfeited to the agency responsible for
seizing it, impairing the ability of law enforcement to
administer justice impartially (the “biased enforcer” claims).
The district court dismissed both the federal and state law
claims, and plaintiffs appealed the dismissal of their state
law nominal damages claims only.
6 PLATT V. MOORE
The panel first addressed the district court’s
determination that plaintiffs’ claims were barred because
they did not file a notice of claim pursuant to Arizona
Revised Statute § 12-821.01, which requires, in part, that
those asserting claims against a public entity or public
employee file a notice of claim before filing suit. The panel
noted that, as interpreted by the courts of Arizona, this
statute does not apply to claims for declaratory judgment,
Martineau v. Maricopa County, 86 P.3d 912, 915 (Ariz. Ct.
App. 2004), or for injunctive relief, State v. Mabery Ranch,
Co., 165 P.3d 211, 222-23 (Ariz. Ct. App. 2007). The panel
predicted that, based on the reasoning in Martineau and
Mabery, Arizona would not apply its notice of claim statute
to claims for nominal damages, and the panel accordingly
reversed the district court’s dismissal to the degree it rested
on this basis. The panel held that like claims for declaratory
or injunctive relief, claims for nominal damages have no
direct effect upon a public entity’s financial planning or
budgeting. And, like claims for declaratory or injunctive
relief, it would be nonsensical to require nominal damages
claimants for $1 in damages to disclose, as a prerequisite for
filing suit, a reasonable estimate of the amount for which the
claim may be settled, for such claims are ordinarily not
amenable to settlement for a sum certain.
The panel next addressed the district court’s alternate
bases for dismissal of the claims on appeal. Addressing
plaintiffs’ biased adjudicator claims, the panel determined
that the gravamen of the claim was that the statute
improperly permitted Moore full authority to determine
whether plaintiffs’ petition for remission was validly filed,
without notifying them when he determined that it was not.
The panel held that on the facts as recited in the complaint,
Moore’s undisclosed, unreviewable determination that
plaintiffs’ petition was untimely denied them a meaningful
PLATT V. MOORE 7
opportunity to be heard by an unbiased adjudicator. The
panel held that the state’s regime on its face permitted the
state’s attorney unilaterally to deny to those who chose to
contest forfeiture by filing a petition the procedural
protections applicable in contested forfeiture proceedings.
The panel held that plaintiffs had standing to bring their
biased adjudicator claim because their complaint alleged that
they were subject to a constitutionally deficient forfeiture
process, which itself constituted an injury.
The panel agreed with the district court that, as to the
“biased enforcer” claims, the Navajo County Drug Task
Force was not amenable to suit under Arizona law. Dismissal
of the claims against the Task Force was therefore proper.
The panel held that ordinarily it would consider substituting
a proper party in the Task Force’s place, but here, the
conduct alleged to be unconstitutional was undertaken
exclusively by Moore and his supervisor, Brad Carlyon. The
panel concluded that both the biased adjudicator and biased
enforcer nominal damages claims against Moore and
Carlyon for violations of Arizona due process could proceed.
On remand, the panel advised the district court to consider
anew whether to exercise supplemental jurisdiction over the
remaining claims or instead to remand the case to Arizona’s
courts. Finally, the panel rejected Arizona’s invitation on
cross-appeal to issue an advisory ruling that its civil
forfeiture scheme was facially constitutional.
Concurring in the judgment in part and dissenting in part,
Judge Collins stated that he would affirm the district court’s
judgment in its entirety. As a threshold matter, Judge Collins
agreed with the majority’s holding that the Navajo County
Drug Task Force lacked the capacity to be sued under
Arizona law and that the proper defendants for the relevant
claims asserted against the Task Force were Moore and
8 PLATT V. MOORE
Carlyon, in their official capacities as representatives of the
State of Arizona. Judge Collins stated that on this record,
plaintiffs lacked Article III standing to assert the so-called
“biased-adjudicator” claim. Because Moore’s actions
neither lengthened the proceedings nor prevented the return
of the car, there simply was no sense in which plaintiffs
suffered any loss of the car that could be said to be fairly
traceable to Moore’s decision not to serve a written
declaration of forfeiture. As to the biased-enforcer claim,
Judge Collins agreed with the district court that Arizona’s
notice-of-claim statute barred plaintiffs’ due process claims
for nominal damages. Judge Collins stated that plaintiffs’
claims for damages were not exempt from the statute simply
because, rather than seeking the full compensatory damages
to which they otherwise might have been entitled, they
elected to seek only nominal damages.
COUNSEL
Paul V. Avelar (argued) and Keith E. Diggs, Institute for
Justice, Tempe, Arizona, for Plaintiffs-Appellants.
James M. Jellison (argued), Jellison Law Offices PLLC,
Carefree, Arizona, for Defendants-Appellees.
Drew C. Ensign (argued), Chief Counsel, Civil Appeals;
Thomas Rankin, Chief Counsel, Financial Remedies
Section; Brunn (Beau) W. Roysden III, Kenneth Hughes,
and Robert J. Makar, Assistant Attorneys General; Mark
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Intervenor-Defendant-Appellee.
PLATT V. MOORE 9
OPINION
BERZON, Circuit Judge:
Police stopped the Platts’ car while their son was driving
it, found marijuana in the car, and arrested the son. The
Platts’ car was seized pursuant to Arizona’s labyrinthine
civil forfeiture statutes. The vehicle was eventually returned
to its owners, but only after it had been impounded for five
months. Alleging that the seizure of their car and the
deprivation of its use for five months violated their rights to
due process under the federal and state constitutions, the
Platts sued various state and local officials and entities. The
district court dismissed all claims.
The Platts now appeal the dismissal of their state claims
only. We reverse in part, affirm in part, and remand to the
district court for further proceedings. We also reject
Arizona’s invitation on cross-appeal to issue an advisory
ruling that its civil forfeiture scheme is facially
constitutional.
I.
The Platts loaned the vehicle at issue here to their son,
Shea, in April 2016. The next month, Shea was arrested
during a traffic stop after a police dog alerted to the presence
of marijuana in the vehicle. Jason Moore, a Deputy Navajo
County Attorney and the “asset forfeiture attorney” for
Navajo County, directed that the car be seized and
impounded. Moore later filed in Navajo County Superior
Court, and mailed to the Platts, a “Notice of Pending
Forfeiture,” in compliance with Arizona Revised Statutes
(“A.R.S.”) § 13-4307.
10 PLATT V. MOORE
After receiving such a notice, persons with an interest in
property subject to forfeiture proceedings face a choice
between two avenues for protecting their property rights.
They may “file either a claim with the court . . . or a petition
for remission or mitigation of forfeiture with the attorney for
the state” within thirty days of the notice, “but may not file
both.” Id. § 13-4309(2). If a property owner does not pursue
either option, then the state’s attorney may proceed in court
with “uncontested forfeiture.” Id. § 13-4309. In uncontested
forfeiture proceedings, the state need only establish probable
cause to believe that the property is subject to forfeiture; it
need not prove the factual basis for forfeiture by clear and
convincing evidence, as required for contested forfeiture
proceedings. See Id. § 13-4314(A); Id. § 13-4311(D), (M).
As Arizona courts have recognized, forfeiture of the
property in uncontested forfeiture proceedings is “virtually
assur[ed].” Wohlstom v. Buchanan, 884 P.2d 687, 689 (Ariz.
1994).
The Platts chose to contest the forfeiture of their car by
filing a petition for remission or mitigation. Such petitions
require the attorney for the state to conduct an investigation
and to issue a written declaration of forfeiture, remission, or
mitigation. If the state’s attorney chooses to proceed with the
forfeiture and issues the required written declaration, the
petitioner then has thirty days within which to file a claim
with the court to protect her property rights. See A.R.S. § 13-
4309(3)(a) to (b).
Here, the Platts allege, no written declaration of
forfeiture issued. Instead, Moore unilaterally determined
that the petition was defective. Without notifying the Platts
of any defect or affording an opportunity to correct it, he
proceeded as though the forfeiture were uncontested,
representing to the Superior Court in his application for
PLATT V. MOORE 11
forfeiture that “no timely claim or Petition for Remission has
been filed.” 1
When they learned that Moore had applied for
uncontested forfeiture, the Platts filed a claim “against the
property” in Arizona state court, Id. § 13-4311. Although
Arizona law bars property owners from intervening in
forfeiture proceedings once an application for forfeiture is
filed, see Norriega v. Machado, 878 P.2d 1386, 1390 (Ariz.
Ct. App. 1994), the Platts proposed to construe Moore’s
purported application for forfeiture as the written declaration
of forfeiture that should have been issued in response to their
petition, which would have afforded them thirty days within
which to file a claim against the property. See A.R.S. § 13-
4309(3)(c). Moore promptly moved to strike that claim,
asserting for the first time that the Platts’ petition for
remission or mitigation was defective because, although it
had been signed, it did not state that it had been “signed
under penalty of perjury.”
The Platts responded with an opposition to Moore’s
motion. They also filed in state court this civil rights action
against Moore and various co-defendants, challenging
Arizona’s forfeiture system as violating the constitutions of
the United States and of Arizona. In particular, the Platts
alleged that Arizona’s uncontested forfeiture regime denies
them due process of law because it: (1) allows attorneys for
the state to adjudicate, without meaningful review, forfeiture
proceedings in which the state’s attorney, in his official
1
Moore did acknowledge in his application for forfeiture that he had
received “correspondence” from the Platts, but asserted that the
“correspondence” did not satisfy the statutory requirements to qualify as
a petition. He did not identify any flaws in the petition, nor did he submit
the “correspondence” for the state court’s review.
12 PLATT V. MOORE
capacity, has a pecuniary interest (the “biased adjudicator”
claims); and (2) awards all interests in property forfeited to
the agency responsible for seizing it, “impair[ing] the ability
of law enforcement to administer justice impartially” (the
“biased enforcer” claims).
Two weeks after this civil rights action was filed, Moore
withdrew both his motion to strike and his application for
forfeiture, although he maintained that the Platts could not
have contested the forfeiture of the car in the pending state
forfeiture proceeding had he moved forward. The car was
returned to the Platts five months after it was impounded.
Moore and his co-defendants then removed the Platts’
civil rights action to federal court, asserting federal question
jurisdiction. 28 U.S.C. § 1331. Once the case was removed,
the state of Arizona intervened to defend the
constitutionality of its forfeiture statutes.
The Platts’ case did not fare well in district court. The
court dismissed all claims for declaratory and injunctive
relief as moot for federal court purposes, a ruling the Platts
do not contest. It dismissed all state law claims for failure to
comply with Arizona’s “notice of claim” statute. See A.R.S.
§ 12-821.01. These rulings were supplemented by merits
grounds for dismissing the “biased adjudicator” claims
altogether and for dismissing the “biased enforcer” claims
against particular defendants. As to the “biased adjudicator”
claims, the court adopted an interpretation of Arizona’s
forfeiture statutes on which Moore’s motion to strike would
have failed and the Platts could have obtained meaningful
review of Moore’s decision to reject their petition. As to the
“biased enforcer” claims, the court dismissed as a defendant
the Navajo County Drug Task Force on the ground that it
was not a “jural entity” with the capacity to be sued under
Arizona law, nor a “person” under 42 U.S.C. § 1983, and
PLATT V. MOORE 13
also dismissed the claims against the individual members of
the Task Force.
At that point, the “biased enforcer” federal due process
claims for nominal damages against Navajo County
Attorney Brad Carlyon and Deputy Navajo County Attorney
Moore, in their official capacities, were all that remained of
the Platts’ case. Those claims soon met their demise as well:
the court entered judgment on the pleadings for the
defendants under Will v. Mich. Dep’t of State Police,
491 U.S. 58 (1989), because Carlyon and Moore, sued in
their official capacities, are not “person[s]” within the
meaning of § 1983.
The Platts appeal the dismissal of their state law nominal
damages claims only. They also ask that, regardless of
whether those claims are reinstated, the case be remanded to
state court so that they can pursue their claims for
prospective relief. 2 We review de novo the district court’s
rulings on Rule 12(b)(6) motions to dismiss, see Westlands
Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.
1993), and its rulings interpreting state law, see Fourth Inv.
LP v. United States, 720 F.3d 1058, 1066 (9th Cir. 2013).
II.
We begin with the district court’s most sweeping basis
for dismissal of the claims on appeal: that A.R.S. § 12-
821.01 requires those asserting Arizona law claims against a
public entity, public school, or public employee to file a
2
Although the parties agree that the claims for prospective relief are
moot in federal court, appellants maintain that those claims might
nevertheless go forward in the courts of Arizona. See Ariz. Osteopathic
Med. Ass’n v. Fridena, 463 P.2d 825, 826 (Ariz. 1970).
14 PLATT V. MOORE
notice of claim before filing suit, including for claims for
nominal damages. The district court held that because the
Platts did not file a notice of claim, § 12-821.01 bars their
claims.
The parties agree that, if the statute applies, the Platts’
Arizona due process claims are barred. The statute provides:
Persons who have claims against a public
entity, public school or a public employee
shall file claims with the person or persons
authorized to accept service for the public
entity, public school or public employee as
set forth in the Arizona rules of civil
procedure within one hundred eighty days
after the cause of action accrues. The claim
shall contain facts sufficient to permit the
public entity, public school or public
employee to understand the basis on which
liability is claimed. The claim shall also
contain a specific amount for which the claim
can be settled and the facts supporting that
amount. Any claim that is not filed within one
hundred eighty days after the cause of action
accrues is barred and no action may be
maintained thereon.
A.R.S. § 12-821.01(A).
As interpreted by the courts of Arizona, this statute does
not apply to claims for declaratory judgment, Martineau v.
Maricopa County, 86 P.3d 912, 915 (Ariz. Ct. App. 2004),
or for injunctive relief, State v. Mabery Ranch, Co., 165 P.3d
211, 222–23 (Ariz. Ct. App. 2007). But it remains an open
question whether the statute applies to claims for nominal
damages. Our task is to predict, based on the reasoning in
PLATT V. MOORE 15
Martineau and Mabery, how Arizona courts would decide
this issue. See Alliance for Prop. Rights & Fiscal Resp. v.
City of Idaho Falls, 742 F.3d 1100, 1102 (9th Cir. 2013). We
predict that Arizona would not apply its notice of claim
statute to claims for nominal damages, and we accordingly
reverse the dismissal to the degree it rested on this basis.
Martineau is particularly instructive. The court there
emphasized that the purposes of A.R.S. § 12-821.01 are “to
allow the public entity [or employee] to investigate and
assess liability, to permit the possibility of settlement prior
to litigation, and to assist the public entity in financial
planning and budgeting.” Martineau, 86 P.3d at 915–16.
Recognizing that the claim for declaratory relief there at
issue “does not seek damages and would not result in any
monetary award against the County . . . (absent possible
costs and attorneys’ fees),” the court noted that such claims
“have no direct effect upon the County’s financial planning
or budgeting.” Id. at 916. The court further explained that
applying the statute’s notice requirement to claims for
declaratory judgment would be “inconsistent” with the
“statutory language” because the statute requires, as an
“essential component,” “a reasonable estimate of the amount
for which the claim may be settled”; that requirement cannot
sensibly be applied to claims for declaratory relief, which are
“not amenable . . . to settlement for a sum certain.” Id.(internal quotation marks and citation omitted).
In reaching this conclusion, Martineau relied upon
California and federal district court cases, interpreting a
similar California notice of claim statute, that support the
extension of this reasoning to claims for nominal damages.
See id. at 916–17. “California courts have recognized an
exception to the claim act notice requirements where
declaratory or injunctive relief is the primary purpose of the
16 PLATT V. MOORE
litigation.” Id. at 916 (citing Gatto v. County of Sonoma,
120 Cal. Rptr. 2d 550, 554 n.3, 564 (Ct. App. 2002))
(emphasis added); see id at 916 ¶¶ 22–23 & n.6
(characterizing California claims four separate times as not
applying when declaratory or injunctive relief is the
“primary” purpose of the litigation). Notably for present
purposes, Martineau cited as persuasive a case that
exempted specified incidental damages from the
requirements of the notice of claim statute, on the ground
that the claim involved damages that were “small and
particularly inconsequential in comparison to the effect” of
the judgment reflecting that they had prevailed on the
liability issues. Id. at 916. (citing Indep. Hous. Servs. of S.F.
v. Fillmore Ctr. Assocs., 840 F. Supp. 1328, 1358 (N.D. Cal.
1993)). And Martineau noted that “[n]one of the recognized
purposes of the notice of claims statute are implicated by a
suit in which a formal policy of the locality must be declared
illegal in order for the plaintiff to prevail.” Id. (quoting
M.G.M. Const. Co. v. Alameda County, 615 F. Supp. 149,
151 (N.D. Cal. 1985)).
Given that interpretation of California law, and
Arizona’s demonstrated willingness in Martineau to
consider California law in interpreting Arizona’s notice of
claim statute, it seems likely that Arizona would exempt
nominal damages claims from the requirement to file a
notice of claim. Nominal damages cases, even more than
cases in which actual damages are incidental to declaratory
relief, are outside the preeminent financial and budgeting
purposes of Arizona’s presuit claim-filing requirement.
Instead, suits for nominal damages are closely similar to
suits for declaratory relief with respect to those purposes.
The Supreme Court’s recent examination of the history
of nominal damages determined that “[t]he award of nominal
PLATT V. MOORE 17
damages was one way for plaintiffs at common law to
‘obtain a form of declaratory relief in a legal system with no
general declaratory judgment act.’” Uzuegbunam v.
Preczewski, 141 S. Ct. 792, 798 (2021) (quoting D. Laycock
& R. Hasen, Modern American Remedies 636 (5th ed.
2019)). As this observation recognizes, before nominal
damages can be granted, a court must consider and
determine the legal questions underlying the claim for
nominal damages, thereby, as in a declaratory judgment
action, declaring the applicable law.
Dissenting as to the importance of Martineau, Judge
Collins argues that the California case law cited by the
Arizona courts proves too much, as those cases do not hold
that Arizona would not require a prelitigation claim for
incidental damages where the action is primarily for
declaratory or injunctive relief. Dissent at 41–42. But
Martineau itself dealt with a plaintiff who did make a
monetary claim: “Ancillary to Appellants’ main action was
their contention that they were entitled to counsel of their
choice at County expense,” 86 P.3d at 913, because the
Maricopa County Attorney, who allegedly would ordinarily
have represented the plaintiffs, had a conflict of interest.
Complaint ¶¶ 19–23, Martineau v. Maricopa Cnty., 2002
WL 32943468 (Ariz. Super. Ct. 2002). Martineau noted that
some monetary award might still be granted in that case in
the form of attorneys’ costs or fees, and, again, described the
open question in Arizona courts, for which guidance from
California courts was useful, as “whether an action primarily
for declaratory relief is subject to governmental claim notice
statutes.” 86 P.3d at 916 (emphasis added). So it does appear
that under Martineau, Arizona would most likely permit a
18 PLATT V. MOORE
claim for damages incidental to a claim for declaratory or
injunctive relief. 3
There is scant difference between a claim for declaratory
relief and incidental damages and one for nominal damages,
except that the nominal damages are more like pure
declaratory relief because they are by definition minute and
so of no budgetary consequence. The reasoning of the
California cases that Martineau specifically relied on as
“persuasive and consistent with the purposes of Arizona’s
public entity notice requirements,” 86 P.3d at 917, thus at
least extends to exempting nominal damages claims of one
dollar.
Mabery doubled down on Martineau’s reasoning. There,
the Arizona Court of Appeals extended Martineau to claims
for injunctive relief. Such claims, the court held, were not
subject to the notice of claim requirements because “the
drafters intended the statute not to apply to claims that seek
only to restrain government conduct,” and because “it would
be nonsensical for the statute to command such a claimant to
state a ‘specific amount for which the claim can be settled’”
as required by the statute. 165 P.3d at 223 (quoting A.R.S.
§ 12-821.01(A)).
We conclude that Arizona courts would exempt claims
for one dollar in nominal damages for the same reasons
claims for declaratory or injunctive relief are exempted.
3
Arpaio v. Maricopa Cnty. Bd. of Supervisors, 225 Ariz. 358 (Ct.
App. 2010) is not pertinent to our issue. See Dissent at 44. Arpaio
addressed a particular type of declaratory judgment action, in which the
plaintiff sought declaratory judgment as to the proper disposition of over
$24 million. Id. at 361. Such an action is not primarily for declaratory
relief, and, unlike nominal damages claims for one dollar, has a
significant budgetary consequence.
PLATT V. MOORE 19
Martineau and Mabery “articulated principles that guide the
construction of [the] relevant statute[],” which we follow in
making this determination. Alliance for Prop. Rights,
742 F.3d at 1103. Like claims for declaratory or injunctive
relief, claims for nominal damages “have no direct effect
upon [a public entity’s] financial planning or budgeting.”
Martineau, 86 P.3d at 916. The “primary purpose” of claims
for nominal damages is not a substantial damages award but
a legal liability ruling, rendering any one-dollar award
comparatively “inconsequential.” Id. (citing Indep. Hous.
Servs. of S.F., 840 F. Supp. at 1358). And, like claims for
declaratory or injunctive relief, it would be nonsensical to
require nominal damages claimants for $1 in damages to
disclose, as a prerequisite for filing suit, “a reasonable
estimate of the amount for which the ‘claim’ may be settled,”
for such claims are ordinarily “not amenable . . . to
settlement for a sum certain.” Id.; see also Mabery, 165 P.3d
at 223.
The dissent also views our conclusion as “undermin[ing]
the bright-line rule the statute establishes” between
monetary and non-monetary claims. Dissent at 44–45. In
support, the dissent references the statement in Mabery that
“[a]lthough section 12-821.01 does not define ‘claim,’ we
know from its plain language that the drafters intended the
statute to apply to claims for money damages.” 165 P.3d
at 223. But the relevant passage of Mabery distinguishes
“claims for money damages” from “claims that seek only to
restrain government conduct.” Id. Nominal damages claims
of one dollar have consistently been understood as
categorically different from even small compensatory
damages claims, as “[c]ompensatory damages and nominal
damages serve distinct purposes.” Schneider v. County of
San Diego, 285 F.3d 784, 795 (9th Cir. 2002); see also Carey
v. Piphus, 435 U.S. 247, 267 (1978); Wiggins v. Rushen,
20 PLATT V. MOORE
760 F.2d 1009, 1012 (9th Cir. 1985). One purpose of a
nominal damages claim, as here, is to prospectively restrain
government conduct through the “symbolic vindication of
[a] constitutional right.” Schneider, 285 F.3d at 795. The
relevant passage of Mabery therefore supports our
conclusion.
Rather than insisting on an invented bright-line rule,
Martineau, Mabery, and the California cases on which they
rely rest on an appreciation of the practical underlying
rationales of the notice of claims statute. Interpreting A.R.S.
§ 12-821.01 as inapplicable to nominal damages claims
comports with that approach and with the language and facts
of Martineau. We confidently predict that the Arizona
Supreme Court would hold that where only nominal
damages are sought, no claim must be filed under § 12-
821.01 before filing suit.
We accordingly reverse the dismissal on this basis of the
Platts’ Arizona due process claims. 4
4
Arizona urges, as an alternative basis for affirmance, that Arizona
law does not provide a cause of action for damages for alleged violations
of the Arizona Constitution. We note that the notice of claim statute
purports to authorize claims against Arizona public entities without
regard for whether such claims are statutory or constitutional, and that
the Arizona decisions upon which we rely permit declaratory and
injunctive relief against such entities without any statute explicitly
permitting such suits and without regard for whether the claim asserted
arises from statutory or constitutional law. See Martineau, 86 P.3d
at 917; Mabery, 165 P.3d at 222–23. In any case, this argument was not
raised below, and therefore has been waived. See Holder v. Holder,
305 F.3d 854, 867 (9th Cir. 2002).
PLATT V. MOORE 21
III.
We turn next to the alternate bases for dismissal of the
claims on appeal—first, to the district court’s holding that
the Platts’ “biased adjudicator” claims fail on their merits
because Arizona’s uncontested forfeiture statutes, properly
interpreted, permitted the Platts to file a claim after Moore
had filed the application for forfeiture, ensuring that, had the
case gone forward, a neutral adjudicator would have
reviewed Moore’s undisclosed determination that no
petition was timely filed. To put it another way: On the
district court’s interpretation, Moore’s motion to strike the
Platts’ claim against their property would have been denied,
and the claim would have been adjudicated under the clear-
and-convincing standard which applies in contested
proceedings rather than under the probable cause standard
which applies in uncontested ones. See A.R.S. § 13-
4314(A); id. § 13-4311(D), (M).
(i) “The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319,
333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). If the district court was correct in its conclusion that
Moore’s motion to strike was doomed to fail, then the Platts’
filing of a claim after the application for forfeiture had been
filed indeed secured the opportunity to be heard which due
process requires. But if, as the Platts argue, Moore’s motion
to strike would have succeeded, then Moore’s undisclosed
determination that no timely petition had been filed was
unreviewable, and the forfeiture of their car became
“virtually assur[ed]” when Moore unilaterally decided that
uncontested forfeiture was appropriate (notwithstanding
Moore’s subsequent unilateral decision to return the car).
Wohlstrom, 884 P.2d at 689. Absent guidance to the contrary
22 PLATT V. MOORE
from the courts of Arizona, we conclude that the saving
construction adopted by the district court cannot be
reconciled with the statutory language, and that on the facts
as recited in the complaint, Moore’s undisclosed,
unreviewable determination that the Platts’ petition was
untimely denied the Platts a meaningful opportunity to be
heard by an unbiased adjudicator. See Matthews, 424 U.S.
at 333; Ward v. Village of Monroeville, 409 U.S. 57, 58–61
(1972).
The Arizona statutes as they existed during the events
underlying this case purported to furnish property owners
with two avenues for contesting a forfeiture: they may file a
“claim with the court,” or they may file “with the attorney
for the state” “a petition for remission or mitigation of
forfeiture.” A.R.S. § 13-4309(2). 5 The statute explicitly
made these options mutually exclusive; property owners
“may not file both.” Id. Those who choose to file petitions
“may not” file a claim against the property with the court
until after the state’s attorney issues a written declaration of
forfeiture in response to the petition. Id. § 13-4309(3)(c). 6
The statute required state’s attorneys to issue such written
declarations within 90 days after a petition was filed,
although the deadline could be extended to 120 days with
5
A.R.S. § 13-4309(2) provided: “An owner of or interest holder in
the property may elect to file either a claim with the court within thirty
days after the notice or a petition for remission or mitigation of forfeiture
with the attorney for the state within thirty days after the notice and not
after a complaint has been filed, but may not file both.”
6
A.R.S. § 13-4309(3)(c) provided: “An owner or interest holder in
any property declared forfeited may file a claim as described in § 13-
4311, subsections E and F in the superior court in the county in which
the uncontested forfeiture was declared within thirty days after the
mailing of the declaration of forfeiture.”
PLATT V. MOORE 23
notice to the petitioner specifying the complexities of the
case and expected deadline. See id. § 13-4309(3)(b). 7
This regime on its face permitted the state’s attorney
unilaterally to deny to those who chose to contest forfeiture
by filing a petition the procedural protections applicable in
contested forfeiture proceedings. The state’s attorney needed
only to abstain from issuing the required declaration of
forfeiture by silently deeming a petition that called for one
incorrectly filed, wait out the limitations period for filing a
claim in court without notifying the property owner that the
petition was inoperative, and then maintain that no petition
or claim was timely filed—thereby availing the state of the
favorable standards that apply in “uncontested” proceedings.
See Wohlstrom, 884 P.2d at 689. Exactly that sequence
occurred here. So long as no declaration of forfeiture issued,
the statute provides no route for a property owner who chose
the petition route to trigger judicial review of the state’s
7
A.R.S. § 13-4309(3)(b) provided: “The attorney for the state shall
provide the seizing agency and the petitioner with a written declaration
of forfeiture, remission or mitigation of any or all interest in the property
in response to each petition within ninety days after the effective date of
the notice of pending forfeiture unless one or more petitioners request an
extension of time in writing or unless the circumstances of the case
require additional time, in which case the attorney for the state shall
notify the petitioner in writing and with specificity within the ninety day
period that the circumstances of the case require additional time and
further notify the petitioner of the expected decision date. In no event
shall the mailing of the declaration be more than one hundred twenty
days after the date of the state’s notice of pending forfeiture.”
Arizona’s statutory civil forfeiture scheme has recently been
significantly revised, with the amendments effective on September 29,
2021. 2021 Ariz. Sess. Laws ch. 327. These amendments do not affect
the Platts’ damages claim for the forfeiture to which they were subjected.
24 PLATT V. MOORE
attorney’s application for uncontested forfeiture. See
Norriega, 878 P.2d at 1390; A.R.S. § 13-4309(3)(c).
This obvious vulnerability in Arizona’s forfeiture regime
to a procedural due process challenge cannot be mitigated by
interpretative sleight-of-hand. Even if we were to interpret
Arizona’s command that those who choose to file a petition
“may not file” a claim until a declaration of forfeiture has
issued as limited to those who file valid petitions, see A.R.S.
§ 13-4309(2), it would remain the case that a state’s attorney
could unilaterally deem a petition invalid without alerting
the petitioner. And again, the statute provides only two
opportunities to file a claim with the court: within thirty days
after a notice of pending forfeiture, as an alternative to filing
a petition, or within thirty days of receiving a declaration of
forfeiture after filing a petition. To avoid her court claim
being time barred by a denial of the petition on timing
grounds, an individual who had chosen the petition route
would have needed to file a protective claim before receiving
any response to the petition, despite the statute’s clear
command that a petitioner “may not file both” a petition for
remission and a claim with the court, id. § 13-4309(2), and
in defiance of the statute’s clear command that a petitioner
who does not file a timely petition “may not file” a claim
where the petition route was chosen until “after” a
declaration of forfeiture has been issued by the state’s
attorney, id. § 13-4309(3)(c).
The Platts allege that they faced precisely such a
dilemma. They should not be penalized for taking Arizona’s
statutory scheme at its word.
(ii) Contrary to the partial dissent on Article III standing,
Dissent at 37–39, the Platts have standing to bring their
“biased adjudicator” claim. The Platts’ complaint alleges
that they were subject to a constitutionally deficient
PLATT V. MOORE 25
forfeiture process, which itself constitutes an injury. The
dissent focuses on the fact that, instead of pursuing an
uncontested forfeiture that allowed Moore to adjudicate the
validity of the Platts’ petition for remission, Moore could
have instead chosen to initiate judicial proceedings. Dissent
at 39.
That Moore could have—but did not—invoke a
constitutionally valid process does not remove the Platts’
standing to challenge the process to which they were
subjected, through no choice of their own. (They did have a
choice once notified of the pending uncontested forfeiture
before Moore—court claim or petition—but they could not
control whether Moore used the uncontested forfeiture
route.) Even if the Platts could have received due process
under other provisions of the forfeiture statute, “and even if
they did not suffer any other actual injury, the fact remains
that they were deprived of their right to procedural due
process.” Carey, 435 U.S. at 266.
In Carey, the Court held that if the district court
determined that the underlying deprivation was justified, a
due process violation “nevertheless . . . entitled” plaintiffs
“to recover nominal damages not to exceed one dollar.” Id.
at 267. Carey did not rely on the difference in outcome
between constitutional and unconstitutional processes, as the
outcome could be identical for a justified deprivation.
Similarly, that the Platts car was returned after they were
subjected to an allegedly unconstitutional process does not
deprive them of standing.
Further, both the Platts’ “biased enforcer” and “biased
adjudicator” claims involve a loss of their car traceable to
the allegedly improper features of the statute. As the dissent
cogently explains, “[t]he gravamen of Plaintiffs’ biased-
enforcer claim is that the groundless forfeiture proceedings
26 PLATT V. MOORE
brought against their car might not have been undertaken at
all, or would have been abandoned sooner, had these
statutory provisions not given such unconstitutional
financial incentives to the receiving agencies.” Contrary to
the dissent’s view, the Platts’ biased adjudicator claim
operates similarly.
The gravamen of the biased adjudicator claim is that the
statute improperly permitted Moore full authority to
determine whether the Platts’ petition for remission was
validly filed, without notifying them when he determined
that it was not. Absent such authority, the Platts contend,
Moore would have had to consider the merits of their
petition, subject to review by a court applying a clear-and-
convincing standard. Knowing that such review was
available, Moore may have abandoned the forfeiture sooner.
The statutory deadline for Moore’s response to the Platts’
petition—had he not deemed it invalid—was September 20,
2016. Moore did not abandon the forfeiture and return the
car until October 19, 2016, almost a month later.
The dissent contends that we are bound to conclude
otherwise because “the district court specifically held that
Moore’s choice of response did not lengthen the forfeiture
proceedings,” and that ruling has not been challenged.
Dissent at 39. But the district court’s analysis does not relate
to the two alternative methods Moore (as opposed to the
Platts) could have taken on which the dissent relies. As we
have explained, the district court’s conclusion as to the
significance of the Platts’ choice of procedures rests on an
erroneous interpretation of the statute the Platts have
challenged.
More specifically, the dissent focuses on Moore’s choice
to pursue uncontested forfeiture under § 13-4309 as opposed
to invoking judicial proceedings under § 13-4311. But the
PLATT V. MOORE 27
district court assessed the timing of Moore’s decisions within
the uncontested forfeiture process: namely, whether
Moore’s choice to deem the Platts’ petition for remission
invalid and file an order of forfeiture under § 13-4314
delayed the return of their car beyond what would have
happened if Moore reviewed the merits of the Platts’ petition
and instead issued a declaration of forfeiture under § 13-
4309(3)(b). Neither the district court nor the parties have
offered an analysis of how long judicial proceedings under
§ 13-4311 would have taken. 8
But no analysis of the time a judicial process would have
taken is required here. As we have explained, Moore’s
ability to choose a constitutional process does not affect the
Platts’ standing to challenge the process to which they were
actually subjected; if that process was constitutionally
deficient, they are entitled to nominal damages. See Carey,
435 U.S. at 266.
The district court’s assessment that Moore’s conduct did
not delay the return of the Platts’ car likewise does not affect
our standing analysis. The district court concluded that the
Platts “filed their claim more than a month before the
September 20, 2016 deadline that would have applied for
Moore to mail a declaration of forfeiture, and before the
deadline that would have applied for them to file a claim in
response to a declaration of forfeiture.” First, the district
court’s analysis ignores the potential that an unbiased
adjudicator would have assessed the merits of the Platts’
petition and issued a declaration of remission, not a
8
We note that under § 13-4311, a “hearing on the claim, to the
extent practicable and consistent with the interest of justice, shall be held
sixty days after all parties have complied with” initial disclosure
requirements. Id. § 13-4311(K).
28 PLATT V. MOORE
declaration of forfeiture, by September 20 (as Moore’s
ultimate decision to return the car and abandon the forfeiture
suggests is likely). Second, this analysis assumes that the
Platts secured procedural due process upon the filing of their
claim, not upon the return of their car. The filing of the claim
could only provide due process if Moore’s motion to strike
would have failed. As we have explained, that is at best
unlikely, and cannot preclude the Platts’ standing to
challenge the statute.
We accordingly reverse the dismissal of the Platts’ (state
law) biased adjudicator claims.
IV.
We turn now to the district court’s ruling that the Navajo
County Drug Task Force is not amenable to suit under
Arizona law. We agree with the district court that it is not
and affirm dismissal of the claims against the Task Force on
this basis.
Arizona permits suits against government entities only
where the legislature has conferred upon the entity the
capacity to sue or to be sued. Braillard v. Maricopa County,
232 P.3d 1263, 1269 (Ariz. Ct. App. 2010). In Braillard, the
court concluded that a sheriff’s office lacked the legal
capacity to sue and to be sued because no statute expressly
conferred upon it that capacity. Id.; see also Hervey v. Estes,
65 F.3d 784, 791–92 (9th Cir. 1995). The same is true here.
Although Arizona law defines entities such as the Task
Force as “seizing agenc[ies]” in forfeiture proceedings, see
A.R.S. § 13-4301(8), and confers upon such entities the right
to be awarded title to the property they seize, see id. § 13-
4315(B), it does not appear to grant such entities any
capacity to sue or to be sued. Dismissal of the claims against
the Task Force was therefore proper.
PLATT V. MOORE 29
That the Task Force lacks the capacity to be sued under
Arizona law does not preclude this Court from substituting a
proper party in its place. Fed. R. Civ. P. 21; see also
Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th Cir. 2015).
Ordinarily, we would consider such a substitution. But as we
read the operative complaint, the conduct here alleged to be
unconstitutional was undertaken exclusively by Deputy
Navajo County Attorney Moore on behalf of Navajo County
Attorney Brad Carlyon. It was Moore who directed that the
car be seized, Moore who unilaterally deemed the Platts’
petition defective, Moore who then initiated uncontested
forfeiture proceedings, and Moore who moved to strike the
Platts’ attempt to intervene. Moore and his supervisor
Carlyon accordingly remain the appropriate defendants for
the claims as to which we have reversed dismissal.
We note that Moore and Carlyon do not contest on this
appeal the district court’s ruling that the biased enforcer
claims were plausibly alleged on their merits, so we do not
here address whether those claims are indeed plausible and
so survive dismissal. Having dismissed the Arizona biased
enforcer claims for failure to comply with Arizona’s notice
of claim statute, the district court ultimately held that the
federal biased enforcer claims against Moore and Carlyon
failed because Moore and Carlyon are not “persons” within
the meaning of 42 U.S.C. § 1983. See Will, 491 U.S. at 71.
But that ruling, not here contested, was a matter of federal
statutory interpretation. The defendants point to no parallel
ground for dismissal of the Platts’ Arizona due process
claims. Accordingly, given the rulings above, both the
biased adjudicator and biased enforcer nominal damages
claims against Moore and Carlyon for violations of Arizona
due process may proceed.
30 PLATT V. MOORE
V.
Given our rulings in the sections above, this action—
once a mix of state and federal claims—now consists of state
due process claims only. 28 U.S.C. § 1367(c)(3) provides
that the exercise of supplemental jurisdiction “may” be
declined if “the district court has dismissed all claims over
which it has original jurisdiction.” Accordingly, the district
court on remand should consider anew whether to exercise
supplemental jurisdiction over the remaining claims or
instead to remand the case to Arizona’s courts.
Such a remand might be particularly advisable given the
Platts’ claims for prospective relief, which they concede are
moot in federal court but which may not be moot in the
courts of Arizona. At the same time, we cannot say that such
a remand is required. Polo v. Innoventions International,
LLC, 833 F.3d 1193 (9th Cir. 2016), held that 28 U.S.C.
§ 1447(c), which requires remand of “the case” to state court
“[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction,” compelled
remand to state court when the plaintiff lacked standing to
pursue the only claim on appeal in Article III courts, but
could have had standing to pursue those claims in state court.
833 F.3d at 1196, 98 (alteration in original). Section 1447(c)
requires remand of the entire “case” when jurisdiction is
lacking, not of particular claims over which the court lacks
jurisdiction. Because the nominal damages claims revived
by this opinion remain justiciable, § 1447(c) does not apply,
and the district court’s decision whether to remand to the
courts of Arizona remains a matter of discretion under
§ 1367(c)(3).
We reject the district court’s conclusion that there is now
federal jurisdiction over all the claims based on diversity of
citizenship. See 28 U.S.C. § 1332(a). Moore and Carlyon
PLATT V. MOORE 31
could be considered Arizona citizens for the purposes of
diversity jurisdiction had they been sued in their individual
capacities, but they were sued in their official capacities as
officers operating on behalf of the state. Contrary to the
Platts’ submission, they could conceivably be state actors for
the purposes of 42 U.S.C. § 1983 and yet citizens for
diversity purposes. But here they were not. As the district
court determined, as the pertinent statutes specify, and as the
complaint alleges, Moore and Carlyon “acted for the state
when [they] pursued uncontested forfeiture of Plaintiffs’ car
under [A.R.S.] § 13-4309.” A.R.S. § 11-532(a) (directing
that the county attorney shall “conduct, on behalf of the state,
all prosecutions for public offenses”); id. § 13-4301(1)
(defining “[a]ttorney for the state” in the context of the
forfeiture statute as “an attorney designated by the attorney
general, by a county attorney or by a city attorney to
investigate, commence and prosecute an action”). They are
therefore effectively “the arm or alter ego of the State” for
diversity purposes, and diversity jurisdiction is improper.
Moor v. County of Alameda, 411 U.S. 693, 717–19 (1973);
see also 28 U.S.C. § 1332(a).
We note that, “absent waiver by the State or valid
congressional override,” state sovereign immunity protects
state officer defendants sued in federal court in their official
capacities from liability in damages, including nominal
damages. Kentucky v. Graham, 473 U.S. 159, 166–69
(1985). But this immunity may be waived when a defendant
unduly delays in asserting it. See Hill v. Blind Indus. &
Servs. of Md, 179 F.3d 754, 756–58 (9th Cir. 1999) (citing
Durning v. Citibank, N.A., 950 F.2d 1419, 1423 (9th Cir.
1991)). As the district court recognized, Moore and Carlyon
had ample opportunity to raise the issue earlier in this
litigation. We agree with the district court that any sovereign
32 PLATT V. MOORE
immunity defense to the nominal damages claims was
waived.
VI.
Finally, we address Arizona’s cross-appeal, which seeks
a ruling that its statutory scheme governing forfeiture is
facially valid under the federal and Arizona constitutions.
Arizona prevailed below. Its purported cross-appeal does
not seek to alter the relief ruling by the district court, namely,
the denial of all relief to the Platts. Although we would be
free to “affirm the district court on any ground supported by
the record” and raised in the district court even in the absence
of any cross-appeal, Experian Info. Sols., Inc. v. Nationwide
Mktg. Servs. Inc., 893 F.3d 1176, 1187 (9th Cir. 2018); see
Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th
Cir. 1992), we are not affirming the relevant district court
rulings—we are reversing the key rulings.
The ruling that Arizona seeks—that there is some “set of
circumstances . . . under which the [statute] would be valid,”
United States v. Salerno, 481 U.S. 739, 745 (1987)—would
not in any way affect the actual contours of this controversy,
which revolves around whether these circumstances amount
to an as-applied violation of Arizona due process. In effect,
Arizona is seeking an advisory opinion as to the validity of
its forfeiture scheme in circumstances not now before us.
Moreover, the statute as to which Arizona sought that
opinion has been substantially revised, see note 8, supra, so
Arizona’s request is particularly inapt and in all probability
moot, eliminating our jurisdiction to grant it. See Bayer v.
Neiman Marcus Grp., Inc., 861 F.3d 853, 862 (9th Cir.
2017).
PLATT V. MOORE 33
In sum, we have no authority to entertain Arizona’s
request in the guise of determining a cross-appeal. See, e.g.,
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc.
508 U.S. 439, 446 (1993).
For the reasons stated above, we REVERSE the
dismissal of the Platts’ Arizona due process claims for
failure to comply with Arizona’s notice of claim statute; we
REVERSE the district court’s holding that the biased
adjudicator claims fail on their merits; and we AFFIRM the
district court’s dismissal of all defendants from the action
save Moore and Carlyon. We remand to the district court for
further proceedings consistent with this opinion. The Platts
shall recover their costs on appeal.
COLLINS, Circuit Judge, concurring in the judgment in part
and dissenting in part:
I disagree with the majority’s decision insofar as it
allows any portion of this action to proceed any further.
Because my reasoning differs somewhat from the majority’s
even as to the aspects of the judgment as to which we agree,
I respectfully concur in the judgment in part and dissent in
part.
As this matter is presented to us on appeal, a case that
the parties had made unnecessarily complicated below has
become greatly simplified. Plaintiffs William Terrence Platt
and Maria B. Platt initially filed this suit in state court
asserting a variety of federal and state claims against various
state and local defendants in connection with then-pending
Arizona state-court forfeiture proceedings against an
automobile owned by Plaintiffs. After the car was returned
and the forfeiture proceedings terminated, Defendants
34 PLATT V. MOORE
removed this case to federal court based on federal question
jurisdiction, and Arizona formally intervened to defend the
constitutionality of its forfeiture statutes. 1 The district court
ultimately dismissed the action with prejudice, and Plaintiffs
have raised only a limited number of challenges to the
district court’s rulings.
As a threshold matter, I agree with the majority’s holding
that the “Navajo County Drug Task Force” lacks the
capacity to be sued under Arizona law and that the proper
defendants for the relevant claims asserted against the Task
Force are Deputy County Attorney Moore and Navajo
County Attorney Brad Carlyon, in their official capacities as
representatives of the State of Arizona. 2 See Maj. Opin.
at 28–29. The only remaining issues Plaintiffs have raised
on appeal are (1) whether the district court properly
dismissed Plaintiffs’ claims for nominal damages under
Arizona law against Moore and Carlyon, in their official
capacities, for violation of Plaintiffs’ Arizona due process
rights during the forfeiture proceedings; and (2) whether the
district court should have remanded Plaintiffs’ concededly
moot claims for prospective relief under the Arizona
Constitution to the Arizona state courts to see whether those
courts would entertain these claims despite their mootness.
1
As the district court noted, the Defendants did not preserve any
issue of Eleventh Amendment immunity below. Nor has any such issue
has been presented on appeal.
2
Plaintiffs contend that other local entities should have been
substituted instead, but in making this contention, Plaintiffs fail to
address the district court’s alternative grounds for not allowing any
claims to go forward against those local entities. Any issue concerning
the substitution of those entities for the Task Force is therefore forfeited,
in my view. See United States v. Gamboa-Cardenas, 508 F.3d 491, 502
(9th Cir. 2007).
PLATT V. MOORE 35
I disagree with the majority’s resolution of both of these
questions.
I
Before turning to those issues, I must first address the
issue of Article III standing. Although no party has
questioned Plaintiffs’ standing in this court, we have “an
independent obligation to assure that standing exists,
regardless of whether it is challenged by any of the parties.”
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009).
Here, Plaintiffs assert two claims for nominal damages based
on asserted violations of Arizona’s due process clause—
namely, (1) a claim that Defendants had an unconstitutional
incentive under Arizona law to file and maintain forfeiture
proceedings even in the absence of proper grounds to do so
(the so-called “biased-enforcer” claim); and (2) a claim that
Arizona law allowed Defendants to invoke a particular
alternative manner of conducting the forfeiture that did not
comply with due process (the so-called “biased-adjudicator”
claim). On this record, Plaintiffs have Article III standing to
assert the first claim, but not the second.
A
As “an indispensable part of the plaintiff’s case, each
element” of Article III standing “must be supported in the
same way as any other matter on which the plaintiff bears
the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
To establish Article III standing, a “plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.” Spokeo, Inc.
v. Robins, 578 U.S. 330, 338 (2016). I agree that each of
36 PLATT V. MOORE
these elements is satisfied as to Plaintiffs’ biased-enforcer
claim.
Under Arizona’s forfeiture scheme, if the forfeited
property is a vehicle, it is forfeited to the “seizing agency.”
ARIZ. REV. STAT. § 13-4315(B)(2). 3 The agency may then
sell the vehicle, and the county’s anti-racketeering fund
receives the net proceeds of the sale. Id. § 13-4315(A)(2).
The gravamen of Plaintiffs’ biased-enforcer claim is that the
groundless forfeiture proceedings brought against their car
might not have been undertaken at all, or would have been
abandoned sooner, had these statutory provisions not given
such unconstitutional financial incentives to the receiving
agencies (which included Moore’s immediate employer,
Navajo County, even though he filed the suit as an agent of
the State). If this theory has substantive merit, then all three
elements of standing would be met: the temporary loss of the
car for five months is plainly an injury-in-fact; at least a
portion of that period of loss (and possibly the entire five
months) would be fairly traceable to the improper statutory
incentives to pursue invalid proceedings; and a nominal
damage award would redress that injury. Indeed, Plaintiffs
would have had Article III standing to pursue compensatory
damages for the monetarily quantifiable temporary loss of
their use of the car during the relevant time period.
3
As the majority notes, Arizona’s civil forfeiture scheme was
recently overhauled, and the amendments became effective on
September 29, 2021. See Maj. Opin. at 23 n.7. Nevertheless, Plaintiffs’
claim for nominal damages is governed by the Arizona forfeiture statutes
as they existed at the time of the forfeiture, and all citations of those
statutes in this dissent therefore refer to the applicable prior version.
PLATT V. MOORE 37
B
By contrast, on this record, Plaintiffs lack Article III
standing to assert the so-called “biased-adjudicator” claim.
This claim turns on a particular aspect of Arizona
forfeiture procedure that Defendant Moore invoked in this
case. Under Arizona’s forfeiture statutes, “the attorney for
the state may make uncontested civil forfeiture available,”
by “giving notice within thirty days after seizure . . . to all
persons known to have an interest” in the property sought to
be forfeited. ARIZ. REV. STAT. § 13-4309(1). After
receiving notice, a property owner then has two options: he
or she may file either (1) “a claim with the court within thirty
days after the notice” or (2) “a petition for remission or
mitigation of forfeiture with the attorney for the state within
thirty days after the notice and not after a complaint has been
filed.” Id. § 13-4309(2). If neither option is timely
exercised, “the attorney for the state shall apply to the court
for an order of forfeiture and allocation of forfeited
property.” Id. § 13-4314(A). Here, although Plaintiffs
attempted to invoke the second option by sending Moore a
purported petition for remission on June 28, 2016, Moore
took the position that Plaintiffs’ petition did not count
because it was not signed under penalty of perjury as
required by Arizona Revised Statutes § 13-4309(2) and
§ 13-4311(E). Moore therefore filed an application for
forfeiture on July 5, which he also mailed to Plaintiffs on
July 6, alleging that “no timely claim or Petition for
Remission has been filed” and asking that the Navajo
County Superior Court immediately forfeit the car under the
uncontested forfeiture provisions of the statute. In response,
Plaintiffs filed a claim in Navajo County Superior Court on
August 10 and asked for the claim to be adjudicated as a
judicial forfeiture proceeding under Arizona Revised
38 PLATT V. MOORE
Statutes § 13-4309(6)(a). Before the court ever ruled on the
matter, the State moved to withdraw the forfeiture
application on October 19 and returned the car to Plaintiffs.
The court filed a notice dismissing the forfeiture claim on
November 8, 2016.
The gravamen of Plaintiffs’ claim is that this aspect of
Arizona’s forfeiture scheme effectively gave Moore
unreviewable “authority to adjudicate the merits” of
Plaintiffs’ petition for remission of forfeiture, thereby
allowing Moore to make a “unilateral determination” that the
petition was deficient and consequently to file an
“uncontested” forfeiture proceeding that prejudiced
Plaintiffs’ rights. Under this theory, the due process problem
would have been avoided had Moore filed a “written
declaration of forfeiture” in response to the petition (either
because he treated the petition as valid or because he alerted
Plaintiffs to their procedural error in time for them to fix it).
See ARIZ. REV. STAT. § 13-4309(c) (claimant may file claim
in court if, in response to petition for remission, the attorney
for the State serves a “written declaration of forfeiture”).
Thus, Plaintiffs’ due-process objection would not apply had
Moore responded with a declaration of forfeiture rather than
an assertion that no valid petition for remission was timely
filed. Moreover, Plaintiffs’ theory that the Arizona statutory
scheme violates due process rests critically on the assertion
that, once Moore filed the uncontested forfeiture, Arizona
law precluded Plaintiffs from contesting the forfeiture. But
as noted, Plaintiffs here did file an objection in court, asking
the court to reject the State’s position and to proceed with
contested judicial forfeiture proceedings, and the State gave
up before the court ever ruled.
Given that (1) Plaintiffs did not dispute that probable
cause existed for the initial seizure; (2) Plaintiffs’ due
PLATT V. MOORE 39
process theory would not apply if Moore had served a
written declaration of forfeiture; (3) Plaintiffs’ due process
theory would not apply if the court had proceeded to agree
to allow their objections; and (4) before the court could rule,
the proceedings were terminated in Plaintiffs’ favor when
the State agreed to return the car, Plaintiffs could only have
suffered an injury-in-fact that was fairly traceable to
Moore’s choice of response if that choice somehow
differentially delayed the return of the car to them. 4
However, the district court specifically held that Moore’s
choice of response did not lengthen the forfeiture
proceedings or prolong the period during which Plaintiffs
were deprived of their car and Plaintiffs have not challenged
that ruling on appeal. Because Moore’s actions neither
lengthened the proceedings nor prevented the return of the
car, there simply is no sense in which Plaintiffs suffered any
loss of the car that can be said to be fairly traceable to
Moore’s decision not to serve a written declaration of
forfeiture.
4
Relying on Carey v. Piphus, 435 U.S. 247 (1978), the majority
contends that, simply because Moore took the litigating position he did,
Plaintiffs thereby had already suffered a completed deprivation of
property without due process of law at the time that the proceedings were
terminated, even if the same delay in the return of the car would have
occurred with proper procedures. See Maj. Opin. at 25–26. That is
wrong. Unless and until the state court agreed that Moore’s gambit
required the court to decline to hear Plaintiffs’ objections, Plaintiffs had
not yet suffered a loss of the opportunity to be heard, and so Plaintiffs
had not yet experienced a due process violation on that theory. Cf.
Carey, 435 U.S. at 248–53 (plaintiff students’ suspensions were actually
effected through defective procedures that violated due process, even if
the result might have been substantively correct). Consequently, the
only conceivable way in which Moore’s actions actually deprived
Plaintiffs of a property interest without due process is if it somehow
delayed the return of the car.
40 PLATT V. MOORE
II
Because Plaintiffs have Article III standing with respect
to at least one of their Arizona due process claims for
nominal damages against Moore and Carlyon in their
capacities as agents for the State, we have jurisdiction to
reach the question whether Arizona’s notice-of-claim
statute, see ARIZ. REV. STAT. § 12-821.01, bars that claim. I
agree with the district court that the statute does bar
Plaintiffs’ Arizona due process claims for nominal damages.
The notice-of-claim statute provides the waiver of
sovereign immunity that allows the State to be sued for
damages under Arizona law. See Swenson v. County of
Pinal, 402 P.3d 1007, 1010 (Ariz. Ct. App. 2017); see also
Clouse ex rel. Clouse v. State, 16 P.3d 757, 760 (Ariz. 2001)
(statute codified the doctrine of sovereign immunity after
Supreme Court of Arizona had abolished the common law
version of the doctrine). By its terms, the statute provides
that “no action may be maintained” in court on a “claim[]
against a public entity, public school or a public employee”
unless the claimant first files a formal notice of claim with
the relevant entity “within one hundred eighty days after the
cause of action accrues.” ARIZ. REV. STAT. § 12-821.01(A).
The required notice of claim must “contain facts sufficient
to permit the public entity, public school or public employee
to understand the basis on which liability is claimed” and “a
specific amount for which the claim can be settled and the
facts supporting that amount.” Id. Arizona courts have
emphasized that the notice-of-claim statute must be strictly
followed. See, e.g., Yahweh v. City of Phoenix, 400 P.3d
445, 447 (Ariz. Ct. App. 2017). Here, Plaintiffs concededly
did not comply with the procedures set forth in the notice-
of-claim statute, and Plaintiffs have pointed to no other
statute authorizing them to sue the State for damages,
PLATT V. MOORE 41
including nominal damages. Therefore, if the notice-of-
claim statute applies to Plaintiffs’ nominal-damages claims,
then those claims are barred.
The majority correctly notes that Arizona courts have
held that the notice-of-claim statute does not apply to claims
for declaratory judgment, Martineau v. Maricopa Cnty.,
86 P.3d 912, 915 (Ariz. Ct. App. 2004), or for injunctive
relief, State v. Mabery Ranch, Co., 165 P.3d 211, 222–23
(Ariz. Ct. App. 2007). But that point is irrelevant here,
because Plaintiffs have not contested the district court’s
determination that their declaratory and injunctive claims are
moot and therefore outside the Article III jurisdiction of the
federal courts. Cf. Uzuegbunam v. Preczewski, 141 S. Ct.
792, 796–97 (2021) (holding that “an award of nominal
damages by itself can redress a past injury” and thereby save
a case from mootness, even where injunctive claims are
concededly moot). The question here is whether Plaintiffs’
claims for damages are exempt from the statute simply
because, rather than seeking the full compensatory damages
to which they might otherwise have been entitled, Plaintiffs
elected to seek only nominal damages. I agree with the
district court that the answer to this question is clearly no.
In reaching a contrary conclusion, the majority relies on
the fact that, in holding that declaratory relief claims are not
subject to the notice-of-claim statute, the Arizona Court of
Appeals in Martineau cited certain California-law cases that,
according to the majority, in turn suggest that nominal
damages claims should also be exempted. See Maj. Opin.
at 15–16. The majority erroneously reads too much into
Martineau’s citation of these cases.
The cited cases do not address nominal damages at all,
but instead rely on the premise that a suit in which the
“primary relief” is declaratory or injunctive is exempt from
42 PLATT V. MOORE
the California notice-of-claim statute, even if an ancillary
award of modest compensatory damages is sought. Gatto v.
County of Sonoma, 98 Cal. Rptr. 2d 550, 554 n.3, 564 (Cal.
Ct. App. 2002); Independent Hous. Servs. of S.F. v. Fillmore
Ctr. Assocs., 840 F. Supp. 1328, 1358 (N.D. Cal. 1993);
M.G.M. Constr. Co. v. Alameda Cnty., 615 F. Supp. 149, 151
(N.D. Cal. 1985). According to the majority’s faulty
syllogism, Martineau’s citation of these cases thereby
signified that Martineau adopted their reasoning in toto—
meaning that ancillary compensatory damages claims are
also exempted, which in turn would mean that nominal
damages claims are also exempted. But there is no
indication in any Arizona case that Arizona has endorsed the
rule that ancillary compensatory damages claims are exempt
from the notice-of-claim statute. On the contrary, in
exempting declaratory relief claims, Martineau emphasized
that the claim there did “not seek damages and would not
result in any monetary award against the County” other than
costs and fees. 86 P.3d at 916 (emphasis added). 5 Indeed,
5
The majority contends that, because the plaintiffs in Martineau
asserted a claim for state-funded counsel at the outset of the case, the
Arizona Court of Appeals’ decision in that case must be understood as
having adopted the California-law cases’ suggestion that ancillary
compensatory damages are exempt from the notice-of-claim statute. See
Maj. Opin. at 17–18. That is incorrect. The “ancillary” claim for
attorney’s fees in Martineau was not for fees that had already been
incurred before the suit was filed and that therefore could properly be the
subject of a pre-suit notice of claim under Arizona Revised Statutes § 12-
821.01. Rather, it was an up-front claim for state-paid counsel for the
ensuing litigation against the State in court on the underlying claim. See
Complaint ¶¶ 19–23, Martineau v. Maricopa Cnty., 2002 WL 32943468(Ariz. Super. Ct. 2002) (seeking “attorneys’ fees and costs related to this
matter” because the Maricopa County Attorney and its approved counsel
“cannot represent Plaintiffs in this action” (emphasis added)). Because
the fee request in Martineau was not a pre-suit claim for damages, but
rather a claim for fees that would arise from the prosecution of the
PLATT V. MOORE 43
after explaining that the California-law cases had relied on a
“primary relief” theory that could allow a compensatory
award to escape California’s notice-of-claim statute,
Martineau added a cautionary footnote underscoring that
“[o]ur holding today should not be understood to allow the
filing of an action for monetary damages under the guise of
seeking declaratory relief without first complying with
statutory or administratively mandated procedures.” 86 P.3d
at 917 n.1 (emphasis added). Far from endorsing the
California-law cases’ exemption of ancillary compensatory
damages claim or their “primary relief” analysis, Martineau
instead placed dispositive weight on the lack of any
monetary claim of any size.
The majority is equally wrong in suggesting that Mabery
Ranch supports the view that Arizona courts would exempt
claims for nominal damages from the notice-of-claim
statute. See Maj. Opin. at 18–19. Rather, just as in
Martineau, the Mabery Ranch court underscored that the
statute’s language “does not apply to a claim that seeks no
damages from a governmental entity.” 165 P.3d at 223(emphasis added). Mabery Ranch reasoned that “[a]lthough
section 12-821.01 does not define ‘claim,’ we know from its
plain language that the drafters intended the statute to apply
to claims for money damages.” Id. (emphasis added). This
reasoning, of course, explicitly refutes the majority’s notion
that ancillary or modest monetary claims are exempted; on
lawsuit on the underlying declaratory relief claim, it would make no
sense to subject such a claim for suit-incurred fees to a pre-suit
presentation requirement aimed at avoiding suits. Martineau’s mention
of attorneys’ fees and costs thus cannot be understood, as the majority
would have it, as signifying that the Arizona Court of Appeals was
thereby endorsing the exclusion of pre-litigation “ancillary” monetary
compensatory damages claims from the notice-of-claim statute.
Martineau said nothing of the sort.
44 PLATT V. MOORE
the contrary, a “claim” is covered if it asks for “money
damages” simpliciter. And that reasoning clearly includes
nominal damages claims.
Any remaining doubt on this score is dispelled by the
decision in Arpaio v. Maricopa Cnty. Bd. of Supervisors,
238 P.3d 626 (Ariz. Ct. App. 2010). There the court stated:
We agree with the [plaintiff] that one who
seeks declaratory relief need not comply with
A.R.S. § 12-821.01. However, even
assuming a favorable declaration by this
court, to the extent the [plaintiff] then would
seek recovery of some or all of the
$24 million from the State, such a claim
would indeed constitute the type of claim
requiring compliance with the notice of claim
statute.
Id. at 630 (citation omitted). Such language further confirms
that Arizona does not follow the California-law cases’ theory
that ancillary monetary relief that might result from a
declaration of rights is exempt from a notice-of-claim
statute. The Arizona cases agree only with the California-
law cases’ exemption of declaratory relief claims, and not
their partial exemption of compensatory damages claims.
Finally, the majority wrongly relies on its own notions of
policy to engraft a new and completely atextual exemption
onto the Arizona notice-of-claim statute. According to the
majority, because a nominal-damages plaintiff ultimately
wants a “legal liability ruling” rather than money, there is no
point in requiring such a plaintiff “to state a ‘specific amount
for which the claim can be settled,’” as the notice-of-claim
statute requires. See Maj. Opin. at 18 (quoting ARIZ. REV.
STAT. § 12-821.01(A)). The majority’s faulty reasoning
PLATT V. MOORE 45
proves too much and would undermine the bright-line rule
the statute establishes. The exact same reasoning would
apply to a wide variety of smaller compensatory claims, but
it is very hard, in my view, to contend that the language of
the notice-of-claim statute exempts “small” or “modest”
compensatory damages claims. The only workable bright-
line rule, and the one that the statute draws, is a “claim” for
any amount of damages. 6
The majority is likewise wrong in suggesting that
nominal damages claims are equivalent to requests for
declaratory relief, which are not subject to the notice-of-
claim statute. The majority cites the U.S. Supreme Court’s
discussion in Uzuegbunam about the historical role of
nominal damages claims, but it overlooks an important
aspect of what the Court actually said. The Court stated that
“nominal damages historically could provide prospective
relief,” thereby serving as “one way for plaintiffs at common
law to ‘obtain a form of declaratory relief in a legal system
with no general declaratory judgment act.’” 141 S. Ct. at
798 (emphasis added) (citation omitted). The Court then
went on to reject the defendants’ argument that nominal
damages claims were limited to this “declaratory function”
and that they therefore could not supply retrospective relief.
6
Contrary to what the majority suggests, see Maj. Opin. at 20, the
statute’s text makes clear that it draws a bright-line between monetary
and non-monetary claims. The statute expressly requires a claimant to
include “a specific amount for which the claim can be settled and the
facts supporting that amount,” ARIZ. REV. STAT. § 12-821.01(A), which
confirms that a “claim” within the meaning of the statute means a claim
for money from the State. Moreover, the majority overlooks the fact that
(as noted earlier) Mabery Ranch specifically held that, “[a]lthough
section 12–821.01 does not define ‘claim,’ we know from its plain
language that the drafters intended the statute to apply to claims for
money damages.” 165 P.3d at 223 (emphasis added).
46 PLATT V. MOORE
Id. Here, Plaintiffs have correctly conceded that their
requests for declaratory and injunctive relief are moot, and
so the only thing keeping this case alive is Plaintiffs’ purely
retrospective request for monetary relief. Bayer v. Neiman
Marcus Grp., Inc., 861 F.3d 853, 868 (9th Cir. 2017) (“A
live claim for nominal damages will prevent dismissal for
mootness.” (citation omitted)). That is, the dispositive
feature of Plaintiffs’ nominal damages claim is precisely the
retrospective monetary aspect that distinguishes it from a
declaratory relief claim. 7 And as Uzuegbunam recognized,
a claim for nominal damages is in this respect no different
from a small claim for compensatory damages. Id. at 802.
Thus, to the extent that Uzuegbunam’s discussion of the
nature of nominal damages claims casts any light on how the
Arizona courts might characterize them, it confirms that they
are distinguishable from declaratory relief claims and are
instead no different from retrospective compensatory
damages claims that plainly are subject to Arizona’s notice-
of-claim statute.
Moreover, the majority is wrong in concluding that
following the notice requirement would not have made sense
in this case. As I have noted above, Plaintiffs’ theory here
plainly would have supported a larger compensatory
damages award, and so it is not clear why that claim should
become exempt from the plain language of the statute simply
because Plaintiffs decided to cap their damages request at
7
The majority is therefore quite wrong in suggesting that Plaintiffs
should be viewed as asserting a “nominal damages claim” that seeks to
“prospectively restrain government.” See Maj. Opin. at 20 (emphasis
added). Any claim for prospective relief in this case is as dead as the
proverbial doornail. The only reason why we must still address
Plaintiffs’ nominal damages claim is precisely because it is retrospective.
And that is why it is a damages claim that is subject to the Arizona
notice-of-claim statute.
PLATT V. MOORE 47
one dollar. Would Plaintiffs’ claim still be exempt,
according to the majority’s reasoning, if Plaintiffs instead
had capped their request for damages at $1,000? $500?
$50? $10? $2? Any of these requests is a “claim” for
monetary damages, and they are all equally covered by the
plain language of the statute.
More broadly, it would still make sense to apply the
notice-of-claim statute here, even if the majority were
correct in contending that this suit should be viewed as a
declaratory relief action masquerading as a nominal
damages claim. By insisting that all monetary damages
claims must first be presented to the State or be forever
barred, the notice-of-claim statute ensures that declaratory
relief actions will stand or fall as declaratory relief actions.
Those actions are exempt from the statute, but they will be
subject to dismissal if (as here) they become moot. The
majority essentially posits that the Arizona statute aims to
avoid that consequence and to keep alive—under the guise
of $1 nominal damages claims—otherwise moot declaratory
relief claims. The majority thus ends up giving nominal
damages claims a wholly privileged position that is shared
by neither compensatory damages claims nor by declaratory
relief claims. Nothing in the language of the Arizona statute
supports this peculiar result. And is it particularly absurd in
the circumstances of this case, in which the request for $1 in
nominal damages is keeping alive a dispute in which any
claim for declaratory relief is as moot as could be: not only
are the offending features of the statute no longer being
applied to Plaintiffs, they have been repealed entirely. See
2021 Ariz. Legis. Serv. Ch. 327 §§ 15, 17 (H.B. 2810).
Although the majority “confidently” predicts that the
Arizona Supreme Court will endorse the sheer waste of
resources that follows from exempting nominal damages
claims from the notice-of-claim statute (without any textual
48 PLATT V. MOORE
basis for doing so), see Maj. Opin. at 20, that prediction
seems quite wrong.
Because Plaintiffs failed to comply with Arizona’s
notice-of-claim statute, they may not assert any claim for
monetary relief. And because their claims for declaratory
and injunctive relief, which are exempt from that statute, are
concededly moot, no relief can be granted on Plaintiffs’
biased-enforcer claim, and that claim necessarily fails.
III
For the foregoing reasons, the only claim that Plaintiffs
are still pursuing, and over which we have Article III
jurisdiction, fails on the merits. Plaintiffs nonetheless also
contend that, despite our lack of jurisdiction over Plaintiffs’
concededly moot declaratory and injunctive relief claims
under Arizona law, we should direct the district court to
remand those claims to state court to see whether the Arizona
courts would be willing to entertain them despite their
mootness. I agree that this request should be rejected.
As the majority correctly notes, see Maj. Opin. at 30, the
fact that the district court had subject matter jurisdiction
over, and decided the merits of, some claims means that this
is not a situation in which the court lacked jurisdiction over
the entire case. Cf. 28 U.S.C. § 1447(c). Nor have Plaintiffs
argued that this is a situation in which the district court, at
the moment of removal, lacked subject matter jurisdiction
over the declaratory and injunctive claims. Cf. id.§ 1441(c)(2). Because no statute required remand of the
mooted state law claims, I see no basis to fault what
Plaintiffs affirmatively concede was the district court’s
discretionary decision to dismiss those claims rather than to
remand them to state court. Although the state courts are not
bound by the strictures of Article III, I am aware of no
PLATT V. MOORE 49
authority—and Plaintiffs have cited none—suggesting that
the federal courts are somehow required to exercise their
discretion so as to assist plaintiffs in evading the federal
courts’ constitutionally-based jurisdictional limitations.
Moreover, given the recent repeal of the relevant provisions
of the civil forfeiture statute, it seems hard to imagine that
the Arizona courts would have any interest in beating this
dead horse any further.
IV
Finally, given that I would sustain the judgment in
Defendants’ favor on the grounds set forth above, I have no
occasion to address the State’s arguments as to whether that
judgment, or any portion of it, could be sustained on the
alternative ground that the Arizona statutes that were
invoked here do not in fact violate due process principles.
And because any further issues raised by the State’s cross-
appeal improperly seek an advisory opinion, I decline to
address any aspect of that cross-appeal.
I therefore would affirm the district court’s judgment in
its entirety. To the extent that the majority does otherwise, I
respectfully dissent.