Taylor, Town Officials File Motion To Dismiss Solomon’s Complaint

The Doyle Firm is representing all defendants, including the town, that were served by Solomon.

The Doyle Firm filed a motion with the court Sept. 21 to dismiss on behalf of the town Arvin Palmer, John Cole, Jane Lee, Eric Duthie, James Gibson, Debbie Tuckfield, Jared Hatch, Brian Birtcher, Jordy Fuentes, Steve Sturgell, John Fay Hatch, Jason Brubaker, David Smith, Carl Cosper, Lynn Dewitt, Robin Palmer and Shawn Palmer.

“Defendants move the court for an order dismissing Plaintiff Solomon’s complaint in its entirety for failure to state a claim upon which relief can be granted,” states the motion.

The motion further says that Solomon filed the complaint citing several statutes that were absent from the body of the complaint, stating, “Since Solomon, a pro se litigant, is entitled to leniency in the construction of his pleadings, for the sake of expediency and judicial economy, defendants move to dismiss this action as if Solomon had included 42 U.S.C. § 1983, along with the above statutes, as a basis for his complaint.” Solomon cited four statutes.

“Solomon complains that the town violated his constitutional rights when it failed to disclose information that he needed to defend a lawsuit involving his role in the development of an industrial park in the town,” according to the factual background of the motion.

It goes on to note that, “Solomon contends that the town and its council members wrongly allowed Hatch Development to proceed with its work without having proper licensure, insurance and government environmental approval, and claims he first became aware of those issues in 2013, when Duthie, the town manager at that time, would not disclose information.”

In Complaint 2 Solomon alleges that Hatch Development hired Solomon’s business, Sol’s Construction Company, to “cover” Hatch’s negligence in development of the industrial park.

“The Hunt action was filed July 15, 2008, and it was dismissed on July 14, 2009,” states the response, noting that Solomon was named as one of the defendants and attached an exhibit to prove that.

“Solomon appeared in the Hunt litigation and was represented by counsel, so there is no question that he has been aware of the allegations raised in that lawsuit since 2008,” states the motion.

Further factual background information states, “The Hatch Development lawsuit was filed on September 28, 2011. In that case, Hatch Development sued Solomon, its subcontractor, under claims of indemnity to recover the money it paid to the Hunts in settlement of the Hunt litigation. Hatch Development obtained summary judgment against Solomon on its indemnity claims and that judgment is on appeal to the Arizona Court of Appeals.”

The motion states the U.S.C. statutes that Solomon provided as a basis for the court to exercise jurisdiction over his complaint and states, “U.S.C. § 242 is completely inapplicable to this case since it is a federal criminal statute that provides no basis for civil liability.

“U.S.C. § 1981 is inapplicable to the allegations since it provides for an action for discrimination based on race and there was nothing alleged in his complaint that suggested that damage was caused due to discrimination based on race.”

The motion goes on to explain that each statute Solomon cited does not apply because they refer to racial or invidious discrimination, and states, “Even if Solomon had pleaded 42 U.S.C. § 1983 as a basis for his complaint, it still would need to be dismissed for failure to state a claim upon which relief can be granted.

“A complaint must contain ‘a short and plain statement showing the pleader is entitled to relief.’

“The complaint must allege a specific injury as a result of the conduct of a particular defendant and allege an affirmative link between the injury and the conduct of that defendant,” noting, “there is no vicarious liability” and “municipal liability does not exist in the absence of a constitutional violation caused by the implementation of official government policy.”

Solomon’s complaint names 17 current or former Taylor officials, but contains factual allegations against only Duthie, and “Solomon fails to allege facts connecting Duthie’s depriving him of town records to his alleged injuries,” according to the motion to dismiss.

It further fails to allege how “being deprived of these records in 2013 caused him a specific injury during the 2008-2009 Hunt litigation.” The motion also points out that the documents were available to Solomon and his attorney through the process of discovery in that case.

The fact that Hatch did not have proper licenses, insurance and permits for the development of the industrial park would have been known to Solomon, because they were specifically alleged in the 2008 Hunt complaint.

The motion further states that the conclusions are “mystifying allegations,” referring to statements made by Solomon in his complaint that say Hatch hired his business as a “scapegoat” and when the town sold “this property” to Hatch.

The motion to dismiss states “the complaint fails to state a claim against the town,” and that Solomon did not allege “Duthie was implementing a town policy or established town practice by denying him access to Palmer Trust or Taylor family records involved in the industrial park project.

“The complaint against the town should be dismissed.

The motion goes on to state, “The complaint fails to state a claim because it is barred by the statute of limitations,” which is two years from the date the cause of action accrued, and Solomon showed that the action accrued by July 15, 2008, when the Hunt complaint was filed in Navajo County Superior Court.

“Solomon’s cause of action accrued by 2011 when he was sued by Hatch Development over the same sewer flooding incident,” states the motion, noting that Solomon’s action was filed on “Aug. 31, 2015, more than six years after the Hunt complaint was dismissed and more than seven years after he became aware of, or should have become aware of, the issues with Hatch Development’s qualifications that underlie his present cause of action.”

Regarding Count Two of Solomon’s complaint, the motion notes that it, “Fails to state a claim against these defendants because, primarily, it alleges the conduct of non-defendant persons or entities, and in the one place it mentions the town, the complaint fails utterly to allege specific facts to support any claim.”

Regarding the allegation that Navajo County Superior Court Judge Robert Higgins was prejudiced against Solomon in the lawsuit filed by Hatch Development due to Superior Court Judge Ralph Hatch being related to Jason Hatch, and that “the Navajo (County) Board of Contractors ignored his complaint about Jason Hatch and Hatch Development,” no claim is stated against the town or the officials that the complaint is filed against.

The motion calls the allegation an “empty allegation” regarding the town and Hatch Development using him to complete a scheme that was not explained.

“Plaintiff Solomon’s complaint should be dismissed because it does not state facts allowing this court to draw a reasonable inference that these defendants are liable for the constitutional violation alleged. And because it is clear that plaintiff’s cause of action, if any, accrued more than two years before the complaint was filed, the complaint should be dismissed because it is untimely,” the motion concludes.