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Steven J. Serbalik, Bar #028191 STEVEN J. SERBALIK, P.L.C. 4925 E. Desert Cove Ave #116 Scottsdale, Arizona 85254 Telephone: (480) 269-1529 steveserbalik@gmail.com WOOD, HERNACKI & EVANS, LLC L. Lin Wood, GA Bar No. 774588 lwood@whetriallaw.com Stacey Godfrey Evans, GA Bar No. 298555 sevans@whetriallaw.com Jonathan Grunberg, GA Bar No. 869318 jgrunberg@whetriallaw.com Attorneys for Plaintiffs Steven Peck, Benjamin Sywarungsymun and Aaron and Shannon Lentz UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Steven Peck, Benjamin Sywarungsymun, and Aaron and Shannon Lentz, individually and as husband and wife, Plaintiffs, v. Margaret Hinchey, individually and in her official capacity as a peace officer with the Arizona Attorney Generals Office; Tom Horne in his official capacity as the Attorney General of the State of Arizona; Jack Harris, individually and in his official capacity as the former Public Safety Manager of the City of Phoenix; Todd Lawson, individually and in his official capacity as an Assistant Attorney General, the State of Arizona; Paula Veach, individually and in her official capacity as a peace officer with the City of Phoenix; the City of Phoenix, a municipal corporation; Jane Doe Harris, and Jane Doe Lawson, Defendants. NO. 2:12-CV-01371-PHX-JAT (Lead) NO. 2:12-CV-2121-PHX-JAT (Cons.) PLAINTIFFS RESPONSE TO DEFENDANT STATE OF ARIZONAS MOTION TO DISMISS (Oral Argument Requested)

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Plaintiffs Steven Peck, Benjamin Sywarungsymun and Aaron and Shannon Lentz (collectively where appropriate the Plaintiffs) respectfully request that Defendant State of Arizonas Motion to Dismiss be denied in all parts and that the State be ordered to answer Plaintiffs Second Amended Complaint (SAC). Plaintiffs SAC asserts violations of state law, including claims for negligence, gross negligence, and negligent hiring, training and supervision, all based on the States fruitless and damaging pursuit of criminal charges against the Plaintiff Officers. This dogged pursuit of the Plaintiff Officers was accomplished through the States agents, including Defendants Hinchey and Lawson. In their collective quest to indict the Plaintiff Officers, the State, Hinchey, and Lawson both fabricated evidence and presented evidence with a reckless disregard for the truth, resulting in criminal indictments against the Plaintiff Officers. And even after the wrongful indictment was remanded because it had been obtained through falsehoods and misrepresentations, the State kept Defendants Hinchey and Lawson on the case, and sought yet another indictment against the Plaintiff Officers. But without the falsehoods and misrepresentations, the Grand Jury refused to indict, and after a multi-year saga, the charges against the Plaintiff Officers were finally dismissed. The State now seeks to deprive the Plaintiffs of a remedy by arguing, inter alia, that Plaintiffs Notice of Claim and SAC are untimely because Plaintiffs failed to pursue civil remedies against the State while the Plaintiffs were battling felony charges. The States attempt to avoid liability should be denied for the following reasons: (1) Plaintiffs Notice of Claim and SAC assert claims based on facts that were discovered within the respective 6-month and 1-year limitation periods; (2) Plaintiffs allege sufficient facts to support a claim for negligent hiring, training, and supervision; (3) Plaintiffs Notice of Claim and SAC are timely pursuant to the continuing tort doctrine; and (4) the deadlines in this action should be equitably tolled. This Response is supported by the SAC and the following Memorandum of Points and Authorities.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Background

MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiffs were indicted for felony theft on November 18, 2010 based upon false evidence that was either fabricated or presented with a reckless disregard for the truth. After facing these wrongful criminal charges for more than a year, all charges against Plaintiffs were dropped on November 25, 2011. Plaintiffs filed their Notices of Claim against Defendants State of Arizona, City of Phoenix, Margaret Hinchey, Tom Horne and Terry Goddard in April, 2012, less than six months after the criminal case against them was dismissed. The Notices of Claim were required in order to pursue state law claims against Defendants. The Notices of Claim were deemed denied after 60 days, after which Plaintiffs initiated this action. Plaintiffs filed their Complaint on June 26, 2012. Unfortunately, and unbeknown to Plaintiffs at the time, during the course of the criminal case against Plaintiffs, various agents of the State, including Defendants Hinchey, Defendant Lawson and Andy Rubalcava chose to fabricate evidence, mischaracterize witness statements and conceal information, making it impossible for honest, objective employees of the State to determine if Plaintiffs had committed a crime. Each instance of wrongful conduct, while part of a single criminal case, creates liability for the State under both state law and Article 18 6 of the Arizona Constitution. There are important questions of fact regarding both when these wrongful acts occurred and when Plaintiffs knew or should have known about the agents wrongful conduct that preclude dismissal of the claims against the State. II. Legal Standard

To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face.1 The court must accept allegations contained in the complaint as true when determining whether the claim is plausible. The claim has facial plausibility when the plaintiff pleads factual content that allows the court Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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to draw the reasonable inference that the defendant is liable for the misconduct alleged.2 A motion to dismiss based upon the running of the statute of limitations may be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.3 A complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.4 III. Plaintiffs Notice of Claim and Second Amended Complaint Are Timely Pursuant to the Discovery Rule In Arizona, . . . the statute of limitations defense is not favored.5 And the defense is particularly misplaced on motion to dismiss, as determination of a claims accrual date usually is a question of fact. Id. It is telling that every case cited by Defendant on the issue timeliness was decided on a summary judgment standard, rather than motion to dismiss.6 Under Arizona Revised Statutes section 12821.01(B), a cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage. A.R.S. 12821.01(B). The term accrual in A.R.S. 12 821.01(B) is construed in accordance with the common law discovery rule.7 Thus, the cause of action does not accrue until the plaintiff knows both the what and the who
2 3

Id.

Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995) (citing Jablon v. Dean Witter & Co., 614 F.3d 677, 682 (9th Cir. 1980)). 4 Id. (citing Conley v. Gibson, 355 U.S. 41 (1957)). 5 Logerquist v. Danforth, 188 Ariz. 16, 22, 932 P.2d 281, 287 (App. 1996) (citing Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 590, 898 P.2d 964, 968 (1995)). 6 (Doc. 198 at 5-6 (citing Dowling v. Arpaio, No. 09-CV-1401-PHX-JAT, 2011 WL 843942, at *1 (D. Ariz. Mar. 8, 2011); Doe v. Roe, 191 Ariz. 313, 317, 955 P.2d 951, 955 (1998); Little v. State, 225 Ariz. 466, 467, 240 P.3d 861, 862 (App. 2010); CDT, Inc. v. Addison, Roberts & Ludwig, C.P.A., P.C., 198 Ariz. 173, 174, 7 P.3d 979, 980 (App. 2000); Lawhon v. L.B.J. Institutional Supply, Inc., 159 Ariz. 179, 180, 765 P.2d 1003, 1004 (App. 1988))) 7 Dowling v. Arpaio, No. 09-CV-1401-PHX-JAT, 2011 WL 843942, at *5 (D. Ariz. Mar. 8, 2011) (citing Little v. State, 225 Ariz. 466, 240 P.3d 861, 864 (App. 2010)).
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elements.8 When discovery occurs and a cause of action accrues are usually and necessarily questions of fact for the jury.9 A motion to dismiss based upon the running of the statute of limitations may be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.10 A complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.11 Importantly, even if an individual fails to timely challenge a tortfeasors negligent conduct, the tortfeasor would not have carte blanche to continue his wrongful acts. That is, if the tortfeasors continued wrongful acts ris[e] to the level of separately actionable torts, the accrual date will not be limited by the victims discovery of the initial wrongful acts.12 For example, in Dowling, the plaintiffs complaint was untimely when they failed to file a lawsuit within a year of learning they were being harmed by the defendants negligent investigation.13 But this Court recognized that the negligence claim could have survived if (1) the investigation continued into the limitations period, and (2) the defendants investigatory conduct during the limitations period supported a stand-alone claim for negligence.14 The holding in Dowling stands to reason, as this Court was reticent to apply the continuing tort doctrine to claims sounding in negligence.15 The corollary of the rule that negligence is not a continuing tort is that enduring negligent conduct should be Id. at *5. (citing Lawhorn v. L.B.J. Inst. Supply, Inc., 159 Ariz. 179, 765 P.2d 1003, 1007 (App. 1988)). 9 Doe v. Roe, 191 Ariz. 313, 323, 955 P.2d 951, 961 (1998). 10 Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995) (citing Jablon v. Dean Witter & Co., 614 F.3d 677, 682 (9th Cir. 1980).
11 8

Id. (citing Conley v. Gibson, 355 U.S. 41 (1957)).

12 13

Dowling, 2011 WL 843942, at *5. Id. 14 Id. 15 See id. (stating that there is no authority under Arizona for the proposition that negligence is a continuing tort).
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divisible and independently actionable.16 An interesting and pertinent issue that this Court did not have the opportunity to address in Dowling is the interplay between the discovery rule, the limitations period, and subsequent negligent conduct. That is, when analyzing whether the plaintiffs had alleged separately actionable conduct that fell within the limitations period, the Court only inquired into conduct that actually occurred in the year before the complaint, rather than conduct that was discovered in the year before the complaint. The appellate court in Doe v. Roe split on a similar issue. In Doe, the plaintiff had suppressed her memories of sexual abuse. For the purposes of applying the discovery rule, the majority aggregated the abuse and looked to the date of initial recall of any abuse, whereas the dissent separated the abuses and concluded that the plaintiff could state a claim for discrete instances of abuse that she had only recalled within the two-years before filing her complaint.17 Although the Arizona Supreme Court left the issue unresolved, the court posited a hypothetical that revealed its preference for a standard that holds tortfeasors to account for their wrongful conduct.18 Thus, the Supreme Court of Arizona intimated that the proper measure is when the plaintiff discovered the continued tortious conduct, rather than when the conduct occurred. In short, the timeliness of a complaint or a notice of claim are a function of when the plaintiffs cause of action accrues. A plaintiffs cause of action accrues when he knows that he was harmed and who harmed him. And this discovery rule applies to a tortfeasors continued wrongful acts that rise to the level of separately actionable torts, notwithstanding the date of accrual of the other acts within the continuous chain of negligence. See id; Floyd v. Donahue, 186 Ariz. 409, 413-14, 923 P.2d 875, 879-80 (App. 1996) (holding that a string of sexual abuse was not a continuing tort, and thus plaintiff could only recover for the abuse occurring within the limitations period). 17 Doe v. Roe, 187 Ariz. 605, 610, 614, 931 P.2d 1115, 1120, 1124 (App. 1996), vacated, 191 Ariz. 313, 955 P.2d 951 (1998). 18 Doe v. Roe, 191 Ariz. 313, 325 & n.12, 955 P.2d 951, 963 & n.12 (1998).
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a. The Notice of Claim Is Timely Here, unlike Dowling, Plaintiffs Notice of Claim and SAC are based, in part, upon independently actionable claims that accrued within the respective six-month deadline and one-year limitations period; or, at the very least, the State failed to show that the Notice of Claim and Second Complaint are untimely. Regarding the Notice of Claim, the State assumes it is untimely because it was solely based on conduct and damages that Plaintiffs discovered more than six-months before the State received the Notice of Claim. In order to establish which facts were ostensibly known by Plaintiffs such that their claims accrued, the State relies upon Plaintiff Lentzs June 6, 2011 motion to remand, and the state courts June 29, 2011 remand order. But the State ignores that Plaintiffs have identified independently actionable negligent conduct that may have been discovered in the six-months prior to serving the Notice of Claim. The Notice of Claim itself identifies independently actionable negligent conduct by the State that occurred after the remand order, and that based on the record before the Court on motion to dismiss, may have been discovered by Plaintiff in the six-months before filing the Notice of Claim. Specifically, the Notice of Claim states that after the June 2011 remand order, Defendant Hinchey finally interviewed the head of the PPD offduty detail, Sergeant Joyner. Sergeant Joyner told Hinchey about a list of PPD policies and practices that severely undercut the States theory of criminal culpability.19 Yet, the State refused to dismiss the criminal case against Plaintiffs, and instead sought a second indictment.20 In so doing, the State breached a long list of duties it owed to Plaintiffs (as articulated in Counts VII and VIII of the SAC), including the duties to prevent harm caused by improperly conducting an investigation, to consider evidence that lessens the likelihood of that probable cause existed, to ensure that evidence existed to believe a crime was committed, to recommend a timely dismissal of criminal charges when it
19 20

Doc. 198-2 at 76. Doc. 180 at 284.

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realizes probable cause does not exist, and to ensure that its employees were properly supervised.21 And importantly, the State has not shown that there is no set of facts under which Plaintiffs claims based on the Joyner interview is timely. Furthermore, neither Plaintiff Lentzs motion for remand nor the remand order show that Plaintiffs knew the what element of at least five other independently actionable instances of negligence or gross negligence. First, the State has not shown when Plaintiffs learned that Andy Rubalcava, the States employee tasked with supervising Defendant Hinchey, decided to limit his involvement in the Townhomes investigation because of a personal conflict and nevertheless continue to supervise her and sign-off on her reports.22 This wrongful conduct could support independent claims for negligence, gross negligence, or negligent supervision, and is part of Plaintiffs allegations in support of their claims in Counts VII and VIII.23 Second, the State makes no assertion as to when Plaintiffs discovered that Defendant Lawson acted outside of his role as a prosecutor and directed the investigation itself.24 By improperly allowing Defendant Lawson to direct and influence an ongoing criminal investigation, the State breached its duty to supervise its employees, providing an independent basis for Plaintiffs negligent supervision claims against the State.25 Third, the State likewise failed identify when Plaintiffs learned that Defendant Hinchey and other employees of the State, acting with negligence at a minimum, falsely reported that Officer Thiebaut had not been interviewed.26 Officer Theibauts interview included exculpatory information regarding the Townhomes criminal case; yet, Defendant Hinchey failed to disclose the interview in her reports to her supervisors, even this critical
21 22

Id. at 142-144, 264, 386-93, 399, 404. Doc. 180 at 142-144. 23 Id. at 384, 394. 24 Id. at 297-308. 25 Id. at 394,399, 405. 26 Id. at 190-98.
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evidence should have informed the States decision to seek criminal charges against Plaintiff Officers.27 This glaring act of negligence of gross negligence is independently actionable, and indeed forms part of the basis for Counts VII and VIII.28 Fourth, the State has not shown when Plaintiffs discovered that Defendant Hinchey failed to heed specific warnings from Defendant Veach, her contact with the PPD, regarding the faulty nature of the data relied upon by the State when deciding to prosecute the Plaintiff Officers.29 This negligent or grossly negligent conduct is yet another independently actionable basis for Counts VII and VIII.30 b. The Second Amended Complaint Is Timely Turning to the timeliness of the SAC, as the State tacitly concedes, as discussed above, there are numerous independently actionable instances of negligence and gross negligence for which the date of accrual remains an open question; and these instances provide independent bases upon which Counts VII and VIII could survive. Thus, the State cannot establish that the statute of limitations has run on all the conduct that could independently support Counts VII and VIII. Ultimately, the State is asking the Court to resolve questions of fact regarding Plaintiffs knowledge of their claims, despite the inapt procedural posture it finds itself ina motion to dismiss. Reading the complaint with the required liberality, Plaintiffs can assert plausible and timely claims under Counts VII and VIII. IV. Plaintiffs Stated a Sufficient Claim for Negligent Hiring, Training, and Supervision

The State makes three additional arguments seeking dismissal of Count VIII, the claim for negligent hiring, training, and supervision: (1) if the gross negligence and negligence claims against Defendant Hinchey fail, then Count VIII must also fail; (2) the
27 28

Id. Id. at 384, 386-88, 394, 398-99, 403-04. 29 Id. at 111, 115, 124, 127, 238-39. 30 Id. at 384, 386-88, 394, 398-99, 403-04.
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SAC fails to allege that the State made a conscious or deliberate choice to provide inadequate hiring, training, or supervision of its employees; and (3) the SAC fails to allege facts regarding how the hiring, training, and supervision failed.31 All three arguments are unavailing. First, the State incorrectly assumes that Count VIII is solely premised upon the Defendant Hincheys tortious conduct. But among the bases alleged in Count VIII is that the State breached its duty by allowing Defendant Lawson to act in an investigative/police role outside his prosecutorial duties while Plaintiff Officers were under investigation.32 And to the extent the State is correct that Count VIII is contingent upon the torts of its employees, it is worth noting that Plaintiffs have asserted viable claims against both Defendants Hinchey and Lawson.33 Second, there is no basis for requiring that a plaintiff asserting a state law claim for negligent hiring, training, and supervision must show that the employer made a conscious or deliberate choice to provide inadequate hiring, training, or supervision of its employees.34 This standard applies to section 1983 claims for failure to train, not state law claims for failure to train, let alone state law claims for negligent hiring and supervision.35 Third, Plaintiffs have asserted a wealth of facts to support their claims that the State negligently supervised Defendants Hinchey and Lawson. Foremost, the SAC alleges a series of facts as to deficient supervision by Andy Rubalcavathe State employee who supervised Defendant Hinchey.36 Rubalcava had a personal relationship with a family member the officer who served as the off-duty coordinator for the Townhomes job, Doc. 198 at 8-9. Doc. 180 at 405. 33 See id. at pp. 44-45 34 See Doc. 198 at 8 (quoting Rimac v. Duncan, 319 F. Appx 535, 538 (9th Cir. 2009)). 35 See Rimac, 319 F. Appx at 538 (discussing section 1983) (quoting Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) (discussing section 1983))). 36 Doc. 180 at 142.
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George Contreras.37 Accordingly, Rubalcava decided to limit his involvement in the Townhomes investigation.38 Despite his decision to limit his involvement in the Townhomes investigation . . ., Andy Rubalcava continued to supervise Defendant Hincheys investigation and signed off on her reports.39 Plaintiffs specifically incorporated Rubalcavas conduct in Count VIII, using it as a basis for the States breach of its duty to insure that Defendant Hinchey was properly supervised.40 In Arizona, a claim for negligent supervision lies against an employer whose supervisor negligently carried out his duties.41 Here, Rubalcavas unreasonable choice to straddle the fencelimiting his involvement but nonetheless serving as the supervisor signing the Townhomes reportsmust be imputed to the State. Thus, Plaintiffs have asserted a claim for negligent supervision. Moreover, Plaintiffs assert a claim for negligent supervision based on Defendant Lawsons failure to properly direct and supervise Defendant Hincheys investigation. Arizona follows the Restatement (Second) of Agency 213, which provides that [a] person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless . . . in giving improper or ambiguous orders.42 The SAC alleges that Defendant Lawson directed Defendant Hincheys investigation, ordering her to use subjective metrics to determine the start and stop time of shifts worked by Plaintiff Officers for the Townhomes off-duty job, among other questionable decisions by Defendant Lawson in his role directing the investigation.43 The SAC also alleges that this conduct by the State, through its supervisor, Id. Id. at at 143. 39 Id. at 144. 40 Id. at 394, 399, 404, 407. 41 Tucson Med. Ctr., Inc. v. Misevch, 113 Ariz. 34, 36, 545 P.2d 958, 960 (1976) (If the medical staff was negligent in the exercise of its duty of supervising its members . . ., then the hospital would be negligent.). 42 Kassman v. Busfield Enters., Inc., 131 Ariz. 163, 166, 639 P.2d 353, 356 (App. 1981) (quoting Restatement (Second) of Agency 213)) 43 Doc. 180 at 298-306.
38 37

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Defendant Lawson, was negligent or grossly negligent.44 And this negligent or grossly negligent conduct is among the bases for Plaintiffs claim for negligent supervision.45 Furthermore, construing the SAC in the light most favorable to Plaintiffs, the SAC also asserts a claim for negligent supervision based upon the States failure to remove Defendant Hinchey from the Townhomes investigation, even after learning that her testimony to the grand jury was riddled with fabrications and material misrepresentations. Section 213 of the Restatement (Second) of Agency states that an employer is liable when if employs an improper person in work involving risk of harm to others. Restatement (Second) of Agency 213. The comments in section 213 goes on, stating that liability results when an employer had reason to believe that an undue risk of harm would exist because of the employment, and a subsequent harm occurs that is within the risk.46 And comment e provides that [o]ne who engages in an enterprise must take care to see that all the instrumentalities, human or mechanical, which he uses are such as are not likely to cause harm to third persons.47 As the SAC alleges, an independent arbiter determined that Defendant Hinchey presented untruthful testimony to a grand jury, resulting in Plaintiffs being wrongfully indicted and denied due process.48 Yet the State allowed her to continue investigating the Plaintiffs, resulting in her submitting reports to her supervisor containing false and or fabricated evidence, and leading to additional harms for the Plaintiffs.49 This tortious conduct was a clearly within the known risk to others posed by Defendant Hincheys history, yet the State did nothing to abate that risk; accordingly, the State is liable for negligent supervision under section 213 of the Restatement (Second) of Agency.

44 45

Id. at 384. Id. at 394, 399, 404, 407. 46 Id. at 394, 399, 404, 407. 47 Id. 48 Doc. 180 at 279-285. 49 Id. at 268, 384, 386, 389-93, 394, 399, 404, 407.
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V.

Plaintiffs Notice of Claim and Second Amended Complaint Are Timely Pursuant to the Continuing Tort Doctrine

If this Court decides to revisit its previous holding that there is no authority under Arizona law for the proposition that the torts of negligence and abuse of process are continuing torts,50 the Court could find that the facts of this case militate towards applying the continuing tort doctrine to the negligent torts. Under the continuing tort doctrine, a cause of action for a continuous tort accrues on the date of the last tortious act.51 In crafting the bounds of the continuing tort doctrine, the Ninth Circuit relied heavily upon District of Colombia Circuits opinion in Page v. United States.52 The court in Page was concerned that a party could acquire the right to continue its tortious conduct if the statute of limitations were always pegged to the date when the conduct began.53 As the court recognized, usually no single incident in a continuous chain of tortious activity can fairly or realistically be identified as the cause of significant harm, and great inequity would arise if first incident in the chain became anchor that sank a plaintiffs claim.54 Thus, the court held that when a tort involves continuing injury, the cause of action accrues, and the limitation period begins to run, at the time the tortious conduct ceases.55 Here, the SAC alleges a continuous chain of tortious activity by the State, up until the dismissal of criminal charges against the Plaintiff Officers in November of 2011.56 And arguably, no single tortious act can be identified as the cause of the significant harm Dowling, 2011 WL 843942, at *4. Id. 52 729 F.2d 818 (D.C. Cir. 1984). See Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir.2002) (quoting Page, 729 F.2d at 821) 53 Page, 729 F.2d at 822. 54 Id. at 821-22. 55 Id. at 821. 56 See, e.g., Doc. 180 at 286, 384-407.
51 50

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suffered by Plaintiffs as they endured the 15-month strain of being subject to felony charges. Accordingly, it would be wholly appropriate to apply the continuing tort doctrine to the States negligent conduct, thereby insuring that Plaintiffs claims timely accrued57 and that Plaintiffs have a remedy against the State.58 VI. The Deadlines for the Notice of Claim and Second Amended Complaint Should Be Equitably Tolled

Additionally, if the Court determines that the Notice of Claim and the Second Amended Complaint are untimely despite the above arguments, Plaintiffs ask the Court to apply the doctrine of equitable tolling. Plaintiffs faced extraordinary circumstances when the State (the custodian of relevant documents) decided to withhold relevant materials during both criminal discovery and discovery in this matter, and therefore Plaintiffs may be entitled to relief from the statute of limitations through the application of equitable tolling. VII. Conclusion

Agents of the State, on many occasions and in a wide variety of forms, violated Plaintiffs rights. While Plaintiffs assert that their Second Amended Complaint contains sufficient facts to support their claims against the State, in the event that the Court decides that dismissal is appropriate, Plaintiffs request leave to amend their Second Amended Complaint to provide additional facts showing that the States wrongful conduct occurred within the time period contemplated by the statute of limitations. // // If the Court rules that the date that the criminal charges were dismissed (November 23, 2011) is the date of accrual for claims challenging the States tortious conduct, then the April 23, 2011 Notice of Claim and the August 8, 2012 Complaint would necessarily be timely. 58 See Miss. Dept of Human Servs. v. S.W., 111 So. 3d 630, 646-47 (Miss. Ct. App. 2012), rehg denied, (Oct. 2, 2012), cert. granted, 102 So. 3d 272 (Miss. 2012) (applying continuing tort rule to negligent conduct) ; Petre v. Living Centers-E., Inc., 935 F. Supp. 808, 815 (E.D. La. 1996) (same); Everhart v. Richs, Inc., 229 Ga. 798 (1972) (same).
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RESPECTFULLY SUBMITTED this 24th day of June, 2013. STEVEN J SERBALIK, P.L.C. WOOD, HERNACKI & EVANS, LLC By: /s/Steven J. Serbalik Steven J. Serbalik 4925 E. Desert Cove Ave #116 Scottsdale, Arizona 85254 Attorney for Plaintiffs Steven Peck, Benjamin Sywarungsymun and Aaron and Shannon Lentz

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CERTIFICATE OF SERVICE I hereby certify that the RESPONSE TO DEFENDANT STATE OF ARIZONAS MOTION TO DISMISS was filed with this Court on June 24, 2013, through the CM/ECF system and will be sent electronically to all registered participants as identified on the Notice of Electronic Filing, and paper copies will be sent to those indicated as nonregistered participants. By: /s/ Steven J. Serbalik Steven J. Serbalik

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