William Platt v. Jason Moore

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.