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Polite v. Arizona
(2026)
Case details
Full caption
Mykhal Lloyd Polite v. TitleMax of Arizona
Country
United States
Jurisdiction
Arizona (AZ)
Court
Arizona Supreme Court
Decided
2026
Disposition
Motion Denied
Majority
United States (J.) (unanimous Court)
Mykhal
Lloyd
Polite,
Plaintiff,
v.
TitleMax
of
Arizona
Incorporated,...,
Slip
Copy
(2026)
©
2026
Thomson
Reuters.
No
claim
to
original
U.S.
Government
Works.
1
2026
WL
183546
Only
the
Westlaw
citation
is
currently
available.
United
States
District
Court,
D.
Arizona.
Mykhal
Lloyd
Polite,
Plaintiff,
v.
TitleMax
of
Arizona
Incorporated
,
Defendant.
No.
CV-25-01574-PHX-JZB
|
01/23/2026
Attorneys
and
Law
Firms
Mykhal
Lloyd
Polite,
Los
Angeles,
CA,
Pro
Se.
Julia
Elizabeth
McFall,
Justin
Duke
Rodriguez,
Max
Alex
Jones,
Pro
Hac
Vice,
Atkinson
Baker
&
Rodriguez
PC,
Albuquerque,
NM,
for
Defendant
TitleMax
of
Arizona
Incorporated.
United
States
Magistrate
Judge
ORDER
*1
Pending
before
the
Court
is
Plaintiff's
“Motion
for
Leave
to
File
First
Amended
Complaint”
(“Third
Motion
for
Leave
to
Amend,”
and
“Motion”)
(doc.
37).
1
The
instant
Motion
was
filed
on
December
29,
2025.
See
(doc.
37.)
Plaintiff
seeks
leave
to
file
a
Third
Amended
Complaint
2
(“TAC”)
to
narrow
his
legal
theories,
“[e]liminate
[n]on-[a]ctionable
and
[c]ontextual
statutes,”
and
clarify
his
factual
allegations.
(
Id.
at
1–2.)
The
Court
will
deny
the
Motion
with
prejudice
because
Plaintiff's
TAC
is
futile
for
failing
to
state
a
viable
claim
upon
which
relief
may
be
granted.
I.
Factual
Background
.
On
April
1,
2025,
Plaintiff,
proceeding
pro
se
,
commenced
this
action
by
filing
his
original
Complaint
against
Defendant
TitleMax
of
Arizona,
Inc.
(“TitleMax”).
See
(doc.
1.)
The
following
facts
are
taken
from
Plaintiff's
TAC.
3
Plaintiff's
action
arises
from
a
settlement
agreement
between
the
Parties
entered
on
July
16,
2024,
involving
a
repossessed
2011
Chevrolet
Camaro.
4
(Doc.
37-1
at
3.)
Under
the
settlement
agreement,
Plaintiff
would
regain
possession
of
the
vehicle
and
take
steps
necessary
to
transfer
title
to
Plaintiff.
(
Id.
)
On
an
undisclosed
date,
Plaintiff
retrieved
the
vehicle.
(
Id.
)
Plaintiff
alleges
that
he
found
“the
vehicle
in
a
materially
damaged
condition
that
differed
from
the
condition
previously
communicated
to
Plaintiff.”
(
Id.
)
The
damages
alleged
are
mechanical
and
physical
in
nature,
“including
but
not
limited
to
damage
affecting
its
operability
and
ability
to
pass
emissions
testing.”
(
Id.
)
Plaintiff
alleges
that
Defendant
did
not
disclose
the
state
of
the
vehicle
to
Plaintiff
before
he
regained
possession
of
the
vehicle.
(
Id.
)
Beyond
the
alleged
damage
to
the
vehicle,
Plaintiff
alleges
that
Defendant
delayed
transferring
title
to
the
vehicle,
which
prevented
Plaintiff
from
lawfully
registering
and
driving
his
vehicle.
II.
Procedural
background
.
On
April
1,
2025,
Plaintiff
commenced
this
action
in
the
Maricopa
County
Superior
Court.
(Doc.1-1
at
3.)
This
action
was
subsequently
removed
to
the
U.S.
District
Court
for
the
District
of
Arizona
by
Defendant
on
May
7,
2025.
(Doc.
1
at
6.)
On
May
21,
2025,
Plaintiff
filed
a
First
Motion
for
Leave
to
Amend.
See
(doc.
11.)
This
motion
was
denied
for
failure
to
comply
with
LRCiv
15.1
and
because
of
the
use
of
hallucinated
cases
from
purported
Artificial
Intelligence
use.
See
(doc.
25.)
Following
the
Court's
denial,
Plaintiff
simultaneously
filed
his
Second
Motion
for
Leave
to
Amend
on
October
6,
2025.
(Doc.
26.)
The
Court
denied
his
Second
Motion
for
Leave
to
Amend
because
it
was
futile
and
unduly
prejudicial
to
Defendant.
See
(doc.
35.)
The
Court
permitted
Plaintiff
to
file
a
renewed
motion
for
leave
to
amend
on
or
before
December
26,
2025.
(
Id.
at
11.)
The
instant
Motion
was
filed
on
December
29,
2025.
(Doc.
37.)
*2
III.
Legal
Standards
.
Rule
15
of
the
Federal
Rules
of
Civil
Procedure
governs
whether
the
Court
should
or
should
not
grant
leave
to
amend.
See
generally
Fed.
R.
Civ.
P.
15
.
Under
Rule
15
,
a
party
may
amend
its
pleadings
as
a
matter
of
course
within
21
days
of
serving
it,
or
21
days
after
service
of
a
responsive
pleading
or
Rule
12(b),
(e),
or
(f)
motion.
Fed.
R.
Civ.
P.
15(a)(1)
.
“In
all
other
cases,
a
party
may
amend
its
pleading
only
with
the
opposing
party's
written
consent
or
the
court's
leave.”
Fed.
R.
Civ.
P.
15(a)(2)
.
Generally,
leave
to
amend
is
“freely
give[n]
when
justice
so
requires.”
Fed.
R.
Civ.
P.
15(a)(2).
“
Rule
15
’s
policy
of
favoring
amendments
to
pleadings
should
be
applied
with
extreme
liberality”
in
normal
circumstances.
DCD
Programs,
Ltd.
v.
Leighton,
833
Mykhal
Lloyd
Polite,
Plaintiff,
v.
TitleMax
of
Arizona
Incorporated,...,
Slip
Copy
(2026)
©
2026
Thomson
Reuters.
No
claim
to
original
U.S.
Government
Works.
2
F.2d
183,
186
(9th
Cir.
1987)
(cleaned
up);
Chudacoff
v.
Univ.
Med.
Ctr.
of
S.
Nevada
,
649
F.3d
1143,
1152
(9th
Cir.
2011)
(“
Rule
15(a)
is
designed
to
facilitate
decision
on
the
merits,
rather
than
on
the
pleadings
or
technicalities.”)
(cleaned
up).
While
Rule
15
is
to
be
applied
with
extreme
liberality,
it
does
not
guarantee
leave
to
amend
will
be
granted.
Rather,
the
decision
whether
to
“grant
or
den[y]...an
opportunity
to
amend
is
within
the
discretion
of
the
District
Court[.]”
Komie
v.
Buehler
Corp.
,
449
F.2d
644,
648
(9th
Cir.
1971)
(citation
omitted).
In
analyzing
whether
leave
to
amend
should
be
granted,
the
Court
applies
the
following
Foman
factors:
In
the
absence
of
any
apparent
or
declared
reason—such
as
undue
delay,
bad
faith
or
dilatory
motive
on
the
part
of
the
movant,
repeated
failure
to
cure
deficiencies
by
amendments
previously
allowed,
undue
prejudice
to
the
opposing
party
by
virtue
of
allowance
of
the
amendment,
futility
of
amendment,
etc.—the
leave
sought
should,
as
the
rules
require,
be
‘freely
given.’
Foman
v.
Davis
,
371
U.S.
178,
182
(1962)
.
In
applying
the
Foman
factors,
the
U.S.
Court
of
Appeals
for
the
Ninth
Circuit
has
clarified
that
not
every
factor
is
weighed
evenly.
Eminence
Cap.,
LLC
v.
Aspeon,
Inc.
,
316
F.3d
1048,
1052
(9th
Cir.
2003)
.
Specifically,
“[p]rejudice
is
the
‘touchstone
of
the
inquiry
under
rule
15(a)
.’
”
Id.
(quoting
Lone
Star
Ladies
Inv.
Club
v.
Schlotzsky's
Inc.
,
238
F.3d
363,
368
(5th
Cir.
2001)
).
Beyond
undue
prejudice,
“[f]utility
of
amendment
can,
by
itself,
justify
the
denial
of
a
motion
for
leave
to
amend.”
Bonin
v.
Calderon
,
59
F.3d
815,
845
(9th
Cir.
1995)
.
An
amendment
is
futile
where
it
does
not
“present
a
viable
claim
on
the
merits
for
which
relief
could
be
granted[,]”
Murray
v.
Schriro
,
745
F.3d
984,
1015
(9th
Cir.
2014)
,
or
“[w]here
the
legal
basis
for
a
cause
of
action
is
tenuous[.]”
Lockheed
Martin
Corp.
v.
Network
Sols.,
Inc.
,
194
F.3d
980,
986
(9th
Cir.
1999)
.
IV.
Discussion
.
Plaintiff
seeks
leave
to
amend
so
that
he
may:
(1)
narrow
his
legal
theories;
(2)
eliminate
non-actionable
and
contextual
statutes;
and
(3)
clarify
his
factual
allegations.
(Doc.
37
at
1–2.)
Plaintiff
supports
his
Motion
by
referencing
Rule
15
’s
liberal
standard
and
stating
that
none
of
the
Foman
factors
are
present.
(
Id.
at
1.)
In
its
Response,
Defendant
asserts
that
Plaintiff's
Motion
should
be
denied
because:
(1)
Plaintiff's
proposed
TAC
is
futile;
“Plaintiff
improperly
seeks
damages
which
he
intended
to
release
in
the
settlement
agreement”;
and
(3)
because
he
neither
attached
the
settlement
agreement
5
nor
averred
how
Defendant
breached
said
agreement.
(Doc.
38
at
1–4.)
Additionally,
the
Court
notes
that
Plaintiff's
Motion
is
untimely
under
this
Court's
prior
order.
Compare
(doc.
35)
with
(doc.
37).
Accordingly,
the
Court
will
address:
(1)
whether
the
untimeliness
of
Plaintiff's
Motion
necessitates
denying
it;
(2)
whether
Plaintiff's
TAC
is
futile;
and
(3)
whether
the
damages
sought
are
improper.
1.
Untimely
Motion
.
*3
As
an
initial
matter,
the
Court
notes
that
Plaintiff's
Motion
is
untimely.
Plaintiff
was
given
until
December
26,
2025,
to
file
a
renewed
motion
for
leave
to
amend.
(Doc.
35
at
11.)
Plaintiff
did
not
file
the
instant
Motion
until
December
29,
2025.
See
(doc.
35.)
The
Court
puts
Plaintiff
on
notice
that
he
must
file
motions
by
the
deadline.
See
Fed.
R.
Civ.
P.
6
.
Signing
and
mailing
by
the
deadline
is
insufficient;
Rather,
Plaintiff
has
an
obligation
to
file
motions
and
notices
by
the
deadline,
especially
considering
“[p]ro
se
litigants
must
follow
the
same
rules
of
procedure
that
govern
other
litigants.”
King
v.
Atiyeh
,
814
F.2d
565,
567
(9th
Cir.
1987)
,
overruled
on
other
grounds
,
Lacey
v.
Maricopa
Cnty.
,
693
F.3d
896
(9th
Cir.
2012)
.
Although
Plaintiff's
Motion
is
late,
the
Court
will
not
deny
it
on
procedural
grounds.
This
is
because
the
Court
finds
that
Plaintiff's
untimely
motion
was
due
to
excusable
neglect.
6
However,
going
forward,
Plaintiff
is
warned
that
he
must
file
motions
by
the
deadline.
Signing
a
motion
or
mailing
a
motion
by
the
deadline
is
insufficient
.
2.
Futility
.
The
Court
will
next
address
whether
Plaintiff's
TAC
is
futile.
Plaintiff's
TAC
asserts
the
following
counts:
(a)
breach
of
contract;
(b)
violations
of
the
Arizona
Consumer
Fraud
Act
(“ACFA”);
and
(c)
negligence.
(Doc.
37-2
at
6–7.)
The
Court
will
address
each
count
in
turn.
Mykhal
Lloyd
Polite,
Plaintiff,
v.
TitleMax
of
Arizona
Incorporated,...,
Slip
Copy
(2026)
©
2026
Thomson
Reuters.
No
claim
to
original
U.S.
Government
Works.
3
a.
Count
One:
Breach
of
Contract
.
In
his
first
count,
Plaintiff
alleges
that
Defendant's
breached
the
settlement
agreement
by
delivering
the
vehicle
in
a
damaged
condition
and
failing
to
timely
transfer
title
to
the
vehicle.
(
Id.
at
6.)
To
succeed
on
a
breach
of
contract
claim
under
Arizona
law,
a
party
“must
show
that
an
enforceable
contract
exists,
that
it
was
breached,
and
that
the
plaintiff
suffered
damages.”
Williams
v.
Alhambra
Sch.
Dist.
No.
68
,
234
F.
Supp.
3d
971
.
984–85
(D.
Ariz.
2017)
(citing
Graham
v.
Asbury
,
540
P.2d
656,
657
(Ariz.
1975)
).
Viewing
the
facts
in
the
light
most
favorable
to
Plaintiff,
he
has
failed
to
present
a
viable
claim
for
which
relief
could
be
granted.
This
is
because,
as
an
initial
matter,
Plaintiff's
TAC
does
not
establish
that
an
enforceable
settlement
agreement
exists.
While
Plaintiff
references
a
settlement
agreement
between
the
Parties,
he
does
not
attach
a
copy
of
the
agreement
to
the
TAC.
Instead,
Plaintiff
solely
states
that
“[u]nder
the
settlement,
Defendant
agreed
to
return
possession
of
the
vehicle
to
Plaintiff
and
take
the
steps
necessary
to
transfer
title[.]”
(Doc.
37-2
at
3.)
This
singular
reference
to
a
purported
settlement
agreement
in
the
TAC
is
insufficient
to
establish
that
an
enforceable
contract
existed.
7
*4
Second,
Plaintiff's
TAC,
were
it
to
be
adopted,
does
not
establish
that
Defendant
“breached”
a
purported
settlement
agreement.
See
Williams
,
234
F.
Supp.
at
984–85.
First,
under
the
sole
purported
provision
of
the
agreement,
Defendant's
only
obligation
was
to
return
the
vehicle
and
transfer
title.
See
(doc.
37-2
at
3.)
This,
under
the
TAC,
Defendant
did.
(
Id.
)
(noting
that
Defendant
did
in
fact
transfer
the
vehicle
and
title—albeit
allegedly
late).
So,
Defendant
complied
with
its
two
purported
requirements:
(a)
return
possession;
and
(b)
transfer
title.
Regarding
the
averred
delay
in
transferring
the
vehicle,
Plaintiff
does
not
allege
a
deadline
for
the
vehicle
to
be
transferred
nor
a
date
when
the
vehicle
and
title
were
transferred
.
See
(
id.
)
Without
these
crucial
facts,
the
Court
is
unable
to
ascertain
whether
there
was
a
late
transfer
of
title.
Because
it
would
require
the
Court
and
opposing
party
to
intuit
crucial
facts
regarding
a
contract
and
the
state
of
affairs
in
this
action,
Plaintiff's
breach
of
contract
claim
is
futile
for
failing
to
state
a
claim
upon
which
relief
may
be
granted.
b.
Count
Two:
Violation
of
ACFA
.
Plaintiff's
ACFA
claim
is
futile
for
failure
to
state
a
claim
upon
which
relief
may
be
granted.
Such
finding
should
not
be
of
surprise
considering
that
this
is
Plaintiff's
second
attempt
to
raise
an
ACFA
claim.
Specifically,
in
Plaintiff's
proposed
Second
Amended
Complaint
(“SAC”),
Plaintiff
asserted
an
ACFA
violation
which
the
Court
found
insufficient.
See
(doc.
35
at
9–10.)
Although
Plaintiff's
ACFA
claim
in
this
TAC
does
not
perfectly
mirror
the
ACFA
claim
in
his
SAC,
both
versions
of
his
ACFA
are
legally
insufficient
because
the
ACFA
does
not
apply
to
settlement
agreements.
As
this
Court
has
already
stated:
Under
Arizona
law,
the
use
of
“any
deception,
deceptive
or
unfair
act
or
practice,
fraud,
false
pretense,
false
promise,
misrepresentation,...with
intent
that
others
rely
on
such
[act],
in
connection
with
the
sale
or
advertisement
of
any
merchandise...[is]
unlawful.”
A.R.S.
§
44-1522(A)
.
Viewing
the
facts
[of
Plaintiff's
proposed
Complaint]
in
the
light
most
favorable
to
[him],
the
Court
finds
that
he
has
failed
to
present
a
viable
ACFA
claim
because,
under
the
plain
and
unambiguous
terms
of
the
Act,
it
does
not
apply
to
settlement
agreements.
Under
both
federal
and
state
precedent,
where
“the
words
of
a
statute
are
unambiguous,
the
‘judicial
inquiry
is
complete.’
”
Desert
Palace,
Inc.
v.
Costa
,
539
U.S.
90,
98
(2003)
(quoting
Conn.
Nat'l
Bank
v.
Germain
,
503
U.S.
249,
254
(1992)
);
State
v.
Serrato
,
568
P.3d
756,
759
(Ariz.
2025)
(“If
a
statute's
text
is
clear
and
unambiguous,
it
controls
unless
it
results
in
an
absurdity
or
a
constitutional
violation.”).
Turning
to
the
text
of
the
ACFA,
the
Act
only
applies
to
advertisements
and
sales.
Id.
Starting
with
advertisements,
the
Act
defines
an
advertisement
as
“the
attempt
by
publication,...oral
or
written,
to
induce
directly
or
indirectly
any
person
to
enter
into
any
obligation
or
acquire
any
title
or
interest
in
any
merchandise.”
A.R.S.
§
44-1521(1)
.
Next,
the
Act
defines
sales
as
“any
sale,
offer
for
sale
or
attempt
to
sell
any
merchandise
for
any
consideration,
including
sales,
leases
and
rentals
of
any
real
estate
subject
to
any
form
of
deed
restriction
imposed
as
part
of
a
previous
sale.”
A.R.S.
§
44-1521(7)
.
So,
on
its
face,
the
ACFA
is
clear
that
a
settlement
agreement—and
the
negotiations
leading
to
that
agreement—is
neither
an
advertisement
nor
a
sale.
Because
Plaintiff
fails
to
present
a
viable
claim
upon
which
relief
may
be
granted,
his
ACFA
count
is
futile.
(Doc.
35
at
9–10.)
The
Court
finds
no
reason
to
deviate
from
its
prior
holding.
Accordingly,
Plaintiff's
ACFA
is
futile
for
failure
to
state
a
claim.
c.
Count
Three:
Negligence
.
Mykhal
Lloyd
Polite,
Plaintiff,
v.
TitleMax
of
Arizona
Incorporated,...,
Slip
Copy
(2026)
©
2026
Thomson
Reuters.
No
claim
to
original
U.S.
Government
Works.
4
The
Court
finds
that
Plaintiff's
negligence
fails
to
state
a
claim
upon
which
relief
may
be
granted,
and
is
accordingly
futile.
A
negligence
claim
under
Arizona
law
requires:
“(1)
a
duty
requiring
the
defendant
to
conform
to
a
certain
standard
of
care;
(2)
a
breach
by
the
defendant
of
that
standard;
(3)
a
causal
connection
between
the
defendant's
conduct
and
the
resulting
injury;
and
(4)
actual
damages.”
Gipson
v.
Kasey
,
150
P.3d
228,
230
(Ariz.
2007)
.
*5
Plaintiff's
TAC
fails
to
aver
all
the
required
negligence
elements—
i.e.
,
duty,
breach,
causation,
and
damages
as
required
for
a
negligence
claim.
Specifically,
Plaintiff
has
not
sufficiently
alleged
that
Defendant
breached
a
duty
of
care—
regardless
of
whether
a
duty
existed.
See
Sanders
v.
Alger
,
394
P.3d
1083,
1085–86
(Ariz.
2017)
(noting
Arizona
state
courts’
aversion
to
basing
decisions
on
broad
statements
of
general
duties
owed
to
all
persons).
Plaintiff
has
not
alleged
sufficient
evidence
that
he
had
any
right
to
the
vehicle
before
reaching
a
settlement
agreement.
8
Consequently,
Plaintiff
cannot
allege
that
Defendant
breached
a
duty
regarding
the
vehicle
because
he
had
no
right
to
the
vehicle
before
regaining
the
vehicle.
Furthermore,
Plaintiff
has
not
asserted
sufficient
facts
in
his
TAC
to
determine
whether
a
breach
of
duty
occurred
regarding
the
transfer
of
title.
Accordingly,
the
Court
agrees
with
Defendant
that
Plaintiff's
negligence
claim
is
merely
“an
unadorned,
the
Defendant
unlawfully-harmed-me
accusation.”
(Doc.
38
at
7)
(quoting
Ashcroft
v.
Iqbal
,
556
U.S.
662,
678
(2009)
).
Because
of
this,
Plaintiff's
negligence
claim
is
futile.
3.
Improperly
Sought
Damages
.
As
a
final
matter,
the
Court
finds
Defendant's
assertion
that
Plaintiff
cannot
recover
consequential
damages
well
plead.
See
(doc.38
at
8.)
Under
Arizona
state
law,
settlement
agreements
are
contracts
governed
by
contract
law.
See
Emmons
v.
Super.
Ct.
in
&
for
Cnty.
of
Maricopa
,
968
P.2d
582,
585
(Ariz.
App.
1998)
;
see
also
Hisel
v.
Upchurch
,
797
F.
Supp.
1509,
1518–19
(D.
Ariz.
1992)
(“An
agreement
to
settle
a
legal
dispute
is
a
contract
governed
by
the
principles
of
contract
law.”).
In
analyzing
the
Parties’
settlement
agreement,
the
Court
does
not
find
any
unconscionability,
unilateral
or
mutual
mistake,
or
fraud
that
would
make
the
agreement
and
its
provision
unenforceable.
Because
of
this
and
considering
that
Plaintiff
has
waived
seeking
“economic
or
emotional
damages,”
(doc.
38
at
9),
Plaintiff
is
unable
to
assert
a
claim
for
consequential
damages.
Therefore,
any
claim
for
consequential
damages
is
futile.
V.
Conclusion
.
For
the
foregoing
reasons,
the
Court
finds
that
Plaintiff's
TAC
is
futile
for
failing
to
present
viable
claims
upon
which
relief
may
be
granted.
Therefore,
the
Court
will
deny
Plaintiff's
Motion
for
Leave
to
Amend.
Because
this
was
Plaintiff's
third
attempt
to
amend
his
Complaint,
the
Court
will
not
grant
leave
to
amend.
See
Sanchez
v.
Arpaio
,
No.
CV
06-0571-
PHX-DGC-HCE,
2006
WL
1418562,
at
*1
(D.
Ariz.
May
22,
2006)
(“The
Court's
discretion
to
deny
or
grant
leave
to
amend
is
particularly
broad
where
Plaintiff
has
previously
been
permitted
to
amend
his
complaint....The
failure
to
cure
deficiencies
by
previous
amendments
is
one
of
the
factors
to
be
considered
in
deciding
whether
justice
requires
granting
leave
to
amend.”).
VI.
Sua
Sponte
Motion
for
Summary
Judgment
.
As
a
final
matter,
the
Court
notes
that
it
is
not
likely
to
find
any
of
Plaintiff's
remaining
claims
sufficient
based
on
the
law
and
facts
involved
in
this
matter.
Consequently,
the
Court
considers
sua
sponte
dismissal
of
Plaintiff's
claims
pursuant
to
Rule
56(f).
“[D]istrict
courts
are
widely
acknowledged
to
possess
the
power
to
enter
summary
judgments
sua
sponte
,
so
long
as
the
losing
party
was
on
notice
that
she
had
to
come
forward
with
all
of
her
evidence.”
Celotex
Corp.
v.
Catrett
,
477
U.S.
317,
326
(1986)
;
Fed.
R.
Civ.
P.
56(f)(3)
(“After
giving
notice
and
a
reasonable
time
to
respond,
the
court
may
.
..consider
summary
judgment
on
its
own
after
identifying
for
the
parties
material
facts
that
may
not
be
genuinely
in
dispute.”).
“
Sua
sponte
grants
of
summary
judgment
are
only
appropriate
if
the
losing
party
has
reasonable
notice
that
the
sufficiency
of
his
or
her
claim
will
be
in
issue.”
Norse
v.
City
of
Santa
Cruz
,
629
F.3d
966,
971–72
(9th
Cir.
2010)
(citation
omitted).
“Reasonable
notice
implies
adequate
time
to
develop
the
facts
on
which
the
litigant
will
depend
to
oppose
summary
judgment.”
Portsmouth
Square
Inc.
v.
S'holders
Protective
Comm.
,
770
F.2d
866,
869
(9th
Cir.
1985)
.
*6
Because
Plaintiff's
breach
of
contract,
negligence,
and
ACFA
claims
are
legally
deficient
for
the
reasons
stated
herein,
and
because
his
averments
of
fraud
9
and
other
violations
of
Arizona
state
statutes
10
in
his
operative
Complaint
are
likely
legally
and
factually
insufficient,
the
Court
shall
Order
Plaintiff
to
brief
why
his
claims
should
not
be
summarily
dismissed
pursuant
to
Rule
56(f)
.
In
this
brief,
Mykhal
Lloyd
Polite,
Plaintiff,
v.
TitleMax
of
Arizona
Incorporated,...,
Slip
Copy
(2026)
©
2026
Thomson
Reuters.
No
claim
to
original
U.S.
Government
Works.
5
and
at
the
Parties’
Case
Management
Conference,
Plaintiff
should
be
prepared
to
address
the
following:
1)
Why
A.R.S.
§§
28-2131
,
28-2134
are
at
all
relevant
considering
that
these
statutes
apply
to
liens
and
encumbrances?
2)
Why
A.R.S.
§
28-2060
is
relevant
to
your
claims
considering
that
you,
the
Plaintiff,
are
the
transferee,—
i.e.
,
person
receiving—meaning
that
the
30-day
requirement
does
not
apply
to
Defendant?
3)
Why
A.R.S.
§
47-2718
,
which
relates
to
liquidated
damages,
applies
to
a
settlement
agreement
that
does
not
contain
a
liquidated
damages
clause?
4)
Why
you
could
rely
upon
Defendant's
counsel's
representations
during
settlement
negotiations,
considering,
“as
a
matter
of
law
and
common
sense,”
you
“had
no
right
to
rely”
upon
representations
from
attorneys
opposing
you?
See
Linder
v.
Brown
&
Herrick
,
943
P.2d
758,
765
(Ariz.
Ct.
App.
1997)
.
5)
What
duty
did
Plaintiff
owe
you
under
Arizona
Law?
And
how
did
Defendant
breach
that
duty?
6)
In
what
way
did
Defendant
breach
the
settlement
agreement,
considering
that
it
did
not
require
them
to
transfer
the
vehicle
in
a
certain
condition?
Accordingly,
IT
IS
ORDERED
that
Plaintiff's
Motion
for
Leave
to
File
First
Amended
Complaint
(doc.
37)
is
DENIED
as
futile.
IT
IS
FURTHER
ORDERED
that
Plaintiff
shall
not
be
permitted
further
leave
to
amend
his
Complaint.
IT
IS
FURTHER
ORDERED
that
the
Court
will
Order
that
Plaintiff,
on
or
before
FEBRUARY
27,
2026
,
show
cause
in
writing
why
all
claims
against
Defendant
should
be
dismissed
pursuant
to
Rule
56(f)(3)
.
Nothing
in
this
Order
shall
prevent
Defendant
from
filing
a
contemplated
Rule
56
Motion
for
Summary
Judgment
before
that
date.
Plaintiff
should
be
prepared
to
discuss
this
matter
during
the
scheduled
Case
Management
Conference
on
January
26,
2026.
IT
IS
FURTHER
ORDERED
that,
in
light
of
the
Parties’
Joint
Case
Management
Report
(doc.
39),
the
Parties
may
appear
telephonically
for
the
January
26,
2026,
Case
Management
Conference.
The
Parties
are
directed
to
call
(855)
244-8681
and
use
access
code
2302
321
0604
five
minutes
before
the
hearing.
It
is
defense
counsel's
responsibility
to
arrange
for
Plaintiff
to
appear
telephonically.
*7
IT
IS
FURTHER
ORDERED
that
the
Parties
shall
dial
into
the
number
provided
at
least
FIVE
MINUTES
PRIOR
TO
THE
HEARING
.
Dated
this
23rd
day
of
January,
2026.
Honorable
John
Z.
Boyle
United
States
Magistrate
Judge
All
Citations
Slip
Copy,
2026
WL
183546
Footnotes
1
The
Parties
consented
to
magistrate
judge
jurisdiction
on
July
15,
2025.
(Doc.
20).
2
While
the
Motion
states
“First
Amended
Complaint,”
the
Court
notes
that,
in
fact,
this
is
Plaintiff's
Third
Amended
Complaint.
See
(docs.
1,
11,
26.)
3
Plaintiff's
clean
copy
of
the
TAC
is
missing
page
3.
See
(doc.
37-1.)
4
The
Court
notes
that
Plaintiff's
proposed
Third
Amended
Complaint
omits
key
facts
regarding
his
case,
such
as
the
existence
of
a
title
loan
agreement
between
the
Parties,
the
fact
that
he
reserved
the
right
to
pursue
an
action
for
property
damage
resulting,
and
the
specific
acts
Defendant's
counsel
allegedly
took—
e.g.
,
his
prior
Mykhal
Lloyd
Polite,
Plaintiff,
v.
TitleMax
of
Arizona
Incorporated,...,
Slip
Copy
(2026)
©
2026
Thomson
Reuters.
No
claim
to
original
U.S.
Government
Works.
6
assertion
that
counsel
showed
him
an
aged
photograph
of
the
care—that
supports
his
averment
of
fraud.
See
(doc.
35
at
1–2.)
5
Defendant
appends
the
settlement
agreement
to
their
Response.
See
(doc.
38-1.)
6
“When
an
act
may
or
must
be
done
within
a
specified
time,
the
court
may,
for
good
cause
,
extend
the
time...on
motion
made
after
the
time
has
expired
if
the
party
failed
to
act
because
of
excusable
neglect
.”
Fed.
R.
Civ.
P.
6(b)(1)(B)
(emphasis
added).
“The
determination
of
excusable
neglect
takes
into
account:
(1)
the
danger
of
prejudice;
(2)
the
length
of
the
delay
and
its
potential
impact
on
judicial
proceedings;
(3)
the
reasons
for
the
delay
which
includes
whether
it
was
within
the
reasonable
control
of
the
party
seeking
to
show
excusable
neglect;
and
(4)
whether
that
party
acted
in
good
faith.”
De
La
Rosa
v.
Costco
Wholesale
Corp.
,
No.
21-CV-1630-W-BGS,
2022
WL
2541273,
at
*2
(S.D.
Cal.
July
6,
2022)
(citing
Pioneer
Inv.
Servs.
Co.
v.
Brunswick
Assoc.
Ltd.
P'ship
,
507
U.S.
380,
395
(1993)
).
7
While
Defendant
appends
a
copy
of
the
settlement
agreement
to
their
Response,
this
fact
does
not
remedy
Plaintiff's
failure
to
sufficiently
allege
that
an
enforceable
agreement
existed.
8
As
Defendant
and
this
Court's
prior
Order
has
noted,
Plaintiff's
vehicle
was
repossessed.
During
this
time,
Plaintiff
did
not
have
either
an
express
or
implied
agreement
that
the
vehicle
would
be
returned
to
Plaintiff.
“When
Plaintiff
defaulted
on
the
loan,
Defendant—as
the
secured
party—had
the
right
to
take
possession
of
the
collateral
and
dispose
of
the
collateral
by
sale
or
lease,
so
long
as
that
disposition
was
reasonable.
A.R.S.
§§
47-9609(A)(1)
,
47-9610(A)
.”
(Doc.
35
at
9.)
9
To
state
a
claim
for
fraud
under
Arizona
state
law,
a
party
must
sufficiently
plead:
(1)
a
representation,
(2)
its
falsity,
(3)
its
materiality,
(4)
the
speaker's
knowledge
of
its
falsity
or
ignorance
of
its
truth,
(5)
the
speaker's
intent
that
it
be
acted
upon
by
the
recipient
in
the
manner
reasonably
calculated,
(6)
the
hearer's
ignorance
of
its
falsity,
(7)
the
hearer's
reliance
on
its
truth,
(8)
the
right
to
rely
on
it,
and
(9)
a
consequent
and
proximate
injury.
SPUS8
Dakota
LP
v.
KNR
Contractors
LLC
,
641
F.
Supp.
3d
682,
691
(D.
Ariz.
2022)
.
Plaintiff
fails
to
sufficiently
allege
all
nine
factors.
10
Plaintiff's
reliance
upon
A.R.S.
§§
28-2060
,
28-2131
,
28-2134
,
47-2718
do
not
appear
applicable
because
this
matter
does
not
involve
a
lienholder,
Plaintiff
is
the
transferee,
and
there
is
not
a
liquidated
damages
provision
in
the
settlement
agreement.
End
of
Document
©
2026
Thomson
Reuters.
No
claim
to
original
U.S.
Government
Works.
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