                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       BRETT HONIG, Plaintiff/Appellant,

                                         v.

            ARIZONA HEALTH CARE COST CONTAINMENT
             SYSTEM ADMINISTRATION, Defendant/Appellee.

                              No. 1 CA-CV 14-0727
                                FILED 5-28-2015


            Appeal from the Superior Court in Maricopa County
                           No. CV2014-094434
               The Honorable David M. Talamante, Judge

                                   AFFIRMED


                                    COUNSEL

Brett Honig, Gilbert
Plaintiff/Appellant

Johnston Law Offices, P.L.C., Phoenix
By Logan T. Johnston
Counsel for Defendant/Appellee
                           HONIG v. AHCCCS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.


B R O W N, Judge:

¶1           Brett Honig appeals the dismissal of his complaint against the
Arizona Health Care Cost Containment System Administration
(“AHCCCS”) for failure to state a claim upon which relief could be granted
under Arizona Rule of Civil Procedure (“Rule”) 12(b)(6). For the following
reasons, we affirm.

                             BACKGROUND

¶2            Honig filed his complaint against AHCCCS on July 11, 2014,
alleging he had been treated poorly by security guards and other employees
when he went to speak with the legal department at AHCCCS. Honig
asserted that one of the employees “needs to be disciplined” for what he
did to Honig and there should be “an investigation” into the legal
department. As suggested by a minute entry attached to the complaint, it
appears that the incident giving rise to Honig’s allegations was related to a
separate matter pending in the superior court, in which he sought judicial
review of an adverse AHCCCS administrative decision.

¶3            Honig served AHCCCS with the complaint on July 15, 2014.
On August 11, Honig filed a motion for a hearing and three days later filed
an application and affidavit for default. The trial court denied Honig’s
motion for a hearing without prejudice on August 20, noting in its minute
entry that AHCCCS had not yet filed a responsive motion or pleading.
That same day, the court issued a separate minute entry advising the parties
that Honig had filed a letter in which he took issue with information
allegedly provided to him by court staff and suggested the case should be
transferred. The court declined to take any action on the letter, noting that
it was an impermissible ex-parte communication because it had not been
delivered to AHCCCS. Also on August 20, AHCCCS filed its motion to
dismiss Honig’s complaint pursuant to Rule 12(b)(6), asserting that
dismissal was appropriate because the complaint failed to comply with
Rule 8(a) and did not present a legally cognizable claim. In response, Honig




                                     2
                           HONIG v. AHCCCS
                           Decision of the Court

referenced his application for default and suggested that the case should be
heard by a different judge.

¶4            Honig later filed a motion for default, arguing that a default
judgment should be entered because AHCCCS did not file a response
within ten days of Honig’s first motion for default judgment. The trial court
denied Honig’s motion, explaining that because AHCCCS filed its motion
to dismiss within ten days of Honig’s filing of his application and affidavit
for default, under Rule 55(a) the matter could not proceed by default. The
court also granted AHCCCS’s motion to dismiss with prejudice and Honig
timely appealed.

                               DISCUSSION

¶5           Honig argues the trial court erred by failing to grant a default
judgment and by dismissing his complaint. Honig also asserts the court
was biased in its rulings.

¶6             At the outset, AHCCCS requests that we dismiss Honig’s
appeal for failure to comply with Arizona Rule of Civil Appellate Procedure
13, which requires the appellant to present significant arguments, set forth
his or her position on the issues raised, and include citations to relevant
authorities, statutes, and portions of the record. See ARCAP 13(a)(6). It is
well established that pro se litigants are entitled to “no more consideration”
than parties represented by counsel. See Kelly v. NationsBanc Mortg. Corp.,
199 Ariz. 284, 287, ¶ 16 (App. 2000). However, because we generally prefer
to decide each case on its merits rather than to dismiss summarily on
procedural grounds, see Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340,
342 (App. 1984), in our discretion we address the merits of Honig’s
argument based on our own review of the record.

¶7             First, we reject Honig’s argument that the trial court erred in
failing to grant default judgment because AHCCCS “did not respond to the
default judgment correctly.” As stated in Rule 55(a), default may be entered
only against a party who has failed to plead or otherwise defend within ten
days from the filing of the application for entry of default. Because
AHCCCS defended the complaint by filing its motion to dismiss before
expiration of that ten-day period, under Rule 55(a)(4) default could not be
entered.

¶8            Second, the trial court did not err in dismissing Honig’s
complaint pursuant to Rule 12(b)(6). We review a dismissal for failure to
state a claim under Rule 12(b)(6) de novo, assuming the truth of all well-
plead factual allegations and all reasonable inferences therefrom. Coleman


                                      3
                             HONIG v. AHCCCS
                             Decision of the Court

v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7, 9 (2012). A complaint must
contain “[a] short and plain statement . . . showing that the pleader is
entitled to relief.” Ariz. R. Civ. P. 8(a)(1), (2). If a pleading does not comply
with Rule 8, an opposing party may move to dismiss the action for “[f]ailure
to state a claim upon which relief can be granted.” Ariz. R. Civ. P. 12(b)(6);
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008).

¶9             The crux of Honig’s complaint appears to be that a security
guard, identified only by his first name and who works at the building in
which the AHCCCS legal department is housed, was rude to Honig and
unfairly asked him to leave the property. Assuming the truthfulness of
these allegations, they do not present any cognizable legal theory showing
that Honig is entitled to relief. See Balistreri v. Pacifica Police Dep’t, 901 F.2d
696, 699 (9th Cir. 1990) (recognizing that a complaint may be properly
dismissed for failure to state a claim “based on the lack of a cognizable legal
theory”). The court could not, as a matter of law, order an “investigation”
of the AHCCCS legal department based on the guard’s acts, and, as a result,
the relief requested cannot be reasonably construed as framing a legal claim
for relief. Therefore, the court did not err by dismissing Honig’s complaint
for failure to state a claim.

¶10            Finally, Honig claims that the trial court was biased and
treated him unfairly because of his disability. A trial judge is presumed to
be free of bias and prejudice, and a party alleging judicial bias must show
by a preponderance of the evidence that the judge was, in fact, biased. Cook
v. Losnegard, 228 Ariz. 202, 206, ¶ 22 (App. 2011); see Stagecoach Trails MHC,
LLC v. City of Benson, 232 Ariz. 562, 568, ¶ 21 (App. 2013) (“Judicial rulings
alone do not support a finding of bias or partiality without a showing of an
extrajudicial source of bias or deep-seated favoritism.”). Because Honig
makes no specific allegations, and nothing in the record suggests any bias
or prejudice, we reject Honig’s claim.

                                CONCLUSION

¶11            We affirm the trial court’s order dismissing Honig’s
complaint.




                                     :ama

                                        4
