Archer v. Partners in Recovery LLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Janette R. Archer, No. CV-18-01885-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Partners in Recovery LLC, 13 Defendant. [14] 15 Pending before the Court is Defendant’s Motion to Dismiss for Failure to State a 16 Claim and Lack of Subject Matter Jurisdiction Or, in the Alternative, for a More Definite 17 Statement. (Doc. 36.) As explained below, the Court will partially grant and partially deny 18 the motion.1 19 BACKGROUND 20 The following facts, which the Court assumes to be true for purposes of ruling on 21 the pending motion, are derived from Plaintiff Janette Archer’s (“Plaintiff”) first amended 22 complaint (“FAC”). (Doc. 33.) 23 Plaintiff is a registered nurse who was hired by Defendant in 2014. (Id. ¶ 7.) 24 Plaintiff has adult attention deficit disorder (“ADD”), which made it difficult for her to 25 keep written notes as required by Defendant’s employment policies. (Id. ¶¶ 8–9.) 26 Defendant issued Plaintiff a smart phone as an accommodation, thereby allowing her to 27 1 Defendant requested oral argument, but the Court will deny the request because the issues have been fully briefed and oral argument will not aid the Court’s decision. See Fed. 28 R. Civ. P. 78(b); LRCiv. 7.2(f). 1 dictate her notes. (Id. ¶ 11.) Plaintiff lost the phone and requested a replacement (at her 2 own expense) but Defendant denied the request. (Id. ¶¶ 12–13.) Plaintiff contacted the 3 Human Resources Department (“HR”) and requested a “mobile device with electronic 4 note-taking capabilities.” (Id. ¶ 15.) Defendant then issued Plaintiff a laptop with dictation 5 software. (Id. ¶ 16.) The laptop was unwieldy, often needed to be charged, had poor Wi6 Fi connection, and had inadequate dictation software. (Id. ¶¶ 17–18.) Plaintiff contacted 7 HR and provided a doctor’s note stating Plaintiff needed a handheld device to complete 8 her work. (Id. ¶¶ 19–21.) Defendant eventually complied and issued Plaintiff a phone; 9 however, she struggled to configure the phone and contacted the Information and 10 Technology Department (“IT”) for assistance. (Id. ¶¶ 21–22.) IT also struggled to 11 configure the phone. (Id. ¶ 21.) IT treated Plaintiff “with distrust and ridicule,” accusing 12 her of causing the software’s malfunction, which Plaintiff denies. (Id. ¶ 24.) 13 Defendant subsequently began monitoring Plaintiff more closely at work. 14 (Id. ¶ 25.) From August 4, 2017 to October 2, 2017, Plaintiff was reprimanded five times— 15 four for making unauthorized changes to her accommodation equipment and one for 16 discussing “political, ideological, and/or religious matters in the workplace.” (Id. ¶¶ 26– 17 31.) Plaintiff alleges that she recalls other employees discussing similar topics without 18 discipline. (Id. ¶ 27.) During this time, Plaintiff also requested time off related to her 19 ADD, but Defendant denied the request. (Id. ¶ 32.) 20 On or about November 14, 2017, a traffic enforcement officer pulled Plaintiff over 21 while she was driving to work. (Id. ¶ 34.) Plaintiff reported this incident to Defendant, 22 which investigated. (Id. ¶¶ 35, 38.) This investigation included obtaining “a motor vehicle 23 report,” which was provided by a third-party company called SambaSafety. (Id. ¶ 38.) 24 Amanda Morales2 told Plaintiff the report showed “that Plaintiff had a suspended license.” 25 (Id.) This statement was inaccurate—Plaintiff’s license wasn’t suspended. (Id. ¶¶ 40, 42.) 26 Plaintiff told Ms. Morales that her license wasn’t suspended, but Defendant “nevertheless [27] 28 2 The FAC does not specify who Ms. Morales is, but based on the parties’ briefs, the Court will presume she is an employee in Defendant’s HR department. 1 terminated Plaintiff’s employment.” (Id. ¶ 40.) The sole reason Defendant provided for 2 the termination decision was the suspended license. (Id.) 3 In Count I of the FAC, Plaintiff asserts a claim under the Americans with 4 Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., for disability discrimination, failure 5 to accommodate, harassment, hostile work environment, and retaliation. (Id. ¶¶ 44-56.) In 6 Counts II, III, and IV of the FAC, Plaintiff asserts various state-law claims that are 7 discussed in more detail infra. (Id. ¶¶ 64-85.) 8 Defendant now moves to dismiss for failure to state a claim and for lack of subject 9 matter jurisdiction, or alternatively, for a more definite statement. (Doc. 36.) 10 LEGAL STANDARD 11 “[T]o survive a motion to dismiss, a party must allege ‘sufficient factual matter, 12 accepted as true, to state a claim to relief that is plausible on its face.’” In re Fitness 13 Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 14 U.S. 662 , 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual 15 content that allows the court to draw the reasonable inference that the defendant is liable 16 for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). “[A]ll well-pleaded 17 allegations of material fact in the complaint are accepted as true and are construed in the 18 light most favorable to the non-moving party.” Id. at 1144–45 (quotation omitted). 19 However, the court need not accept legal conclusions couched as factual allegations. Iqbal, 20 556 U.S. at 679–80. The court also may dismiss due to “a lack of a cognizable legal 21 theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (quotation omitted). 22 ANALYSIS 23 I. Motion to Dismiss3 24 A. “Catch-All” Paragraphs 25 Plaintiff concludes Counts I, II, III, and IV by stating, “Plaintiff alleges all causes 26 of action arising from the factual allegations herein, including without limitation disability [27] 3 The Court’s subject matter jurisdiction is not in question. Plaintiff’s ADA claim 28 arises under federal law. Because Defendant only seeks dismissal of the ADA claim’s catch-all provision, the Court’s subject matter jurisdiction remains intact. 1 discrimination, failure to accommodate, harassment, hostile work environment, and 2 retaliation.” (Doc. 33 ¶¶ 56, 63, 74, 85.) Defendant argues these “catch-all” statements 3 deprive it of fair notice and should be dismissed. (Doc. 36 at 10; Doc. 40, Reply in Supp. 4 of Mot. at 10.) 5 “Federal pleading rules call for ‘a short and plain statement of the claim showing 6 that the pleader is entitled to relief’; they do not countenance dismissal of a complaint for 7 imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of 8 Shelby, 135 S. Ct. 346, 346 (2014) (citation omitted). “[U]nder the Federal Rules of Civil 9 Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory.” 10 Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016) (quotation 11 omitted). The primary issue thus becomes whether “sufficient factual averments show that 12 the claimant may be entitled to some relief.” Fontana v. Haskin, 262 F.3d 871, 877 (9th 13 Cir. 2001). Although the complaint remains poorly organized, Plaintiff still has identified 14 some of the theories she intends to pursue. Defendant therefore has reasonable notice of 15 the claims, so the catch-all paragraphs do not warrant dismissal. 16 B. Wrongful Termination 17 Count II includes wrongful termination claims arising out of alleged violations of 18 the Arizona Employment Protection Act (“AEPA”) and the Arizona Civil Rights Act 19 (“ACRA”).4 (Doc. 33 ¶¶ 60–61.) Defendant argues that Plaintiff’s AEPA claim is barred 20 by the ACRA. (Doc. 36 at 4–5.) Plaintiff contends that she asserts these claims as 21 alternative pleadings. (Doc. 38 at 5.) 22 The AEPA was enacted to “limit the circumstances in which a terminated employee 23 can sue an employer to those situations involving either qualifying written contracts or an 24 employer violating the public policy of the state as enunciated in the state constitution and 25 statutes.” Taylor v. Graham Cty. Chamber of Commerce, 33 P.3d 518 , 527–28 (Ariz. Ct. 26 App. 2001 ) (quotation omitted). The ACRA thus acts as one of the so-called “source [27] 28 4 Plaintiff asserts other ACRA claims; however, because Defendant has only raised an argument concerning the wrongful termination claim, the Court will not discuss them. 1 statutes” by which employees may assert claims against their employers. Id. at 522 . Stated 2 plainly, the AEPA merely affirms that the ACRA provides the exclusive remedy for an 3 ACRA violation. Id. (“The [A]EPA does not provide a back door method of suing [an 4 employer] in tort for wrongful termination in violation of ACRA or its public policy.”). 5 See also A.R.S. § 23-1501(A)(3)(b) (“If the statute provides a remedy to an employee for 6 a violation of the statute, the remedies provided to the employee . . . are the exclusive 7 remedies for the violation of the statute . . . .”); Baker v. Walgreens Ariz. Drug. Co., 2016 8 WL 3181683 , *3 (D. Ariz. 2016) (“To the extent that Plaintiff’s remaining state law claim 9 can be characterized as an alleged AEPA claim premised on ACRA violations, substantial 10 case law suggests that Plaintiff’s claim is not actionable.”). The Court accordingly 11 dismisses Count II to the extent Plaintiff asserts a separate ACRA-based AEPA claim, but 12 it does not dismiss Plaintiff’s ACRA claim. 13 C. Civil Conspiracy 14 Count III asserts a civil conspiracy claim. (Doc. 33 ¶ 74.) Defendant argues that 15 Plaintiff has failed to allege an agreement, underlying tort, or co-conspirator. (Doc. 36 at 16 6–7; Doc. 40 at 8–9.) Plaintiff argues that an agreement may be inferred from the FAC’s 17 references to two non-parties, SambaSafety and Ms. Morales. (Doc. 38 at 9.) 18 Under Arizona law, “there is no such thing as a civil action for conspiracy.” Tovrea 19 Land & Cattle Co. v. Linsenmeyer, 412 P.2d 47, 63 (Ariz. 1966); accord Hansen v. Stoll, [20] 636 P.2d 1236, 1242 (Ariz. Ct. App. 1981) (“Arizona does not recognize the existence of 21 the tort of ‘conspiracy.’”). “A civil conspiracy requires an underlying tort which the 22 alleged conspirators agreed to commit.” Baker ex rel. Hall Brake Supply, Inc. v. Stewart 23 Title & Tr. of Phx., Inc., 5 P.3d 249, 259 (Ariz. Ct. App. 2000). “In short, liability for civil 24 conspiracy requires that two or more individuals agree and thereupon accomplish an 25 underlying tort which the alleged conspirators agreed to commit.” Wells Fargo Bank v. 26 Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 38 P.3d 12 , 27 36 (Ariz. 2002) (quotation omitted). 28 The FAC does not come close to alleging any such agreement. As for SambaSafety, 1 the FAC does not allege any facts suggesting SambaSafety knew its report was inaccurate, 2 was aware of Plaintiff’s disability, or knew of Defendant’s alleged discrimination and other 3 unlawful conduct. Without such knowledge, SambaSafety cannot have joined a conspiracy 4 to engage in an unlawful effort to terminate Plaintiff. 5 As for Ms. Morales, Plaintiff argues a corporation can conspire with itself via its 6 officers or directors. (Doc. 38 at 8.) But Arizona law is to the contrary: “A corporation 7 cannot conspire with itself anymore than a private individual can, nor with its directors if 8 they are acting in the corporation’s behalf.” Rowland v. Union Hills Country Club, 757 9 P.2d 105, 110 (Ariz. Ct. App. 1988) (quotation omitted). 10 To be sure, there is an “exception to the general rule that a corporation cannot 11 conspire with its officers.” Rowland, 757 P.2d at 110. The exception is that “[w]hen 12 officers of a corporation act for their own personal purposes, they become independent 13 actors, who can conspire with the corporation.” Id. (quotation omitted). Plaintiff suggests 14 Ms. Morales’s conduct fits this description. (Doc. 38 at 9.) But the FAC does not allege 15 that Ms. Morales is an officer or director of Defendant or that she was acting for her own 16 personal purposes. Therefore, the Court cannot consider her a co-conspirator. 17 For these reasons, the Court dismisses Count III. 18 D. Negligence/Negligence per se/Gross Negligence 19 Count IV alleges that Defendant failed to “investigate and to properly supervise its 20 investigative employees” and to “properly train and supervise its employees.” (Doc. 21 33 ¶¶ 76–77.) Arizona courts have not recognized such claims. Thorp v. Home Health 22 Agency—Ariz., Inc., 941 F. Supp. 2d 1138, 1143 (D. Ariz. 2013) (“Arizona does not 23 recognize a claim by an employee against an employer for negligent hiring, retention, or 24 supervision.”). Plaintiff contends that she is stating a claim for ordinary negligence, not 25 for negligent supervision or negligent investigation. (Doc. 38 at 10.) But Plaintiff has 26 identified no duty owed by Defendant.5 Nor has Plaintiff identified a statute creating a [27] 28 5 Because Plaintiff has failed to allege a duty that could give rise to a claim for negligence, Plaintiff also cannot maintain a claim for gross negligence. 1 duty necessary to support a claim of negligence per se. Huff v. Francisco, 107 P.3d 934 , 2 937 (Ariz. Ct. App. 2005) (“Negligence per se applies when there has been a violation of 3 a specific requirement of a law.”) (quotation omitted). As such, the Court dismisses Count 4 IV.6 5 II. Motion for a More Definite Statement 6 Defendant once again alternatively moves for a more definite statement. (Doc. 36 7 at 11.) Plaintiff contends that Defendant’s answer to the complaint moots the issue. (Doc. 8 38 at 12.) Defendant in turn points out that the Court’s June 18, 2018 Order required it to 9 file an answer. (Doc. 40 at 10 (citing Doc. 5).) 10 Rule 12(e) of the Federal Rules of Civil Procedure permits a party to request a more 11 definite statement if the pleading “is so vague or ambiguous that the party cannot 12 reasonably prepare a response.” Rule 12(e) motions “are viewed with disfavor and are 13 rarely granted.” Sagan v. Apple Computer, Inc., 874 F. Supp. 1072, 1077 (C.D. Cal. 1994). 14 “The purpose of Rule 12(e) is to provide relief from a pleading that is unintelligible, not 15 one that is merely lacking detail.” U.S. E.E.O.C. v. Alia Corp., 842 F. Supp. 2d 1243 , 1250 16 (E.D. Cal. 2012). 17 Although, as noted above, the FAC is far from a model of clarity, the Court 18 concludes that Rule 12(e) isn’t triggered here. That Defendant’s Motion and answer were 19 filed contemporaneously suggests the FAC is not “so vague or ambiguous” as to prevent 20 Defendant from answering. See Fed. R. Civ. P. 12(e); see also id. (“The motion must be 21 made before filing a responsive pleading . . . .”) (emphasis added); Siddhar v. Sivanesan, [22] 2013 WL 6504667 , *9 (S.D. Ohio 2013) (“The fact that [the defendant] was able to file the 23 responsive pleading is inconsistent with its argument that the complaint is so vague and 24 ambiguous that it cannot reasonably be required to formulate a response.”). See generally 25 Steven S. Gensler, 1 Federal Rules of Civil Procedure, Rules and Commentary, Rule 12, 26 at 312-13 (2018) (“Rule 12(e) . . . is not to be used to force plaintiffs to plead their facts in [27] 6 The parties also dispute whether the Arizona Workers Compensation Act preempts 28 Plaintiff’s negligence claims. But first, there must be a valid negligence claim. Plaintiff does not allege one here, so the Court does not reach the issue. 1|| detail.... complaint satisfies the applicable pleading requirement and is not so vague 2|| and convoluted to be unintelligible, then the goals of pleading have been met... .”). [3] 4 Accordingly, IT IS ORDERED that Defendant’s Motion to Dismiss for Failure to □□ State a Claim and Lack of Subject Matter Jurisdiction or, in the Alternative, for a More 6|| Definite Statement (Doc. 36) is granted in part and denied in part, as discussed in more 7|| detail above. 8 Dated this 19th day of July, 2019. [9] 10 DP. — 12 United States District Judge [28] -8-