Waesche v. Embry-Riddle Aeronautical University Incorporated

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Olga I Waesche, et al., No. CV-21-08020-PCT-DLR 10 Plaintiffs, ORDER 11 v. 12 Embry-Riddle Aeronautical University Incorporated, et al., [13] Defendants. [15] 16 Before the Court is Defendants’ partial motion to dismiss (Docs. 7, 19, 26, 29) and 17 Plaintiffs’ motion to amend. (Docs. 25, 28.) Defendants’ motion seeks dismissal of Joseph 18 Waesche as a plaintiff for lack of standing and of Plaintiffs’ claim for negligent infliction 19 of emotional distress for lack of subject matter jurisdiction and failure to state a claim. 20 Since the filing of Defendants’ motion, Plaintiffs have sought leave to amend their 21 complaint. (Doc. 25.) The proposed amended complaint serves two functions. First, 22 Plaintiffs withdraw the negligent infliction of emotional distress claim.1 (Docs. 25-1, 26.) 23 1 Defendants request an award of attorneys’ fees in connection with their motion to dismiss Plaintiffs’ negligent infliction of emotional distress claim. This request is denied 24 because it is substantively deficient and procedurally improper. The general rule is that each side pays its own attorneys’ fees, regardless of who wins or loses. Fees may be 25 shifted, however, where a statute, rule, or contractual provision provides for such. Here, Defendants do not cite any statute or rule that entitles them to an award of attorneys’ fees. 26 Procedurally, Defendants tack on their request to the end of their reply memorandum, depriving Plaintiffs of the opportunity to be heard on the issue. Moreover, with some 27 exceptions that might or might not be implicated here (the Court does not know because Defendants do not identify the legal rule that entitles them to fees), LRCiv. 54.2(b)(2) 28 provides the general procedure for requesting fees. Generally, these requests are made post-judgment, so that the parties and the Court are not litigating fee-shifting issues 1 Second, Plaintiffs double down in arguing that Mr. Waesche is a proper party, “add[ing] 2 community property allegations which will clarify Joseph Waesche’s standing as a party 3 plaintiff to this action.” (Doc. 26 at 2.)2 Because Plaintiffs concede in their response that 4 their negligent infliction of emotional distress claim is subject to dismissal, the Court will 5 dismiss it, and turn to the remaining issue—the propriety of Mr. Waesche’s inclusion as a 6 plaintiff. 7 To have standing, a plaintiff must suffer a concrete and particularized injury in fact 8 stemming from the invasion of a legally protected interest. Lujan v. Defenders of Wildlife, [9] 504 U.S. 555, 560 (1992). Here, neither Plaintiffs’ complaint nor their proposed amended 10 complaint alleges that Mr. Waesche suffered any injury other than through Mrs. Waesche’s 11 alleged injury. “The mere fact that Mr. [Waesche] is married to Mrs. [Waesche], the proper 12 Plaintiff, is not sufficient to give him standing to bring Mrs. [Waesche’s] claims.” Flury 13 v. Marriott Int’l Inc., No. CV-19-04642-PHX-JJT, 2020 WL 2467271 , at *3 (D. Ariz. May 14 13, 2020) (citing Espinoza v. Fry’s Food Stores of Ariz. Inc., 806 F. Supp. 855, 858 (D. 15 Ariz. 1990 ) (noting Arizona’s community property laws made it “unnecessary to join both 16 spouses as plaintiff in an action alleging injury to one of the spouses, even if a recovery 17 would be community property”)). Plaintiffs’ argument that Mr. Waesche is a proper party 18 because his inclusion in the action is necessary to enable Defendants to recover potential 19 attorneys’ fees from the community property is similarly misguided. To the contrary, under 20 the circumstances and as a party that initiated this case—rather than a party defending 21 against an action to enforce a debt or obligation on the community—Mrs. Waesche has the 22 power to bind the entire community should an attorneys’ fees judgment arise from Mrs. 23 Waesche’s own actions in filing this suit. A.R.S. § 25-214(B)-(C); Greer v. T.F. Thompson 24 & Sons, Inc., No. CV-10-799-PHX-SMM, 2013 WL 4512055 , at *1 (D. Ariz. Aug. 26, 25 2013). In sum, Mr. Waesche lacks standing and will be dismissed as a plaintiff in this 26 action. Because the Court will dismiss Mr. Waesche and the claim for negligent infliction [27] piecemeal whenever one party or the other prevails on a motion. 28 2 The only other alterations within the amended complaint are non-substantive, such as correcting name spelling errors. || of emotional distress from the case, Plaintiffs’ proposed amended complaint makes no 2|| substantive alterations not already addressed by this order. The Court will therefore deny || Plaintiffs’ motion to amend. Accordingly, 4 IT IS ORDERED that Defendants’ partial motion to dismiss (Doc. 7) is 5|| GRANTED. The Court hereby dismisses Mr. Waesche and the claim for negligent 6 || infliction of emotional distress. 7 IT IS FURTHER ORDERED that Plaintiffs’ motion to amend (Doc. 25) is DENIED. 9 Dated this 10th day of May, 2021. [11] 12 , {Z, 13 _- Ae 14 Used States Dictrid Judge [28] -3-