Green v. Pacifica Senior Living LLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Ken Green, No. CV-22-01601-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Pacifica Senior Living, LLC, 13 Defendant. [14] 15 Ken Green (“Plaintiff”) alleges that he was terminated from his position as 16 executive director of Pacifica Senior Living, LLC (“Defendant”) for taking medical leave, 17 in violation of the Family Medical Leave Act (“FMLA”), and for reporting suspected 18 violations of Arizona law, in violation of the Arizona Employment Protection Act 19 (“AEPA”). Defendant now moves to dismiss those claims under Rule 12(b)(6) or, 20 alternatively, for a more definite statement under Rule 12(e). (Doc. 24.) For the following 21 reasons, the motion is denied. 22 BACKGROUND 23 I. Factual Allegations 24 The following facts, presumed true, are derived from Plaintiff’s operative pleading, 25 the Second Amended Complaint (“SAC”). (Doc. 22.) 26 Plaintiff worked at Defendant’s Scottsdale Village Square senior living center for 27 over a decade. (Id. ¶¶ 12, 44.) He received a variety of pay raises between August 10, 28 2013 and January 31, 2021, never receiving a negative review during that period, and 1 eventually rose to the position of executive director. (Id. ¶¶ 12-16.) 2 In July 2021, a storm damaged the Scottsdale Village Square location, resulting in 3 leaks and flooding in parts of the building. (Id. ¶¶ 17-18.) Plaintiff concluded the storm 4 damage created unsafe living and working conditions. (Id.) For example, some of the 5 leaks were near electrical equipment. (Id.) And because of “damage to the facility, 6 residents were kept in untenable conditions such as having their beds in the hallway for 7 over ten days.” (Id. ¶ 30.) 8 On July 23, 2021, Plaintiff emailed two senior management employees and his 9 direct supervisor to report his concerns. (Id. ¶ 19.) Plaintiff also supplied pictures to senior 10 management showing that “the dining room was flooded, water was leaking from various 11 locations in the roof which required a trash can to collect the water, and the ceiling and 12 walls were becoming dilapidated due to water damage and neglect.” (Id.) 13 After Plaintiff’s “initial attempts to remedy what he understood to be violations of 14 Arizona state law were ignored,” he “continued his attempts to remedy the unsafe 15 conditions by complaining to Defendant’s upper management officials, which was met 16 with resistance and hostility.” (Id. ¶ 33.) For example, on September 10, 2021, Plaintiff 17 joined a conference call with senior management, including Defendant’s owner. (Id. ¶ 34.) 18 During the call, unspecified members of senior management “berated” Plaintiff for 19 “allegedly not making enough money at the facility.” (Id. ¶ 35.)1 20 On September 14, 2021, senior management officials again “yell[ed] at and 21 berate[d]” Plaintiff during a meeting “due to his repeated complaints to ensure a safe living 22 space for the elderly residents at the facility.” (Id. ¶ 36.) After this episode, Defendant’s 23 senior management “became distant” toward Plaintiff. (Id. ¶ 37.) Plaintiff’s supervisor 24 stated in a December 13, 2021 email that Plaintiff “makes everything so so so difficult”— 25 a statement that Plaintiff attributes to his “numerous complaints about the . . . hazardous 26 1 The SAC further alleges that “[t]he discontent from [Defendant’s] senior management team was based on [Plaintiff’s] continued insistence that [Defendant] make 27 legally required changes to bring the facility up to code.” (Doc. 22 ¶ 35.) The SAC does not clarify whether Defendant’s senior management officials made a statement to this 28 effect during the September 10, 2021 conference call or whether this allegation simply represents Plaintiff’s speculation as to those officials’ true motivation. 1 living conditions.” (Id. ¶¶ 38-39.) 2 From December 17, 2021 to approximately January 21, 2022, Plaintiff took FMLA 3 leave with Defendant’s permission. (Id. ¶¶ 40-41.) On January 24, 2022, Defendant 4 informed Plaintiff that he “was to report to an entirely different facility, Pacifica Senior 5 Living Paradise Valley.” (Id. ¶¶ 43-44.) Although Defendant told Plaintiff he would serve 6 as executive director at the Paradise Valley location, that location apparently already had 7 an executive director. (Id. ¶ 46.) At the Paradise Valley location, Plaintiff was stationed 8 in a “Med Room” that lacked a company phone or computer and for which he was not 9 given a key. (Id. ¶¶ 49-51.) 10 On January 26, 2022, Defendant disciplined Plaintiff for not adhering to a 9:00 AM 11 to 5:00 PM work schedule. (Id. ¶ 53.) Defendant did not previously tell Plaintiff that he 12 was required to follow such a schedule, and Plaintiff did not follow such a schedule when 13 working at the Scottsdale location. (Id.) That same day, Defendant also disciplined 14 Plaintiff for failing to submit a daily report—a task he had not been required to perform in 15 Scottsdale. (Id. ¶¶ 54-56.) This was the first time Plaintiff was ever disciplined by 16 Defendant. (Id. ¶ 57.) 17 On January 28, 2022, Defendant terminated Plaintiff for “having an expired 18 fingerprint clearance card.” (Id. ¶ 58.) Plaintiff was never told before his termination that 19 he should update his fingerprint card, and other employees working for Defendant had 20 expired fingerprint cards but were not audited or terminated for it. (Id. ¶¶ 58, 61.) During 21 Plaintiff’s termination meeting, an unspecified management employee told Plaintiff “that 22 she had to ‘dig deep’ in order to find a reason to terminate Plaintiff.” (Id. ¶ 59.) 23 II. Procedural History 24 On September 21, 2022, Plaintiff initiated this action. (Doc. 1.) 25 On January 5, 2023, Plaintiff filed the SAC. (Doc. 22.) 26 On January 19, 2023, Defendant filed the pending motion to dismiss or for a more 27 definite statement. The motion is now fully briefed. (Docs. 25, 30.)2 28 2 Defendant’s request for oral argument is denied because the issues are fully briefed and argument would not aid the decisional process. See LRCiv 7.2(f). 1 DISCUSSION 2 I. Legal Standard 3 “[T]o survive a motion to dismiss under Rule 12(b)(6), a party must allege sufficient 4 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In re 5 Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (internal quotation marks 6 omitted). “A claim has facial plausibility when the plaintiff pleads factual content that 7 allows the court to draw the reasonable inference that the defendant is liable for the 8 misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]ll 9 well-pleaded allegations of material fact in the complaint are accepted as true and are 10 construed in the light most favorable to the non-moving party.” Id. at 1444-45 (citation 11 omitted). However, the court need not accept legal conclusions couched as factual 12 allegations. Iqbal, 556 U.S. at 679-80 . Moreover, “[t]hreadbare recitals of the elements of 13 a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 . 14 The court also may dismiss due to “a lack of a cognizable theory.” Mollett v. Netflix, Inc., [15] 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted). 16 Rule 12(e) of the Federal Rules of Civil Procedure permits a party to request a more 17 definite statement if a pleading “is so vague or ambiguous that the party cannot reasonably 18 prepare a response.” Rule 12(e) motions “are viewed with disfavor and are rarely granted.” 19 Sagan v. Apple Computer, Inc., 874 F. Supp. 1072, 1077 (C.D. Cal. 1994). “The purpose 20 of Rule 12(e) is to provide relief from a pleading that is unintelligible, not one that is merely 21 lacking detail.” U.S. E.E.O.C. v. Alia Corp., 842 F. Supp. 2d 1243, 1250 (E.D. Cal. 2012). 22 See generally 1 Steven S. Gensler, Federal Rules of Civil Procedure, Rules and 23 Commentary, Rule 12, at 353-54 (2022) (“Courts have construed Rule 12(e) narrowly and 24 consider it a disfavored motion. Courts often state that it is limited to situations where the 25 complaint is ‘unintelligible.’ This can occur for a variety of reasons, including, for 26 example, where the allegations are so vague, convoluted, unstructured, or disorganized that 27 the defendant cannot reasonably be expected to sort through them and grasp their meaning. 28 Rule 12(e) is not to be used as a substitute for discovery or to force the plaintiff to 1 particularize its legal theories.”). 2 II. Count One 3 A. The Parties’ Arguments 4 In Count One, Plaintiff asserts an interference claim under the FMLA. (Doc. 22 5 ¶¶ 63-72.) More specifically, Plaintiff contends he was “terminated because he requested 6 and subsequently took a period of medical leave.” (Id. ¶ 69.) 7 Defendant moves to dismiss Count One on the ground that “Defendant could not 8 continue to employ Plaintiff as the administrator of its assisted living facilities due to 9 Plaintiff’s failure to maintain an up-to-date fingerprint clearance card, as required by 10 Arizona law.” (Doc. 24 at 5.) According to Defendant, the statutory provision that creates 11 this termination requirement is A.R.S. § 36-446.01(A). (Id.) 12 Plaintiff offers two arguments in response. First, Plaintiff argues that “A.R.S. § 3613 446.01(A) does not warrant the dismissal of Plaintiffs FMLA . . . claim” because A.R.S. 14 § 36-411 was recently amended to remove the fingerprinting requirement for existing 15 employees, such that “according to the law that was in place at the time of [Plaintiff’s] 16 termination, he had no requirement to meet the fingerprint and criminal check requirements 17 so long as he remained employed by [Defendant] and had previously met the fingerprint 18 requirements (which he did).” (Doc. 25 at 1-2.) Second, and alternatively, Plaintiff argues 19 that the fingerprint-card rationale was pretextual and not the real reason for his termination. 20 (Id. at 2-3.) 21 In reply, Defendant argues that Plaintiff forfeited any argument as to the 22 inapplicability of A.R.S. § 36-446.01 by failing to “provide any analysis regarding” that 23 statutory provision in his opposition brief. (Doc. 30 at 1-3.) Defendant further argues that 24 Plaintiff’s reliance on A.R.S. § 36-411 is misplaced because that provision only “applies 25 to rank and file employees of a nursing care institution whereas A.R.S. § 36-446.09(A) 26 . . . applies to Executive Directors such as Plaintiff.” (Id. at 3-6.) 27 … 28 … 1 B. Analysis 2 Under the FMLA, an eligible employee “has a right to use a certain amount of leave 3 for protected reasons.” Bachelder v. Am. W. Airlines, 259 F.3d 1112, 1122 (9th Cir. 2001). 4 An eligible employee also “has a right to return to his or her job or an equivalent job after 5 using protected leave.” Id. An employer may not “interfere with, restrain, or deny the 6 exercise of” these rights. Id. (quoting 29 U.S.C. § 2615 (a)(1)). See also Sanders v. 7 Newport, 657 F.3d 772, 777-78 (9th Cir. 2011) (“Under § 2615(a)(1), it is ‘unlawful for 8 any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise’ 9 the substantive rights guaranteed by FMLA. When a party alleges a violation of 10 § 2615(a)(1), it is known as an ‘interference’ or ‘entitlement’ claim.”) (citations omitted). 11 “The appropriate legal framework for analyzing [an FMLA interference claim] is 12 not the McDonnell Douglas burden-shifting framework for employment discrimination 13 and retaliation claims, but a simpler standard derived from the applicable statute and 14 regulation.” Foraker v. Apollo Grp., Inc., 427 F. Supp. 2d 936, 940-41 (D. Ariz. 2006). 15 “Plaintiff need only establish by a preponderance of the evidence that (1) he took FMLA16 protected leave, (2) he suffered an adverse employment action, and (3) the adverse action 17 was causally related to his FMLA leave.” Id. at 941 . As for the third element, a plaintiff 18 “need only prove by a preponderance of the evidence that her taking of FMLA-protected 19 leave constituted a negative factor in the decision to terminate her. She can prove this 20 claim, as one might any ordinary statutory claim, by using either direct or circumstantial 21 evidence, or both. No scheme shifting the burden of production back and forth is required.” 22 Bachelder, 259 F.3d at 1125 (citations omitted). 23 Applying these standards, Defendant has not established that Count One is subject 24 to dismissal under Rule 12(b)(6). Defendant’s arguments regarding the fingerprint-card 25 requirement (which Plaintiff has adequately opposed, thus undermining Defendant’s claim 26 of forfeiture) are ultimately arguments about causation—that is, that Plaintiff’s FMLA 27 leave could not have played any role in the termination decision because Defendant was 28 required under Arizona law to terminate Plaintiff’s employment upon learning of his lapsed 1 fingerprint card. But even assuming (as Defendant argues) that Plaintiff was required 2 under Arizona law to maintain an updated fingerprint card in order to maintain his license,3 3 it doesn’t follow that Defendant was required to immediately fire Plaintiff upon learning 4 that Plaintiff’s fingerprint card (and, thus, license) had expired. The statutory provisions 5 cited by Defendant provide that a person who “manages” a nursing care institution or 6 assisted living facility without a valid license is guilty of a class two misdemeanor, see 7 A.R.S. § 36-446.09(A); that it is unlawful for such an unlicensed person “to practice or 8 offer to practice” skilled nursing facility administration or assisted living facility 9 management (or use titles, signs, cards, and devices indicating the same), id. § 3610 446.01(C); and that a facility that allows such an unlicensed person to serve as its 11 administrator may imperil its own license, id. § 36-446.01(A)-(B). Those are serious 12 consequences, to be sure, but they say nothing about what an employer must do, from an 13 employment perspective, upon discovering that an administrator has a lapsed fingerprint 14 card. Presumably, one alternative to termination would be for the employer to place the 15 administrator on leave until the oversight can be remedied. In the interim, the administrator 16 would not be “manag[ing]” the facility or “practic[ing]” administration, which are the 17 categories of conduct prohibited by the relevant statutory provisions. Nothing in those 18 provisions suggests that an employer must go further and immediately terminate any 19 administrator whose fingerprint card or license has lapsed. This observation is consistent 20 with the SAC, which alleges that Plaintiff “was the only employee . . . terminated in relation 21 to a fingerprint card despite other employees having lapsed fingerprint cards.” (Doc. 22 22 ¶ 61.) 23 3 Under A.R.S. § 36-446.04(B) and (E), a person who is licensed or certified to serve as a nursing care institution administrator or an assisted living facility manager “must 24 maintain a valid fingerprint clearance card during the valid period of the person’s” license or certificate. However, it is not clear that a violation of this requirement automatically 25 results in the invalidation of a previously issued license or certificate. Under A.R.S. § 36446.07(J), “[s]uspension, revocation or denial of renewal of a license or certificate . . . by 26 the board becomes effective only on the board’s first giving the licensee or certificate holder prior written notice and affording the licensee or certificate holder the right to 27 request a hearing within thirty-five days of the receipt of notice.” This provision suggests that additional steps must be taken before the lapse of the fingerprint clearance card results 28 in the revocation of a person’s license or certificate. However, the Court need not definitively resolve this issue at this stage of the case. 1 The bottom line is that a plaintiff asserting an FMLA interference claim “need only 2 prove by a preponderance of the evidence that her taking of FMLA-protected leave 3 constituted a negative factor in the decision to terminate her.” Bachelder, 259 F.3d at 1125 . 4 Here, the SAC alleges that there was close temporal proximity between Plaintiff’s taking 5 of FMLA leave and Defendant’s termination decision, which “provides supporting 6 evidence of a connection between the two events.” Xin Liu v. Amway Corp., 347 F.3d 7 1125, 1137 (9th Cir. 2003). Additionally, the SAC alleges that one of Defendant’s 8 managers all but admitted that the fingerprint-card rationale for the termination decision 9 was pretextual, by acknowledging during the termination meeting that “she had to ‘dig 10 deep’ in order to find a reason to terminate Plaintiff.” (Doc. 22 ¶ 59.) Nor has Defendant 11 established that it was required under Arizona law to immediately terminate Plaintiff’s 12 employment upon learning of his expired fingerprint card. To the contrary, Defendant is 13 alleged to have continued employing other employees who had expired fingerprint cards. 14 Given this backdrop, Count One is not subject to dismissal at the pleading stage of the 15 case—Plaintiff has pleaded facts that plausibly suggest that his FMLA leave was at least a 16 negative factor in the decision to terminate him. 17 III. Count Two 18 A. The Parties’ Arguments 19 In Count Two, Plaintiff asserts an AEPA claim for retaliatory termination. (Doc. 20 22 ¶¶ 73-82.) More specifically, Plaintiff contends he was terminated in retaliation for his 21 efforts to report to managerial or supervisory employees that he reasonably believed 22 Defendant “was violating Arizona law in connection with its failures to maintain a safe and 23 unhazardous nursing home and senior living facility.” (Id. ¶ 77.) According to Plaintiff, 24 the “Arizona law[s]” implicated by Defendant’s conduct are A.R.S. § 36-132(A)(17), 25 which authorizes the Arizona Department of Health Services (“ADHS”) to “[l]icense and 26 regulate health care institutions”; A.R.S. § 36-405, which requires the Director of ADHS 27 to “establish minimum standards” for health care institutions; and various regulations 28 promulgated by ADHS and codified in the Arizona Administrative Code, including 1 regulations that require a nursing care institution’s premises to be “free from a condition 2 that may cause a resident or an individual to suffer physical injury.” (Doc. 22 ¶¶ 20-32.) 3 Defendant moves to dismiss Count Two on two grounds. (Doc. 24 at 4-12.) First, 4 as with Count One, Defendant argues that Plaintiff cannot prove causation because it was 5 legally obligated to terminate him upon learning of his expired fingerprint card. (Id. at 46 7.) Second, Defendant argues that Count Two should also be dismissed for the independent 7 reason that “the complaint fails to identify any Arizona statute or [provision] of the Arizona 8 Constitution underlying the claim.” (Id.at 7.) More specifically, Defendant argues that 9 Plaintiff’s reliance on regulations appearing in the Arizona Administrative Code is 10 misplaced because such provisions cannot provide the foundation for an AEPA claim. (Id. 11 at 7-10.) As for the statutory provisions cited by Plaintiff, Defendant argues they merely 12 vest ADHS with certain powers and duties or identify the penalties for certain statutory 13 violations and do not establish that Defendant actually committed any such violations. (Id. 14 at 11-12.) 15 In response, Plaintiff contends that the SAC “does not merely rest on Arizona’s 16 Administrative Code to support [the] wrongful termination claim” but “identifies 17 regulatory violations that also constitute direct violations of specific state statutes.” (Doc. 18 25 at 4-5.) 19 In reply, Defendant reiterates that Count Two fails because Plaintiff “has failed to 20 cite to a single statute that can form the basis of his wrongful termination claim.” (Doc. 30 21 at 6.) According to Defendant, “[i]nstead of pointing to a specific statute that he allegedly 22 believed his employer or another employee had violated, Plaintiff’s Response attempts to 23 concoct a wrongful termination claim by mixing and matching unrelated regulations and 24 statutes to make a far-fetched convoluted argument. Plaintiff’s confusing Response 25 proposes to link several regulations from the Arizona Administrative Code to various 26 Arizona statutes in an attempt to confuse the Court into accepting that he has sufficiently 27 identified an Arizona statute underlying his claim . . . . The regulations at issue were not 28 created pursuant to the authority granted by the cited statutes.” (Id. at 6-7.) 1 B. Analysis 2 Defendant’s first dismissal argument turns on the premise that Defendant was 3 required by Arizona law to terminate Plaintiff’s employment upon learning that Plaintiff’s 4 fingerprint card had expired. But as discussed in Part II, Defendant has failed to 5 substantiate that premise. Accordingly, Defendant is not entitled to the dismissal of Count 6 Two on this basis. 7 As for Defendant’s other dismissal argument, the starting point for the analysis is 8 the statutory text. Under A.R.S. § 23-1501(A)(3)(c)(ii), “[a]n employee has a claim against 9 an employer for termination of employment” if: 10 The employer has terminated the employment relationship of an employee in retaliation for . . . [t]he disclosure by the employee in a reasonable manner [11] that the employee has information or a reasonable belief that the employer, 12 or an employee of the employer, has violated, is violating or will violate the Constitution of Arizona or the statutes of this state to either the employer or [13] a representative of the employer who the employee reasonably believes is in 14 a managerial or supervisory position and has the authority to investigate the information provided by the employee and to take action to prevent further [15] violations of the Constitution of Arizona or statutes of this state or an 16 employee of a public body or political subdivision of this state or any agency of a public body or political subdivision. [17] 18 Id. Thus, to prevail on a claim under this provision of AEPA (which gives rise to Plaintiff’s 19 claim in Count Two), Plaintiff “must establish: (1) [he] had information or a reasonable 20 belief that [his] employer or another employee had violated an Arizona statute or 21 constitutional provision; (2) [he] disclosed the information or belief to an employer or a 22 representative of the employer whom [he] reasonably believed was in a managerial or 23 supervisory position and had the authority to investigate the information and take action to 24 prevent further violations of the Arizona constitution or statutes; and (3) [he] was 25 terminated because of the first two steps.” Denogean v. San Tan Behavioral Health Servs., 26 LLC, 2017 WL 4922035 , *3 (D. Ariz. 2017). 27 Defendant only challenges the sufficiency of the SAC in relation to the first element, 28 which, again, is that Plaintiff had “information or a reasonable belief that the employer, or 1 an employee of the employer, has violated, is violating or will violate the Constitution of 2 Arizona or the statutes of this state.” A.R.S. § 23-1501(A)(3)(c)(ii). As Defendant 3 correctly notes, alleged regulatory violations do not, standing alone, suffice because 4 regulations are not statutory or constitutional provisions. Chen v. Cozzoli LLC, 2022 WL 5 5169236, *8 (D. Ariz. 2022). However, where a regulation “is enforceable by statute and 6 incorporates related statutes,” it may provide the foundation for an AEPA claim. Seballos 7 v. Freeport-McMoRan, Inc., 2023 WL 5624716 , *5 (Ariz. Ct. App. 2023). See also Chen, [8] 2022 WL 5169236 , *8 (regulatory violation may give rise to an AEPA claim where “the 9 underlying statutory provisions . . . provide that a violation of the regulations is actionable 10 or otherwise constitutes a violation of Arizona law”); Ward v. Life Care Centers of Am., 11 Inc., 2018 WL 5017004 , *4 (D. Ariz. 2018) (“[B]ecause A.R.S. § 36-140 provides for the 12 punishment of a violation of rules promulgated under the authority of A.R.S. § 36-132, and 13 because the regulation at issue was promulgated by [ADHS] pursuant to that authority, 14 Plaintiff has sufficiently identified a potential violation of a state statue as required under 15 the AEPA.”). 16 Here, Plaintiff alleges that he reasonably believed the leaks and flooding created 17 unsafe living conditions at the Scottsdale location. (Doc. 22 ¶¶ 18-19.) Thus, Plaintiff has 18 plausibly alleged that he reasonably believed Defendant violated A.A.C. R9-1019 425(A)(1)(b), which requires the administrator of a nursing home to ensure that the 20 “nursing care institution’s premises and equipment are . . . [f]ree from a condition or 21 situation that may cause a resident or an individual to suffer physical injury.” 22 The parties’ dispute centers on whether this is the sort of perceived regulatory 23 violation that can provide the foundation for an AEPA claim. The Court concludes that it 24 is. The regulation at issue, A.A.C. R9-10-425(A)(1)(b), was promulgated pursuant to 25 statutory authority conferred by the Arizona legislature. See A.R.S. § 36-132(17) (“The 26 department, in addition to other powers and duties vested in it by law, shall . . . [l]icense 27 and regulate health care institutions according to chapter 4 of this title.”); A.R.S. § 3628 405(A) (provision within chapter 4 that “[t]he director shall adopt rules to establish 1 minimum standards and requirements for constructing, modifying and licensing health care 2 institutions necessary to ensure the public health, safety and welfare” and that “[t]he 3 standards and requirements shall relate to the construction, equipment, sanitation, staffing 4 for medical, nursing and personal care services, and recordkeeping pertaining to 5 administering medical, nursing, behavioral health and personal care services, in accordance 6 with generally accepted practices of health care”). Additionally, the Arizona legislature 7 has, by statute, clarified that a violation of this regulation constitutes a violation of Arizona 8 law. See A.R.S. § 36-140 (“A person who violates a provision of this article, or a 9 regulation adopted pursuant to this article, is guilty of a class 3 misdemeanor for each 10 violation.”) (emphasis added).4 Given this determination, it is unnecessary to decide, at 11 least at this stage of the case, whether the other regulatory provisions cited by Plaintiff 12 could also provide the foundation for an AEPA claim. 13 IV. Request For More Definite Statement 14 A. The Parties’ Arguments 15 Defendant argues in the alternative that “[i]f the Court is not inclined to dismiss 16 Plaintiff’s claims,” the Court should “order Plaintiff to replead his claims so that 17 [Defendant] may reasonably frame a responsive pleading.” (Doc. 24 at 12.) Defendant 18 argues that the SAC “does not provide sufficient notice of the nature and source of 19 Plaintiff’s alleged claims” because it “does not identify the specific Arizona statute(s) or 20 constitutional provision(s) that would give rise to Plaintiff’s wrongful termination claim.” 21 (Id. at 13.) 22 In response, Plaintiff contends that the SAC provides adequate notice to Defendant 23 because it details the “unsafe living conditions” that “were the basis of” his complaints and 24 4 Defendant argues that A.R.S. § 36-140 is irrelevant because it “falls under Article 2, Chapter 1” of Title 36 and “Plaintiff fails to cite to a single provision of Article 2, Chapter 25 1 that allegedly forms the basis of his AEPA claim.” (Doc. 30 at 7.) This argument is unavailing. A.R.S. § 36-132(17), which is also part of Article 2, Chapter 1, is the statutory 26 provision that authorizes ADHS to “regulate health care institutions according to chapter 4 of this title.” Thus, regulations such as A.A.C. R9-10-425(A)(1)(b) qualify as 27 “regulations adopted pursuant to this article” for purposes of A.R.S. § 36-140. Indeed, the most recent amendment to Rule 9-10-425 identifies one of the “Authorizing statutes” as 28 A.R.S. § 36-132(A)(1) and one of the “Implementing statutes” as A.R.S. § 36-132(A)(17). See Notice of Final Rulemaking, 25 A.A.R. 1583 ¶ 2 (June 28, 2019). 1|| “clearly alleges” that they “amounted to several violations of [the] Arizona Administrative || Code and Arizona statutes.” (Doc. 25 at 6-7.) Plaintiff nonetheless “requests leave to || amend to cure any deficiency identified by the Court” to the extent “the Court is inclined to grant Defendant’s motion pursuant to 12(e) or 12(b)(6).” (Ud. at 7.) 5 In reply, Defendant argues that “leave to amend . . . would be futile” because 6|| “Plaintiff believes his Complaint is adequately pled,” Plaintiff previously refused 7\|| Defendant’s offer to allow him “to amend his Complaint,” and Plaintiff “has already 8 || unsuccessfully amended his Complaint.” (Doc. 30 at 8-9.) 9 B. Analysis 10 The thrust of Defendant’s Rule 12(e) request is that Plaintiff has failed to identify 11 || any statutes or constitutional provisions that can support his AEPA claim. This argument fails for the reasons set forth in Part III above. Defendant does not appear to challenge, for 13 || Rule 12(e) purposes, the adequacy of Plaintiff's FMLA claim. 14 Because the SAC is not so “unintelligible” that Defendant “cannot reasonably 15 || prepare a response,” Defendant’s alternative request for relief under Rule 12(e) lacks merit. Alia Corp., 842 F. Supp.2d at 1250 . 17 Accordingly, 18 IT IS ORDERED that Defendant’s motion (Doc. 24) is denied. 19 Dated this 7th day of September, 2023. [20] 21 Lm ee” 22 f _o——— Dominic W, Lanza 23 United States District Judge [28] -13-