Opinion
CV-22-00269-TUC-JAS (AMM)
03-07-2024
Angelica M Loreto, Plaintiff, v. Arizona Board of Regents, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Angela M. Martinez United States Magistrate Judge
Pending before the Court is Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint. (Docs. 36, 37.) The motion has been fully briefed. (Docs. 37, 38, 39.) As set forth herein, the Magistrate Judge recommends that the District Judge grant in part and deny in part the Motion to Dismiss.
The September 8, 2023 Report and Recommendation (R&R) sets forth the factual background of the case. (Doc. 30.) This factual background is not relevant to the issues presented in the instant motion and is therefore omitted.
This action was removed from Pima County Superior Court to the District of Arizona on June 8, 2022. (Doc. 1.) The case was assigned to District Judge James A. Soto and referred to Magistrate Judge D. Thomas Ferraro for pretrial proceedings. (Doc. 7.) On October 21, 2022, Judge Ferraro issued a Report and Recommendation (R&R) (doc. 17) recommending that the Court grant Defendants' Motion to Dismiss and dismiss the Complaint with leave to amend (doc. 11). Judge Soto adopted that R&R in full. (Doc. 20.) Plaintiff then filed a First Amended Complaint (doc. 21), to which Defendants responded with a Motion to Dismiss (doc. 26). Thereafter, referral of this matter was reassigned to Magistrate Judge Angela M. Martinez. (Doc. 29.) On September 8, 2023, Judge Martinez issued a R&R recommending that Defendants' Motion to Dismiss be granted in part and denied in part. (Doc. 30.) On September 28, 2023, Judge Soto adopted the R&R over Defendants' objection. (Doc. 34.) On October 18, 2023, Plaintiff filed the Second Amended Complaint (“SAC”) (doc. 36), to which Defendants responded with a Motion to Dismiss (doc. 37), which is now pending before the Court.
II. Legal Standard
To survive a 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556 (internal quotation omitted). A complaint must have sufficient factual content such that a court can draw the "reasonable inference" that the defendant is liable for the alleged misconduct; this requires "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678.
On a motion to dismiss, “all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). Further, all reasonable inferences are drawn in favor of the nonmoving party. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). The Second Amended Complaint supersedes all previous Complaints filed in this matter. Aldave v. City of Buena Park, 2022 WL 3012532, at *1 (C.D. Cal. July 13, 2022).
III. Discussion
The SAC alleges two causes of action. (Doc. 36.) Count One, the “Reprisal” claim, alleges that Defendants retaliated against Plaintiff in violation of the Americans with Disabilities Act (ADA), Rehabilitation Act, and Arizona Civil Rights Act (ACRA) by contesting her application for unemployment compensation. (Doc. 36 at 7-8.) Count Two alleges intentional infliction of emotional distress under Arizona state law. (Id. at 8.)
A. The ACRA claim in Count One is time-barred.
Defendants contend that Count One is time-barred with respect to the ACRA claim. (Doc. 37 at 5-8.) In support of this argument, Defendants refer to the May 28, 2022 Charge of Discrimination (the “Charge”) and the EEOC's June 6, 2022 Dismissal of Charge and Notice of Right to Sue Letter. (See doc. 11-1.) The Dismissal of Charge and Notice of Right to Sue Letter states that the Charge was closed because it was not filed within the time limit. (Id.)
The deadline for filing an ACRA claim under Arizona state law is within 180 days of the allegedly unlawful employment practice. A.R.S. § 41-1481(A). In Arizona, this deadline is treated as a statute of limitations. Zaki v. Banner Pediatric Specialists LLC, No. CV-16-01920-PHX-DLR, 2017 WL 105991, at *5 (D. Ariz. Jan. 10, 2017); see also Shiban v. Intel Corp., 2002 WL 31371971 at *2, n.2 (D. Ariz. Mar. 28, 2002). The statute of limitations begins to run when the plaintiff knows, or reasonably should know, that the last discriminatory act occurred. Shiban, 2002 WL 31371971 at *3. Here, the latest date on which Plaintiff's Charge was based, September 24, 2021, is more than 180 days before May 28, 2022, the date on which the Charge was filed. (See doc. 38 at 5; doc. 36 at ¶¶ 30-32 (alleging that Defendant(s) presented perjurious testimony at the unemployment hearing on September 26, 2021); doc. 30 at 2, n. 2 (ADES hearing took place September 24, not September 26, 2021)). Therefore, there is no dispute that the Charge was not filed within the 180-day time limit for ACRA. Accordingly, the Court recommends dismissal of the ACRA claim as time-barred.
Regardless of whether the hearing occurred on September 24 or September 26, 2021, the ACRA claim is untimely.
B. Count Two fails to state a claim and cannot be amended to do so.
The Court previously determined that Plaintiff had failed to state a claim for intentional infliction of emotional distress (IIED) but “could potentially state an IIED claim were she to develop the factual allegations underlying it.” (Doc. 30 at 10.) To recover on an IIED claim, a plaintiff must show that a defendant's conduct was “extreme and outrageous, that the defendant intended to cause emotional distress or recklessly disregarded the near certainty that such distress will result, and that severe emotional distress did indeed occur as a result of defendant's conduct.” See Johnson v. McDonald, 197 Ariz. 155, 160, 3 P.3d 1075, 1080 (Ct. App. 1999). For a defendant's conduct to be considered extreme and outrageous within the meaning of the IIED tort, it must “go beyond all possible bounds of decency, and [] be regarded as atrocious and utterly intolerable in a civilized community.” Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 550, 554, 905 P.2d 559, 563 (Ct. App. 1995) (citation omitted).
Here, Plaintiff's SAC alleges that she experienced emotional distress and symptoms including anxiety, migraine headaches, insomnia, anger, depression, weight gain, and post-traumatic stress disorder as a result of Defendants contesting her application for unemployment compensation. (Doc. 36 ¶¶ 16, 29, 33, 34.) She alleges that the emotional distress and symptoms continue to the present date and have permanently impacted her health. (Id. ¶ 34.) She does not allege, however, that Defendants either intended to cause emotional distress, or recklessly disregarded the probability that such distress would result from contesting Plaintiff's application for unemployment compensation. Nor does Plaintiff allege that Defendants' contestation of the application was “extreme and outrageous” within the meaning of the IIED tort. Because she has failed to allege two of the three elements of an IIED claim, she has failed to state a prima facie claim for IIED.
To the extent that Plaintiff alleges physical symptoms connected to her post-surgical incontinence, those symptoms cannot plausibly be connected with the contestation of her application for unemployment compensation. See Iqbal, 556 U.S. at 678 (claim for relief must be facially plausible).
Furthermore, Count Two cannot be amended to state a claim. “Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “When the claims have not crossed the line from conceivable to plausible, the complaint must be dismissed.” Alele v. Geico Gen. Ins. Co., 420 F.Supp.3d 1124, 1128 (D. Nev. 2019). Plaintiff cannot plausibly allege a set of facts to support a conclusion that Defendants' contestation of her application was “extreme and outrageous” within the meaning of the IIED tort. At most, Plaintiff asserts that Defendants gave false or perjurious testimony at the unemployment compensation hearing regarding whether Plaintiff was denied restroom breaks or whether Defendants had the alleged restroom break policy. (Doc. 36 at ¶¶ 30-32.) These events do not plausibly rise to the level of “extreme and outrageous” conduct that goes “beyond all possible bounds of decency” or that would be considered “atrocious and utterly intolerable.” Mintz, 183 Ariz. at 554. Nothing in the SAC or in the facts of this case suggests that Defendants' conduct during or related to the unemployment compensation rises to the level of severity necessary to maintain an IIED claim. See Cox v. Glob. Tool Supply LLC, 629 F.Supp.3d 963, 973 (D. Ariz. 2022) (plaintiff alleging anxiety, depression, weight fluctuations, and loss of trust failed to show severe emotional distress as a matter of law); see also Bodett v. CoxCom, Inc., 366 F.3d 736, 747-48 (9th Cir. 2004) (“false accusations alone not enough to constitute an intentional infliction of emotional distress” under Arizona law).
The Court makes no findings regarding whether such testimony was false or perjurious or whether Plaintiff's allegations have merit.
Drawing on common sense and experience, as well as legal precedent, the Court finds that Plaintiff cannot possibly allege a set of facts under which Defendants' contestation of her application for unemployment compensation could provide the basis for an IIED claim. Accordingly, the Court recommends dismissal of Count Two with prejudice. .... .... .... .... .... ....
C. No further motions to dismiss will be entertained.
Defendants argue that the ADA claim in Count One is time-barred and fails to state a claim and that the Rehabilitation Act claim in Count One fails to state a claim. (Doc. 37.) Defendants further argue that the Court should rely on judicial notice of the contents of public records in Plaintiff's unemployment proceedings to make findings consistent with Defendants' position. (Id.) The Court has already considered and rejected these arguments. Successive dispositive motions raising issues that have already been resolved are viewed with disfavor.
The Court views the filing of multiple [dispositive] motions as an attempt to subvert the Local Civil Rules establishing page limits which encourage the parties to be concise in their arguments; if necessary, the parties may seek leave to exceed page limits to include all of their arguments in one motion to dismiss or one motion for summary judgment. Furthermore, filing successive motions to dismiss or motions for summary judgment after the Court has already resolved such a motion is extremely inefficient and often causes long and unnecessary delays as a case is essentially halted during the period between the filing of a dispositive motion and the Court's ultimate ruling on a dispositive motion after it has been fully briefed.Velazquez v. United States, No. CV-18-00545-TUC-JAS, 2018 WL 11433601, at *1 (D. Ariz. Nov. 19, 2018). Consequently, the Court recommends denial of the motion to dismiss as to the remaining arguments.
As this is Defendants' third Motion to Dismiss, the Court will not entertain further motions to dismiss. Furthermore, in prior motions, Defendants also have referred to previously filed motions and exhibits rather than requesting additional pages in which to fully brief their arguments. The Federal Rules of Civil Procedure do not permit this practice. See Fed.R.Civ.P. 10(c) (statements in pleadings may be adopted by reference elsewhere); Fed.R.Civ.P. 7(a) (motions are not pleadings); see also Ortiz v. New Mexico, 550 F.Supp.3d 1020, 1078-79 (D.N.M. 2021) (parties generally may not incorporate prior motions by reference). The parties shall fully articulate their arguments in any future motions without reference to previous motions and shall request page limit increases if necessary. See LRCiv 7.2(e). Should either party wish to dispute the resolution of the issues presented here, a motion for reconsideration in compliance with Local Rule 7.2(g), not a successive motion to dismiss, is the appropriate vehicle.
IV. Recommendation
For the reasons stated above, the Magistrate Judge recommends that the District Court enter an Order granting in part and denying in part Defendants' Motion to Dismiss (doc. 37) as follows. The Magistrate Judge recommends that:
(1) The Motion to Dismiss be granted with respect to the ACRA claim under Count One.
(2) The Motion to Dismiss be granted with respect to Count Two.
(3) The Motion be otherwise denied.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-22-269-TUC-JAS (AMM).