Charles Rose v. Assurance Relocation Systems LLC, et al.

• Court: District Court, D. Arizona
• Decided: March 4, 2026
• Docket: 2:25-cv-01418
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Charles Rose, No. CV-25-01418-PHX-SHD

10 Plaintiff, ORDER

11 v.

12 Assurance Relocation Systems LLC, et al.,

13 Defendants. 14 15 Pending before the Court are Defendant Troy Emerson’s motion to dismiss, (Doc. 16 13), Plaintiff Charles Rose’s motion to strike Emerson’s motion to dismiss, (Doc. 16), and 17 Rose’s motion to dismiss Defendant/Counterclaimant Fedelyne Bernabe’s counterclaims, 18 (Doc. 21). The motions are fully briefed. (Docs. 18, 20, 22, 26, 27, 28.) For the reasons 19 stated below, Rose’s motions to strike and to dismiss, (Docs. 13, 26), will be granted, and 20 Emerson’s motion to dismiss, (Doc. 21), will be correspondingly stricken. 21 I. BACKGROUND 22 On April 28, 2025, Rose initiated this action alleging violations of the Fair Labor 23 Standards Act, the Arizona Minimum Wage Act, and the Arizona Wage Act based on 24 unpaid wages. (Doc. 1 at ¶ 1.) He alleged that Defendants Fedelyne Bernabe and Troy 25 Emerson are a married couple and together own two Arizona LLCs—Assurance Relocation 26 Systems LLC (“Assurance Relocation”) and Tucson Movers LLC (“Tucson Movers”) 27 (collectively, the “LLC Defendants” and, together with Bernabe and Emerson, 28 “Defendants”)—which operate as a “single enterprise” moving company in Maricopa 1 County, Arizona. (Id. at ¶¶ 11–21.) 2 Rose alleges that he worked for Defendants for one week in November 2024 as a 3 driver. (Id. at ¶ 40–41.) Although Defendants “agreed to pay [Rose] an hourly rate of 4 approximately $27” and Rose “worked approximately 45 total hours,” Rose was never paid 5 for his labor. (Id. at ¶¶ 44–46.) Rose brought this action to recover his unpaid wages and 6 associated damages under Federal and Arizona law. 7 On May 30, 2025, Bernabe filed a “Motion to Allow Exception to Represent Single 8 Member LLC Assurance Relocation and Tucson Movers LLC in Federal Court.” (Doc. 9 10.) As the title suggests, Bernabe, proceeding pro se, sought permission from the Court 10 to represent the LLC Defendants. (Id.) Simultaneously with her motion, Bernabe filed an 11 answer on behalf of Assurance Relocation, (Doc. 11), and a second answer “as an 12 individual and on behalf of the community property,” (Doc. 12). Bernabe’s answer filed 13 on her own behalf asserted eight counterclaims against Rose. (Id. at 7–8.) 14 On June 5, 2025, Emerson filed a motion to dismiss, in which he argued he was not 15 a proper party because he does not own and is not involved in the operation of Assurance 16 Relocation or Tucson Movers. (Doc. 13.) He further expressed confusion about whether 17 he was named as an individual defendant, or just by virtue of his marriage to Bernabe. (See 18 e.g., id. at 2 (“The caption of the complain [sic] assert that defendant Troy Emerson is listed 19 as Fedelyne Bernabe and Troy Emerson, a married couple. What does this mean?”).) On 20 June 20, 2025, Rose moved to strike Emerson’s motion because he failed to certify that he 21 satisfied the conferral requirements of Local Rule 12.1(c) and the Court’s Preliminary 22 Order. (Doc. 16.) This motion is fully briefed. (Docs. 18, 20.) 23 On June 6, 2025, one day after Emerson filed his motion to dismiss, Bernabe filed 24 a motion to dismiss on behalf of Tucson Movers. (Doc. 14.) The Court denied Bernabe’s 25 motion to represent the LLC Defendants, (Doc. 10), struck the answer Bernabe filed on 26 behalf of Assurance Relocation, (Doc. 11), and struck the motion to dismiss Bernabe filed 27 on behalf of Tucson Movers, (Doc. 14). (Doc. 17.) The Court ordered Rose to respond to 28 the Counterclaims asserted in Bernabe’s answer and set a new deadline for the LLC 1 Defendants to respond to the Complaint. (Id.) 2 On July 21, 2025, Rose filed a motion to dismiss Bernabe’s counterclaims. (Doc. 3 21.) He argues that Bernabe has failed to satisfy the requirements of Rules 8(a)(2) and 4 12(b)(6) of the Federal Rules of Civil Procedure, and that the court lacks jurisdiction over 5 her state law claims. (Id.) Bernabe responded, (Doc. 26), and Rose replied, (Doc. 28). 6 The LLC Defendants did not respond to Rose’s complaint. On August 29, 2025, 7 the Court issued an order to show cause why the LLC Defendants should not be dismissed 8 for failure to prosecute, and gave Rose until September 8, 2025, to apply for default 9 judgment. (Doc. 29.) Rose did so the next day, and default was entered on September 3, 10 2025. (Docs. 30, 31.) To date, Rose has not filed a motion for default judgment. 11 II. LEGAL STANDARD 12 Under Rule 8(a)(2), “a pleading must contain a ‘short and plain statement of the 13 claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677– 14 78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). While this does not require “detailed factual 15 allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me 16 accusation.” Id. at 678 (quotation marks omitted). To meet this standard, “a complaint 17 must contain sufficient factual matter, accepted as true, to state a claim to relief that is 18 plausible on its face.” Id. (quotation marks omitted). Thus, a complaint must include 19 “factual content that allows the court to draw the reasonable inference that the defendant is 20 liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of 21 action, supported by mere conclusory statements, do not suffice.” Id.; see also id. (“Nor 22 does a complaint suffice if it tenders naked assertions devoid of further factual 23 enhancement.” (cleaned up)). Pro se filings must be construed “liberally when evaluating 24 them under Iqbal.” Jackson v. Barnes, 749 F.3d 755, 763–64 (9th Cir. 2014). 25 A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may 26 attack either the allegations of the complaint, or the existence of subject matter jurisdiction 27 in fact. Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016). “When the motion to 28 dismiss attacks the allegations of the complaint as insufficient to confer subject matter 1 jurisdiction, all allegations of material fact are taken as true and construed in the light most 2 favorable to the nonmoving party.” Blackhawk Network Inc. v. SL Card Co., Inc., 589 F. 3 Supp. 3d 1115, 1123 (D. Ariz. 2022) (quotation marks omitted). The party invoking the 4 jurisdiction of the court has the burden of proof. Kokkonen v. Guardian Life Ins. Co., 511 5 U.S. 375, 377 (1994). 6 III. DISCUSSION 7 A. Emerson’s Motion to Dismiss and Rose’s Motion to Strike 8 Rose moves to strike Emerson’s motion to dismiss for failure to comply with the 9 conferral requirements outlined in Preliminary Order, (Doc. 5), and Local Rule 12.1(c). 10 (Doc. 16 at 2–3.) Emerson and Bernabe filed a joint Response, arguing that they conferred 11 with Rose in an email sent on May 27, 2025. (Doc. 18 at 1–3.) The email was not attached 12 to their Response. In reply, Rose asserts that the May 27, 2023 email was sent by Bernabe, 13 not Emerson, and that Emerson was not cc’d or in any way a party to the email. (Doc. 20 14 at 1–2.) Rose did not attach the email to his Reply. Rose argues that because Bernabe is 15 a pro se litigant, not an attorney, she cannot represent Emerson in this matter, and any 16 action Bernabe took on Emerson’s behalf does not satisfy the conferral requirements 17 outlined in the Court’s preliminary order. (Id.) 18 The Court’s Preliminary Order states the following: 19 Any motion under Federal Rule of Civil Procedure 12 is discouraged if the challenged defect in the pleading can be cured by filing an amended pleading. 20 The Court therefore requires that: (1) before filing a Rule 12(b)(6) motion to dismiss, a Rule 12(c) motion for judgment on the pleadings, or a Rule 12(f) 21 motion to strike, the movant confer with the opposing party to determine whether such motion can be avoided; and (2) the movant attach a certificate 22 of conferral, certifying that it notified the opposing party of the issues asserted in its motion and that the parties conferred but were unable to agree 23 that the pleading was curable in any part by a permissible amendment offered by the pleading party. See also LRCiv 12.1(c). The requirement to meet and 24 confer and attach a certificate of conferral applies in equal force to motions to dismiss amended complaints, notwithstanding earlier conferrals and 25 certificates filed before the complaint was amended. Any motion lacking the required certification may be summarily stricken. 26 27 (Doc. 5 at 4–5.) These conferral requirements are critical to efficiently and expediently 28 resolving cases and ensure the Court’s resources are spent on significant issues that the 1 parties cannot readily resolve via amendment. 2 It is unclear whether Emerson properly conferred with Rose. The email that 3 Emerson and Bernabe cite in their joint response has not been submitted, so the Court 4 cannot verify whether Emerson was a party to it. If Rose is correct, and Emerson was not 5 cc’d or otherwise included, then the email does not satisfy Emerson’s conferral 6 requirements. Bernabe is not authorized to represent Emerson, and any attempt by Bernabe 7 to confer on Emerson’s behalf would not satisfy his conferral requirement. See Johns v. 8 County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (“While a non-attorney may appear 9 pro se on [her] own behalf, [she] has no authority to appear as an attorney for others than 10 himself.” (cleaned up)); see also Grae-El v. City of Seattle, 2022 WL 721489, at *3 (W.D. 11 Wash. 2022) (“While pro se litigants may represent themselves, they may not—as non- 12 lawyers—represent others, regardless of any familial relationships.”). 13 Because it is unclear whether the parties have met and conferred as required by the 14 Preliminary Order and Local Rule 12.1(c), and because Emerson failed to certify that he 15 did so in his motion to dismiss, the Court will grant Rose’s motion to strike, without 16 prejudice to Emerson raising the same issues, if necessary, after complying with the Local 17 Rules and this Court’s orders. See LRCiv 12.1(c) (“A motion that does not contain the 18 required certification may be stricken summarily.”). 19 B. Rose’s Motion to Dismiss Bernabe’s Counterclaims 20 Rose moves to dismiss Bernabe’s counterclaims under Federal Rules of Civil 21 Procedure 12(b)(6) for failure to state a claim, and alternatively under 12(b)(1) for lack of 22 subject matter jurisdiction. (Doc. 21.)1 Because Bernabe has inadequately pled her 23 counterclaims, they must be dismissed under both Rule 12(b)(6) and (b)(1). 24 Bernabe asserts eight counterclaims, ranging from fraud and breach of contract to 25 harassment and extreme negligence. (Doc. 12 at 7–8.) Each counterclaim is supported by 26 1 Bernabe argues that Rose’s motion to dismiss should be stricken because he did not 27 satisfy the conferral requirements. (Doc. 26 at 1.) But Rose supplied documentation of his conferral with Bernabe with his Reply. (See Doc. 28.) Rose also certified in his motion 28 that he satisfied the conferral requirements. (Doc. 21 at 2.) Accordingly, Bernabe’s argument is rejected. 1 no more than two sentences. (Id.) For example, under “Fraud” Bernabe states only that 2 “Evidence at trial will show that plaintiff Rose knew that he was not owed 45 hours but 3 deliberately misrepresented that he was owed 45 hours.” (Id. at 7.) Under “Damage to 4 Company property and Customer property,” Bernabe alleges that “Plaintiff Rose cause 5 [sic] damages to customer property which caused a loss to Company Assurance Relocation 6 Systems.” (Id.) And under “Extreme Negligence,” Bernabe alleges that “Defendant Rose 7 left truck lights on all day while he took his personal calls and cause the other workers to 8 stop working to jump a truck for one hour of which he was still on the telephone.” (Id. at 9 8.) Bernabe’s five other claims are equally devoid of context or factual support. (See id. 10 at 7–8.) Without “factual content that allows the court to draw the reasonable inference 11 that the defendant is liable for the misconduct alleged,” a complaint cannot survive a 12 motion to dismiss. Ashcroft, 556 U.S. at 678. Here, it is difficult to discern what 13 misconduct is alleged, let alone whether Rose is liable for it. Accordingly, Bernabe fails 14 to state a claim under Rule 12(b)(6). 15 Rose additionally argues that the Court lacks jurisdiction over Bernabe’s 16 counterclaims because they “are permissive, state-law claims that bear no relation to 17 [Rose’s] wage claims.” (Doc. 21 at 5.) As it stands, the Complaint’s allegations are so 18 vague and conclusory that it is impossible to tell whether supplemental jurisdiction over 19 Bernabe’s state law claims would be proper. See, e.g., Fed. R. Civ. P. 13(a)–(b) (defining 20 compulsory and permissive claims); Randall v. Nelson & Kennard, 2009 WL 2710141 at 21 *2–6 (D. Ariz. 2009) (conducting the supplemental jurisdiction analysis under Fed. R. Civ. 22 P. 13). This predicament underscores the inadequacy of the allegations supporting 23 Bernabe’s counterclaims and requires dismissal under Rule 12(b)(1). See Smiley v. JP 24 Morgan Chase, 2014 WL 2605434, at *2 (N.D. Cal. 2014) (dismissing a complaint where 25 it was “almost completely devoid of any factual allegations” and thus, failed “to 26 demonstrate that th[e] Court ha[d] subject matter jurisdiction”). 27 Because it is possible that Bernabe can amend her counterclaims to state a plausible 28 claim for relief over which the Court would have jurisdiction, she will be granted leave to 1 || amend. See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend] when || justice so requires.”). IV. CONCLUSION 4 For the reasons stated above, 5 IT IS ORDERED granting Rose’s Motion to Strike the Motion to Dismiss (Doc. || 16), and striking Emerson’s Motion to Dismiss, (Doc. 13). 7 IT IS FURTHER ORDERED Emerson shall respond to Rose’s Complaint no later 8 || than April 10, 2026. 9 IT IS FURTHER ORDERED granting Rose’s Motion to Dismiss Bernabe’s Counterclaims, (Doc. 21). Bernabe shall file any amended counterclaims no later than 11] April 10, 2026. 12 Dated this 4th day of March, 2026. 13 □ 14 15 ‘6 H le Sharad H. Desai 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28

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