1 WO 2 3 4 5
9 Daniel T Doria, No. CV-25-08078-PCT-SMB
10 Plaintiff, ORDER
11 v.
12 SelectQuote Insurance Services Incorporated, 13 Defendant. 14 15 Before the Court are Defendant’s Motion to Dismiss (Doc. 23); Plaintiff’s Motion 16 for Leave to File Sur-Reply (Doc. 32); Defendant’s Motion to Strike Plaintiff’s Motion for 17 Leave to File Sur-Reply (Doc. 34); and Plaintiff’s First Motion to Amend (Doc. 36). The 18 Court grants Defendant’s Motion to Dismiss, but denies the remaining Motions for the 19 reasons below. 21 Plaintiff appears pro se. Plaintiff’s Second Amended Complaint (“SAC”) alleges 22 as follows. Defendant, through Plaintiff’s corporate trainer and recruiter, told Plaintiff that 23 it would evaluate all newly hired employees’ performances through a quality assurance 24 (“QA”) monitoring tool called “Ranger.” (Doc. 13 at 4.) On October 25, 2024, Defendant 25 terminated Plaintiff based on a 76% QA score reported on Quicksight—a different 26 monitoring tool. (Id.) Defendant terminated Plaintiff within his first week of employment. 27 (Id. at 5.) Plaintiff avers Quicksight’s program lags behind real-time data, and Defendant 28 did not disclose this as an evaluation tool. (Id. at 4.) Plaintiff holds that his Ranger QA 1 score exceeded the required satisfactory threshold, but Defendants refused to consider the 2 score. (Id.) 3 Plaintiff’s SAC asserts a claim for breach of an implied contract.1 (Id. at 5–6.) 4 Specifically, Plaintiff alleges Defendant breached the affirmative representation that 5 Plaintiff would be evaluated using QA stats from Ranger by terminating him based on 6 Quicksight’s report. (Id. at 6.) Defendant now moves for dismissal under Federal Rule of 7 Civil Procedure 12(b)(6). (Doc. 23.) 9 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 10 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 11 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 12 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 13 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 14 47 (1957)). This notice exists if the pleader sets forth “factual content that allows the court 15 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 17 cause of action, supported by mere conclusory statements, do not suffice.” Id. 18 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 19 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 20 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 21 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 22 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 23 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal 24 “probability,” but requires “more than a sheer possibility that a defendant has acted 25 unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a 26 defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’” 27 Id. (quoting Twombly, 550 U.S. at 557).
28 1 Plaintiff’s SAC reasserts the wrongful termination claim the Court previously dismissed with prejudice. (Doc. 12 at 6.) Therefore, the Court will not consider it here. 1 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pleaded factual allegations 2 are taken as true and construed in the light most favorable to the nonmoving party. Cousins 3 v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 4 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 5 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 6 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 7 outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. See United States 8 v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider 9 materials—documents attached to the complaint, documents incorporated by reference in 10 the complaint, or matters of judicial notice—without converting the motion to dismiss into 11 a motion for summary judgment.” Id. at 908. 13 The essence of Plaintiff’s claim is that Defendant terminated him in violation of an 14 implied contract that Defendant would make any performance-based decisions solely on 15 QA stats from Ranger. This claim is subject to the Arizona Employee Protection Act 16 (“AEPA”), A.R.S. § 23-1501. See Ferren v. Westmed Inc., No. CV-19-00598-TUC-DCB, 17 2021 WL 778545, at *3 (D. Ariz. Mar. 1, 2021) (“The AEPA exclusively governs 18 employee breach of contract claims resulting from termination.”). Here, the AEPA 19 precludes Plaintiff’s claim. 20 Prior to AEPA, Arizona law was clear that all employment relationships were 21 presumably at-will—i.e., terminable with or without cause. Taylor v. Graham Cnty. 22 Chamber of Com., 33 P.3d 518, 526 (Ariz. Ct. App. 2001). During this pre-enactment 23 period, the Arizona “supreme court recognized exceptions to the at-will presumption based 24 not only on public policy grounds but also on theories of ‘implied-in-fact’ contracts and 25 the ‘implied covenant of good faith and fair dealing.’” Id. at 527 (quoting Wagenseller v. 26 Scottsdale Mem’l Hosp., 710 P.2d 1025, 1036 (Ariz. 1985)). “But the plain wording and 27 legislative intent of [AEPA] have changed [that] legal landscape.” Id. 28 “The legislature’s stated intent in enacting [AEPA] was to limit the circumstances 1 in which a terminated employee can sue an employer to those situations involving either 2 qualifying written contracts or an employer violating the public policy of the state as 3 enunciated in the state constitution and statutes.” Johnson v. Hisp. Broadcasters of Tucson, 4 Inc., 2 P.3d 687, 689 (Ariz. Ct. App. 2000). The first situation is implicated here but is 5 plainly inapplicable. 6 The AEPA bakes in the presumption of at-will employment with only few 7 exceptions. “The first exception arises if ‘both the employee and the employer have signed 8 a written contract to the contrary setting forth that the employment relationship shall remain 9 in effect for a specified duration of time.’” Taylor, 33 P.3d at 527 (quoting § 23-1501(2)). 10 “The second exception also requires ‘a written contract,’ signed by ‘both the employee and 11 the employer,’ that ‘otherwise expressly restrict[s] the right of either party to terminate the 12 employment relationship.” Id.
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1 WO 2 3 4 5
9 Daniel T Doria, No. CV-25-08078-PCT-SMB
10 Plaintiff, ORDER
11 v.
12 SelectQuote Insurance Services Incorporated, 13 Defendant. 14 15 Before the Court are Defendant’s Motion to Dismiss (Doc. 23); Plaintiff’s Motion 16 for Leave to File Sur-Reply (Doc. 32); Defendant’s Motion to Strike Plaintiff’s Motion for 17 Leave to File Sur-Reply (Doc. 34); and Plaintiff’s First Motion to Amend (Doc. 36). The 18 Court grants Defendant’s Motion to Dismiss, but denies the remaining Motions for the 19 reasons below. 21 Plaintiff appears pro se. Plaintiff’s Second Amended Complaint (“SAC”) alleges 22 as follows. Defendant, through Plaintiff’s corporate trainer and recruiter, told Plaintiff that 23 it would evaluate all newly hired employees’ performances through a quality assurance 24 (“QA”) monitoring tool called “Ranger.” (Doc. 13 at 4.) On October 25, 2024, Defendant 25 terminated Plaintiff based on a 76% QA score reported on Quicksight—a different 26 monitoring tool. (Id.) Defendant terminated Plaintiff within his first week of employment. 27 (Id. at 5.) Plaintiff avers Quicksight’s program lags behind real-time data, and Defendant 28 did not disclose this as an evaluation tool. (Id. at 4.) Plaintiff holds that his Ranger QA 1 score exceeded the required satisfactory threshold, but Defendants refused to consider the 2 score. (Id.) 3 Plaintiff’s SAC asserts a claim for breach of an implied contract.1 (Id. at 5–6.) 4 Specifically, Plaintiff alleges Defendant breached the affirmative representation that 5 Plaintiff would be evaluated using QA stats from Ranger by terminating him based on 6 Quicksight’s report. (Id. at 6.) Defendant now moves for dismissal under Federal Rule of 7 Civil Procedure 12(b)(6). (Doc. 23.) 9 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 10 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 11 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 12 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 13 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 14 47 (1957)). This notice exists if the pleader sets forth “factual content that allows the court 15 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 17 cause of action, supported by mere conclusory statements, do not suffice.” Id. 18 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 19 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 20 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 21 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 22 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 23 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal 24 “probability,” but requires “more than a sheer possibility that a defendant has acted 25 unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a 26 defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’” 27 Id. (quoting Twombly, 550 U.S. at 557).
28 1 Plaintiff’s SAC reasserts the wrongful termination claim the Court previously dismissed with prejudice. (Doc. 12 at 6.) Therefore, the Court will not consider it here. 1 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pleaded factual allegations 2 are taken as true and construed in the light most favorable to the nonmoving party. Cousins 3 v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 4 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 5 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 6 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 7 outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. See United States 8 v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider 9 materials—documents attached to the complaint, documents incorporated by reference in 10 the complaint, or matters of judicial notice—without converting the motion to dismiss into 11 a motion for summary judgment.” Id. at 908. 13 The essence of Plaintiff’s claim is that Defendant terminated him in violation of an 14 implied contract that Defendant would make any performance-based decisions solely on 15 QA stats from Ranger. This claim is subject to the Arizona Employee Protection Act 16 (“AEPA”), A.R.S. § 23-1501. See Ferren v. Westmed Inc., No. CV-19-00598-TUC-DCB, 17 2021 WL 778545, at *3 (D. Ariz. Mar. 1, 2021) (“The AEPA exclusively governs 18 employee breach of contract claims resulting from termination.”). Here, the AEPA 19 precludes Plaintiff’s claim. 20 Prior to AEPA, Arizona law was clear that all employment relationships were 21 presumably at-will—i.e., terminable with or without cause. Taylor v. Graham Cnty. 22 Chamber of Com., 33 P.3d 518, 526 (Ariz. Ct. App. 2001). During this pre-enactment 23 period, the Arizona “supreme court recognized exceptions to the at-will presumption based 24 not only on public policy grounds but also on theories of ‘implied-in-fact’ contracts and 25 the ‘implied covenant of good faith and fair dealing.’” Id. at 527 (quoting Wagenseller v. 26 Scottsdale Mem’l Hosp., 710 P.2d 1025, 1036 (Ariz. 1985)). “But the plain wording and 27 legislative intent of [AEPA] have changed [that] legal landscape.” Id. 28 “The legislature’s stated intent in enacting [AEPA] was to limit the circumstances 1 in which a terminated employee can sue an employer to those situations involving either 2 qualifying written contracts or an employer violating the public policy of the state as 3 enunciated in the state constitution and statutes.” Johnson v. Hisp. Broadcasters of Tucson, 4 Inc., 2 P.3d 687, 689 (Ariz. Ct. App. 2000). The first situation is implicated here but is 5 plainly inapplicable. 6 The AEPA bakes in the presumption of at-will employment with only few 7 exceptions. “The first exception arises if ‘both the employee and the employer have signed 8 a written contract to the contrary setting forth that the employment relationship shall remain 9 in effect for a specified duration of time.’” Taylor, 33 P.3d at 527 (quoting § 23-1501(2)). 10 “The second exception also requires ‘a written contract,’ signed by ‘both the employee and 11 the employer,’ that ‘otherwise expressly restrict[s] the right of either party to terminate the 12 employment relationship.” Id. (quoting § 23-1501(2)). In the absence of a written contract, 13 a plaintiff cannot establish either exception. Ergo, an implied contract cannot overcome 14 the at-will presumption. See, e.g., Rajasundaram v. Maricopa Cnty. Cmty. Coll. Dist., No. 15 CV-20-01544-PHX-SPL, 2021 WL 1117324, at *10 (D. Ariz. Mar. 24, 2021) (holding that 16 the “AEPA precludes claims for the breach of implied covenant of good faith and fair 17 dealing”). 18 There are no facts to suggest Defendant and Plaintiff memorialized in writing that 19 all performance would be evaluated through Ranger. But even if there were, the promise 20 to use Ranger is not a promise to only terminate Plaintiff based on poor metrics from 21 Ranger. Therefore, the Court finds that Plaintiff fails to plead a viable claim under AEPA 22 and that further leave to amend would be futile.2 The Court denies Plaintiff’s Motion for 23 Leave to File Sur-Reply because Defendant does not raise any new issues. 25 Accordingly, 26 IT IS HEREBY ORDERED granting Defendant’s Motion to Dismiss (Doc. 23). 27 2 Plaintiff filed his Motion for Leave to Amend to file his SAC out of concern that his SAC 28 was not the operative complaint. (Doc. 36.) Plaintiff is mistaken. The SAC is the current controlling pleading. Therefore, the Court denies Plaintiff’s Motion as moot. 1 IT IS FURTHER ORDERED denying Plaintiff's Motion for Leave to File Sur- 2|| Reply (Doc. 32) and denying as moot Defendant’s Motion to Strike Plaintiff's Motion for 3 || Leave to File Sur-Reply (Doc. 34) and Plaintiff's Motion to Amend (Doc. 36). 4 IT IS FURTHER ORDERED dismissing Plaintiffs claim with prejudice and 5 || directing the Clerk of Court to enter judgment in favor of Defendant and terminate this || case. 7 Dated this 3rd day of June, 2026.
United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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