1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Wayne Eder, No. CV-19-08101-PCT-JJT
10 Plaintiff, ORDER
11 v.
12 Northern Arizona Consolidated Fire District #1, et al., 13 Defendants. 14 15 At issue is Defendant Patrick Moore’s Motion to Dismiss (Doc. 27, Mot.), to which 16 Plaintiff filed a Response (Doc. 33, Resp.) and Defendant1 filed a Reply (Doc. 34, Reply). 17 In his Response, Plaintiff requested leave to amend the Complaint in the event that the 18 Court grants Defendant’s Motion to Dismiss. Because the parties’ briefs were adequate for 19 the Court to resolve the issues raised in Defendant’s Motion, the Court declined to hold 20 oral argument on the briefs. See LRCiv 7.2(f). For the reasons that follow, the Court grants 21 Defendant’s Motion and grants Plaintiff leave to file his First Amended Complaint. 22 I. BACKGROUND 23 Plaintiff is a former Fire Chief of the Northern Arizona Consolidated Fire District 24 #1 (“NACFD”). He acted as Interim Fire Chief from March through October 2017, at 25 which time he came under contract to serve as Fire Chief until December 2018. (Doc. 30 26 1 For purposes of this Order, “Defendant” refers only to Defendant Patrick Moore. 27 Defendants Northern Arizona Consolidated First District #1 and Mike Collins, Erik Berg, Carl Hays, John Bryant, and Jim Bailey filed a Motion to Dismiss and Compel Arbitration 28 (Doc. 30), which the Court resolves by separate Order. Defendants Jake Rhoades and the City of Kingman have filed an Answer to the Complaint. (Doc. 10.) 1 Ex. A; Doc 40.) Plaintiff’s contract of employment was terminated on May 23, 2018. 2 (Doc. 1, Compl. at 3.) He alleges that, while he was on temporary medical leave, the 3 NACFD Board Members held an unauthorized and illegal meeting in which they voted to 4 terminate him prior to the expiration of his contractual employment term. (Compl. at 3.) 5 Plaintiff alleges that his termination “was, among other things, retaliatory, politically 6 motivated, unlawful, and a violation of his employment contract and the Fair Wages and 7 Healthy Family Act.” (Compl. at 4.) 8 In his Complaint, Plaintiff brought nine claims against multiple Defendants. Only 9 one—Count VII, a claim for civil conspiracy—is brought against Defendant, also a former 10 Fire Chief of NACFD who resigned from that position in 2016 and was subsequently hired 11 by Mike Collins at RM Excavation. (Compl. at 5, 9.) According to the Complaint, 12 Defendant’s acts and misrepresentations occurred while he was employed as Fire Chief of 13 NACFD. (Compl. at 4.) Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant 14 now moves to dismiss the claim against him. (Mot. at 1.) 15 II. LEGAL STANDARD 16 Federal Rule of Civil Procedure 12(b)(6) is designed to “test[] the legal sufficiency 17 of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 18 12(b)(6) for failure to state a claim can be based on either (1) the lack of a cognizable legal 19 theory or (2) insufficient facts to support a cognizable legal claim. Balistreri v. Pacifica 20 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint under Rule 21 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most 22 favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). 23 Legal conclusions couched as factual allegations are not entitled to the assumption of truth, 24 Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a 25 motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 26 (9th Cir. 2010). On a Rule 12(b)(6) motion, Rule 8(a) governs and requires that, to avoid 27 dismissal of a claim, Plaintiff must allege “enough facts to state a claim to relief that is 28 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 1 III. ANALYSIS 2 A. Count VII: Civil Conspiracy 3 Defendant argues that Plaintiff failed to state a claim for civil conspiracy because the 4 Complaint fails to allege that Defendant committed an underlying tort. (Mot. at 3–7.) 5 Plaintiff responds that the Complaint properly alleges the underlying torts of wrongful 6 termination and defamation and the conspiracy to commit those torts. (Resp. at 3–4.) 7 Under Arizona law, “[f]or a civil conspiracy to occur, two or more people must agree 8 to accomplish an unlawful purpose or to accomplish a lawful object by unlawful means, 9 causing damages.” Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local 10 No. 395 Pension Tr. Fund, 38 P.3d 12, 36 (Ariz. 2002). However, an agreement alone “to do 11 a wrong imposes no liability; an agreement plus a wrongful act” is necessary to establish 12 liability. Id. at 36 (citing Baker v. Stewart Title & Tr. of Phx., 5 P.3d 249, 256 (Ariz. Ct. App. 13 2000)). Therefore, a complaint for civil conspiracy must sufficiently plead that the alleged 14 conspirators (1) had an agreement to commit an underlying tort, and (2) accomplished that 15 tort. Id. at 36. A plaintiff must establish both elements by clear and convincing evidence. 16 Wells Fargo Bank, 38 P.3d at 37; Collins v. Wells Fargo Bank, No. CV–12–2284–PHX– 17 LOA, 2013 WL 1092894, at *7 (D. Ariz. Mar. 15, 2013). 18 In his Response, Plaintiff correctly states that a conspiratorial agreement can be 19 inferred from the nature of the acts, the relationship of the parties, and the interests of the 20 conspirators. See Mohave Elec. Co-op, Inc. v. Byers, 942 P.2d 451, 465 (Ariz. Ct. App. 21 1997). Plaintiff argues that Collins’s hiring of Defendant demonstrates a close relationship 22 between the two parties, supporting a tacit agreement to commit a tort against Plaintiff. 23 However, the Complaint itself merely states that Collins, a NACFD Board Member at the 24 time Plaintiff was terminated, hired Defendant sometime after Defendant resigned as Fire 25 Chief in 2016. (Compl. at 5.) The Court cannot infer from this singular fact that an agreement 26 to commit an underlying tort existed. Beyond that, Plaintiff relies on a formulaic recitation 27 of the elements of a civil conspiracy claim, which is insufficient to state a claim for relief 28 against Defendant under Rule 12(b)(6). See Twombly, 550 U.S. at 555. 1 Moreover, the allegations in the Complaint do not support the claim that Defendant 2 engaged in any underlying tort. As noted above, Plaintiff maintains that the Complaint 3 alleges the underlying torts of defamation and wrongful termination. To assert a claim for 4 defamation, a plaintiff must allege facts to support “(1) that the defendant made a false 5 statement; (2) that the statement was published or communicated to someone other than 6 the plaintiff; and (3) that the statement tends to harm plaintiff’s reputation.” Ogundele v. 7 Girls Scouts-Ariz. Cactus Pine Council, Inc., No. CV-10-1013-PHX-GMS, 2011 WL 8 1770784, at *8 (D. Ariz. May 10, 2011) (citing Godbehere v. Phx.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Wayne Eder, No. CV-19-08101-PCT-JJT
10 Plaintiff, ORDER
11 v.
12 Northern Arizona Consolidated Fire District #1, et al., 13 Defendants. 14 15 At issue is Defendant Patrick Moore’s Motion to Dismiss (Doc. 27, Mot.), to which 16 Plaintiff filed a Response (Doc. 33, Resp.) and Defendant1 filed a Reply (Doc. 34, Reply). 17 In his Response, Plaintiff requested leave to amend the Complaint in the event that the 18 Court grants Defendant’s Motion to Dismiss. Because the parties’ briefs were adequate for 19 the Court to resolve the issues raised in Defendant’s Motion, the Court declined to hold 20 oral argument on the briefs. See LRCiv 7.2(f). For the reasons that follow, the Court grants 21 Defendant’s Motion and grants Plaintiff leave to file his First Amended Complaint. 22 I. BACKGROUND 23 Plaintiff is a former Fire Chief of the Northern Arizona Consolidated Fire District 24 #1 (“NACFD”). He acted as Interim Fire Chief from March through October 2017, at 25 which time he came under contract to serve as Fire Chief until December 2018. (Doc. 30 26 1 For purposes of this Order, “Defendant” refers only to Defendant Patrick Moore. 27 Defendants Northern Arizona Consolidated First District #1 and Mike Collins, Erik Berg, Carl Hays, John Bryant, and Jim Bailey filed a Motion to Dismiss and Compel Arbitration 28 (Doc. 30), which the Court resolves by separate Order. Defendants Jake Rhoades and the City of Kingman have filed an Answer to the Complaint. (Doc. 10.) 1 Ex. A; Doc 40.) Plaintiff’s contract of employment was terminated on May 23, 2018. 2 (Doc. 1, Compl. at 3.) He alleges that, while he was on temporary medical leave, the 3 NACFD Board Members held an unauthorized and illegal meeting in which they voted to 4 terminate him prior to the expiration of his contractual employment term. (Compl. at 3.) 5 Plaintiff alleges that his termination “was, among other things, retaliatory, politically 6 motivated, unlawful, and a violation of his employment contract and the Fair Wages and 7 Healthy Family Act.” (Compl. at 4.) 8 In his Complaint, Plaintiff brought nine claims against multiple Defendants. Only 9 one—Count VII, a claim for civil conspiracy—is brought against Defendant, also a former 10 Fire Chief of NACFD who resigned from that position in 2016 and was subsequently hired 11 by Mike Collins at RM Excavation. (Compl. at 5, 9.) According to the Complaint, 12 Defendant’s acts and misrepresentations occurred while he was employed as Fire Chief of 13 NACFD. (Compl. at 4.) Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant 14 now moves to dismiss the claim against him. (Mot. at 1.) 15 II. LEGAL STANDARD 16 Federal Rule of Civil Procedure 12(b)(6) is designed to “test[] the legal sufficiency 17 of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 18 12(b)(6) for failure to state a claim can be based on either (1) the lack of a cognizable legal 19 theory or (2) insufficient facts to support a cognizable legal claim. Balistreri v. Pacifica 20 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint under Rule 21 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most 22 favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). 23 Legal conclusions couched as factual allegations are not entitled to the assumption of truth, 24 Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a 25 motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 26 (9th Cir. 2010). On a Rule 12(b)(6) motion, Rule 8(a) governs and requires that, to avoid 27 dismissal of a claim, Plaintiff must allege “enough facts to state a claim to relief that is 28 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 1 III. ANALYSIS 2 A. Count VII: Civil Conspiracy 3 Defendant argues that Plaintiff failed to state a claim for civil conspiracy because the 4 Complaint fails to allege that Defendant committed an underlying tort. (Mot. at 3–7.) 5 Plaintiff responds that the Complaint properly alleges the underlying torts of wrongful 6 termination and defamation and the conspiracy to commit those torts. (Resp. at 3–4.) 7 Under Arizona law, “[f]or a civil conspiracy to occur, two or more people must agree 8 to accomplish an unlawful purpose or to accomplish a lawful object by unlawful means, 9 causing damages.” Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local 10 No. 395 Pension Tr. Fund, 38 P.3d 12, 36 (Ariz. 2002). However, an agreement alone “to do 11 a wrong imposes no liability; an agreement plus a wrongful act” is necessary to establish 12 liability. Id. at 36 (citing Baker v. Stewart Title & Tr. of Phx., 5 P.3d 249, 256 (Ariz. Ct. App. 13 2000)). Therefore, a complaint for civil conspiracy must sufficiently plead that the alleged 14 conspirators (1) had an agreement to commit an underlying tort, and (2) accomplished that 15 tort. Id. at 36. A plaintiff must establish both elements by clear and convincing evidence. 16 Wells Fargo Bank, 38 P.3d at 37; Collins v. Wells Fargo Bank, No. CV–12–2284–PHX– 17 LOA, 2013 WL 1092894, at *7 (D. Ariz. Mar. 15, 2013). 18 In his Response, Plaintiff correctly states that a conspiratorial agreement can be 19 inferred from the nature of the acts, the relationship of the parties, and the interests of the 20 conspirators. See Mohave Elec. Co-op, Inc. v. Byers, 942 P.2d 451, 465 (Ariz. Ct. App. 21 1997). Plaintiff argues that Collins’s hiring of Defendant demonstrates a close relationship 22 between the two parties, supporting a tacit agreement to commit a tort against Plaintiff. 23 However, the Complaint itself merely states that Collins, a NACFD Board Member at the 24 time Plaintiff was terminated, hired Defendant sometime after Defendant resigned as Fire 25 Chief in 2016. (Compl. at 5.) The Court cannot infer from this singular fact that an agreement 26 to commit an underlying tort existed. Beyond that, Plaintiff relies on a formulaic recitation 27 of the elements of a civil conspiracy claim, which is insufficient to state a claim for relief 28 against Defendant under Rule 12(b)(6). See Twombly, 550 U.S. at 555. 1 Moreover, the allegations in the Complaint do not support the claim that Defendant 2 engaged in any underlying tort. As noted above, Plaintiff maintains that the Complaint 3 alleges the underlying torts of defamation and wrongful termination. To assert a claim for 4 defamation, a plaintiff must allege facts to support “(1) that the defendant made a false 5 statement; (2) that the statement was published or communicated to someone other than 6 the plaintiff; and (3) that the statement tends to harm plaintiff’s reputation.” Ogundele v. 7 Girls Scouts-Ariz. Cactus Pine Council, Inc., No. CV-10-1013-PHX-GMS, 2011 WL 8 1770784, at *8 (D. Ariz. May 10, 2011) (citing Godbehere v. Phx. Newspapers, Inc., 783 9 P.2d 781, 787 (Ariz. 1989)); see also Spratt v. N. Auto. Corp., 958 F. Supp. 456, 465 (D. 10 Ariz. 1996). And under Arizona law, an employee has a claim against an employer for 11 wrongful termination if the “employer has terminated the employment relationship . . . in 12 breach of an employment contract.” A.R.S. § 23-1501(A)(3)(a). 13 Setting aside the fact that the Complaint failed to even name Defendant in either the 14 wrongful termination or defamation claims, Plaintiff does not allege any facts to support the 15 claim that Defendant participated in the commission of these torts. With respect to wrongful 16 termination, the Complaint does not demonstrate that Defendant acted as Plaintiff’s 17 employer or had any involvement in Plaintiff’s termination at NACFD. Indeed, Defendant 18 had not worked for NACFD since 2016, at least seventeen months before the alleged meeting 19 at which NACFD and the Board decided to terminate Plaintiff. (Compl. at 5.) With respect 20 to defamation, the Complaint only states that Defendant’s misrepresentations against 21 Plaintiff were made during his employment at NACFD, which, again, ended in 2016. This 22 singular, conclusory allegation is insufficient to support a defamation claim. 23 The Complaint fails to adequately allege either that Defendant had an agreement to 24 commit an underlying tort or that he committed an underlying tort. Therefore, Plaintiff fails 25 to state a claim for civil conspiracy against Defendant. 26 B. Leave to Amend 27 If the Court grants a Rule 12(b)(6) motion to dismiss but a defective complaint can 28 be cured, a plaintiff is entitled to amend the complaint before the action is dismissed. Lopez 1] v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Here, because Plaintiff may be able to cure 2|| the defect in his claim against Defendant, the Court will give him an opportunity to amend. || The Court advises that Plaintiff should only file an amended Complaint if he is able to cure 4|| the defect. If Plaintiff files an amendment that fails to comply with this Order, the Court 5 || will dismiss the action against Defendant with prejudice. 6 IT IS THEREFORE ORDERED granting Defendant Patrick Moore’s Motion to 7 || Dismiss (Doc. 27). 8 IT IS FURTHER ORDERED granting Plaintiff leave to file a First Amended || Complaint within 14 days of this Order, only if and to the extent he can cure the defect in || Count VII against Defendant. 11 Dated this 28th day of October, 2019. CN 12 “wok: 13 efflee— Unifgd State#District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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