1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Mary S. Garrow, ) No. CV 22-00243-TUC-RM (LAB) 9 ) Plaintiff, ) REPORT AND RECOMMENDATION 10 ) vs. ) 11 ) Tucson Clips, LLC, doing business as) 12 Great Clips, ) ) 13 Defendant. ) ) 14 Pending before the court is a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), 15 filed on September 8, 2022, by the defendant, Tucson Clips (“Clips”). (Doc. 8) The 16 plaintiff, Mary Garrow, filed a response on October 31, 2022. (Doc. 15) Clips filed a reply 17 on November 10, 2022. (Doc. 18) 18 The case has been referred to the Magistrate Judge for report and recommendation in 19 accordance with 28 U.S.C. § 636(b)(1) and LRCiv. 72.1 and 72.2. (Doc. 7) A hearing on 20 the motion was held on December 7, 2022. (Doc. 20) 21 The plaintiff, Garrow, maintains that she suffered discrimination while working as a 22 hair stylist at Great Clips. (Doc. 1) On January 14, 2021, Garrow filed a charge of 23 discrimination with the Arizona Attorney General’s Office. (Doc. 8-3, p. 2) On February 24 10, 2021, Garrow filed a report with the Marana Police Department charging the General 25 Manager Acevedo and others with false imprisonment. (Doc. 1, p. 3); see (Doc. 8-2) 26 Apparently, at the end of the work day, Acevedo decided to address a complaint that a 27 28 1 customer had previously filed against Garrow. (Doc. 8-2) Garrow reported that the doors 2 were locked during the meeting preventing her from leaving. Id. Acevedo denied her 3 allegations. Id. The Marana Police Department concluded that probable case was lacking 4 and the incident would not be referred for prosecution. Id. Shortly afterwards, Garrow was 5 terminated. (Doc. 1, p. 3) 6 On May 23, 2022, Garrow filed in this court a Complaint, which is separated into four 7 claims: (1) Discrimination: Race/Age; (2) Retaliation; (3) Preferential Treatment, Under Title 8 VII; and (4) Intentional Infliction of Emotional Distress (IIED). (Doc. 1, pp. 2-3) She 9 maintains that she received a “Right to Sue” letter dated February 16, 2022, but she did not 10 attach the letter to her Complaint. (Doc. 1, p. 2) 11 On September 8, 2022, Clips filed the pending motion to dismiss pursuant to 12 Fed.R.Civ.P. 12(b)(6). (Doc. 8) Clips argues generally that the Complaint fails to provide 13 a “short and plain statement of the claim showing that she is entitled to relief” in accordance 14 with Rule 8(a)(2). (Doc. 8, p. 2) Clips further asserts that the Complaint must be dismissed 15 because, on December 20, 2021, Garrow entered into a Settlement Agreement with Clips 16 releasing all of her claims in exchange for $6,000. (Doc. 8, pp. 9-10); see (Doc. 8-3). Clips 17 attached a copy of the Settlement Agreement to its motion to dismiss. (Doc. 8-3) Garrow 18 did not attach it to her Complaint. 19 20 Discussion 21 “A Rule 12(b)(6) motion tests the legal sufficiency of the claim.” Cook v. Brewer, 22 637 F.3d 1002, 1004 (9th Cir. 2011). The claim must allege a legally cognizable theory of 23 relief and include factual allegations sufficient to support that theory. Hinds Investments, 24 L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011). 25 “[O]n a motion to dismiss, the court presumes that the facts alleged by the plaintiff 26 are true.” Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013). The court need not, 27 however, “assume the truth of legal conclusions cast in the form of factual allegations.” Id. 28 at 1248. 1 To survive the motion to dismiss, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the 2 complaint are true even if doubtful in fact.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 3 555, 127 S.Ct. 1955, 1965 (2007) (internal punctuation omitted). “[A] well-pleaded 4 complaint may proceed even if it strikes a savvy judge that actual proof of those facts is 5 improbable, and that a recovery is very remote and unlikely.” Id. at 556, 1965 (internal 6 punctuation omitted). 7 “Generally, courts may not consider material outside the complaint when ruling on a 8 motion to dismiss.” Young v. AmeriGas Propane, Inc., 2014 WL 5092878, at *3 (S.D. Cal. 9 Oct. 9, 2014). However, “under the doctrine of incorporation by reference, courts may 10 consider extrinsic documents if they are ‘integral’ to the plaintiff’s claims and their 11 authenticity is not in dispute.” Birdsong v. AT & T Corp., 2013 WL 1120783, at *2 (N.D. 12 Cal. Mar. 18, 2013). 13 In this case, Clips asserts in its motion to dismiss that the Settlement Agreement bars 14 all of Garrow’s claims. (Doc. 8) Garrow argues in her response that the document does not 15 bar her claims, but she does not dispute its authenticity. (Doc. 15) The Settlement 16 Agreement “is an integral part of her allegations, for she would have no valid claims unless 17 the [Settlement Agreement] did not bar them.” Birdsong v. AT & T Corp., 2013 WL 18 1120783, at *2 (N.D. Cal. Mar. 18, 2013). Accordingly, the court will consider the 19 Settlement Agreement when ruling on the pending motion to dismiss. 20 As the court noted above, Garrow filed a Charge of Discrimination with the Arizona 21 Attorney General’s Office on January 14, 2021. (Doc 8-3, p. 2) On February 10, 2021, 22 Garrow filed a report with the Marana Police Department charging the General Manager 23 Acevedo and others with false imprisonment. (Doc. 1, p. 3); see (Doc. 8-2) Shortly 24 afterwards, Garrow was terminated. (Doc. 1, p. 3) “In November of 2021, upon being 25 advised by governmental agencies that they were unable to establish probable cause of 26 unlawful discrimination, [Garrow] approached [Clips] seeking to resolve the dispute without 27 either Party admitting liability.” (Doc. 8-3, p. 2) On December 20, 2021, the parties entered 28 1 into a Confidential Settlement Agreement and Release (“Settlement Agreement”) in which Garrow released any claims she had against Clips that occurred prior to the date of the 2 agreement in exchange for $6,000.00. (Doc. 8, p. 11); (Doc. 8-3) She explicitly waived any 3 claims under the ADE, ADEA and Title VII “as well as under any other statute or common 4 law principles of similar effect.” Id., p. 4. 5 Nevertheless, “after Plaintiff deposited the settlement check, she proceeded to file [on 6 January 7, 2022] a breach of contract action in Pima County Justice Court1 against Tucson 7 Clips asking that court to ‘strike the unconscionable part of the contract or agreement 8 settlement unilateral’ and demanding $8,000.00 in relief.” (Doc. 8, p. 10), (Doc. 8-4, pp. 3- 9 4) Garrow asserted that Clips intentionally delayed payment of the check, breached the 10 “unilateral (one sided)” contract, and committed “non communication, bad faith, non 11 performance, [and] deceitful misrepresentation.” (Doc. 8-4, p. 4) She further alleged that 12 her copy of the agreement omitted pages seven and eight and she never received a copy of 13 the parties’ signatures. Id. 14 Apparently, delivery of the settlement check, which was cut on December 30, 2021, 15 was delayed due to the holiday season. (Doc. 18-1, p. 12) It was eventually delivered on 16 January 5, 2022 “within the time period stated in the Settlement Agreement.” (Doc. 18-1, 17 p.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Mary S. Garrow, ) No. CV 22-00243-TUC-RM (LAB) 9 ) Plaintiff, ) REPORT AND RECOMMENDATION 10 ) vs. ) 11 ) Tucson Clips, LLC, doing business as) 12 Great Clips, ) ) 13 Defendant. ) ) 14 Pending before the court is a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), 15 filed on September 8, 2022, by the defendant, Tucson Clips (“Clips”). (Doc. 8) The 16 plaintiff, Mary Garrow, filed a response on October 31, 2022. (Doc. 15) Clips filed a reply 17 on November 10, 2022. (Doc. 18) 18 The case has been referred to the Magistrate Judge for report and recommendation in 19 accordance with 28 U.S.C. § 636(b)(1) and LRCiv. 72.1 and 72.2. (Doc. 7) A hearing on 20 the motion was held on December 7, 2022. (Doc. 20) 21 The plaintiff, Garrow, maintains that she suffered discrimination while working as a 22 hair stylist at Great Clips. (Doc. 1) On January 14, 2021, Garrow filed a charge of 23 discrimination with the Arizona Attorney General’s Office. (Doc. 8-3, p. 2) On February 24 10, 2021, Garrow filed a report with the Marana Police Department charging the General 25 Manager Acevedo and others with false imprisonment. (Doc. 1, p. 3); see (Doc. 8-2) 26 Apparently, at the end of the work day, Acevedo decided to address a complaint that a 27 28 1 customer had previously filed against Garrow. (Doc. 8-2) Garrow reported that the doors 2 were locked during the meeting preventing her from leaving. Id. Acevedo denied her 3 allegations. Id. The Marana Police Department concluded that probable case was lacking 4 and the incident would not be referred for prosecution. Id. Shortly afterwards, Garrow was 5 terminated. (Doc. 1, p. 3) 6 On May 23, 2022, Garrow filed in this court a Complaint, which is separated into four 7 claims: (1) Discrimination: Race/Age; (2) Retaliation; (3) Preferential Treatment, Under Title 8 VII; and (4) Intentional Infliction of Emotional Distress (IIED). (Doc. 1, pp. 2-3) She 9 maintains that she received a “Right to Sue” letter dated February 16, 2022, but she did not 10 attach the letter to her Complaint. (Doc. 1, p. 2) 11 On September 8, 2022, Clips filed the pending motion to dismiss pursuant to 12 Fed.R.Civ.P. 12(b)(6). (Doc. 8) Clips argues generally that the Complaint fails to provide 13 a “short and plain statement of the claim showing that she is entitled to relief” in accordance 14 with Rule 8(a)(2). (Doc. 8, p. 2) Clips further asserts that the Complaint must be dismissed 15 because, on December 20, 2021, Garrow entered into a Settlement Agreement with Clips 16 releasing all of her claims in exchange for $6,000. (Doc. 8, pp. 9-10); see (Doc. 8-3). Clips 17 attached a copy of the Settlement Agreement to its motion to dismiss. (Doc. 8-3) Garrow 18 did not attach it to her Complaint. 19 20 Discussion 21 “A Rule 12(b)(6) motion tests the legal sufficiency of the claim.” Cook v. Brewer, 22 637 F.3d 1002, 1004 (9th Cir. 2011). The claim must allege a legally cognizable theory of 23 relief and include factual allegations sufficient to support that theory. Hinds Investments, 24 L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011). 25 “[O]n a motion to dismiss, the court presumes that the facts alleged by the plaintiff 26 are true.” Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013). The court need not, 27 however, “assume the truth of legal conclusions cast in the form of factual allegations.” Id. 28 at 1248. 1 To survive the motion to dismiss, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the 2 complaint are true even if doubtful in fact.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 3 555, 127 S.Ct. 1955, 1965 (2007) (internal punctuation omitted). “[A] well-pleaded 4 complaint may proceed even if it strikes a savvy judge that actual proof of those facts is 5 improbable, and that a recovery is very remote and unlikely.” Id. at 556, 1965 (internal 6 punctuation omitted). 7 “Generally, courts may not consider material outside the complaint when ruling on a 8 motion to dismiss.” Young v. AmeriGas Propane, Inc., 2014 WL 5092878, at *3 (S.D. Cal. 9 Oct. 9, 2014). However, “under the doctrine of incorporation by reference, courts may 10 consider extrinsic documents if they are ‘integral’ to the plaintiff’s claims and their 11 authenticity is not in dispute.” Birdsong v. AT & T Corp., 2013 WL 1120783, at *2 (N.D. 12 Cal. Mar. 18, 2013). 13 In this case, Clips asserts in its motion to dismiss that the Settlement Agreement bars 14 all of Garrow’s claims. (Doc. 8) Garrow argues in her response that the document does not 15 bar her claims, but she does not dispute its authenticity. (Doc. 15) The Settlement 16 Agreement “is an integral part of her allegations, for she would have no valid claims unless 17 the [Settlement Agreement] did not bar them.” Birdsong v. AT & T Corp., 2013 WL 18 1120783, at *2 (N.D. Cal. Mar. 18, 2013). Accordingly, the court will consider the 19 Settlement Agreement when ruling on the pending motion to dismiss. 20 As the court noted above, Garrow filed a Charge of Discrimination with the Arizona 21 Attorney General’s Office on January 14, 2021. (Doc 8-3, p. 2) On February 10, 2021, 22 Garrow filed a report with the Marana Police Department charging the General Manager 23 Acevedo and others with false imprisonment. (Doc. 1, p. 3); see (Doc. 8-2) Shortly 24 afterwards, Garrow was terminated. (Doc. 1, p. 3) “In November of 2021, upon being 25 advised by governmental agencies that they were unable to establish probable cause of 26 unlawful discrimination, [Garrow] approached [Clips] seeking to resolve the dispute without 27 either Party admitting liability.” (Doc. 8-3, p. 2) On December 20, 2021, the parties entered 28 1 into a Confidential Settlement Agreement and Release (“Settlement Agreement”) in which Garrow released any claims she had against Clips that occurred prior to the date of the 2 agreement in exchange for $6,000.00. (Doc. 8, p. 11); (Doc. 8-3) She explicitly waived any 3 claims under the ADE, ADEA and Title VII “as well as under any other statute or common 4 law principles of similar effect.” Id., p. 4. 5 Nevertheless, “after Plaintiff deposited the settlement check, she proceeded to file [on 6 January 7, 2022] a breach of contract action in Pima County Justice Court1 against Tucson 7 Clips asking that court to ‘strike the unconscionable part of the contract or agreement 8 settlement unilateral’ and demanding $8,000.00 in relief.” (Doc. 8, p. 10), (Doc. 8-4, pp. 3- 9 4) Garrow asserted that Clips intentionally delayed payment of the check, breached the 10 “unilateral (one sided)” contract, and committed “non communication, bad faith, non 11 performance, [and] deceitful misrepresentation.” (Doc. 8-4, p. 4) She further alleged that 12 her copy of the agreement omitted pages seven and eight and she never received a copy of 13 the parties’ signatures. Id. 14 Apparently, delivery of the settlement check, which was cut on December 30, 2021, 15 was delayed due to the holiday season. (Doc. 18-1, p. 12) It was eventually delivered on 16 January 5, 2022 “within the time period stated in the Settlement Agreement.” (Doc. 18-1, 17 p. 12) Garrow “refused” to give Clips her email address, so a hard copy of the Settlement 18 Agreement had to be sent by mail. Id. The hard copy, however, was inadvertently omitted 19 from the envelope that contained the check. Id. Clips provided Garrow with a complete 20 copy of the Agreement when Garrow filed her complaint in Justice Court and it learned of 21 the oversight. Id. 22 On July 29, 2022, the Justice Court granted Clips’s motion to dismiss the action with 23 prejudice. (Doc. 8, p. 10); (Doc. 8-5); (Doc. 9, p. 1) It awarded sanctions against Garrow 24 25 26 27 1 This court may take judicial notice of prior litigation. Reyn’s Pasta Bella, LLC v. Visa 28 USA, Inc., 442 F.3d 741, 746, n. 6 (9th Cir. 2006) (Court took judicial notice of prior litigation, 1 in the amount of $5,000 for bringing the lawsuit in violation of the Settlement Agreement. Id. 2 Previously, on May 23, 2022, Garrow filed the pending Complaint in this court 3 alleging discrimination. (Doc. 1) Clips’s counsel cautioned Garrow that if she insisted on 4 pursuing this action in federal court after her loss in Justice Court, “a similar result would be 5 likely.” (Doc. 9, p. 4) Nevertheless, on August 19, 2022, Garrow served the pending 6 Complaint on Clips. Id. On September 8, 2022, Clips filed the pending motion to dismiss 7 and pending motion for sanctions. (Doc. 8); (Doc. 9) 8 It appears that all of Garrow’s claims are precluded because of the Settlement 9 Agreement. (Doc. 8-3); see, e.g., Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 848 (9th Cir. 10 2004) (“The district court was correct to find the Settlement Agreement enforceable against 11 [the employee] and we affirm the grant of summary judgment to [the employer] on [the 12 employee’s] state law and ADA claims relating to the acts that took place prior to execution 13 of that agreement.”). The claims in the Complaint accrued prior to the date of the Settlement 14 Agreement. (Doc. 1) And Clips performed its obligation to deliver the $6,000.00. (Doc. 8- 15 4, p. 5); (Doc. 8, p. 10) This court, however, need not decide for itself whether or not the 16 Settlement Agreement is valid and enforceable. The Pima County Justice Court has already 17 decided that, and Garrow cannot pursue a second action in federal court seeking a different 18 result. (Doc. 8-5); see Hastings v. Grundy, 2020 WL 5517303, at *3 (D. Ariz. Sept. 14, 19 2020) (“In Arizona, the doctrine of claim preclusion, or res judicata, prevents a plaintiff 20 from bringing a second lawsuit when a prior judgment on the merits was rendered by a court 21 of competent jurisdiction and the matter now in issue between the same parties or their 22 privities was, or might have been, determined in the former action.”) (punctuation modified); 23 see, e.g., Derringer v. Sewell, 2009 WL 1578292, at *3 (D. Ariz. June 3, 2009) (Replevin 24 and tort claims brought in federal court were previously litigated in justice court and barred 25 by res judicata.). The motion to dismiss should be granted. 26 In her response, Garrow asserts generally that she has a Fourteenth Amendment right 27 to due process and equal protection and a Seventh Amendment right to a trial by jury for 28 1 “suits at common law.” (Doc. 15) She does not explain, however, how those rights apply here. The court’s application of res judicata does not appear to violate her due process rights. 2 She already has had her “day in court.” Hall v. Lalli, 194 Ariz. 54, 57, 977 P.2d 776, 779 3 (1999) (Due process “dictates that a party has the right to be heard,” but a lawsuit will be 4 precluded if “a former judgment on the merits was rendered by a court of competent 5 jurisdiction and the matter now in issue” is “between the same parties or their privities.”). 6 Moreover, constitutional rights may be waived, and Garrow has done so. See Fuller v. City 7 of Oakland, Cal., 47 F.3d 1522, 1530 (9th Cir. 1995), as amended (Apr. 24, 1995) (“There 8 is no dispute that the Seventh Amendment right to a jury trial, like other constitutional rights, 9 can be waived.”) 10 Garrow further argues that Clips breached the contract by “non-performance, non- 11 communication, and the untimely delivery of the executed signature page of the contract.” 12 (Doc. 15, p. 2) She provides, however, no further explanation or citation to relevant 13 authority. Finally, Garrow asserts that she was engaged in a protected activity and has a valid 14 cause of action pursuant to Title VII. Id. 15 Some of Garrow’s arguments were raised previously in Justice Court. Some are new. 16 All of them are precluded. See Hastings v. Grundy, 2020 WL 5517303, at *3 (D. Ariz. Sept. 17 14, 2020) (Res judicata applies to issues that were previously decided in a former action or 18 “might have been.”). 19 20 RECOMMENDATION 21 The Magistrate Judge recommends that the District Court, after its independent review 22 of the record, enter an order 23 GRANTING the defendant’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), 24 filed on September 8, 2022. (Doc. 8) 25 Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 26 14 days of being served with a copy of this report and recommendation. If objections are 27 not timely filed, the party’s right to de novo review may be waived. The Local Rules permit 28 1 || the filing of'a response to an objection. They do not permit the filing ofa reply to a response 2 || without the permission of the District Court. 3 DATED this 14" day of December, 2022. 5 ‘ Rebs A. Bowman Leslie A. Bowman 7 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _7-