Gurashi v. ATCO Rubber Products

• Court: District Court, D. Arizona
• Decided: January 2, 2024
• Docket: 2:23-cv-01517
• Status: Unknown

Opinion

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

9 Maki Gurashi, No. CV-23-01517-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 ATCO Rubber Products,

13 Defendant. 14 15 On September 19, 2023, the Court granted a motion for judgment on the pleadings 16 filed by Defendant ATCO Rubber Products (“Defendant”). (Doc. 13.) The order explained 17 that the complaint filed by pro se Plaintiff Maki Gurashi (“Plaintiff”) was deficient because 18 it failed to “adequately allege[] a breach of Defendant’s duty. That is, there are no 19 allegations in the complaint establishing that there was something wrong with the forklift 20 or otherwise unsafe about the working conditions that proximately caused the forklift to 21 tip over.” (Id. at 4.) Finally, even though Plaintiff had not responded to Defendant’s 22 motion, the Court granted him leave to amend. (Id.) However, the Court “cautioned” 23 Plaintiff “to carefully read and adhere to all orders and to carefully read and adhere to the 24 federal and local rules of civil procedure.” (Id.) 25 Following the issuance of this order, Plaintiff filed a First Amended Complaint 26 (“FAC”). (Doc. 14.) In the FAC, Plaintiff alleges that he suffered a severe leg injury when 27 “the defendant’s equipment (forklift) I was operating . . . tipped over my leg.” (Id. at 4.) 28 Plaintiff further alleges that “[t]he defendant omitted specific facts from their ADOSH 1 report, such as forklift maintenance records, clear pictures from different angles of the 2 incident, and a video record that should be attached to the incident report.” (Id.) Enclosed 3 as an attachment to the FAC is an incident report that Defendant provided to the Industrial 4 Commission of Arizona, Division of Occupational Safety and Health (“ADOSH”). (Id. at 5 8-9.) The report identifies Plaintiff as “an employee” who suffered the leg injury while 6 “operating a forklift, when putting finish goods away in the warehouse.” (Id. at 8.) Also 7 enclosed as an attachment to the FAC is a response letter from ADOSH, which again 8 identifies Plaintiff as “an employee” of Defendant. (Id. at 7.) 9 Now pending before the Court is another Rule 12(c) motion for judgment on the 10 pleadings. (Doc. 19.) Defendant argues the FAC remains deficient because it “does not 11 allege a single act or omission of Defendant that caused Plaintiff harm. It does not 12 articulate any duty owed by Defendant to Plaintiff, any negligent act or omission of 13 Defendant, or any other cognizable cause of action. Plaintiff’s amended complaint alleges 14 only that Defendant owned a forklift, which tipped over while Plaintiff was operating it.” 15 (Id. at 3.) Defendant further argues that Plaintiff cannot cure this deficiency through the 16 assertion of additional facts because “[p]resumably, Plaintiff intends to bring a premises 17 liability action against his employer for a workplace injury” but “an employee injured in 18 the performance of his job duties may not sue his employer in tort. . . . Any further factual 19 allegations concerning duty and breach would necessarily depend on Plaintiff and 20 Defendant’s employment relationship, which would thus bar Plaintiff’s action under the 21 exclusive remedy provision of Arizona’s workers’ compensation laws.” (Id. at 3-4, citation 22 omitted). 23 During the Rule 16 conference on December 11, 2023, the Court specifically 24 reminded Plaintiff of his responsibility to respond to Defendant’s motion. (Doc. 20.) 25 Unfortunately, Plaintiff did not heed his reminder—the deadline to respond has now 26 expired and Plaintiff did not file a response (just as he did not respond to Defendant’s last 27 motion for judgment on the pleadings). For this reason alone, Defendant’s current motion 28 is granted summarily. See LRCiv 7.2(i) (“[I]f [an] unrepresented party . . . does not serve 1 and file the required answering memoranda, . . . such non-compliance may be deemed a 2 consent to the . . . granting of the motion and the Court may dispose of the motion 3 summarily.”). Alternatively, even if LRCiv 7.2(i) weren’t implicated, Defendant would be 4 entitled to relief on the merits. As Defendant correctly notes, the FAC does not articulate 5 any negligent act or omission by Defendant. 6 Finally, Plaintiff is not entitled to leave to amend. “Dismissal of a pro se complaint 7 without leave to amend is proper only if it is absolutely clear that the deficiencies of the 8 complaint could not be cured by amendment.” Schucker v. Rockwood, 846 F.2d 1202, 9 1203-04 (9th Cir. 1988). Here, it is absolutely clear that Plaintiff could not cure the 10 deficiency identified above through the assertion of additional facts—as Defendant 11 correctly notes, any additional factual allegations would confirm (to the extent the current 12 FAC does not already establish)1 that Plaintiff’s claim is barred by the exclusive-remedy 13 provision of Arizona’s workers’ compensation scheme. A.R.S. § 23-1022(A) (“The right 14 to recover compensation pursuant to this chapter for injuries sustained by an employee . . . 15 is the exclusive remedy against the employer . . . .”); Eichenberger v. Falcon Air Exp. Inc., 16 2014 WL 3819355, *4-5 (D. Ariz. 2014) (“The workers’ compensation statute provides the 17 exclusive remedy for injuries sustained by an employee against the employer or a co- 18 employee acting within the scope of his or her employment. Injuries caused by an 19 employer’s negligence fall under this exclusive remedies provision. . . . There is a willful 20 misconduct exception in A.R.S. § 23-1022(A), but . . . Plaintiff has not argued that this 21 exception applies, and it would not logically apply to a claim based on negligence. The 22 Court concludes that Plaintiff's NIED claim fails as a matter of law.”) (cleaned up); Gamez 23 v. Brush Wellman, Inc., 34 P.3d 375, 378 (Ariz. Ct. App. 2001) (“It is well settled that work 24 related injury claims are generally addressed exclusively under Arizona’s workers’ 25 compensation scheme.”). 26 1 Arguably, the materials attached to the FAC (and thus incorporated by reference in 27 the FAC) already establish that Plaintiff was working as an employee of Defendant at the time of the accident. (Doc. 14 at 7-9.) This is consistent with Plaintiff’s description of his 28 claim in the Rule 26(f) report. (Doc. 17 at 2 [“This matter arises from a workplace incident occurring at the ATCO Rubber Products warehouse . . . .”].) 1 Accordingly, 2 IT IS ORDERED that Defendant’s motion for judgment on the pleadings (Doc. 3|| granted. The Clerk shall enter judgment accordingly and terminate this action. 4 Dated this 29th day of December, 2023. 5 6 Lm ee” 7 f t _ oc Dominic W, Lanza 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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