Martin v. Arizona School for the Deaf and Blind

• Court: District Court, D. Arizona
• Decided: March 26, 2025
• Docket: 4:24-cv-00281
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 George Martin, No. CV-24-00281-TUC-EJM 10 Plaintiff, 11 v. ORDER 12 The Arizona State School for the Deaf and the Blind, a body corporate, aka The 13 Arizona state Schools for the Deaf and the 14 Blind, 15 Defendant. 16 Currently pending before the Court is Defendant the Arizona State School for the 17 Deaf and the Blind’s Motion to Dismiss (Doc. 13), Plaintiff’s [Amended] Motion for 18 Leave to File Third Amended Complaint (Doc.16), and Plaintiff’s Motion to Strike or in 19 the Alternative Motion for Leave to File Surreply as to New Argument Raised at P.3 Line 20 12-Third Amended Complaint P.5, Line 18 of Defendant’s Reply in Support of Motion to 21 Dismiss (Doc. 21). In addition to seeking leave to amend his Complaint, Plaintiff has 22 filed a response in opposition to Defendant’s motion to dismiss, and Defendant filed a 23 combination reply to the motion to dismiss and response to Plaintiff’s motion to amend. 24 Pl.’s Response to Def.’s Mot. to Dismiss (Doc. 14); Def.’s Reply in Support of Mot. to 25 Dismiss (Doc. 19). Additionally, Defendant responded to Plaintiff’s motion to strike, and 26 Plaintiff filed replies to his motion to amend and motion to strike. Def.’s Response to 27 Pl.’s Mot. to Strike (Doc. 22); Pl.’s Reply re Mot. for Leave to File 3d Amended Compl. 28 (Doc. 20); Pl.’s Reply Re: Mot. to Strike (Doc. 23). 1 As such, the motions are fully briefed and ripe for adjudication. In its discretion, 2 the Court finds this case suitable for decision without oral argument. See LRCiv. 7.2(f). 3 The Parties have adequately presented the facts and legal arguments in their briefs and 4 supporting documents, and the decisional process would not be significantly aided by 5 oral argument. As discussed below, the Court will deny Defendant’s motion to dismiss 6 and grant Plaintiff leave to file a third amended complaint. 7 8 I. FACTUAL BACKGROUND1 9 In July of 2022, Dr. Martin was hired as a contract employee at the Arizona State 10 School for the Deaf and the Blind (“ASDB”) as an Assistant Superintendent. SAC (Doc. 11 1-4) at ¶ 8. Dr. Martin is a black, African-American male. Id. at ¶ 11. The contract was 12 a one-year, renewable contract issued pursuant to A.R.S. § 15-1325(A). Id. at ¶ 8. Dr. 13 Martin’s supervisor was Superintendent Annette Reichman, a white/Caucasian female, 14 and the Chief Executive Officer of ASDB during the relevant time period. Id. at ¶¶ 9–10. 15 This dispute originates from a meeting that took place between Ms. Reichman and Dr. 16 Martin on December 19, 2022. Id. at ¶ 21. In this meeting, Ms. Reichman told Dr. 17 Martin that she would not be recommending his contract for renewal for another year. 18 SAC at ¶ 21. 19 Between Dr. Martin’s July start date and the December 19th meeting, Ms. 20 Reichman did not provide Dr. Martin with a set of duties or a job description. Id. at ¶ 12. 21 Furthermore, Dr. Martin did not receive any negative evaluation or criticism from Ms. 22 Reichman with respect to his performance before December of 2022. Id. at ¶¶ 13–16. 23 The Complaint does not note any events between Dr. Martin’s start date and the 24 December 19th meeting. See id. at ¶¶ 8–21. During the December 19th meeting, Ms. 25 Reichman verbally advised Dr. Martin that she would not be recommending the renewal 26 of his contract. Id. at ¶ 21. The only reason she cited was that Dr. Martin “lacked a sense

27 1 For purposes of this Order only, the Court will take as true the allegations contained in 28 Plaintiff’s Second Amended Complaint (Doc. 1-4). See Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011). 1 of urgency.” SAC (Doc. 1-4) at ¶ 21. On December 24, 2022, Dr. Martin sent Ms. 2 Reichman an email stating that she had never made any mention of this lack of urgency 3 during any of their hours-long weekly meetings before December 19th. Id. at ¶ 23. In 4 January of 2023, during a weekly meeting between Dr. Martin and Ms. Reichman, Ms. 5 Reichman suggested that several of Dr. Martin’s employees be removed from his 6 supervision. Id. at ¶ 28. Dr. Martin protested this suggestion. Id. Ms. Reichman then 7 suggested that Dr. Martin resign from his employment. Id. On February 6, 2023, Dr. 8 Martin wrote Ms. Reichman asking her to provide specific issues with his leadership. 9 SAC (Doc. 1-4) at ¶ 24. Ms. Reichman did not follow up. Id. 10 Notably, ASDB’s policies require a written evaluation to be transmitted to the 11 contract employee and signed by the employee and evaluator. Id. at ¶ 17. These 12 evaluations help determine the adequacy of employee performance and provide the basis 13 of administrative decisions, such as the renewal and non-renewal of contracts. Id. at ¶¶ 14 19–20. Also, according to ASDB’s policy, contract employees with inadequate 15 performance shall be given an improvement plan for up to ninety (90) days where 16 employees can overcome inadequacies. Id. at ¶ 25. ASDB did not provide any written 17 evaluation to Dr. Martin, nor did it offer him an improvement plan to correct deficiencies 18 in his performance. SAC (Doc. 1-4) at ¶¶ 15, 25. 19 Dr. Martin believed that the President of the Board wanted to promote him to the 20 Superintendent role and remove Ms. Reichman. Id. at ¶ 29. Dr. Martin further believed 21 that this was due to the President’s assessment of Ms. Reichman’s leadership skills and 22 her poor handling of an incident unrelated to the current case.2 Id. 23 Before ASDB’s Board meeting in March of 2023, Ms. Reichman had the President 24 of the Board removed. Id. at ¶ 32. At the March 2, 2023, ASDB Board meeting, Ms. 25

26 2 The Complaint does not include details of the President’s assessment of Ms. Reichman. 27 As to the unrelated incident, a teacher was accused of making inappropriate and insensitive comments to students. SAC (Doc. 1-4) ¶ 30. When this was brought to Ms. Reichman’s 28 attention, she did not believe it was a significant concern and wanted to let the situation blow over. Id. at ¶ 31. 1 Reichman recommended that Dr. Martin’s contract should not be renewed because he did 2 not have a “sense of urgency.” Id. at ¶ 33. Despite having the support of a Board 3 member and several audience members, Dr. Martin was placed on administrative leave 4 on March 6, 2023. SAC (Doc. 1-4) at ¶¶ 34–36. ASDB provided the official notification 5 as required by statute on April 15, 2023. Id. at 36. 6 On June 23, 2023, Dr. Martin presented his concerns of race and gender 7 discrimination to ASDB’s Board President and Human Resources. Id. at ¶ 37. Dr. 8 Martin, a black, African-American male, holds a doctorate in Educational leadership, a 9 master’s degree in Secondary Educational Leadership, and a bachelor’s degree in 10 biological sciences. Id. at ¶¶ 11, 41–42. Dr. Martin’s temporary replacement, Oran 11 Tkatchov, is a white/Caucasian male with a master’s degree in Secondary Educational 12 Leadership, but he has not earned a doctorate or an Arizona Superintendent Certificate. 13 Id. at ¶¶ 39–40. Dr. Martin’s employment ended on June 30, 2023 under the terms of the 14 original contract. SAC (Doc. 1-4) at ¶ 45. 15 16 II. STANDARD OF REVIEW 17 A complaint is to contain a “short and plain statement of the claim showing that 18 the pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not 19 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 20 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 21 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 22 statements, do not suffice.” Id.; Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 23 (9th Cir. 1998) (“conclusory allegations of law and unwarranted inferences are not 24 sufficient to defeat a motion to dismiss.”). 25 Rule 12(b)(6) motions are meant to “test[] the legal sufficiency of a claim.” 26 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is appropriate where a 27 plaintiff has failed to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 28 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual 1 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 2 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 3 Further, “[a] claim has facial plausibility when the plaintiff pleads factual content that 4 allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged. Id. “The plausibility standard is not akin to a ‘probability 6 requirement,’ but it asks for more than a sheer possibility that a defendant has acted 7 unlawfully.” Id. (citations omitted). 8 “When ruling on a motion to dismiss, [the Court must] accept all factual 9 allegations in the complaint as true and construe the pleadings in the light most favorable 10 to the nonmoving party.” Association for Los Angeles Deputy Sheriffs v. County of Los 11 Angeles, 648 F.3d 986, 991 (9th Cir. 2011) (quoting Knievel v. ESPN, 393 F.3d 1068, 12 1072 (9th Cir. 2005)). “The court draws all reasonable inferences in favor of the 13 plaintiff.” Id. (citing Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 14 n.2 (9th Cir. 2008)). This Court is not required, however, to accept conclusory 15 statements as a factual basis. See Twombly, 550 U.S. at 555; Mann v. City of Tucson, 782 16 F.2d 790, 793 (9th Cir. 1986) (“Although we must, in general, accept the facts alleged in 17 the complaint as true, wholly vague and conclusory allegations are not sufficient to 18 withstand a motion to dismiss.”). Accordingly, “[d]ismissal is proper only where there is 19 no cognizable legal theory or an absence of sufficient facts alleged to support a 20 cognizable legal theory[.]” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 965 (9th 21 Cir. 2018) (quoting Navarro, 250 F.3d at 732). 22 23 III. ANALYSIS 24 A. Third Amended Complaint 25 Rule 15, Federal Rules of Civil Procedure, provides that “[a] party may amend its 26 pleading once as a matter of course.” Fed. R. Civ. P. 15(a)(1). Any subsequent 27 amendments require the opposing party’s written consent or leave of court. Fed. R. Civ. 28 P. 15(a)(2). “In the absence of any apparent or declared reason—such as undue delay, 1 bad faith or dilatory motive on the part of the movant, repeated failure to cure 2 deficiencies by amendments previously allowed, undue prejudice to the opposing party 3 by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought 4 should, as the rules require, be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 5 (1962); see also Fed. R. Civ. P. 15(a)(2). Whether or not leave to amend should be 6 granted is committed to the sound discretion of the district court. Id. The Ninth Circuit 7 Court of Appeals has recognized that not all of these factors are weighed equally. 8 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Prejudice 9 to the opposing party is afforded the greatest weight. Id. (citations omitted). “Absent 10 prejudice, or a strong showing of any of the remaining Foman factors, there exists a 11 presumption under Rule 15(a) in favor of granting leave to amend. Id. (emphasis in 12 original) (citations omitted). 13 In opposing leave to amend, Defendant urges that the proposed Third Amended 14 Complaint contains a legal conclusion and an additional fact regarding Plaintiff’s 15 replacement that Defendant believes is unhelpful; however, Defendant does not argue 16 that it would be prejudiced by amendment. As this case is in its beginning stages, the 17 Court does not find that Defendant would be prejudiced by Plaintiff’s proposed 18 amendment. Moreover, there is nothing to suggest that Plaintiff was acting in bad faith 19 or delayed seeking leave to amend. Any futility will be addressed in the following 20 section regarding dismissal. Given that the Foman factors weigh in favor of Plaintiff, the 21 Court will grant Plaintiff leave to file a Third Amended Complaint. 22 B. Motion to Dismiss 23 Defendant seeks dismissal of Plaintiff’s Second Amended Complaint in its 24 entirety. Def.’s Mot. to Dismiss (Doc. 13). Because the original and amended 25 complaints are nearly identical, the Court will consider these arguments as to Plaintiff’s 26 Third Amended Complaint, rather than deeming Defendant’s motion to dismiss moot and 27 requiring it to refile.3 28 3 Plaintiff’s amendments did not alter the Court’s analysis. 1 1. Disparate Treatment 2 Defendant asserts that Plaintiff has failed to state a claim of disparate treatment 3 discrimination under either Title VII of the Civil Rights Act or the Arizona Civil Rights 4 Act (“ACRA”), requiring dismissal claims one (1) through eight (8). Def.’s Mot. to 5 Dismiss (Doc. 13) at 4–7. Plaintiff asserts that Defendant relies upon an incorrect 6 pleading standard, as well as improperly relies on affirmative defenses, in its attempt to 7 demonstrate that Plaintiff has failed to state a claim. The Court agrees with Plaintiff. 8 Title VII makes it unlawful for employers “to discriminate against any individual 9 with respect to his compensation, terms, conditions, or privileges of employment, 10 because of such individual’s race, color, religion, sex, or national origin[.]”4 42 U.S.C. § 11 2000e-2(a). “Under Title VII, an individual suffers disparate treatment ‘when he or she is 12 singled out and treated less favorably than others similarly situated on account of race.’”5 13 McGinest v. GTE Service Corp., 360 F.3d 1103, 1121 (9th Cir. 2004) (quoting Jauregui 14 v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988) (internal quotations and citations 15 omitted)). “To show a prima facie case of disparate treatment, a plaintiff must offer 16 evidence that ‘give[s] rise to an inference of unlawful discrimination.’” Reynaga v. 17 4 Title VII of the Civil Rights Act of 1964, Section (a), provides that: 18 It shall be an unlawful employment practice for an employer – 19 (1) to fail or refuse to hire or to discharge any individual, or otherwise to 20 discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, 21 religion, sex, or national origin; or 22 (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment 23 opportunities or otherwise adversely affect his status as an employee, because of 24 such individual’s race, color, religion, sex, or national origin. 25 42 U.S.C. § 2000e-2(a). 5 The Arizona Supreme Court has noted that “[t]he Arizona Civil Rights Act is modeled 26 after and generally identical to the federal statute in the area (Title VII of the Civil Rights Act of 27 1964, as amended 42 U.S.C. §§ 2000e, et seq.)[,]” and concluded that Title VII case law is persuasive in interpreting the ACRA. Higdon v. Evergreen Intern. Airlines, Inc., 873 P.2d 907, 28 910 n.3 (Ariz. 1983). As such, for purposes of this Order, the Court’s analysis under Title VII will apply equally to Plaintiff’s ACRA claims. 1 Roseburg Forest Prod., 847 F.3d 678, 690 (9th Cir. 2017) (quoting Sischo-Nownejad v. 2 Merced Cmty. Coll. Dist., 934 F.2d 1104, 1110 (9th Cir. 1991)). The Ninth Circuit Court 3 of Appeals has recognized that: 4 One way to establish an inference of discrimination is by satisfying the prima facie elements from McDonnell Douglas Corp. v. Green, 411 U.S. 5 792, 802, 93 S.[ ]Ct. 1817, 36 L.Ed.2d 668 (1973): (1) the plaintiff belongs 6 to a protected class, (2) he was performing according to his employer’s legitimate expectations, (3) he suffered an adverse employment action, and 7 (4) similarly situated employees were treated more favorably, or other 8 circumstances surrounding the adverse employment action give rise to an inference of discrimination. 9 10 Reynaga, 847 F.3d at 690–91 (citations omitted). The appellate court has further 11 recognized, however, that “although the McDonnell Douglas burden shifting 12 framework[] is a useful ‘tool to assist plaintiffs at the summary judgment stage so that 13 they may reach trial,’ ‘nothing compels the parties to invoke the McDonnell Douglas 14 presumption.” McGinest, 360 F.3d at 1122 (quoting Costa v. Desert Palace, 299 F.3d 15 838, 855 (9th Cir. 2002), aff’d by 539 U.S. 90 (2003)). The Court of Appeals indicated 16 that at the summary judgment stage, a Plaintiff “may proceed using the McDonnell 17 Douglas framework, or alternatively, may simply produce direct or circumstantial 18 evidence demonstrating that a discriminatory reason more likely than not motivated [the 19 defendant.” McGinest, 360 F.3d at 1122 (citations omitted). 20 In Swierkiewicz v. Sorema N.A., the Supreme Court of the United States 21 considered the proper pleading standard for employment discrimination cases and 22 observed that “[t]he prima facie case under McDonnell Douglas . . . is an evidentiary 23 standard, not a pleading requirement.” 534 U.S. 506, 510 (2002); see also Austin v. Univ. 24 of Ore., 925 F.3d 1133, 1136 (9th Cir. 2019). The Court recognized that it had “never 25 indicated that the requirements for establishing a prima facie case under McDonnell 26 Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive 27 a motion to dismiss.” Id. at 511. Furthermore, “under a notice pleading system, it is not 28 appropriate to require a plaintiff to plead facts establishing a prima facie case because the 1 McDonnell Douglas framework does not apply in every employment discrimination 2 case.” Id. The Court found it “incongruous to require a plaintiff, in order to survive a 3 motion to dismiss, to plead more facts than he may ultimately need to prove to succeed 4 on the merits if direct evidence of discrimination is discovered.” Id. at 511–12. The 5 Court noted that because “the prima facie case operates as a flexible evidentiary standard, 6 it should not be transposed into a rigid pleading standard for discrimination cases.” Id. at 7 512. Where a complaint gives a defendant “fair notice of what [plaintiff’s] claims are 8 and the grounds upon which they rest[,] it sufficiently states a claim upon which relief 9 could be granted. Swierkiewicz, 534 U.S. at 514. Ultimately, the Court held that “the 10 Federal Rules do not contain a heightened pleading standard for employment 11 discrimination suits[,] [and] [a] requirement of greater specificity for particular claims is 12 a result that ‘must be obtained by the process of amending the Federal Rules, and not by 13 judicial interpretation.’” Id. at 515 (quoting Leatherman v. Tarrant Co. Narcotics 14 Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993)); see also Jones v. Bock, 15 549 U.S. 199, 213 (2007) (citations omitted) (“Specific pleading requirements are 16 mandated by the Federal rules of Civil Procedure, and not, as a general rule, through 17 case-by-case determinations of the federal courts.”). 18 Following its decision in Swierkiewicz, the Supreme Court decided several cases 19 “without benefit of statute” and “applied what appears to be a higher pleading standard 20 under Rule 8(a).” Starr v. Baca, 652 F.3d 1202, 1213 (9th Cir. 2011). In Starr, the Ninth 21 Circuit Court of Appeals analyzed these later decisions including Dura Pharmaceuticals, 22 Inc. v. Broudo, 544 U.S. 336 (2005), Bell Atlantic Corp. v. Twombly, 550 U.S. 544 23 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). 652 F.3d at 1213–14. After careful 24 consideration of these cases, as well as the Supreme Court’s decisions of Swierkiewicz 25 and Ericson v. Pardus, 551 U.S. 89 (2007) which unequivocally endorsed the notice 26 pleading requirement of Rule 8(a), the Ninth Circuit court of Appeals found “the 27 following two principles common to all of them[:]” 28 First to be entitled to the presumption of truth, allegations in a complaint or 1 counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice 2 and to enable the opposing party to defend itself effectively. Second, the 3 factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party 4 to be subjected to the expense of discovery and continued litigation. 5 Starr, 652 F.3d at 1215. The Ninth Circuit found that at the motion to dismiss stage of 6 the litigation, the standard “is not that plaintiff’s explanation must be true or even 7 probable[,]” only that “[t]he factual allegations of the complaint . . . ‘plausibly suggest an 8 entitlement to relief.’” Id. at 1216–17 (quoting Iqbal, 129 S. Ct. 1951). Furthermore, 9 “Plaintiff’s complaint may be dismissed only when defendant’s plausible alternative 10 explanation is so convincing that plaintiff’s explanation is im plausible.” Id. at 1216. 11 Here, Defendant “does not dispute that Martin has pleaded sufficient facts to 12 establish the first three elements of a disparate-treatment discrimination claim in counts 13 one through eight.” Def.’s Mot. to Dismiss (Doc. 13) at 5. Defendant asserts, however, 14 that Martin “has not pleaded any facts to support the fourth element of a disparate 15 treatment claim.” Id. The fourth element requires a showing that “similarly situated 16 employees were treated more favorably, or other circumstances surrounding the adverse 17 employment action give rise to an inference of discrimination.” Reynaga, 847 F.3d at 18 691 (citations omitted). Plaintiff alleges that his Assistant Superintendent position was 19 filled by a less educated, less experienced, white male. See SAC (Doc. 1-4) at ¶¶ 39–43; 20 TAC (Doc. 16-1) at ¶¶ 39–43. Defendant urges that Mr. Tkatchov was not “similarly 21 situated” to Plaintiff requiring dismissal. Def.’s Mot. to Dismiss (Doc. 13) at 6. 22 Defendant misappraises what is required in the pleading of a disparate treatment claim. 23 “A plaintiff is not required to plead (or pursue) a comparator evidence theory of 24 discrimination.” Littlejohn v. Kaiser Foundation Health Plan of Washington, No. 3:23- 25 cv-06194-TMC, 2024 WL 4451955, at *5 (W.D. Wash. Oct. 9, 2024). “A plaintiff may 26 show an inference of discrimination in whatever manner is appropriate in the particular 27 circumstances.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) 28 (internal quotations and citations omitted). Defendant noted that “[a]lthough Martin 1 alleged in the SAC that Tkatchov was ‘temporarily offered’ the assistant superintendent 2 after him (doc. 1-4 at 7, ¶ 39), it is only in the proposed TAC that Martin pleads that 3 Tkatchov also was a candidate when Reichman chose him to fill that position (doc. 16-1 4 at 8, ¶ 39).” Def.’s Reply (Doc. 19) at 4 n.2. Defendant expresses confusion about “why 5 Martin believes that having been chosen over a ‘white/Caucasian male’ strengthens his 6 claims for race, color, and sex discrimination.” Id. Plaintiff’s TAC makes clear that 7 Reichman, a white female, originally wanted to hire Tkatchov, a white man, for the 8 Assistant Superintendent position, but the Board chose Plaintiff and Reichman relented. 9 TAC (Doc. 16-1) at ¶ 39. Reichman’s only performance related feedback to Plaintiff was 10 that he lacked “a sense of urgency.” Id. at ¶ 33. The Court finds that Reichman’s vague 11 criticism, refusal to provide additional feedback when asked, and actions to circumvent 12 the Board and hire Tkatchov, create a plausible inference of discrimination. As such 13 Defendant’s motion will be denied as to Plaintiff’s disparate treatment claims. 14 2. Implied Covenant of Good Faith and Fair Dealing 15 Defendant seeks dismissal of Count Nine of Plaintiff’s SAC/TAC because his 16 “employment contract did not expressly or implicitly require ASDB to give him a written 17 performance evaluation or put him on a performance improvement plan before it could 18 terminate his contract.” Def.’s Mot. to Dismiss (Doc. 13) at 8. Defendant attached a 19 copy of Plaintiff’s purported employment contract to its motion to dismiss. Defendant 20 urges that by alleging a breach of the implied warranty of good faith and fair dealing, 21 Plaintiff’s complaint necessarily incorporates the employment contract. Plaintiff TAC, 22 however, only references that an employment contract existed between the parties. TAC 23 (Doc. 16-1) at ¶ 8. 24 “Generally, the scope of review on a motion to dismiss for failure to state a claim 25 is limited to the contents of the complaint.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 26 2006) (citations omitted). “A court may, however, consider certain materials— 27 documents attached to the complaint, documents incorporated by reference in the 28 complaint, or matters of judicial notice—without converting the motion to dismissing 1 into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th 2 Cir. 2003) (citations omitted). A document “may be incorporated by reference into a 3 complaint if the plaintiff refers extensively to the document or the document forms the 4 basis of the plaintiff’s claim.” Id. (citations omitted); see also Knievel v. ESPN, 393 F.3d 5 1068, 1076 (9th Cir. 2005) (a court may consider a document where a plaintiff’s claim 6 depends on the contents of a document, the defendant attaches the document to its motion 7 to dismiss, and the parties do not dispute its authenticity). 8 “Arizona law implies a covenant of good faith and fair dealing in every contract.” 9 Wells Fargo Bank v. Arizona Laborers, Teamsters and Cement Masons Local No. 395 10 Pension Trust Fund, 38 P.3d 12, 28 (Ariz. 2002) (en banc) (citations omitted). “The 11 implied covenant of good faith and fair dealing prohibits a party from doing anything to 12 prevent other parties to the contract from receiving the benefits and entitlements of the 13 agreement.” Id. (citations omitted). The Arizona Supreme Court has observed that 14 “because a party may be injured when the other party to a contract manipulates 15 bargaining power to its own advantage, a party may nevertheless breach its duty of good 16 faith without actually breaching an express covenant in the contract.” Id. at 29 (citations 17 omitted). Furthermore, “[i]nstances inevitably arise where one party exercises discretion 18 retained or unforeclosed under a contract in such a way as to deny the other a reasonably 19 expected benefit of the bargain.” Id. at 30 (alterations in original) (citations omitted). 20 Because a breach of the implied covenant of good faith and fair dealing does not 21 necessarily rely on the express terms of the contract, the Court declines to consider the 22 document at this stage. Furthermore, Plaintiff has adequately alleged that Defendant’s 23 failures to “adhere to Arizona law,” as well as its own policies, and its alleged “failure to 24 properly evaluate Plaintiff’s performance, failure to document such evaluation, and 25 failure to provide a performance improvement plan to correct any deficiency all breached 26 the covenant of good faith and fair dealing.” TAC at ¶¶ 42–44. The Court finds that 27 Plaintiff has pled a facially plausible claim for a breach of the covenant of good faith and 28 fair dealing with sufficient “factual content [to] allow[] the [C]ourt to draw the 1 || reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 2|| 556 U.S. at 678 (citations omitted). Accordingly, the Court will deny Defendant’s 3 || motion to dismiss regarding this claim. 4 5|| IV. CONCLUSION 6 Based upon the foregoing, IT IS HEREBY ORDERED that Defendant the Arizona 7\| State School for the Deaf and the Blind’s Motion to Dismiss (Doc. 13) is DENIED. 8 IT IS FURTHER ORDERED that Plaintiff's [Amended] Motion for Leave to File Third Amended Complaint (Doc.16) is GRANTED. Plaintiff shall file his Third 10} Amended Complaint (Doc. 16-1) within seven (7) days of this Order. 11 IT IS FURTHER ORDERED that Plaintiff's Motion to Strike or in the Alternative 12 || Motion for Leave to File Surreply as to New Argument Raised at P.3 Line 12-Third 13 || Amended Complaint P.5, Line 18 of Defendant’s Reply in Support of Motion to Dismiss (Doc. 21) is DENIED AS MOOT. 15 16 Dated this 26th day of March, 2025.

18 Jou 19 Eric J. Markovich . United States Magistrate Judge 20 21 22 23 24 25 26 27 28

-13-