1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Hillary Charles Polk, No. CV-23-00058-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Mickey Peter Hirko, et al.,
13 Defendants. 14 15 16 At issue is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint for 17 Failure to State a Claim Pursuant to Rule 12(b)(6) (Doc. 12), to which pro se Plaintiff 18 Hillary Charles Polk filed a Response (Doc. 14), Defendants filed a Reply (Doc. 17), and 19 Plaintiff filed three Sur-Replies (Docs. 18, 19, 21). Defendants moved to strike the Sur- 20 Replies. (Doc. 29.) In this Order, the Court will also resolve Plaintiff’s “Motion for the 21 Withdrawal of Discovery and Interrogatories Request, Proceeding in Support of Plaintiff’s 22 Motion for Discovery” (Doc. 23); Motion for Sanctions (Doc. 22); and Motion to Compel 23 Discovery Pursuant to FRCP 34 (Doc. 26). The Court resolves all these Motions without 24 oral argument. LRCiv 7.2(f). 25 I. BACKGROUND 26 In the Amended Complaint (Doc. 9, Am. Compl.), the operative pleading, Plaintiff 27 alleges that on October 27, 2022, he pulled his vehicle into a “Handicapped parking space 28 directly in front of the main entrance to Fry’s Food and Grocery.” (Am. Compl. ¶ 2.) 1 Plaintiff called over to Defendant “T.E.A.M. Security Officer Julius Husser” to ask him to 2 get Plaintiff an electronic cart. (Am. Compl. ¶ 4.) Husser responded by saying, “Get up and 3 get it yourself.” (Am. Compl. ¶ 5.) A Fry’s employee then brought Plaintiff an electronic 4 cart, and Plaintiff reported what Husser had said to the store manager and shift manager. 5 Plaintiff alleges he suffers from disabilities including blindness, diabetes, cancer, epilepsy, 6 intellectual disabilities, partial or completely missing limbs, and mobility impairments 7 requiring the use of the wheelchair. (Am. Compl. ¶ 14.) 8 Plaintiff now sues Husser and his alleged employers, Mickey Peter Hirko and the 9 security company Total Events and More (T.E.A.M.), raising eight claims: (1) negligent 10 hiring; (2) negligent training; (3) negligent retention; (4) negligent supervision; and public 11 accommodations violations under (5) A.R.S. § 41-1492.02; (6) 42 U.S.C. § 12101; and 12 (7) 42 U.S.C. § 12132. Defendants now move to dismiss all of Plaintiff’s claims against 13 them. 14 II. LEGAL STANDARD 15 Rule 12(b)(6) is designed to “test[] the legal sufficiency of a claim.” Navarro v. 16 Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 12(b)(6) for failure to 17 state a claim can be based on either: (1) the lack of a cognizable legal theory; or (2) the 18 absence of sufficient factual allegations to support a cognizable legal theory. Balistreri v. 19 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint for 20 failure to state a claim, the well-pled factual allegations are taken as true and construed in 21 the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 22 (9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief that is 23 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has 24 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 26 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility 27 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 28 possibility that a defendant has acted unlawfully.” Id. 1 “While a complaint attacked by a Rule 12(b)(6) motion does not need detailed 2 factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief 3 requires more than labels and conclusions, and a formulaic recitation of the elements of a 4 cause of action will not do.” Twombly, 550 U.S. at 555 (cleaned up and citations omitted). 5 Legal conclusions couched as factual allegations are not entitled to the assumption of truth 6 and therefore are insufficient to defeat a motion to dismiss for failure to state a claim. Iqbal, 7 556 U.S. at 679–80. However, “a well-pleaded complaint may proceed even if it strikes a 8 savvy judge that actual proof of those facts is improbable, and that ‘recovery is very remote 9 and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 10 (1974)). 11 III. ANALYSIS 12 A. Motion to Dismiss 13 As a threshold matter, Plaintiff filed three Sur-Replies (Docs. 18, 19, 21) to 14 Defendants’ Motion to Dismiss without leave of Court. The Federal Rules of Civil 15 Procedure and Local Rules do not provide for the filing of sur-replies, and a party thus may 16 not file such a brief without obtaining leave of Court. E.g. LRCiv 7.2. Any such action is 17 also an end-run around the page limits on briefing set forth in Local Rule 7.2(e)(1). The 18 Court will therefore strike Plaintiff’s Sur-Replies (Docs. 18, 19, 21). The Court also notes 19 that consideration of those briefs would not have changed the Court’s resolution of the 20 pending Motions. 21 Plaintiff’s first four claims against Defendants are for negligent hiring, training, 22 retention, and supervision under Arizona law. As Defendants point out in their Motion, all 23 of these causes of action require that the employee at issue commit an underlying tort. See 24 Martinez v. Town of Prescott Valley, 467 F. Supp. 3d 786, 796 (D. Ariz. 2020); Mulhern 25 v. City of Scottsdale, 799 P.2d 15, 18 (Ariz. Ct. App. 1990). Here, the facts alleged are not 26 sufficient to show Mr. Husser’s conduct in saying “Get up and get [an electronic cart] 27 yourself” constituted negligence. Under Arizona law, “‘[t]o establish a claim for 28 negligence, a plaintiff must prove . . . : (1) a duty requiring the defendant to conform to a 1 certain standard of care; (2) a breach by the defendant of that standard; (3) a causal 2 connection between the defendant’s conduct and the resulting injury; and (4) actual 3 damages.’” Diaz v. Phx. Lubrication Serv., Inc., 230 P.3d 718, 721 (Ariz. Ct. App. 4 2010) (quoting Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007)). No facts in the Amended 5 Complaint give rise to the plausible inference that Mr. Husser, as a security guard not 6 employed by the grocery store, owed Plaintiff a duty to fetch an electronic cart for him, 7 and Plaintiff does not cite any legal authority for that proposition in his briefs, either. This 8 defect alone is fatal to Plaintiff’s claims that Defendants are liable for negligent hiring, 9 training, retention, and supervision.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Hillary Charles Polk, No. CV-23-00058-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Mickey Peter Hirko, et al.,
13 Defendants. 14 15 16 At issue is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint for 17 Failure to State a Claim Pursuant to Rule 12(b)(6) (Doc. 12), to which pro se Plaintiff 18 Hillary Charles Polk filed a Response (Doc. 14), Defendants filed a Reply (Doc. 17), and 19 Plaintiff filed three Sur-Replies (Docs. 18, 19, 21). Defendants moved to strike the Sur- 20 Replies. (Doc. 29.) In this Order, the Court will also resolve Plaintiff’s “Motion for the 21 Withdrawal of Discovery and Interrogatories Request, Proceeding in Support of Plaintiff’s 22 Motion for Discovery” (Doc. 23); Motion for Sanctions (Doc. 22); and Motion to Compel 23 Discovery Pursuant to FRCP 34 (Doc. 26). The Court resolves all these Motions without 24 oral argument. LRCiv 7.2(f). 25 I. BACKGROUND 26 In the Amended Complaint (Doc. 9, Am. Compl.), the operative pleading, Plaintiff 27 alleges that on October 27, 2022, he pulled his vehicle into a “Handicapped parking space 28 directly in front of the main entrance to Fry’s Food and Grocery.” (Am. Compl. ¶ 2.) 1 Plaintiff called over to Defendant “T.E.A.M. Security Officer Julius Husser” to ask him to 2 get Plaintiff an electronic cart. (Am. Compl. ¶ 4.) Husser responded by saying, “Get up and 3 get it yourself.” (Am. Compl. ¶ 5.) A Fry’s employee then brought Plaintiff an electronic 4 cart, and Plaintiff reported what Husser had said to the store manager and shift manager. 5 Plaintiff alleges he suffers from disabilities including blindness, diabetes, cancer, epilepsy, 6 intellectual disabilities, partial or completely missing limbs, and mobility impairments 7 requiring the use of the wheelchair. (Am. Compl. ¶ 14.) 8 Plaintiff now sues Husser and his alleged employers, Mickey Peter Hirko and the 9 security company Total Events and More (T.E.A.M.), raising eight claims: (1) negligent 10 hiring; (2) negligent training; (3) negligent retention; (4) negligent supervision; and public 11 accommodations violations under (5) A.R.S. § 41-1492.02; (6) 42 U.S.C. § 12101; and 12 (7) 42 U.S.C. § 12132. Defendants now move to dismiss all of Plaintiff’s claims against 13 them. 14 II. LEGAL STANDARD 15 Rule 12(b)(6) is designed to “test[] the legal sufficiency of a claim.” Navarro v. 16 Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 12(b)(6) for failure to 17 state a claim can be based on either: (1) the lack of a cognizable legal theory; or (2) the 18 absence of sufficient factual allegations to support a cognizable legal theory. Balistreri v. 19 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint for 20 failure to state a claim, the well-pled factual allegations are taken as true and construed in 21 the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 22 (9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief that is 23 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has 24 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 26 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility 27 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 28 possibility that a defendant has acted unlawfully.” Id. 1 “While a complaint attacked by a Rule 12(b)(6) motion does not need detailed 2 factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief 3 requires more than labels and conclusions, and a formulaic recitation of the elements of a 4 cause of action will not do.” Twombly, 550 U.S. at 555 (cleaned up and citations omitted). 5 Legal conclusions couched as factual allegations are not entitled to the assumption of truth 6 and therefore are insufficient to defeat a motion to dismiss for failure to state a claim. Iqbal, 7 556 U.S. at 679–80. However, “a well-pleaded complaint may proceed even if it strikes a 8 savvy judge that actual proof of those facts is improbable, and that ‘recovery is very remote 9 and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 10 (1974)). 11 III. ANALYSIS 12 A. Motion to Dismiss 13 As a threshold matter, Plaintiff filed three Sur-Replies (Docs. 18, 19, 21) to 14 Defendants’ Motion to Dismiss without leave of Court. The Federal Rules of Civil 15 Procedure and Local Rules do not provide for the filing of sur-replies, and a party thus may 16 not file such a brief without obtaining leave of Court. E.g. LRCiv 7.2. Any such action is 17 also an end-run around the page limits on briefing set forth in Local Rule 7.2(e)(1). The 18 Court will therefore strike Plaintiff’s Sur-Replies (Docs. 18, 19, 21). The Court also notes 19 that consideration of those briefs would not have changed the Court’s resolution of the 20 pending Motions. 21 Plaintiff’s first four claims against Defendants are for negligent hiring, training, 22 retention, and supervision under Arizona law. As Defendants point out in their Motion, all 23 of these causes of action require that the employee at issue commit an underlying tort. See 24 Martinez v. Town of Prescott Valley, 467 F. Supp. 3d 786, 796 (D. Ariz. 2020); Mulhern 25 v. City of Scottsdale, 799 P.2d 15, 18 (Ariz. Ct. App. 1990). Here, the facts alleged are not 26 sufficient to show Mr. Husser’s conduct in saying “Get up and get [an electronic cart] 27 yourself” constituted negligence. Under Arizona law, “‘[t]o establish a claim for 28 negligence, a plaintiff must prove . . . : (1) a duty requiring the defendant to conform to a 1 certain standard of care; (2) a breach by the defendant of that standard; (3) a causal 2 connection between the defendant’s conduct and the resulting injury; and (4) actual 3 damages.’” Diaz v. Phx. Lubrication Serv., Inc., 230 P.3d 718, 721 (Ariz. Ct. App. 4 2010) (quoting Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007)). No facts in the Amended 5 Complaint give rise to the plausible inference that Mr. Husser, as a security guard not 6 employed by the grocery store, owed Plaintiff a duty to fetch an electronic cart for him, 7 and Plaintiff does not cite any legal authority for that proposition in his briefs, either. This 8 defect alone is fatal to Plaintiff’s claims that Defendants are liable for negligent hiring, 9 training, retention, and supervision. 10 Relatedly, Plaintiff’s other three claims, for public accommodations violations, also 11 fail, because such claims must be brought against the party who “owns, leases (or leases 12 to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a).1 By Plaintiff’s 13 own allegations, Defendants do not own, lease, or operate a place of public 14 accommodation. Rather, Fry’s operates its grocery stores, and indeed Plaintiff alleges that 15 a Fry’s employee did bring him an electronic cart when the security guard failed to. Plaintiff 16 thus has no ADA claim against Defendants, as the security company and its employees. 17 In sum, while the Court recognizes that Plaintiff’s allegations indicate he was 18 traumatized by Mr. Husser’s words and demeanor, they do not give rise to any of the legal 19 claims Plaintiff raises against Defendants. Accordingly, the Court must dismiss Plaintiff’s 20 Amended Complaint. Because the Court finds Plaintiff cannot cure the defects in his claims 21 by further amending the Amended Complaint, the Court will dismiss the Amended 22 Complaint without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1127–30 (9th Cir. 23 2000).
24 1 In the Amended Complaint, Plaintiff lists 42 U.S.C. § 12101 as the legal authority for Count 7. That portion of the Americans with Disabilities Act (ADA) is simply the Act’s 25 “Findings and Purpose.” Plaintiff lists 42 U.S.C. § 12132 as the basis for Count 8, but that section of the ADA is for claims with regard to a public entity and not, as here, a private 26 entity like a grocery store. A claim against a private entity that operates a place of public accommodation falls under 42 U.S.C. § 12182, and the Court thus applied this section of 27 the federal statute to Plaintiff’s claims, giving him the benefit of the doubt as a pro se party. Plaintiff’s claim (Count 6) under Arizona law, A.R.S. § 41.1492.02, for a public 28 accommodation violation follows the federal claim under 42 U.S.C. § 12182. See Tauscher v. Phoenix Bd. of Realtors, Inc., 931 F.3d 959, 962 (9th Cir. 2019). 1 B. Other Motions 2 Plaintiff's Motion for Sanctions (Doc. 22) sets forth the standard of review for a 3 || sanctions motion under Federal Rule of Civil Procedure 11, but Plaintiff does not 4|| demonstrate how Defendants violated that Rule. The Court will thus deny the Motion. || Moreover, in the absence ofa viable claim in the Amended Complaint, Plaintiff's discovery 6|| motions (Docs. 23, 26) are moot. 7 IT IS THEREFORE ORDERED granting Defendants’ Motion to Dismiss 8 || Plaintiff's Amended Complaint for Failure to State a Claim Pursuant to Rule 12(b)(6) (Doc. 12). Plaintiff's claims against Defendants are dismissed with prejudice. 10 IT IS FURTHER ORDERED granting Defendants’ Motion to Strike Plaintiffs 11 || Additional Responses to Defendant’s Motion to Dismiss Pursuant to Rule 12(f) (Doc. 29) and striking Plaintiff's Sur-Replies (Docs. 18, 19, 21). 13 IT IS FURTHER ORDERED denying as moot Plaintiff's “Motion for the Withdrawal of Discovery and Interrogatories Request, Proceeding in Support of □□□□□□□□□□□ 15 || Motion for Discovery” (Doc. 23) and Motion to Compel Discovery Pursuant to FRCP 34 16|| (Doc. 26). 17 IT IS FURTHER ORDERED denying Plaintiff's Motion for Sanctions (Doc. 22). 18 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in || favor of Defendants and close this case. 20 Dated this 13th day of February, 2023. CN 21 “wok: 22 wefhelee— Unig State@District Judge 23 24 25 26 27 28
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