1 WO 2 3 4 5
9 Carrie Lynne Thompson, No. CV-24-01733-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Westwind School of Aeronautics Phoenix, et al., 13 Defendants. 14 15 16 At issue is Defendant United Airlines, Inc.’s (“United”) Partial Motion to Dismiss 17 (Doc. 49, Mot.), to which pro se Plaintiff Carrie Lynn Thompson filed a Response 18 (Doc. 51, Resp.) and United filed a Reply (Doc. 53, Reply). The Court finds this matter 19 appropriate for resolution without oral argument. See LRCiv 7.2(f). For the reasons set 20 forth below, the Court grants United’s Partial Motion to Dismiss. 22 In the First Amended Complaint (Doc. 36, FAC), Plaintiff alleges the following 23 facts. On October 3, 2022, Plaintiff enrolled in the United Aviate Academy (“Academy”). 24 (FAC at 1.) Plaintiff chose to attend the Academy based upon numerous representations 25 made by both the Academy and United that students can obtain a pilot’s license within 26 twelve months. (FAC at 1.) A leave-of-absence agreement signed by Plaintiff and United, 27 as well as several marketing materials by United, including billboards, commercials, print 28 advertisements, and online references advanced this representation. (FAC at 1.) The 1 representation was additionally communicated to United employees at information 2 sessions and a student orientation. (FAC at 1.) Despite the repeated assurance by both the 3 Academy and United that students at the Academy could earn their license within one year, 4 it was in fact not possible to obtain a pilot’s license in fewer than eighteen months. (FAC 5 at 2–4.) Both the Academy and United knew of the conditions precluding students from 6 obtaining their licenses within twelve months, but continued to advertise the program as a 7 one-year program. (FAC at 4.) Plaintiff incurred substantial expense in attending the 8 Academy, including taking out loans, selling her assets, and forgoing income. (FAC at 2, 9 6–7.) After receiving her private pilot’s license, in nine months, rather than the advertised 10 two months, Plaintiff requested to leave the Academy to return to work at United. (FAC at 11 3–5.) Plaintiff’s request was denied. (FAC at 4.) As a result, Plaintiff tendered a letter of 12 resignation to United management detailing her reasons for resigning her position at 13 United. (FAC at 5; Doc. 51-1, Resignation.)1 14 Plaintiff brings several state-law claims against United, including (1) violation of 15 the Arizona Consumer Fraud Act (ACFA), A.R.S. § 44-1522; (2) promissory estoppel; and 16 (3) false advertisement.2 (FAC at 6.) United now moves to dismiss the claims for ACFA 17 consumer fraud and false advertising. 19 When analyzing a complaint for failure to state a claim for relief under Federal Rule 20 of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as true and 21 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 22 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not 23 entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and
24 1 In the 12(b)(6) analysis, the Court may reference the resignation letter because of its incorporation by reference in the FAC. See United States v. Ritchie, 342 F.3d 903, 908 25 (9th Cir. 2003) (noting that a court may consider “documents incorporated by reference in the complaint . . . without converting the motion to dismiss into a motion for summary 26 judgment”). 2 Defendant argues Plaintiff’s false advertising claim is subsumed by the ACFA. 27 (Mot. at 4.) Plaintiff does not contest this argument. The Court will therefore treat the two claims as a single claim. See Brown v. Sperber-Porter, No. CV-16-02801-PHX-SRB, 2017 28 WL 10410091, at *4 (D. Ariz. Dec. 20, 2017) (noting that “a court may consider an argument conceded when a party fails to counter it”). 1 therefore are insufficient to defeat a motion to dismiss for failure to state a claim. In re 2 Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). 3 A dismissal under Rule 12(b)(6) for failure to state a claim can be based on either (1) 4 the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal 5 claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). “While a 6 complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a 7 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 8 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 9 will not do.” Twombly, 550 U.S. at 555 (citations omitted). The complaint must thus contain 10 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 11 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “[A] 12 well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those 13 facts is improbable, and that ‘recovery is very remote and unlikely.’” Twombly, 550 U.S. at 14 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 16 Plaintiff asserts claims for consumer fraud and false advertising in violation of 17 A.R.S. § 44-1522. (FAC at 6.) United argues that Plaintiff’s claims are time-barred under 18 the one-year limitations period established by A.R.S. § 12-541(5). (Mot. at 4–6.) United 19 claims the limitations period began to run when Plaintiff submitted her resignation letter to 20 the Academy. (Mot. at 4.) Plaintiff, in response, argues that the resignation letter did not 21 contain any reference to fraud and that she did not “strongly suspect fraud had occurred” 22 until September of 2023. (Resp. at 2–3.) 23 Arizona law requires actions “[u]pon a liability created by statute, other than a 24 penalty or forfeiture,” be brought “within one year after the cause of action accrues.” 25 A.R.S. § 12-541(5). The statute that United is alleged to have violated prohibits “[t]he act, 26 use or employment by any person of any deception, deceptive or unfair practice, fraud, 27 false pretense, false promise, misrepresentation, or concealment, suppression or omission 28 of any material fact with intent that others rely on such concealment, suppression or 1 omission, in connection with the sale or advertisement of any merchandise . . .” A.R.S. 2 § 44-1522(A). “Private actions under the ACFA are subject to a one-year statute of 3 limitations.” Cheatham v. ADT Corp., 161 F. Supp. 3d 815, 826 (D. Ariz. 2016). 4 The dispositive issue is whether, based upon the face of the FAC, this lawsuit was 5 brought within one year after the cause of action accrued. In Arizona, the limitations period 6 for a cause of action for consumer fraud “begins running ‘when the defrauded party 7 discovers or with reasonable diligence could have discovered the fraud.’” Alaface v. Nat’l 8 Inv. Co., 181 Ariz.
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1 WO 2 3 4 5
9 Carrie Lynne Thompson, No. CV-24-01733-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Westwind School of Aeronautics Phoenix, et al., 13 Defendants. 14 15 16 At issue is Defendant United Airlines, Inc.’s (“United”) Partial Motion to Dismiss 17 (Doc. 49, Mot.), to which pro se Plaintiff Carrie Lynn Thompson filed a Response 18 (Doc. 51, Resp.) and United filed a Reply (Doc. 53, Reply). The Court finds this matter 19 appropriate for resolution without oral argument. See LRCiv 7.2(f). For the reasons set 20 forth below, the Court grants United’s Partial Motion to Dismiss. 22 In the First Amended Complaint (Doc. 36, FAC), Plaintiff alleges the following 23 facts. On October 3, 2022, Plaintiff enrolled in the United Aviate Academy (“Academy”). 24 (FAC at 1.) Plaintiff chose to attend the Academy based upon numerous representations 25 made by both the Academy and United that students can obtain a pilot’s license within 26 twelve months. (FAC at 1.) A leave-of-absence agreement signed by Plaintiff and United, 27 as well as several marketing materials by United, including billboards, commercials, print 28 advertisements, and online references advanced this representation. (FAC at 1.) The 1 representation was additionally communicated to United employees at information 2 sessions and a student orientation. (FAC at 1.) Despite the repeated assurance by both the 3 Academy and United that students at the Academy could earn their license within one year, 4 it was in fact not possible to obtain a pilot’s license in fewer than eighteen months. (FAC 5 at 2–4.) Both the Academy and United knew of the conditions precluding students from 6 obtaining their licenses within twelve months, but continued to advertise the program as a 7 one-year program. (FAC at 4.) Plaintiff incurred substantial expense in attending the 8 Academy, including taking out loans, selling her assets, and forgoing income. (FAC at 2, 9 6–7.) After receiving her private pilot’s license, in nine months, rather than the advertised 10 two months, Plaintiff requested to leave the Academy to return to work at United. (FAC at 11 3–5.) Plaintiff’s request was denied. (FAC at 4.) As a result, Plaintiff tendered a letter of 12 resignation to United management detailing her reasons for resigning her position at 13 United. (FAC at 5; Doc. 51-1, Resignation.)1 14 Plaintiff brings several state-law claims against United, including (1) violation of 15 the Arizona Consumer Fraud Act (ACFA), A.R.S. § 44-1522; (2) promissory estoppel; and 16 (3) false advertisement.2 (FAC at 6.) United now moves to dismiss the claims for ACFA 17 consumer fraud and false advertising. 19 When analyzing a complaint for failure to state a claim for relief under Federal Rule 20 of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as true and 21 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 22 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not 23 entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and
24 1 In the 12(b)(6) analysis, the Court may reference the resignation letter because of its incorporation by reference in the FAC. See United States v. Ritchie, 342 F.3d 903, 908 25 (9th Cir. 2003) (noting that a court may consider “documents incorporated by reference in the complaint . . . without converting the motion to dismiss into a motion for summary 26 judgment”). 2 Defendant argues Plaintiff’s false advertising claim is subsumed by the ACFA. 27 (Mot. at 4.) Plaintiff does not contest this argument. The Court will therefore treat the two claims as a single claim. See Brown v. Sperber-Porter, No. CV-16-02801-PHX-SRB, 2017 28 WL 10410091, at *4 (D. Ariz. Dec. 20, 2017) (noting that “a court may consider an argument conceded when a party fails to counter it”). 1 therefore are insufficient to defeat a motion to dismiss for failure to state a claim. In re 2 Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). 3 A dismissal under Rule 12(b)(6) for failure to state a claim can be based on either (1) 4 the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal 5 claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). “While a 6 complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a 7 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 8 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 9 will not do.” Twombly, 550 U.S. at 555 (citations omitted). The complaint must thus contain 10 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 11 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “[A] 12 well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those 13 facts is improbable, and that ‘recovery is very remote and unlikely.’” Twombly, 550 U.S. at 14 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 16 Plaintiff asserts claims for consumer fraud and false advertising in violation of 17 A.R.S. § 44-1522. (FAC at 6.) United argues that Plaintiff’s claims are time-barred under 18 the one-year limitations period established by A.R.S. § 12-541(5). (Mot. at 4–6.) United 19 claims the limitations period began to run when Plaintiff submitted her resignation letter to 20 the Academy. (Mot. at 4.) Plaintiff, in response, argues that the resignation letter did not 21 contain any reference to fraud and that she did not “strongly suspect fraud had occurred” 22 until September of 2023. (Resp. at 2–3.) 23 Arizona law requires actions “[u]pon a liability created by statute, other than a 24 penalty or forfeiture,” be brought “within one year after the cause of action accrues.” 25 A.R.S. § 12-541(5). The statute that United is alleged to have violated prohibits “[t]he act, 26 use or employment by any person of any deception, deceptive or unfair practice, fraud, 27 false pretense, false promise, misrepresentation, or concealment, suppression or omission 28 of any material fact with intent that others rely on such concealment, suppression or 1 omission, in connection with the sale or advertisement of any merchandise . . .” A.R.S. 2 § 44-1522(A). “Private actions under the ACFA are subject to a one-year statute of 3 limitations.” Cheatham v. ADT Corp., 161 F. Supp. 3d 815, 826 (D. Ariz. 2016). 4 The dispositive issue is whether, based upon the face of the FAC, this lawsuit was 5 brought within one year after the cause of action accrued. In Arizona, the limitations period 6 for a cause of action for consumer fraud “begins running ‘when the defrauded party 7 discovers or with reasonable diligence could have discovered the fraud.’” Alaface v. Nat’l 8 Inv. Co., 181 Ariz. 586, 591(Ct. App. 1994) (quoting Mister Donut of Am., Inc. v. Harris, 9 150 Ariz. 321, 323 (1986)). The cause of action therefore accrues when “the plaintiff knows 10 or should have known of both the what and who elements of causation.” Lawhon v. L.B.J. 11 Inst. Supply, Inc., 159 Ariz. 179, 183 (Ct. App. 1988). “This occurs when the consumer 12 knows whose products were involved and that the products were not performing as 13 expected.” Gustafson v. Goodman Mfg. Co. L.P., No. 3:13-CV-8274-HRH, 2014 WL 14 1669069, at *5 (D. Ariz. Apr. 28, 2014). 15 Plaintiff alleges that she “strongly suspect[ed]” the fraudulent activity in September 16 of 2023, after no student enrolled in the Academy completed the advertised one-year 17 program. (Resp. at 2–3.) Defendant, however, argues that Plaintiff was, or should have 18 been, aware of the “what” and “who” of her claims when she submitted her letter of 19 resignation on July 12, 2023, at the latest. (Reply at 2–4.) The Court agrees. In the FAC, 20 Plaintiff alleges that she became aware of discrepancies between the program’s advertising 21 and the actual services provided long before she learned that all other students suffered a 22 similar experience. Plaintiff stated that “[w]ith the infrequency of flights and the numerous 23 changes in instructor, it took me 9 months to receive my Private Pilot’s License, which 24 was, according to the marketing materials, Student Agreement, website for the Academy, 25 and Course Catalog provided by both the Academy and United Airlines, supposed to take 26 two.” (FAC at 3.) Plaintiff continues that in June of 2022, she was forced to withdraw 27 “[g]iven the Academy’s inability to provide adequate instruction, as well as numerous other 28 setbacks on their end . . . it was not possible to complete the program in anywhere near the 1 timeframe offered by the Academy.” (FAC at 3.) Additionally, Plaintiff avers that her 2 departure was “due to the Academy not providing services promised.” (FAC at 5.) 3 After attempting to return to work at United following her withdrawal from the 4 Academy, Plaintiff submitted a resignation letter that outlined many of the same factual 5 details contained in the FAC. (Compare Resignation at 1–2, with FAC at 1–6.) The 6 Resignation states, in part, that Plaintiff “enrolled in the academy specifically because of 7 its advertised accelerated training program,” and she can no longer continue “due to the 8 complete failure of the academy to deliver this accelerated training program.” (Resignation 9 at 1.) Additionally, Plaintiff states, “[h]ad I been given a more realistic expectation of the 10 program timeline, flight frequency, and student/instructor ratio, I would never have 11 enrolled in this program.” (Resignation at 2.) 12 Based upon the foregoing, the Court finds that Plaintiff was aware of both the “who” 13 and “what” elements of her ACFA claim and additionally knew “whose products were 14 involved and that the products were not performing as expected.” See Gustafson, 2014 WL 15 1669069, at *5, on July 12, 2023, at the latest. The FAC makes clear that Plaintiff was 16 aware the services of the Academy and the advertising from United were at issue even 17 before tendering the letter of resignation, therefore establishing the “who.” To prevail on a 18 claim of statutory fraud under the ACFA, “a plaintiff must establish that (1) the defendant 19 made a misrepresentation in violation of the Act, and (2) defendant’s conduct proximately 20 caused plaintiff to suffer damages.” Cheatham, 161 F. Supp. 3d at 825. Here, the FAC and 21 letter of resignation show that Plaintiff was aware that United made a misrepresentation 22 related to the timing of the program at the Academy and that she detrimentally relied 23 thereon. The limitations period therefore lapsed one year later, on July 12, 2024, at the 24 latest. Plaintiff did not sue United until July 15, 2024. Her claim is therefore time-barred. 25 As indicated above, United has not moved to dismiss Plaintiff’s claim for 26 promissory estoppel. Therefore, that claim will proceed to discovery in accordance with 27 the scheduling order already entered by the Court. (See Doc. 28.) 28 . . . 1 IT IS THEREFORE ORDERED granting United’s Partial Motion to Dismiss 2|| (Doc. 49). The claims in the First Amended Complaint (Doc. 36) for ACFA consumer || fraud and false advertising are dismissed. The claim for promissory estoppel is preserved. 4 Dated this 27th day of August, 2025. CN
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