York v. JPMorgan Chase Bank NA

• Court: District Court, D. Arizona
• Decided: August 13, 2019
• Docket: 2:18-cv-04039
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Alison York, ) No. CV-18-04039-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) JPMorgan Chase Bank, National ) 12 Association, et al., ) 13 ) ) 14 Defendants. )

15 Before the Court are Defendants’ Motion to Dismiss (Doc. 22), Plaintiff’s Response 16 (Doc. 25), and Defendants’ Reply (Doc. 26). For the following reasons, the motion will be 17 granted. 18 I. Background1 19 A. Factual Background 20 On March 24, 2018, Plaintiff Alison York (“Plaintiff”) went to the drive-through 21 window at the Peoria, Arizona branch location of Defendant JPMorgan Chase Bank 22 (“Chase”). (Doc. 1 ¶ 12.) Plaintiff and Chase were parties to a Deposit Account Agreement 23 (the “Agreement”), which is the governing contract in this case.2 (Doc. 22-2.) Plaintiff, an

24 25 1 The following facts are drawn in the Plaintiff’s favor. 2 Because this claim relies on the existence of a contract, and Plaintiff does not 26 dispute the authenticity of the Deposit Account Agreement, the Court will consider the agreement to be incorporated by reference into the Complaint. See Knievel v. ESPN, 393 27 F.3d 1068, 1076 (9th Cir. 2005) (extending “incorporation by reference” doctrine to 28 instances where “plaintiff’s claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the 1 African-American woman who was “dressed in her dress that she does not wear in public 2 and with her hair covered in an African-style head wrap” at the time of this interaction, 3 wanted to make credit card payments and to withdraw $1800 in cash. (Doc. 1 ¶¶ 1, 12.) 4 Plaintiff gave Defendant Karen Anliker (“Anliker”), the branch’s head teller, Plaintiff’s 5 Chase Slate credit card, her Arizona driver’s license, and a withdrawal slip with both her 6 mailing and billing addresses. (Doc. 1 ¶¶ 13−14.) Anliker asked Plaintiff what she wanted 7 to do, and Plaintiff replied, “I would like to make payments to my [two] accounts and 8 [make] a withdrawal.” (Doc. 1 ¶¶ 12, 14.) Anliker then left the drive-through window, and 9 after Plaintiff waited about twenty minutes, Defendant Cullen Keller (“Keller”), the acting 10 branch manager, asked Plaintiff to come inside to verify her identity. (Doc. 1 ¶ 14.) 11 Inside the branch, Keller ushered Plaintiff over to his desk and asked Plaintiff what 12 she wanted to do. (Doc. 1 ¶ 15.) Plaintiff provided Keller with her driver’s license and 13 Chase Slate credit card and told Keller she wanted to make payments on her credit cards 14 and take out $1800 in cash. (Doc. 1 ¶ 15.) Keller informed Plaintiff of the amounts due on 15 her two credit cards (a Freedom card and the Slate card) and proceeded to make the 16 payments for Plaintiff by transferring money from her checking account to her credit cards. 17 (Doc. 1 ¶ 15.) Because Keller told Plaintiff that she would need to see a teller for the cash 18 withdrawal, Plaintiff “walked up to [Anliker] and asked for the $1800 withdrawal.” (Doc. 19 1 ¶ 16.) At some point during their encounter, Anliker told Plaintiff that “[she] ha[d] never 20 seen [Plaintiff] at this branch before.” (Doc. 1 ¶ 16.) Having still not received her money, 21 Plaintiff returned to Keller, who printed Plaintiff’s signature card and brought it back to 22 Anliker. (Doc. 1 ¶¶ 16−17.) Despite now having Plaintiff’s signature card, which Keller 23 had verified matched Plaintiff’s signature on her driver’s license, Anliker repeatedly told

24 to Dismiss offers facts extrinsic to Plaintiff’s Complaint. (Doc. 25 at 3−4.) However, 25 regardless of whether the facts can be properly inferred from the Complaint, the Court is not considering the allegedly extrinsic facts. Thus, Defendants’ Motion to Dismiss need 26 not be treated as a motion for summary judgment. See Keams v. Tempe Tech. Inst., 110 27 F.3d 44, 46 (9th Cir. 1996) (stating that “[A] 12(b)(6) motion need not be converted into a motion for summary judgment when matters outside the pleading are introduced, provided 28 that ‘nothing in the record suggests reliance’ on those extraneous materials.”) (citation omitted). 1 Plaintiff that “she did not feel comfortable” giving Plaintiff her money and that she “had 2 the right to refuse service.” (Doc. 1 ¶ 16−17.) Anliker also told Keller, while Plaintiff was 3 standing at the teller station, that Plaintiff needed to “go to another branch.” (Doc. 1 ¶ 17.) 4 During this interaction, Plaintiff accidentally knocked something off the counter, and 5 Anliker raised her voice at Plaintiff and accused her of throwing things. (Doc. 1 ¶ 17.) 6 Plaintiff and Keller returned to Keller’s desk, and he apologized for Anliker’s 7 behavior. (Doc. 1 ¶¶ 18−19.) He told Plaintiff that, though he wanted to help her, he could 8 not override Anliker’s decision. (Doc. 1 ¶ 19.) He did inform Plaintiff, however, that 9 Anliker would never treat a customer in that manner again. (Doc. 1 ¶¶ 18−19.) Keller told 10 Plaintiff that she “did not know how many people came into the bank with fraud and that 11 that someone had just stolen $4,500 from the Bank.” (Doc. 1 ¶ 18−19.) He printed a copy 12 of Plaintiff’s driver’s license and a “verification guide” for Plaintiff but informed her that 13 company policy forbade her from having a copy of her signature card, which Plaintiff 14 alleges was a lie. (Doc. 1 ¶ 18.) Keller then told Plaintiff to return to Anliker, who, at that 15 point, completed Plaintiff’s $1800 withdrawal. (Doc. 1 ¶ 20.) Plaintiff told Anliker that she 16 was “completely out of line” and that “all [Anliker] had to do was go and look into the 17 computer” to verify her identity. (Doc. 1 ¶ 20.) Anliker responded that Plaintiff’s 18 information was “not in the computer,” which Plaintiff alleges was another lie. (Doc. 1 19 ¶ 20.) By the end of the interaction, Plaintiff had spent more than an hour at the bank. (Doc. 20 1 ¶ 20.) 21 B. Procedural Background 22 On November 12, 2018, Plaintiff filed her Complaint against Defendants for racial 23 discrimination under 42 U.S.C. section 1981 and A.R.S. section 41-1442, conversion, and 24 intentional infliction of emotional distress (“IIED”). (Doc. 1.) On January 4, 2019, 25 Defendants filed this Motion to Dismiss. (Doc. 22.) On January 22, 2019, Plaintiff filed 26 her Response.3 (Doc. 25.) On January 29, 2019, Defendants filed their Reply. (Doc. 26.)

27 3 The Court acknowledges Defendants’ argument as to the untimeliness of 28 Plaintiff’s Response. (Doc. 26 at 1.) However, the Court declines to strike Plaintiff’s 1 II. Legal Standard 2 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “a 3 short and plain statement of the claim showing that the pleader is entitled to relief” such 4 that the defendant is given “fair notice of what the . . . claim is and the grounds upon which 5 it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 6 8(a)(2)); Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint for failure 7 to state a claim, the Court must “accept as true all well-pleaded allegations of material fact, 8 and construe them in the light most favorable to the non-moving party.” Daniels-Hall v. 9 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (citing Manzarek v. St. Paul Fire & 10 Marine Ins. Co., 519 F.3d 1025, 1031−32 (9th Cir. 2008)). In comparison, “allegations that 11 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences” are not 12 entitled to the assumption of truth, id., and “are insufficient to defeat a motion to dismiss 13 for failure to state a claim.” In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010) 14 (citation omitted). Likewise, the court need not accept legal conclusions as true. Ashcroft 15 v. Iqbal, 556 U.S. 662, 678 (2009). 16 Facial plausibility exists if the pleader pleads factual content that allows the court 17 to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. 18 Plausibility does not equal “probability,” but plausibility requires more than a sheer 19 possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads facts that 20 are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between 21 possibility and plausibility of entitlement to relief.’” Id. (citing Twombly, 550 U.S. at 557). 22 A court may dismiss a complaint for failure to state a claim under 12(b)(6) for two 23 reasons: (1) lack of a cognizable legal theory and (2) insufficient facts alleged under a 24 cognizable legal theory. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 25 (9th Cir. 2008) (citing Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 26 1990)). 27 28 1 III. Analysis 2 A. Discrimination in the making of a contract 3 The Civil Rights Act protects the rights of racial minorities to, among other things, 4 “make and enforce contracts,” defined by the statute as “the making, performance, 5 modification, and termination of contracts, and the enjoyment of all benefits, privileges, 6 terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(a). When racial 7 discrimination impairs a contract, section 1981 entitles a plaintiff who has rights under the 8 contract to relief. Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006). “In order 9 to evaluate claims of intentional discrimination where intent itself is generally impossible 10 to prove, [the courts in this Circuit] appl[y] the McDonnell burden-shifting framework,” 11 which requires that a plaintiff first establish a prima facie case of racial discrimination. 12 Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1144 (9th Cir. 2006) (citing McDonnell 13 Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973)). To establish a prima facie section 14 1981 claim, the plaintiff must show that “(1) [she] is a member of a protected class, 15 (2) [she] attempted to contract for certain services, (3) [she] was denied the right to contract 16 for those services, and (4) such services remained available to similarly-situated 17 individuals who were not members of the plaintiff’s protected class.” Childs v. Boyd 18 Gaming Corp., No. 2-18-CV-00316-GMN-VCF, 2018 WL 4333945, at *4 (D. Nev. Sept. 19 11, 2018) (internal quotations omitted).4 Moreover, the plaintiff must plausibly show the 20 defendant’s discrimination was intentional. Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 21 1989); see also Gen. Bldg. Contractors Ass’n v. Pennsylvania., 458 U.S. 375, 391 (1982). 22 There is no dispute that the first element is met. Plaintiff is African-American. There 23 also appears to be no dispute over the second element. The alleged discrimination 24

25 4 Some courts have used a different standard for section 1981 claims, finding that the statute is violated if: “(1) plaintiff is a member of a racial minority; (2) defendant 26 intentionally discriminated against plaintiff because of his or her race; and (3) the discrimination involved the making or enforcing of a contract.” Allen v. U.S. Bancorp, 264 27 F. Supp. 2d 945, 948 (D. Or. 2003). However, the Court finds that the greater weight of Ninth Circuit authority supports the use of elements stated in Childs v. Boyd Gaming Corp., 28 No. 2-18-CV-00316-GMN-VCF, 2018 WL 4333945, at *4 (D. Nev. Sept. 11, 2018). See 1 concerned the banking contract between the parties. Thus, the Court will focus on whether 2 Plaintiff has satisfied the third element of denial of the right to contract and the fourth 3 element of whether Chase’s services remained available to similarly-situated individuals 4 who were not African-American. The Court will also address whether the alleged 5 discrimination was intentional. 6 Denial of the Right to Contract. To meet the third element of a section 1981 claim, 7 the alleged discrimination must result in the actual loss of a contract interest. Jeffery v. 8 Home Depot U.S.A., Inc., 90 F. Supp. 2d 1066, 1069 (S.D. Cal. 2000). In other words, the 9 statute is not violated if a plaintiff is not deprived of the right to make and enforce a 10 contract. Id. Plaintiff asserts that Defendants interfered with her contractual rights because 11 Defendants “thwarted [Plaintiff’s] right to make a contract.” (Doc. 1 ¶ 25.) She further 12 argues that she “made a contract for the Bank to keep her money on deposit to be withdrawn 13 at her request.” (Doc. 25 at 5.) Under the terms of the Agreement between Plaintiff and 14 Chase, Chase retained the right to require identification it deemed acceptable before 15 allowing a withdrawal; to place reasonable restrictions on large cash withdrawals; and to 16 refuse a transaction if it suspected fraud. (Doc. 22-2 at 7, 8, 17.) 17 Courts have repeatedly held that there is no actual loss of a contract interest if a 18 customer is ultimately served, even if there is a delay based on racial discrimination. For 19 example, in Lopez v. Target Corp., a Hispanic plaintiff alleged that a Caucasian cashier 20 twice told him that her checkout line was closed to him, then continued to help Caucasian 21 customers while making rude comments and gestures towards him. 676 F.3d 1230, 22 1231−32 (11th Cir. 2012). The plaintiff was eventually able to complete his purchase with 23 a different cashier. Id. at 1232. The Eleventh Circuit affirmed that the plaintiff had failed 24 to state a claim under section 1981. Id. at 1234. The court reasoned that, even if he was 25 delayed and mistreated based on his race, the plaintiff was able to complete his transaction 26 at the same store at the same price using the same methods as other customers. Id. Thus, 27 he was not denied the ability to make or enforce a contract nor had he suffered an actual 28 loss of a contract interest. Id. at 1234; see also Arguello v. Conoco, Inc., 330 F.3d 355 (5th 1 Cir. 2003) (affirming that a Hispanic plaintiff could not establish interference with an 2 actual contract interest when she was required to show identification in order to use her 3 credit card to make a purchase because she received all she was entitled to under the retail 4 contract); Jeffery, 90 F. Supp. 2d 1066, 1069 (S.D. Cal. 2000) (granting summary judgment 5 to the defendant when a cashier asked to search the African-American plaintiff’s bag prior 6 to completing his transaction because “claims of delayed service do not rise to the level of 7 interference with a contract sufficient to grant relief under [section] 1981”). Likewise, here, 8 Plaintiff suffered no actual loss of a contract interest. Although she alleges delay and 9 mistreatment due to her race, she ultimately received all that she was entitled to under her 10 contractual relationship with Chase. Accordingly, the Court finds that Plaintiff’s Complaint 11 fails to plausibly satisfy the third element of a section 1981 claim. 12 Similarly-Situated Individuals. The fourth element of a section 1981 claim requires 13 a showing that the services for which the plaintiff attempted to contract remained available 14 to those who were not members of the plaintiff’s protected class. Childs, 2018 WL 15 4333945, at *4. Here, Plaintiff alleges that Caucasian customers were not subjected to the 16 same treatment Plaintiff encountered while she was at the bank. (Doc. 1 ¶ 21.) Though this 17 statement is conclusory on its own, other courts have found this allegation sufficient in the 18 discrimination context when other facts support the plausible inference that such other 19 individuals were not treated similarly. See Nganje v. CVS Rx Servs., 13-CV-2327-HRH, 20 2014 WL 545354, at *7−8 (D. Ariz. 2014). Such is the case here. Plaintiff alleges that the 21 bank was full of other customers. (Doc. 1 ¶ 17.) Moreover, Defendant concedes that there 22 were many customers in the bank but incorrectly argues that “Plaintiff’s Complaint 23 concedes that … there was only one Teller on duty.” (Doc. 22 at 2.) Plaintiff’s Complaint 24 does not so allege. Even if the Court were to consider this fact, however, it would actually 25 support the inference here. Thus, the Court finds that it is plausible that other non-African- 26 American similarly-situated individuals at the bank that day were not subjected to this type 27 of treatment for a cash withdrawal. Accordingly, Plaintiff has sufficiently pled this element. 28 1 Intentional Discrimination. In addition to the elements above, the Ninth Circuit 2 requires a section 1981 plaintiff to show intentional discrimination by the defendant. Evans 3 v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989). Here, Plaintiff is an African-American 4 woman who was wearing an African-style headwrap. Plaintiff provided her valid driver’s 5 license and both her mailing and billing addresses, in person, at the drive-through window, 6 along with her Chase Slate credit card. Though offering such identification, she followed 7 Keller’s instructions and went into the bank, where, eventually, her signature card—which 8 matched her driver’s license signature—was provided to Anliker from Keller, the branch 9 manager. Moreover, Keller told Plaintiff the amounts due on her two credit cards and 10 proceeded to make her two credit card payments. Further, whether Plaintiff provided both 11 her billing and mailing addresses does not require or even more plausibly insinuate that her 12 identity should have been questioned. Indeed, she provided her Chase Slate credit card, 13 which requires a billing address. In fact, it is arguably more plausible to infer that Plaintiff 14 was providing an abundance of identifying information. But, regardless, this argument goes 15 to the merits of this case. In sum, it is unclear to the Court what additional identification 16 Defendants wanted from Plaintiff or on what grounds they may have suspected fraud. 17 Indeed, Plaintiff provided many forms of identification. Additionally, as the events 18 unfolded, Anliker treated Plaintiff rudely. Plaintiff also alleges that Caucasian customers 19 were not treated in the same manner while Plaintiff was at the bank. Taking these facts 20 together, the Court can plausibly infer that Defendants intentionally discriminated against 21 Plaintiff due to her race. 22 Accordingly, though Plaintiff has sufficiently alleged element four and Defendant’s 23 intent, she ultimately fails to state a claim for relief under section 1981 because she has not 24 shown that she was denied any actual loss of a contract interest. 25 B. Discrimination in a place of public accommodation 26 Under the Arizona Civil Rights Act:

27 “No person, directly or indirectly, shall refuse to, withhold from or deny to 28 any person, nor aid in or incite the refusal to deny or withhold, accommodations, advantages, facilities or privileges thereof because of race . . . nor shall distinction be made with respect to any person based on race . . . 1 in connection with the price or quality of any item, goods or services offered 2 by or at any place of public accommodation.”

3 A.R.S. § 41-1442(B). “Places of public accommodation” include “all establishments which 4 cater or offer their services . . . to or solicit patronage from members of the general public.” 5 A.R.S. § 41-1441. Though there is minimal case law construing this statute, Arizona courts 6 have previously held that the requisite standard for discrimination under the statute is the 7 same as that of section 1981, Lopez v. Cheesecake Factory, 2016 Ariz. Super. LEXIS 654, 8 at *6 (Super. Ct. Ariz. Jan. 26, 2016),5 and that a delay in service does not violate the 9 statute, Lopez v. Lowe’s HIW Inc., 2012 Ariz. Super. LEXIS 387, at *5 (Super. Ct. Ariz. 10 Oct. 3, 2012). In Lopez v. Lowe’s, a Hispanic plaintiff alleged that while he was waiting in 11 line to buy supplies, an employee helped white customers first and told another employee 12 to do the same. Id., at *1. The court granted the defendant’s motion to dismiss for failure 13 to state a claim under A.R.S. section 41-1442(B) because the statute prohibits refusal and 14 denial of service, but not delay. Id., at *5. Following that holding, Plaintiff’s claim fails on 15 the same grounds. 16 Furthermore, A.R.S. section 41-1442, the Arizona Civil Rights Act, is very similar 17 to 42 U.S.C. section 2000a, the federal Civil Rights Act of 1964. In construing other 18 sections of the Arizona Civil Rights Act that are analogous to sections of the Civil Rights 19 Act of 1964, Arizona courts have found the federal courts’ construction of the federal 20 statute persuasive. Civil Rights Div. of Ariz. Dep’t of Law v. Superior Court In and For 21 Pima Cty., 706 P.2d 745, 750 (Ariz. Ct. App. 1985); Ariz. Civil Rights Div., Dep’t of Law 22 v. Olson, 643 P.2d 723, 727 n.2 (Ariz. Ct. App. 1982). To succeed on a claim under 42 23 U.S.C. section 2000a, a plaintiff must show that she: 24

26 5 Plaintiff cites Lopez v. Cheesecake Factory for the proposition that a section 1981 27 claim and a claim under A.R.S. section 41-1442(B) are proven identically. (Doc. 25 at 3.) This is incorrect. Rather, Lopez v. Cheesecake Factory says that the discrimination 28 elements of the claims are proven identically. 2016 Ariz. Super. LEXIS 654, at *6 (Super. “(1) is a member of a protected class; (2) attempted to exercise the right to 1 full benefits and enjoyment of a place of public accommodations; (3) was 2 denied those benefits and enjoyment; and (4) was treated less favorably than similarly situated persons who are not members of the protected class.” 3

4 Brown v. Luxor Hotel & Casino, 2014 WL 2858488, at *2 (D. Nev. June 23, 2014) (citing 5 United States v. Lansdowne Swim Club, 894 F.2d 83, 88 (3d Cir. 1990)). Because the 6 federal courts’ construction of the Civil Rights Act of 1964 has been persuasive to the 7 Arizona courts in the past and these elements are consistent with the Arizona courts’ 8 limited analysis of A.R.S. section 41-1442, the Court finds these elements persuasive in 9 the instant case.6 10 Like the section 1981 claim, the first and second elements are not disputed for this 11 claim. Additionally, because the discrimination element is proven identically to the section 12 1981 claim, the fourth element is met. As to the third element, federal courts have reached 13 the same finding as the Lopez v. Lowe’s court, requiring a plaintiff to show a denial of 14 service rather than a delay in order to state a claim under section 2000a. Jeffery, 90 F. Supp. 15 2d at 1070. Accordingly, the Court finds that Plaintiff has failed to state a claim under 16 A.R.S. section 41-1442(B). 17 C. Common law conversion 18 Arizona defines conversion as “an intentional exercise of dominion or control over 19 a chattel which so seriously interferes with the right of another to control it that the actor 20 may justly be required to pay the other the full value of the chattel.” Universal Mktg. & 21 Entm’t v. Bank One of Ariz., N.A., 53 P.3d 191, 193 (Ariz. Ct. App. 2002) (quoting 22 Restatement (Second) of Torts § 222A(1) (1965)). To succeed on a conversion claim, a 23 plaintiff must have had “the right to immediate possession of the chattel at the time of the 24 alleged conversion.” Sears Consumer Fin. Corp. v. Thunderbird Prods., 802 P.2d 1032, 25 1034 (Ariz. Ct. App. 1990). Generally, a bank and a depositor have a debtor-creditor 26

27 6 Although the Court uses the elements of a section 2000a claim to analyze 28 Plaintiff’s claim under A.R.S. section 41-1442(B), Plaintiff has not asserted a section 1 relationship, meaning the bank has the right to possess deposited money and the depositor 2 cannot claim conversion. In re Cent. Bank, 205 P. 915, 917 (Ariz. 1922); Sports Imaging 3 of Ariz., L.L.C. v. 1993 CKC Tr., 2008 WL 4448063, at *15 n.23 (Ariz. Ct. App. Sept. 30, 4 2008). In other words, “A conversion claim cannot be used merely to enforce a debt that 5 may be discharged by the payment of money generally.” Sports Imaging, 2008 WL 6 4448063, at *14. However, “[M]oney can be the subject of a conversion claim if it can be 7 described, identified, or segregated, and an obligation to treat it in a specific manner is 8 established.” Id. 9 Plaintiff relies on Sports Imaging to argue that this case is one in which she had an 10 immediate right to her money because she presented identification in conformity with the 11 Agreement, and Defendants subsequently withheld the money from her. (Doc. 25 at 7.) 12 However, such reliance on that case is misplaced. Sports Imaging makes clear that this case 13 is not one where a plaintiff designated money in a separate account, which was to be used 14 for a particular purpose. 2008 WL 4448063, at *14; see Murphy v. Wells Fargo Bank, Nat’l 15 Ass’n, No. CV 10-01391-PHX-ROS, 2010 WL 11405084, at *5 (D. Ariz. Nov. 4, 2010). 16 Instead, this case is the type of case the court refers to as a “mere creditor-debtor” situation. 17 Sports Imaging, 2008 WL 4448063, at *14. Plaintiff is the creditor of debtor Chase because 18 Plaintiff deposited funds with Chase. At that point, Chase, the debtor, was granted title to 19 those funds, and Plaintiff became the creditor. Thus, Plaintiff is alleging that Defendants 20 “converted [Plaintiff’s] funds by failing to pay a debt they owed to [her]” when she sought 21 to withdraw her $1800 but Anliker initially refused to give Plaintiff her money. Id. Plaintiff 22 is not alleging that she deposited funds in a specific account for a specific purpose, either 23 before or on the day at issue, and that Defendants failed to give her her money in 24 accordance with such specific purpose. Therefore, this case “involve[s] a claim against a 25 debtor for conversion of the funds representing the indebtedness.” Id. Thus, there can be 26 no claim for conversion. Accordingly, the Court finds that Plaintiff has failed to properly 27 state a conversion claim. 28 1 D. Intentional Infliction of Emotional Distress 2 In Arizona, a claim for IIED requires three elements: (1) “the conduct by the 3 defendant must be ‘extreme’ and ‘outrageous’”; (2) “the defendant must either intend to 4 cause emotional distress or recklessly disregard the near certainty that such distress will 5 result from his conduct”; and (3) “severe emotional distress must indeed occur as a result 6 of defendant’s conduct.” Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987). Courts 7 should determine “whether the acts complained of can be considered sufficiently extreme 8 and outrageous to state a claim for relief.” Patton v. First Fed. Sav. & Loan Ass’n, 578 9 P.2d 152, 155 (Ariz. 1978) (citation omitted). The defendant’s conduct must be “so 10 outrageous in character and so extreme in degree, as to go beyond all possible bounds of 11 decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” 12 Id. (quoting Cluff v. Farmers Ins. Exch., 460 P.2d 666, 668 (Ariz. Ct. App. 1969)). “The 13 liability clearly does not extend to mere insults, indignities, threats, annoyances, petty 14 oppressions, or other trivialities.” Midas Muffler Shop v. Ellison, 650 P.2d 496, 500 (Ariz. 15 Ct. App. 1982) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). 16 Plaintiff alleges the following actions by Defendants in support of her claim: 17 (1) Defendants deprived her of her money after she showed identification; (2) Defendant 18 Anliker told her to go to another branch because Defendant was “not comfortable” 19 completing Plaintiff’s cash withdrawal; (3) Defendants Anliker and Keller lied to cover up 20 discrimination; and (4) Defendant Anliker raised her voice and accused Plaintiff of 21 throwing things, all of which were allegedly done because Plaintiff is African-American. 22 (Doc. 25 at 6.) Taking these allegations as true, as the Court must, Defendants’ actions 23 were not so outrageous as to be utterly intolerable. Morgan v. Freightliner of Arizona, LLC, 24 No. CV 16-498-TUC-CKJ, 2017 WL 2423491, at *10 (D. Ariz. June 5, 2017) (discussing 25 various cases alleging racial and sexual discrimination based on even worse behavior than 26 that allegedly engaged in by Defendants here and finding that the allegations there did not 27 suffice to withstand a motion to dismiss). 28 1 Plaintiff cites to Coffin v. Safeway, Inc., (Doc. 25 at 6), to support her IIED claim, 2 but that case actually emphasizes the insufficiency of Plaintiff’s Complaint. 323 F. Supp. 3 2d 997 (D. Ariz. 2004). In Coffin, the plaintiff alleged that she was subjected to repeated 4 and continuous sexual harassment by her manager for eight months. Id. at 1003−04. The 5 plaintiff alleged that the manager sought sexual favors and made frequent sexual 6 comments, sounds, and gestures toward her. Id. at 999. The court held that these facts were 7 sufficient to withstand the defendant’s motion to dismiss the plaintiff’s IIED claim. Id. at 8 1004. In contrast, in Morgan, one plaintiff, a woman over the age of 40, alleged that her 9 supervisor engaged in sex and age discrimination by giving her inaccurate reviews that 10 negatively affected her pay, assigning her undesirable shifts, and requiring her to work 11 more than 80 hours per week at times. 2017 WL 2423491, at *1−3. The other plaintiff in 12 that case, a Hispanic man of Mexican origin, alleged that the same supervisor discriminated 13 against him based on race, color, and national origin through similar acts. Id., at *1, 3. The 14 court held that neither plaintiff alleged behavior by the supervisor that met the “extreme 15 and outrageous” requirement. Id., at *10. 16 Both the Coffin and Morgan courts addressed the difficulty of assessing 17 discrimination in the context of an IIED claim. See Morgan, 2017 WL 2423491, at *9−11; 18 Coffin, 323 F. Supp. 2d at 1004. Ultimately, the courts concluded that repeated acts of 19 alleged discrimination, in conjunction with the degree of outrageousness, which varies by 20 case, are a strong indication of whether a plaintiff’s allegations will withstand a motion to 21 dismiss. See id. Plaintiff’s claim here does not meet the mark discussed in either Coffin or 22 Morgan nor the cases those courts analyze. Instead, Plaintiff alleges an isolated incident in 23 which she was subjected to rude comments and a delay in service. The fact that Defendants 24 may have based their decision to make rude comments and delay service to Plaintiff on the 25 day at issue because she is African-American, which the Court must credit, does not, by 26 itself, appear to withstand a claim for IIED, at least under these facts. Thus, the Court finds 27 that Plaintiff has failed to state a claim for IIED. 28 1| IV. Conclusion 2 For the reasons stated above, Defendants’ Motion to Dismiss is granted. However, Plaintiff may file a new amended complaint if she can plead sufficient facts to establish that Defendants may be liable to Plaintiff. See Fed. R. Civ. P. 15(a)(2) (stating that a court 5| “should freely give leave [to amend] when justice so requires.’’). If Plaintiff elects to do so, she has until August 30, 2019 to file an amended complaint. 7 Accordingly, 8 IT IS ORDERED: 9 1. That Defendants’ Motion to Dismiss (Doc. 22) is granted. 10 2. That Plaintiffs’ Complaint is dismissed without prejudice; 11 3. That Plaintiffs have until August 30, 2019 to file an amended complaint; and 12 4. That Defendants have three weeks from the date Plaintiff files an amended 13 complaint to file responsive pleadings. 14 Dated this 12th day of August, 2019. 15 16 se 7 Ln Gs 18 19 20 21 22 23 24 25 26 27 28