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concluding that the statement describing the plaintiff as a person unable to work with management and outside customers was a "mere opinion regarding Plaintiff's ability to interact with others at work"
Summary of this case from Shorter v. Peaches Unifs., Inc.Opinion
No. CV-05-1879-PHX-DGC.
August 22, 2006
ORDER
Defendants have filed motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Docs. ##66-67. Plaintiff has filed responses and Defendants have filed replies. Docs. ##68-71. For the reasons set forth below, the Court will grant the motion to dismiss Plaintiff's retaliation claim in part, and grant the motion to dismiss Plaintiff's common law claims.
I. Background.
Defendant Orbital Sciences Corporation ("Orbital") develops, manufactures, and operates satellite launch vehicles and related space systems. Orbital hired Plaintiff in 1996 as an engineer and technical staff member. The individual Defendants in this case are Plaintiff's managers and their spouses.
Plaintiff commenced this action by filing a complaint against Defendants on June 22, 2005. Doc. #1. Plaintiff filed a revised second amended complaint ("complaint") on May 3, 2006, alleging generally that Defendants discriminated against him because of his mental disability and retaliated against him for complaining about waste and misuse of government funds. Doc. #65. The complaint purports to allege six claims for relief against various Defendants: violations of the Americans with Disabilities Act, violation of the False Claim Act, defamation of character, intentional infliction of emotional distress, negligent infliction of emotional distress, and civil conspiracy. Id.
II. Legal Standard.
The Court may not dismiss a complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994). When analyzing a complaint for failure to state a claim, "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the non-moving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). In addition, the Court must assume that all general allegations "embrace whatever specific facts might be necessary to support them." Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). The Court may not assume, however, that the plaintiff can prove facts different from those alleged in the complaint. See Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); Jack Russell Terrier Network of N. Cal. v. Am. Kennel Club, Inc., 407 F.3d 1027, 1035 (9th Cir. 2005). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).
III. Discussion.
A. The False Claim Act Retaliation Claim.
The False Claim Act ("FCA"), 31 U.S.C. § 3729, was enacted during the Civil War to combat "widespread fraud by government contractors who were submitting inflated invoices and shipping faulty goods to the government." United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1265-66 (9th Cir. 1996). "Congress added 31 U.S.C. § 3730(h) to the FCA in 1986 to protect 'whistleblowers,' those who come forward with evidence their employer is defrauding the government, from retaliation by their employer." Id. at 1269. To prevail on an FCA retaliation claim, the plaintiff must prove that (1) he engaged in protected activity, (2) the employer knew that the plaintiff engaged in protected activity, and (3) the employer discriminated against the plaintiff because of his protected activity. Id.; see Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 845 (9th Cir. 2002).
Section 3729(a) creates liability for "[a]ny person who — (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; . . . [or] (4) has possession, custody, or control of property or money used, or to be used, by the Government and intending to defraud the Government . . . delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt[.]"
Section 3730(h) provides that "[a]ny employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee . . . in furtherance of an action under this section . . . shall be entitled to all relief necessary to make the employee whole."
Defendants argue that any claims based on conduct occurring before June 22, 2004 are time-barred and that the individual Defendants may not be held liable under the FCA. Doc. #66 at 4-5, 10. Defendants further argue that Plaintiff has not alleged the first two elements of an FCA retaliation claim. Id. at 5-9. Plaintiff states that he will not respond to "Defendants' motion to dismiss in its entirety." Doc. #68 at 3. Rather, Plaintiff asserts that certain allegations sufficiently state an FCA retaliation claim against Orbital. Id. at 3-5.
Because Plaintiff does not address Defendants' arguments that any claims based on alleged conduct occurring before June 22, 2004 are time-barred and that the individual Defendants may not be held liable under the FCA, the Court will grant the motion to dismiss with respect to these issues. See LRCiv 7.2(i) (stating that a party's failure to respond may be deemed a consent to the granting of the motion and the Court may dispose of the motion summarily); Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (holding that district court did not abuse its discretion in summarily granting the defendants' motion to dismiss pursuant to a local rule where the pro se plaintiff failed to respond to the motion).
Defendants contend Plaintiff has not alleged that he engaged in any activity protected by the FCA or that Orbital knew that he engaged in such activity. Doc. #66 at 5-9. Plaintiff argues that he has sufficiently pled all three elements of an FCA retaliation claim. Doc. #68. The Court agrees.
"The federal rules require only a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248 (9th Cir. 1997) (quoting Fed.R.Civ.P. 8(a)). "The Rule 8 standard contains 'a powerful presumption against rejecting pleadings for failure to state a claim.'" Id. at 249 (citation omitted). "All that is required are sufficient allegations to put defendants fairly on notice of the claims against them." McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
In this case, Plaintiff alleges the following in his second cause of action:
Plaintiff is an individual who has engaged in protected activity under U.S.C.A. § 3730(h). Orbital was aware that Plaintiff had engaged in this protected activity under 31 U.S.C.A § 3730(h), and then willfully and wantonly harassed, discriminated against, and retaliated against Plaintiff based on his engagement in this protected activity.
Doc. #65 ¶ 114. Taking these allegations as true and assuming that they include the specific facts necessary to support them, the Court concludes that Plaintiff has sufficiently pled an FCA retaliation claim. See Fed.R.Civ.P. 8(a); Gilligan, 108 F.3d at 248-49; McKeever, 932 F.2d at 798; Hopper, 91 F.3d at 1269 (setting forth the "three elements the plaintiff must prove in any § 3730(h) claim"). This conclusion is supported by the fact that the Court must construe the complaint liberally given Plaintiff's pro se status. See Hughes v. Rowe, 449 U.S. 5, 9 (1980) ("It is settled law that the allegations of [a pro se plaintiff's] complaint, 'however inartfully pleaded' are held 'to less stringent standards than formal pleadings drafted by lawyers.'") (citations omitted); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) ("The Supreme Court has instructed federal courts to liberally construe the 'inartful pleading' of pro se litigants.") (citation omitted); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) ("[W]e hold [plaintiff's] pro se pleadings to a less stringent standard than formal pleadings prepared by lawyers."); Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) ("In civil rights cases where the plaintiff appears pro se, the court must construe the pleading liberally and must afford plaintiff the benefit of any doubt."). The Court will deny the motion to dismiss with respect to the FCA retaliation claim against Defendant Orbital based on alleged conduct occurring on or after June 22, 2004.
B. The Defamation of Character Claim.
"To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach [the] plaintiff's honesty, integrity, virtue, or reputation." Godbehere, 783 P.2d at 787 (citations and emphasis omitted). The publication must be a statement of actual fact susceptible to proof of truth or falsity. See Turner v. Devlin, 848 P.2d 286, 294 (Ariz. 1993). Pure opinion is not actionable as defamation. See Glaze v. Marcus, 729 P.2d 342, 344 (Ariz.Ct.App. 1986).
In this case, Plaintiff alleges that several individual Defendants caused the following statement to be placed in Plaintiff's 2004 review:
Dwight's inability to change and/or adjust his interpersonal skills and his business etiquette are not suitable for the technical position he is currently representing. His inability to work with management and outside customers is not acceptable. I am relieving Dwight of his duties as the acting leader of the actuator modeling and performance group.
Doc. #65 ¶ 125. Defendants argue that this statement is not defamatory as a matter of law because the statement merely expresses a subjective opinion about Plaintiff's interpersonal skills and business etiquette. Doc. #67 at 4-5. Plaintiff does not address this argument in his response. See Doc. #69.
The Court concludes, as a matter of law, that the alleged statement is not defamatory. The statement is mere opinion regarding Plaintiff's ability to interact with others at work. The statement cannot reasonably be construed as a factual statement about Plaintiff that can be proven true or false. See Glaze, 729 P.2d at 344 (holding that an employer's description of the plaintiff as unprofessional, insubordinate, and abusive was "nonactionable opinion"); Turner, 848 P.2d at 292-94 (holding that the defendant's statements that a police officer was rude and brutal and that his manner was uneducated, outdated, and bordered on police brutality were not actionable as a matter of law because the statements could not reasonably be interpreted as actual facts and were not susceptible to proof of truth or falsity); MacConnell v. Mitten, 638 P.2d 689, 692 (Ariz. 1982) ("Mitten's opinion about the reason for MacConnell's discharge was not laden with any false factual content, nor did it imply undisclosed defamatory facts. It was pure opinion and not actionable."); see also Naeemullah v. Citicorp Servs., Inc., 78 F. Supp. 2d 783, 793 (N.D. Ill. 1999) (holding that the defendant's statements that the plaintiff had "poor interpersonal skills and run-of-the-mill professional abilities" were "nonactionable statements of subjective opinion"); Schibursky v. IBM, 820 F. Supp. 1169, 1182 (D. Minn. 1993) ("The court holds that, as a matter of law, the alleged statements that Schibursky is 'hard to work with' and 'rude' are not actionable."). The Court will grant the motion to dismiss with respect to the defamation of character claim.
Given this ruling, the Court need not address Defendants' arguments that the statements were not published to a third party and that any publication was protected by a qualified privilege. See Doc. #67 at 5-7.
C. The Intentional Infliction of Emotional Distress Claim.
To prevail on an intentional infliction of emotional distress ("IIED") claim, the plaintiff must show that (1) the defendant's conduct was extreme and outrageous, (2) the defendant intended to cause emotional distress or recklessly disregarded the near certainty that distress would result from the conduct, and (3) the defendant's conduct actually caused severe emotional distress. See Nelson v. Phoenix Resort Corp., 888 P.2d 1375, 1386 (Ariz.Ct.App. 1995) (citing Lucchesi v. Stimmell, 716 P.2d 1013, 1015-16 (Ariz. 1986)). A plaintiff "may recover for [IIED] only where the defendant's acts are 'so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.'" Patton v. First Fed. Sav. Loan Ass'n of Phoenix, 578 P.2d 152, 155 (Ariz. 1978) (quoting Cluff v. Farmers Ins. Exch., 460 P.2d 666, 668 (Ariz. 1969)); see Cummins v. Mold-In Graphic, 26 P.3d 518, 528 (Ariz.Ct.App. 2001); Restatement (Second) of Torts § 46 cmt. d (1965). "It is the duty of the court as society's conscience to determine whether the acts complained of can be considered sufficiently extreme and outrageous to state a claim for relief." Patton, 578 P.2d at 155; see Lucchesi, 716 P.2d at 1016 (same).
In this case, Plaintiff alleges that Defendant Haynie "exerted excessive and undue control and inflexibility over the time and conditions of Plaintiff's performance review meetings" and "treated Plaintiff with total hostility and one-sided, false, unfair, and unfounded verbal criticism during each of these interviews." Doc. #65 ¶¶ 41, 46, 132. Defendants argue that this alleged conduct was not extreme and outrageous as a matter of law. Doc. #67 at 8-11 (citing Nelson, 888 P.2d 1375; Mintz v. Bell Atlantic Sys. Leasing Int'l, Inc., 905 P.2d 559 (Ariz.Ct.App. 1995)). Plaintiff counters that the allegations against Defendant Haynie are sufficient to state an IIED claim. Doc. #69 at 3 (citing Walls v. Sonora Behavioral Health Hosp., No. CIV 05-201-TUC-CKJ, 2006 WL 1127148 (D. Ariz. April 27, 2006); Coffin v. Safeway, Inc., 323F. Supp. 2d 997 (D. Ariz. 2004)).
Even taking Plaintiff's allegations as true and construing them liberally in his favor, the Court concludes that they are insufficient to state an IIED claim. At most, Haynie's alleged conduct toward Plaintiff was unfair and unjustified. See Doc. #65 ¶¶ 41, 46, 132. Arizona courts have made clear that "[e]ven if a defendant's conduct is unjustifiable, it does not necessarily rise to the level of 'atrocious' and 'beyond all possible bounds of decency' that would cause an average member of the community to believe it was 'outrageous.'" Nelson, 888 P.2d at 1386 (quoting Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987)). "'It is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of [IIED].'" Mintz, 905 P.2d at 563 (citation omitted). Defendants' alleged conduct in this case simply does not rise to the level of outrageousness necessary to support an IIED claim. See id. at 563-64 (holding that the defendant's failure to promote the plaintiff did not go beyond all possible bounds of decency even if it was motivated by retaliation and that the defendant's alleged conduct of forcing the plaintiff to return to work and hand delivering a job-reassignment letter to her while in the hospital for severe emotional problems did not constitute IIED as a matter of law); Nelson, 888 P.2d at 1387-88 (holding that the plaintiff's termination was not extreme and outrageous as a matter of law even though he was called to work in the middle of the night, handed a termination letter, and escorted off the premises by armed security guards in front of reporters notified by the defendant); Perez v. Curcio, 710 F. Supp. 259, 262 (D. Ariz. 1989) (holding that the defendants' conduct of demoting the plaintiff to an unsuitable position and beginning a "witch hunt" to "dig up" good cause to terminate her when she challenged the demotion could "hardly be characterized as 'outrageous,' 'extreme,' or 'beyond the bounds of human decency.'"); Baker v. Asarco, Inc., No. CIV-94-1045-PHX-ROS, 1995 WL 795663, at *7 (D. Ariz. Nov. 9, 1995) (finding no IIED claim as a matter of law where the plaintiff was forced to take a medical leave of absence following his return to work after suffering a heart attack because the defendant "didn't want him to die on company property"). The Court will grant the motion to dismiss with respect to the IIED claim.
Plaintiff's reliance on Walls and Coffin is misplaced because those cases involved allegations of continuous sexual harassment that included both verbal and physical assaults. See Coffin, 323 F. Supp. 2d at 1006; Walls, 2006 WL 1127148, at *2.
D. The Negligent Infliction of Emotional Distress Claim.
Plaintiff alleges that Defendant Haynie's misconduct caused Plaintiff to suffer severe emotional distress resulting in a manifest physical injury. Doc. #65 ¶ 136. Plaintiff further alleges that Defendant Grabe was aware of Haynie's misconduct and negligently failed to stop him. Id. Plaintiff claims that Defendant Orbital is liable for Grabe's negligence under the doctrine of respondeat superior. Id.
Defendants argue that Plaintiff's negligent infliction of emotional distress claim must be dismissed because workers' compensation is the exclusive remedy against an employer for work-related injuries. Doc. #67 at 12 (citing A.R.S. § 23-1022(A)). Plaintiff does not address this argument in his response. See Doc. #69.
Arizona law provides that "[t]he right to recover compensation pursuant to this chapter for injuries sustained by an employee . . . is the exclusive remedy against the employer or any co-employee acting in the scope of his employment[.]" A.R.S. § 23-1022(A) (emphasis added); see Gamez v. Brush Wellman, Inc., 34 P.3d 375, ¶ 5 (Ariz.Ct.App. 2001) ("It is well settled that work related injury claims are generally addressed exclusively under Arizona's workers' compensation scheme.") (citing A.R.S. § 23-1022(A)). Because Plaintiff's claim of negligent infliction of emotional distress alleges that he was injured as a result of workplace conduct, the claim is barred by Arizona's workers' compensation scheme. See A.R.S. §§ 23-1022(A), 23-906(A) ("Employers who comply with the provisions of § 23-961 or 23-962 as to securing compensation . . . shall not be liable for damages at common law or by statute, except as provided in this section, for injury or death of an employee wherever occurring[.]"); Ringling Bros. Barnum Bailey Combined Shows, Inc. v. Superior Ct. (Farias), 680 P.2d 174, 181-82 (Ariz.Ct.App. 1983) (holding that the trial court lacked subject matter jurisdiction over the plaintiffs' negligent infliction of emotional distress claim based on the exclusive nature of Arizona's workers' compensation statutes); Irvin Investors, Inc. v. Superior Ct. (Kuehne), 800 P.2d 979, 981-82 (Ariz.Ct.App. 1990) (holding that the plaintiff's negligence claims against her former employer were barred by Arizona's workers' compensation law, "which provides the exclusive remedy for workers injured on the job") (citing A.R.S. §§ 23-906, 23-1022); Mosakowski v. PSS World Med., Inc., 329 F. Supp. 2d 1112, 1131 (D. Ariz. 2003) ("Because, pursuant to the holding in Irvin Investors, Arizona law precludes an employee from bringing a tort action based on negligent hiring and negligent retention against their employer, Defendant is entitled to judgment as a matter of law in its favor on Plaintiff's claim of negligence."). The Court will grant the motion to dismiss with respect to this claim.
E. The Civil Conspiracy Claim.
Civil conspiracy is a derivative tort. See Rowland v. Union Hills Country Club, 757 P.2d 105, 110 (Ariz.Ct.App. 1988). "In short, liability for civil conspiracy requires that two or more individuals agree and thereupon accomplish 'an underlying tort which the alleged conspirators agreed to commit.'" Wells Fargo Bank v. Ariz. Laborers, Teamsters Cement Masons Local No. 395 Pension Trust, 38 P.3d 12, ¶ 99 (Ariz. 2002) (citation omitted); see Restatement (Second) of Torts § 876(a) (1979) ("For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he . . . does a tortious act in concert with the other or pursuant to a common design with him[.]"); Estate of Hernandez v. Flavio, 930 P.2d 1309, 1314 (Ariz. 1997) ("To be found liable under section 876(a), one must have committed some tortious act.").
Plaintiff alleges that Defendants conspired to defame and inflict emotional distress upon him. Doc. #65 ¶ 139. As explained above, however, Plaintiff has not sufficiently pled claims for defamation and infliction of emotional distress. Because Plaintiff has not pled an underlying tort, his derivative civil conspiracy claim fails as a matter of law. See Estate of Hernandez, 930 P.2d at 1314 (holding that the mere act of drinking alcohol by underage pledges of a fraternity was not tortious and therefore could not subject them to liability for civil conspiracy as a matter of law). The Court will grant the motion to dismiss with respect to the civil conspiracy claim.
F. Leave to Amend the Complaint.
In the Ninth Circuit, pro se litigants generally are entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal. See, e.g., Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995). In this case, however, Plaintiff filed an amended complaint on October 19, 2005 and was granted leave to file a revised second amended complaint on May 3, 2006. Docs. ##63-64. Plaintiff repeatedly sought leave to amend for the specific purpose of curing the defects identified in Defendants' motions to dismiss. Docs. ##24-34, 45, 49, 58. In the order granting Plaintiff leave to file a revised second amended complaint, the Court set a litigation schedule pursuant to Rule 16(b) of the Federal Rules of Procedure. Doc. #64. The Court concluded that the time for amending pleadings had closed and that further amendments would not be permitted absent a showing of good cause. Id. at 3 (citing Fed.R.Civ.P. 16(b)). Plaintiff has made no such showing. See Fed.R.Civ.P. 16 Advisory Comm.'s Notes (1983 Am.) (stating that good cause exists when a deadline "cannot reasonably be met despite the diligence of the party seeking the extension"); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) ("Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment."). The Court accordingly will deny Plaintiff leave to file a third amended complaint. See Johnson, 975 F.2d at 611 ("As the torrent of civil and criminal cases unleashed in recent years has threatened to inundate the federal courts, deliverance has been sought in the use of calendar management techniques. Rule 16 is an important component of those techniques."); Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005) ("In these days of heavy caseloads, trial courts . . . set schedules and establish deadlines to foster the efficient treatment and resolution of cases.").
IT IS ORDERED:
1. Defendants' motion to dismiss Plaintiff's False Claim Act retaliation claim (Doc. #66) is granted in part and denied in part as set forth in this order.
2. Defendants' motion to dismiss Plaintiff's common law claims (Doc. #67) is granted.
3. The Court will schedule a Rule 16 case management conference by separate order.