Tomasello v. North Arkansas Wholesale, Inc.

Full title: David Tomasello, Plaintiff, v. North Arkansas Wholesale, Inc.; et al.…

Court: United States District Court, D. Arizona

Date published: Jul 23, 2007

No. CV 06-2078-PHX-JAT (D. Ariz. Jul. 23, 2007)

Opinion

No. CV 06-2078-PHX-JAT.

July 23, 2007

ORDER

JAMES TEILBORG, District Judge

Currently pending before the Court are: Defendants Arizona Industrial Commission ("AIC"), Margaret Fraser, and Noreen Thorsen's Motion to Dismiss Party (Doc. #27); Defendants AIG National Insurance Company, Inc. ("AIG"), American Home Assurance Company ("AHAC"), and Pamela Sutherin's Motion to Dismiss Case for Lack of Jurisdiction (Doc. #31); Defendants The Frank Gates Service Company ("Frank Gates") and Alma Garcia's Motion to Dismiss Case for Lack of Jurisdiction (Doc. #33); and Plaintiff David Tomasello's Motion to Strike Jury Demand (Doc. #35), Motion to Strike re Answers for Failure to Notice (Doc. #45), Motion for Entry of Default as to North Arkansas Wholesale Inc. (Doc. #59), Motion for Entry of Default as to Wal-Mart Stores, Inc. (Doc. #60), and Motion to Strike re Answer of Defendants North Arkansas Wholesale, Inc. and Wal-Mart Stores, Inc. (Doc. #63). The Court's ruling on Frank Gates and Alma Garcia's Motion to Dismiss for Lack of Jurisdiction (Doc. #33) dismisses the case, so the Court will not address the other motions.

I. BACKGROUND

Plaintiff David Tomasello was injured on September 16, 2002, allegedly as a result of unsafe working conditions, while working at Wal-Mart. Mr. Tomasello filed a workers' compensation claim with the AIC on November 8, 2002. He alleges that all the defendants acted with bad faith in handling his claim. Mr. Tomasello believes that Defendant Noreen Thorsen, Claims Manager of the AIC, did not follow the policies and procedures of Arizona's workers' compensation laws in processing his claim and bad faith complaints.

On October 28, 2005, Administrative Law Judge ("ALJ") Margaret A. Fraser entered a decision adopting findings and entering an award of compensation in Mr. Tomasello's favor. ALJ Fraser dismissed all hearing requests filed by plaintiff regarding the alleged bad faith of the individual defendants. Plaintiff did not appeal this decision to the Arizona Court of Appeals.

Plaintiff filed this action on August 29, 2006, alleging diversity jurisdiction. His original complaint (doc. #1) did not name the AIC, ALJ Fraser, or Ms. Thorsen as defendants. Nor did it allege any federal causes of action. On October 3, 2006, the Court ordered Plaintiff to appear on October 16, 2006 to show cause why the case should not be dismissed for lack of federal subject matter jurisdiction. (Doc. #11). On October 16, 2006, Plaintiff filed an Amended Complaint listing various federal statutes and alleging federal question jurisdiction pursuant to his § 1983 claim and others and again alleging diversity jurisdiction. The Amended Complaint added AIC, ALJ Fraser, and Ms. Thorsen as defendants. It appears that Plaintiff did not re-serve the individual defendants with the Amended Complaint. Also, Plaintiff served Defendants AIC, ALJ Fraser, and Ms. Thorsen with the original complaint. Those Defendants have never been served with a complaint that names them as defendants.

II. JURISDICTION

Frank Gates alleges that this Court lacks diversity jurisdiction and federal question jurisdiction. Although Frank Gates argues lack of federal question jurisdiction, Mr. Tomasello has adequately pleaded 42 U.S.C. § 1983, § 1985, and § 1986 claims, which facially give this Court federal question jurisdiction. Frank Gates's arguments regarding federal question jurisdiction are actually failure to state a claim arguments. The Court therefore will address those arguments under the failure to state a claim standard.

A. § 1332 Diversity Jurisdiction

Plaintiff realleged diversity jurisdiction pursuant to § 1332 in his Amended Complaint despite naming Arizona residents as Defendants. He seems to believe that he meets the § 1332 requirements for diversity jurisdiction because some of the Defendants reside out of state. But diversity jurisdiction requires complete diversity of the parties. Exxon Mobil Corp. V. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) ("[W]e have consistently interpreted § 1332 as requiring complete diversity: In a case with multiple plaintiffs and multiple defendants, the presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction. . . ."). Because Plaintiff is an Arizona resident and has named Arizona residents as defendants, this Court lacks § 1332 diversity jurisdiction.

B. Federal Question Jurisdiction

Plaintiff has facially alleged three federal claims — under 42 U.S.C. §§ 1983, 1985, 1986.¹ Defendants Frank Gates and Alma Garcia (collectively, "Frank Gates") argue that this Court lacks jurisdiction over those claims because either: 1) no § 1983 due process claim stands if the state provides adequate process; or, alternatively, 2) that the state defendants have immunity from the § 1983 claims.² As stated previously, these are really failure to state a claim arguments.

1 Plaintiff also attempts to allege jurisdiction under 18 U.S.C. §§ 3, 1001, 18001; but those are criminal statutes, and this is not a criminal case. Nor does the Court have jurisdiction, as alleged by Plaintiff, under the Arizona State Constitution. Mr. Tomasello alleges that he is disabled, as defined by the Americans with Disabilities Act ("ADA"), but does not allege that anyone has violated the ADA. Only the §§ 1983, 1985, 1986 claims facially allege federal question jurisdiction.

2 Frank Gates further argues that Plaintiff cannot have a § 1985 or § 1986 claim if he does not have a § 1983 claim.

1. 12(b)(6) Legal Standard

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (C.A.7 1994), a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (hereinafter Wright Miller) ("[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (" Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely").

Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007).

While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant "set out in detail the facts upon which he bases his claim," Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (emphasis added), Rule 8(a)(2) still requires a "showing," rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only "fair notice" of the nature of the claim, but also "grounds" on which the claim rests. See 5 Wright Miller § 1202, at 94, 95 (Rule 8(a) "contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented" and does not authorize a pleader's "bare averment that he wants relief and is entitled to it").

Id. at p. 1965 n. 3.

2. § 1983 Claim

Plaintiff has alleged that the AIC, ALJ Fraser, and Ms. Thorsen individually and acting in concert deprived him of his constitutional rights to procedural due process by denying his hearing requests. To state a claim under 42 U.S.C. § 1983, a plaintiff must show "`that the conduct complained of was committed by a person acting under color of state law; and . . . this conduct deprived [him] of a constitutional right.'" Brogan v. San Mateo County, 901 F.2d 762, 764 (9^th Cir. 1990) (quoting Rinker v. Napa County, 831 F.2d 829, 831 (9^th Cir. 1987)). Mr. Tomasello therefore must demonstrate that the AIC, ALJ Fraser, and/or Ms. Thorsen deprived him of a constitutional liberty or property right. The ALJ actually affirmed an award of benefits to Mr. Tomasello. She did not deprive him of his property right in his workers' compensation benefits. But she did deny hearing requests on his bad faith claims; and a finding of bad faith can increase the award of benefits. For the purposes of this Order only, the Court will assume a constitutional property right has been implicated.

Nonetheless, a § 1983 procedural due process claim will not stand if the state has adequate remedies to protect an individual's due process rights. Wood v. Ostrander, 879 F.2d 583, 589 (9^th Cir. 1989). To state a § 1983 claim for procedural due process violations, a plaintiff must show that no pre- or post-deprivation remedy exists in the state courts. See Zinermon v. Burch, 494 U.S. 113, 126 (1990). Mr. Tomasello therefore must demonstrate that Arizona's workers' compensation statutory scheme does not provide adequate procedural protections.

Arizona's Workers' Compensation Act provides the following hearing rights and procedures:

A. Subject to the provisions of section 23-947, any interested party may file a request for a hearing concerning a claim.

B. A request for a hearing shall be made in writing, signed by or on behalf of the interested party and including his address, stating that a hearing is desired, and filed with the commission.

C. The commission shall refer the request for the hearing to the administrative law judge division for determination as expeditiously as possible. The presiding administrative law judge may dismiss a request for hearing when it appears to his satisfaction that the disputed issue or issues have been resolved by the parties. Any interested party who objects to such dismissal may request a review pursuant to section 23-943.

A.R.S. § 23-941. Section 23-943 gives an interested party the right to appeal an ALJ's decision within thirty days of the decision by applying to the Arizona Court of Appeals for a writ of certiorari. A.R.S. § 23-943(H). For whatever reason, Mr. Tomasello chose not to apply for a writ of certiorari to the Arizona Court of Appeals.

Arizona's workers' compensation statutory scheme allows for review of a denial or award of benefits at the administrative level. A.R.S. §§ 23-941, 947. Further, a claimant who disagrees with the AIC's final decision may appeal that decision to the Arizona Court of Appeals. A.R.S. § 23-951. The Court finds that these state remedies are more than adequate to protect Arizona workers' compensation claimants' procedural due process rights. Mr. Tomasello should have taken advantage of all the process the Arizona statutory scheme provides. Because Arizona's Workers' Compensation Act provides adequate procedural protections for Mr. Tomasello's constitutional rights, his § 1983 claim fails. Wood, 879 F.2d at 589.

3. §§ 1985 1986 Claims

§ 1985 forbids two or more persons from conspiring to deprive a person of his or her constitutional rights and privileges. 42 U.S.C. § 1985(3).³ "An indispensable element of a claim under 42 U.S.C. § 1985(3) is some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator's action." Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9^th Cir. 2001). Plaintiff makes a bare allegation that AIC, ALJ Fraser, and Ms. Thorsen conspired to deprive him of his due process rights. But he does not allege that a racial or otherwise class-based invidiously discriminatory animus motivated their actions. Plaintiff therefore cannot state a claim for a § 1985 claim.⁴

3 Plaintiff does not allege a violation of a specific subsection of § 1985, but only § 1985(3) could possibly apply in this case.

4 Mr. Tomasello's § 1985 claim also fails because it depends on a constitutional violation; and the Court has held that Arizona has adequate procedural protections for workers' compensation claims.

§ 1986 creates a private cause of action against "Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent" the commission of the same but does not. 42 U.S.C. § 1986. A plaintiff can state a § 1986 claim only if the complaint contains a valid claim under § 1985. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9^th Cir. 1988). The Court has held that Plaintiff has not stated a § 1985 claim; therefore, Plaintiff's § 1986 claim also fails.

C. Supplemental Jurisdiction

The Court does not have diversity jurisdiction and has dismissed the only federal claims in this case. The Court declines to exercise its supplemental jurisdiction over any remaining state claims. See 28 U.S.C. § 1367(c); United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).

Accordingly,

IT IS ORDERED GRANTING Defendants The Frank Gates Service Company and Alma Garcia's Motion to Dismiss Case for Lack of Jurisdiction (Doc. #33).

IT IS FURTHER ORDER DENYING Defendants Arizona Industrial Commission, Margaret Fraser, and Noreen Thorsen's Motion to Dismiss Party (Doc. #27); Defendants AIG National Insurance Company, Inc., American Home Assurance Company, and Pamela Sutherin's Motion to Dismiss Case for Lack of Jurisdiction (Doc. #31); and Plaintiff David Tomasello's Motion to Strike Jury Demand (Doc. #35), Motion to Strike re Answers for Failure to Notice (Doc. #45), Motion for Entry of Default as to North Arkansas Wholesale Inc. (Doc. #59), Motion for Entry of Default as to Wal-Mart Stores, Inc. (Doc. #60), and Motion to Strike re Answer of Defendants North Arkansas Wholesale, Inc. and Wal-Mart Stores, Inc. (Doc. #63) as moot because the entire case is dismissed.