Cupone v. University of Advancing Computer Technology Incorporated et al, No. 2:2011cv00016 - Document 16 (D. Ariz. 2011)
Court Description: ORDER denying 7 Motion to Dismiss Party; denying 8 Motion to Dismiss Counts/Claims. Signed by Judge David G Campbell on 3/17/2011.(NVO)
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Cupone v. University of Advancing Computer Technology Incorporated et al 1 Doc. 16 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Chrysanthe Cupone, a single woman, Plaintiff, 10 11 12 13 No. CV 11-0016-PHX-DGC ORDER vs. University of Advancing Computer Technology, Inc. d.b.a. University of Advancing Technology, an Arizona corporation; et al., 14 Defendants. 15 16 Plaintiff’s six-count complaint was removed from the Arizona Superior Court for 17 Maricopa County. Doc. 1. Defendant Pistillo moves to dismiss the claims against him 18 (Doc. 7), and the other defendants move to dismiss counts II and IV (Doc. 8). The 19 motions have been fully briefed and the parties do not request oral argument. Docs. 7, 8, 20 10, 11, 14, 15. For the reasons that follow, the Court will deny both motions. 21 I. Legal Standards. 22 When analyzing a complaint for failure to state a claim to relief under Rule 23 12(b)(6), the well-pled factual allegations “‘are taken as true and construed in the light 24 most favorable to the nonmoving party.’” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th 25 Cir. 2009) (citation omitted). Legal conclusions couched as factual allegations “are not 26 entitled to the assumption of truth,” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), and 27 therefore “‘are insufficient to defeat a motion to dismiss for failure to state a claim,’” In 28 re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010) (citation omitted). To avoid a Dockets.Justia.com 1 Rule 12(b)(6) dismissal, the complaint must plead “enough facts to state a claim to relief 2 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This 3 plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more than 4 a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949 5 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the 6 court to infer more than the mere possibility of misconduct, the complaint has alleged – 7 but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. at 1950 (quoting 8 Fed. R. Civ. P. 8(a)(2)). 9 An affirmative defense may not be raised in a Rule 12(b)(6) motion unless the 10 defense appears from the face of the complaint, see Jones v. Block, 549 U.S. 199, 215 11 (2007), or the defense raises no disputed issues of fact, Scott v. Kuhlmann, 746 F.2d 12 1377, 1378 (9th Cir. 1984). Where the motion to dismiss involves factual evidence 13 outside the pleadings, a court may discretionarily convert the Rule 12(b)(6) motion into a 14 motion for summary judgment under Rule 56 and give the parties a reasonable 15 opportunity to present all materials relevant to the motion. See Fed. R. Civ. P. 12(d); 16 Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). 17 II. Defendant Pistillo’s Motion to Dismiss. 18 Plaintiff and Defendant Pistillo were married at the time Pistillo allegedly engaged 19 in the acts stated in Plaintiff’s complaint while an employee of the University of 20 Advancing Computer Technology, Inc. (“UAT”). Doc. 1-1 at 30-31; Doc. 7 at 2-3. 21 Plaintiff filed the present claims subsequent to their divorce. Doc. 1-1 at 26-27; Doc. 7 at 22 2-3. Pistillo argues that the claims against him are barred by the parties’ settlement 23 agreement incident to divorce. 24 affirmative defense is not cognizable on a Rule 12(b)(6) motion.1 See Doc. 10. Doc. 7 at 2-3. Plaintiff does not argue that this 25 26 27 28 1 Defendant Pistillo argues that the Court may take judicial notice of matters of public record, and that because the divorce decree attached to Defendant’s motion to dismiss is a public record and refers to the settlement agreement, the Court may also properly take judicial notice of the settlement agreement. See Doc. 7 at 4-5. The courtapproved divorce decree expressly states, however, that the settlement agreement is not -2- 1 The parties do not dispute that the settlement agreement stated: “Husband avows 2 he had no involvement in the decision by UAT to terminate wife’s employment. Nothing 3 contained herein restricts any claims wife may have or wish to pursue against UAT.” 4 Doc. 10 at 7. Moreover, Plaintiff does not deny that the agreement also states that “[a]ll 5 issues and claims that either party has or may have against the other that arose or may 6 have arisen prior to the date of their execution of this Agreement are resolved and settled 7 as a result of the agreements between the parties set forth in this Agreement.” Doc. 7 at 8 3; Doc. 10. Instead, Plaintiff makes three arguments: (1) the settlement agreement does 9 not preclude her present claims because the claims “arose” after the divorce decree was 10 filed, relying on Windauer v. O’Connor, 485 P.2d 1157, 1157-58 (Ariz. 1971); (2) the 11 provision quoted above does not bar claims related to the two parties’ employment 12 relationship; and (3) the provision is unenforceable due to lack of consideration. Doc. 10. 13 Windauer held, in the context of an intentional shooting of an elderly wife by an 14 elderly husband, that “a spouse may, after a divorce from the offending spouse, sue to 15 recover damages for an intentional tort” notwithstanding the doctrine of “interspousal tort 16 immunity.” 485 P.2d at 1158. Windauer did not decide when the cause of action arises, 17 however, nor was a settlement agreement an issue in that case. Id. Therefore, Windauer 18 is not dispositive here. 19 Plaintiff also argues that the settlement agreement does not bar claims related to 20 the parties’ employment relationship. Doc. 10 at 2-5. Plaintiff asserts that the settlement 21 agreement was limited to resolution of marital property and obligations. 22 Plaintiff further asserts that Plaintiff did not release or waive claims – only that any 23 properly-construed claims were settled as a result of agreements between the parties. Id. 24 Although the plain language of the provision quoted above might imply a waiver of at 25 least some of Plaintiff’s claims against Pistillo individually, the parties dispute the intent 26 of the provision. Under Arizona law, the Court should consider any relevant extrinsic 27 28 merged into the decree. Doc. 7-1 at 28:16. -3- Id. at 4. 1 “evidence and, if . . . the contract language is ‘reasonably susceptible’ to the 2 interpretation asserted by its proponent, the evidence is admissible to determine the 3 meaning intended by the parties.” Taylor v. State Farm Mut. Auto. Ins. Co., 854 P.2d 4 1134, 1140 (Ariz. 1993). Because evidence to be developed in this case might shed light 5 on the meaning of the settlement agreement, resolution of this issue must await the 6 summary judgment stage or trial.2 7 III. Motion to Dismiss Counts II and IV. 8 Defendants David and Sharon Bolman, Robert and Patricia Wright, and UAT 9 (“B.W.U. Defendants”) move to dismiss counts II (false light) and IV (intentional 10 infliction of emotional distress) under Rule 12(b)(6). Doc. 8. 11 A. False Light. 12 Plaintiff’s second claim for relief alleges that Defendants sent an email to 25 or 30 13 UAT employees stating that Plaintiff was dismissed for violating University policy. 14 Doc. 1-1 at 69, 72. B.W.U. Defendants’ sole argument for dismissal appears to be that 15 the publication requirement of the false-light cause of action was not met as a matter of 16 law because the number of employees was small, the memo was sent by management to 17 employees rather than to the general public, and many of the employees were interested 18 persons who “needed to be informed as to the reasons for Plaintiff’s absence from the 19 workplace.” See Doc. 8 at 3-7. 20 Assuming the email falsely stated that Plaintiff violated University policy, as the 21 Court must on this motion to dismiss, the issue is whether sufficient “publicity” occurred 22 to satisfy the requirements of false light. Under Arizona law, “‘publicity’ . . . means that 23 the matter is made public, by communicating it to the public at large, or to so many 24 persons that the matter must be regarded substantially certain to become one of public 25 knowledge. The difference [between ‘publication’ in defamation and ‘publicity’ in false- 26 light] is not one of the means of communication which may be oral, written, or by any 27 28 2 The Court need not reach Plaintiff’s “lack of consideration” argument. -4- 1 other means. It is one of a communication that reaches, or is sure to reach, the public.” 2 Hart v. Seven Resorts, Inc., 947 P.2d 846, 854 (Ariz. App. 1997) (quoting Restatement 3 (Second) of Torts § 652D) (emphasis in original). Whether the publication in this case 4 satisfies this standard will depend on who received it, what connection they had to the 5 matters discussed in the communication, whether it was important for them to know the 6 information communicated, the likelihood that matters communicated to them would be 7 disseminated further, and similar factual questions. 8 factual issues on a motion to dismiss. 9 B. The Court cannot resolve such Emotional Distress. 10 A plaintiff claiming intentional infliction of emotional distress (“IIED”) under 11 Arizona law must plead: (1) conduct by a defendant that is extreme and outrageous; 12 (2) intent by defendant to cause emotional distress or defendant’s reckless disregard for 13 the near certainty that distress will result from the conduct; and (3) occurrence of severe 14 emotional distress as a result of the conduct. Ford v. Revlon, Inc., 734 P.2d 580, 585 15 (Ariz. 1987). B.W.U. Defendants’ sole argument appears to be that the conduct alleged 16 in the complaint is not so extreme and outrageous as to meet the requirements of IIED as 17 a matter of law. See Doc. 8 at 7-12. 18 An IIED claim requires conduct that is “so outrageous in character and so extreme 19 in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious 20 and utterly intolerable in a civilized community.” Patton v. First Fed. Sav. & Loan Ass’n 21 of Phoenix, 578 P.2d 152, 155 (Ariz. 1978) (quoting Cluff v. Farmers Ins. Exch., 22 460 P.2d 666, 668 (Ariz. 1969)). The manner in which certain conduct occurs can satisfy 23 the IIED requirements even if the conduct itself may not be outrageous. See Mintz v. Bell 24 Atlantic Sys. Leasing Int’l, 905 P.2d 559, 565 n.1 (Ariz. App. 1995) (“The outrage in the 25 cited example is not the settlement attempt, it is the insistent and boisterous manner in 26 which that attempt was made.”). Dismissal of an IIED claim prior to summary judgment 27 is proper only if “plaintiff is not entitled to relief under any facts susceptible of proof 28 -5- 1 under the claims stated.” Id. at 563. 2 Plaintiff’s complaint encompasses conduct spanning four months (Doc. 1-1 at 31- 3 38), and includes the following allegations, assumed to be true for purposes of this 4 motion: UAT reduced many of Plaintiff’s responsibilities after her husband, Defendant 5 Pistillo – who was also her supervisor partway through this process – filed for divorce;3 6 UAT gave Pistillo responsibility for five of the seven departments/sub-departments 7 Plaintiff used to manage; UAT assigned Plaintiff new supervisors who began micro- 8 managing her; Defendant Wright interviewed certain employees regarding statements 9 made by Plaintiff to a co-worker friend at a social event; UAT monitored Plaintiff’s work 10 computer and emails; UAT terminated Plaintiff’s employment as retaliation for her 11 claiming gender-based employment discrimination and for her use of Family Medical 12 Leave Act leave; and, upon termination, Defendants intentionally, falsely, and publicly 13 accused Plaintiff of so egregiously violating company policy as to require immediate 14 termination. Id. 15 Although the Court is inclined to agree that these actions do not satisfy the high 16 threshold for the IIED tort in Arizona, the Court cannot at this stage conclude that 17 “plaintiff is not entitled to relief under any facts susceptible of proof under the claims 18 stated.” Mintz, 905 P.2d at 563 (emphasis added). Such a determination is better made at 19 the summary judgment stage when the facts have been explored through discovery and 20 included more fully in the briefing to the Court.4 21 IT IS ORDERED: 22 1. Defendant Pistillo’s motion to dismiss (Doc. 7) is denied as stated above. 23 24 25 26 27 28 3 It appears that Plaintiff had multiple contemporaneous roles, including Dean of Admissions and Student Affairs, manager of the Student Life Department, and VicePresident-in-Training for the Recruitment Division. Doc. 1-1 at 57. 4 Because B.W.U. Defendants moved for dismissal jointly rather than severally and the parties did not argue dismissal of only a subset of the defendants, the Court will not rule on whether Plaintiff’s IIED claims as to specific individual defendants can be dismissed under Rule 12(b)(6). -6- 1 2. B.W.U. Defendants’ motion to dismiss Counts II and IV (Doc. 8) is denied. 2 Dated this 17th day of March, 2011. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-
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