Cooke v. Lake Havasu City, et al., No. 3:2010cv08044 - Document 22 (D. Ariz. 2010)
Court Description: ORDER granting in part and denying in part 14 Kaffenbergers' Motion to Dismiss and granting 19 Plaintiff's Request that the Court not consider Section III.A of the Kaffenbergers' reply brief. Plaintiff shall have until July 23, 2010, to file an amended complaint. Signed by Judge David G Campbell on 7/1/10.(LSP)
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Cooke v. Lake Havasu City, et al. 1 Doc. 22 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Swan Cooke, an individual, 9 Plaintiff, 10 vs. 11 12 Lake Havasu City, an Arizona municipality, et al., Defendants. 13 ) ) ) ) ) ) ) ) ) ) ) No. CV10-8044 PCT-DGC ORDER 14 Defendants Richard Kaffenberger and Masako Kaffenberger (“Defendants”) have 15 filed a motion to dismiss Plaintiff Swan Cooke’s claims against them. Dkt. #14. The motion 16 is fully briefed. Dkt. ##15, 18. Plaintiff has also filed a request that the Court not consider 17 Section III.A. of Defendants’ reply. Dkt. #19. For reasons that follow, the Court will grant 18 Plaintiff’s request that the Court not consider Section III.A. of the Defendants’ reply brief 19 (Dkt. #19), and will grant in part and deny in part Defendants’ motion to dismiss (Dkt. #14). 20 I. Background. 21 From 1994 until 2009, Plaintiff was employed as an Aquatics Instructor by Lake 22 Havasu City. 23 Dkt. #1 at 1. During this time, Defendant Richard Kaffenberger (“Kaffenberger”) served as the Lake Havasu City Manager.1 On February 11, 2009, 24 Kaffenberger and co-Defendant Lake Havasu City provided Plaintiff with a Notice of 25 Administrative Suspension and, on March 26, 2009, they terminated Plaintiff. Id. Pursuant 26 to the Lake Havasu City Personnel Rules and Regulations, Kaffenberger and Lake Havasu 27 28 1 Kaffenberger is married to Defendant Masako Kaffenberger and, according to Plaintiff, Kaffenberger was acting on behalf of their marital community at all times relevant to this litigation. Dockets.Justia.com 1 City held a post-termination hearing in front of Hearing Officer Harold Merkow, during 2 which Defendants alleged that Plaintiff had committed nine separate acts that constituted 3 grounds for dismissal under the Rules and Regulations. Id. Merkow, however, determined 4 that Lake Havasu failed to establish or abandoned seven of the alleged grounds for dismissal. 5 Id. at 4. Merkow also found that the remaining two allegations of misconduct were not 6 severe enough to merit dismissal. Id. As a result, he ordered Kaffenberger and Lake Havasu 7 City to reinstate Plaintiff. Id. 8 Instead of reinstating Plaintiff, Kaffenberger and Lake Havasu City took the position 9 that they did not have to reinstate her because her position had been eliminated on March 6, 10 2009 as part of a reduction in the City’s workforce. Plaintiff had not been notified in March 11 that her position was being eliminated, nor was she provided a hearing to discuss elimination 12 of her position. In her complaint, she contends that her position was not actually terminated 13 in March, and that, instead, the alleged termination of her position was a sham excuse created 14 by Kaffenberger and Lake Havasu City to prevent her reinstatement as ordered by Merkow. 15 Because Kaffenberger refused to reinstate Plaintiff, she has sued him for violations of her due 16 process rights under 42 U.S.C. § 1983 and for violation of the Arizona Employment 17 Protection Act, A.R.S. § 23-1501. Dkt. #1 at 7-10. 18 II. Legal Standard. 19 When analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll 20 allegations of material fact are taken as true and construed in the light most favorable to the 21 non-moving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). “To avoid a Rule 22 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must 23 plead ‘enough facts to state a claim to relief that is plausible on its face.’” Clemens v. 24 DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. 25 Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard . . . asks for more than a 26 sheer possibility that a defendant has acted unlawfully,” demanding instead sufficient factual 27 allegations to allow “the court to draw the reasonable inference that the defendant is liable 28 for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ---, ---, 129 S. Ct. 1937, 1949 (2009) -2- 1 (citing Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court 2 to infer more than the mere possibility of misconduct, the complaint has alleged – but it has 3 not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. at 1950 (citing Fed. R. Civ. P. 4 8(a)(2)). 5 The Court may not assume that the plaintiff can prove facts different from those 6 alleged in the complaint. See Associated Gen. Contractors of Cal. v. Cal. State Council of 7 Carpenters, 459 U.S. 519, 526 (1983); Jack Russell Terrier Network of N. Cal. v. Am. Kennel 8 Club, Inc., 407 F.3d 1027, 1035 (9th Cir. 2005). Similarly, legal conclusions couched as 9 factual allegations are not given a presumption of truthfulness and “conclusory allegations 10 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 11 v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998); see also Iqbal, 129 S. Ct. at 1949 12 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements, do not suffice.”) (citation omitted). “Rule 8 marks a notable and generous 14 departure from the hyper-technical, code-pleading regime of a prior era, but it does not 15 unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” 16 Iqbal, 129 S. Ct. at 1950. 17 III. 18 Analysis. Defendants seek dismissal of both claims alleged against them in the complaint.2 19 Dkt. #14. 20 A. 21 Plaintiff has brought a § 1983 claim against Defendants in which she alleges that 22 Kaffenberger deprived her of her property interest in her employment without due process 23 of law. Dkt. #1. Defendants have moved to dismiss this claim on several grounds. § 1983 Claim. 24 25 26 27 28 2 The complaint also includes a third claim, but it is brought exclusively against Lake Havasu City. Dkt. #1 at 9. -3- 1 1. Claims Against Masako Kaffenberger. 2 Defendants argue that all § 1983 claims against Kaffenberger’s wife, Masako 3 Kaffenberger, should be dismissed because Plaintiff does not assert wrongdoing or personal 4 participation by her. Dkt. #18 at 1, 8. Plaintiff, however, is only suing Masako in her 5 capacity as Kaffenberger’s spouse and for the purpose of binding their marital community. 6 Dkt. #15 at 11. Defendants fail to cite any legal authority showing that Masako Kaffenberger 7 cannot be sued as part of the Kaffenbergers’ marital community. For this reason, the request 8 to dismiss the § 1983 due process violation claim against Masako is denied. 9 2. Failure to Specify Capacity. 10 Defendants argue that because Plaintiff failed to specify whether she is suing 11 Kaffenberger in his official or individual capacity, the Court must assume Plaintiff has sued 12 him in his official capacity and must dismiss any individual capacity claim. Dkt. #14 at 3 13 (citing Murphy v. State of Arkansas, 127 F.3d 750, 754 (8th Cir. 1997)). Plaintiff contends 14 that a failure to specify official or personal capacity does not mean the Court must dismiss 15 the action. Dkt. #15 at 7. Plaintiff cites Carillo v. State of Ariz., 817 P.2d 493, 497 (Ariz. 16 App. 1991), in which the court determined that the appropriate approach for determining 17 “whether an official is named in his personal or official capacity” is to examine the pleadings 18 and look for allegations in the complaint that would “indicate the capacity in which 19 individual defendants were sued,” such as a request for punitive damages (which “indicated 20 that they must be named in their personal capacity”). Plaintiff contends that her complaint 21 makes clear that Kaffenberger’s actions were carried out under color of state law and 22 requests punitive damages, both of which suggest that he is being sued in his personal 23 capacity. Dkt. #15 at 7. Defendants do not address Carillo or these arguments. Because 24 Plaintiff’s complaint clearly seeks punitive damages against the Kaffenbergers, see Dkt. #1 25 at 10, and because Defendants have failed to cite authority mandating dismissal for failure 26 to specify the capacity in which a defendant is being sued, the Court will not dismiss 27 Plaintiff’s claim against Kaffenberger in his individual capacity on this ground. 28 -4- 3. 1 Official Capacity Liability as to Kaffenberger. 2 Defendants also allege that Plaintiff’s attempt to sue Kaffenberger in his official 3 capacity fails because Plaintiff does not allege that an official city policy or custom was the 4 moving force behind the alleged due process violations. They contend that Plaintiff’s official 5 capacity suit against Kaffenberger is merely “another way of pleading an action” against the 6 City and that, in order to find the City liable, Plaintiff must show that an official “policy or 7 custom” was responsible for the deprivation of Plaintiff’s rights. Dkt. #14 at 3. Defendants 8 argue that Plaintiff has failed to show that any City policy or custom existed or that 9 Kaffenberger himself was the policymaker.3 10 Plaintiff argues that she has alleged both that Kaffenberger’s actions were taken 11 pursuant to an official policy and that Kaffenberger was acting as the final policymaker with 12 respect to actions he undertook. Id. at 9. The Court disagrees. Plaintiff fails to point to any 13 specific facts alleged in her complaint which show that the City had a policy to deprive her 14 of constitutional rights, or that Kaffenberger was a policymaker. Indeed, the only relevant 15 facts alleged against Kaffenberger are as follows: that he created a list of positions to be 16 eliminated as part of a reduction in workforce (Dkt. #1 at 2-3), that he terminated Plaintiff’s 17 employment (id. at 3), that he failed to provide her with a post-termination hearing (id. at 8), 18 that he failed to provide her with a hearing prior to eliminating her position (id.), and that he 19 orchestrated a sham elimination of her position (id.). These factual allegations, accepted as 20 true, do not show that the city maintained a policy to deprive Plaintiff of her constitutional 21 rights or that Kaffenberger was a policymaker. Because the Court may not assume that a 22 plaintiff can prove facts different from those alleged in the complaint, and because there are 23 no facts supporting Plaintiff’s claim against Kaffenberger in his official capacity, the Court 24 25 26 27 28 3 “[A] municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation” through an official policy. City of Canton v. Harris, 489 U.S. 378, 1203 (1989) (citing Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978) (emphasis in original)). Municipal liability under § 1983 can also result from the unconstitutional actions or omissions of the municipality’s final policymaker. See Monell, 436 U.S. at 694; City of Canton, 489 U.S. at 388-90. -5- 1 must dismiss this claim. See Associated Gen. Contractors, 459 U.S. at 526. 2 4. Individual Capacity Liability as to Kaffenberger. 3 Defendants argue that Plaintiff has failed to state an individual capacity due process 4 claim against Kaffenberger. As Defendants note, it “is a well settled proposition of 5 constitutional law that in order to hold an individual liable for a constitutional violation, the 6 plaintiff must establish that each individual defendant engaged in specific conduct that 7 caused specific harm to Plaintiff.” Dkt. #14 at 5 (citing Rizzo v. Goode, 423 U.S. 362 8 (1976)). A plaintiff must establish that an individual being sued for a constitutional violation 9 engaged in an affirmative act, participated in another’s affirmative act, or failed to perform 10 an act which the individual was legally required to do, and that such conduct caused the 11 constitutional deprivation alleged by the plaintiff. Leer v. Murphy, 844 F.2d 628, 633 (9th 12 Cir. 1988). 13 Kaffenberger engaged in conduct that caused specific harm to Plaintiff and that, as a result, 14 the Court must dismiss the individual capacity claims against him. Dkt. # 14 at 5. Defendants argue that Plaintiff does not allege any facts showing that 15 Plaintiff argues that she has clearly pled three separate due process violations against 16 Kaffenberger, all of which allege specific conduct causing specific harm: (1) that he failed 17 to provide her with a meaningful hearing following her termination in March, (2) that he 18 failed to provide her with a pre-termination or post-termination hearing after the alleged 19 elimination of her position as part of a reduction in force, and (3) that he orchestrated a sham 20 elimination of her position as part of a reduction in force. In support of these arguments, she 21 cites to multiple paragraphs in her complaint where she alleges that Kaffenberger engaged 22 in each act which caused deprivations of her rights. See Dkt. #1 at ¶¶ 50-51 (alleging that 23 Kaffenberger failed to provide her with a meaningful post-termination hearing which denied 24 her due process); id. at ¶¶ 53-54 (alleging that Kaffenberger failed to provide her with a 25 meaningful pre-termination or post-termination hearing prior to the termination of her 26 position due to a reduction in workforce, which was a violation of her property interest 27 rights); id. at ¶ 55-56 (alleging that Kaffenberger orchestrated a sham elimination of her 28 position in violation of her constitutional rights). Because these factual allegations, if taken -6- 1 as true, show that Kaffenberger violated her constitutional rights, the Court will not dismiss 2 the § 1983 claim against Kaffenberger in his individual capacity. 3 B. A.R.S. § 23-1501 Claim. 4 Plaintiff alleges that Defendants violated the Employment Protection Act (“EPA”), 5 A.R.S. § 23-1501, by terminating her employment without due process. Plaintiff supports 6 this allegation by claiming she was deprived of a right to continued employment under the 7 United States Constitution, the Arizona Constitution, and the Lake Havasu Personnel Rules 8 and Regulations. Dkt. #1 at 9. 9 1. Kaffenberger Is Not an “Employer.” 10 Defendants argue that since Arizona’s EPA only permits an employee to sue an 11 employer for wrongful termination, Plaintiff’s claim against Kaffenberger must fail because 12 the City is her actual employer. Dkt. #14 at 6. 13 Kaffenberger can be held liable as a supervisor under A.R.S. § 23-1501. Dkt. #15 at 10. 14 The Court agrees. A supervisor may be held liable under A.R.S. § 23-1501 when he 15 possesses “day-to-day control over the company, including the right to fire, and the 16 supervisor has in fact exercised such control to harm another.” Higgins v. Assmann 17 Electronics, Inc., 173 P.3d 453, 458 (Ariz. App. 2007). Here, Plaintiff has adequately 18 alleged that Kaffenberger exercised such control because she claims that he “terminated [her] 19 employment” through a termination letter. Dkt. #1 at 3. Accepting this fact as true, the 20 Court cannot find that Kaffenberger is entitled to dismissal because he is not an employer 21 under A.R.S. § 23-1501.4 Plaintiff responds by arguing that 22 23 24 25 26 27 28 4 Defendants argue that Plaintiff identified Bill Mulcahy, Director of Parks and Recreation, as the individual who terminated her, not Kaffenberger. Dkt. # 18 at 7. Defendants, however, do not cite any evidence showing that they are correct. Moreover, Plaintiff’s complaint names Kaffenberger as the person who terminated her. Dkt. #1 at 3. -7- 1 2. Kaffenberger’s Conduct Did Not Violate the EPA. 2 Defendants also argue that even if the Court believes Kaffenberger to be Plaintiff’s 3 employer, Plaintiff’s EPA claim fails because she has not alleged that Kaffenberger 4 committed any action that would violate the statute. Dkt. #14 at 6-7. Defendants contend 5 that an employer can violate the EPA in one of four ways: (1) by terminating in breach of a 6 written contract, (2) by terminating in violation of an Arizona statute, (3) by terminating in 7 retaliation for refusal to violate the Arizona Constitution or an Arizona statute, or (4) in the 8 case of a public employee, if employee has a right to continued employment under the United 9 States or Arizona Constitutions. Dkt. #14 at 6. Defendants claim that Plaintiff has failed to 10 show that any of these four violations have occurred and, as a result, that they are entitled to 11 dismissal. Dkt. #14 at 7. 12 Defendants’ analysis of A.R.S. § 23-1501(3)(d) is incomplete. This section allows 13 for relief based on a continued right to employment under the “United States Constitution, 14 the Arizona Constitution, Arizona Revised Statutes, any applicable regulation, policy, 15 practice, or contract of the state, any subdivision of the state or other public entity, or any 16 ordinance of any political subdivision of the state.” A.R.S. § 23-1501(3)(d) (2010) 17 (emphasis added). 18 employment under the United States and Arizona Constitutions, but also on the Lake Havasu 19 Personnel Rules and Regulations. See Dkt. #1 at 9. These Rules contain provisions that 20 dictate certain “grounds for dismissal” and outline other employment procedures, such as the 21 requirement that terminated employees receive a post-termination hearing. Dkt. # 1 at 3. 22 These facts support Plaintiff’s claim that the Lake Havasu Personnel Rules and Regulations 23 provide her with some sort of continued right to employment. A.R.S. § 23-1501. As a 24 result, the Court will not dismiss Plaintiff’s EPA claim. 25 3. Plaintiff bases her EPA claim on not only a continued right to New Argument Raised in Reply. 26 The Kaffenbergers, in their reply brief, make two new arguments as to why dismissal 27 is proper: (1) Plaintiff did not have a legal right to continued employment as required for an 28 EPA claim (Dkt. #18 at 3-4), and (2) Plaintiff cannot state an EPA claim against Masako -8- 1 Kaffenberger because of deficiencies in her notice of claim (Dkt. #18 at 5-6). Defendants 2 cannot raise arguments in the reply that were not raised in their initial motion to dismiss. 3 Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008). The Court will not consider 4 either argument. 5 IV. Motion to Amend. 6 Plaintiff asks the Court to grant leave to amend if the Court grants any portion of 7 Defendants’ motion to dismiss. Dkt. #15 at 11. Defendants oppose the request. Dkt. #18 8 at 9. Rule 15 of the Federal Rules of Civil Procedure declares that courts should “freely give 9 leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). The Supreme Court has 10 instructed that “this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). 11 In deciding this motion, the Court “‘must be guided by the underlying purpose of Rule 15 12 – to facilitate decision on the merits rather than on the pleadings or technicalities.’” Eldridge 13 v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (citation omitted). “Thus, ‘Rule 15’s policy 14 of favoring amendments to pleadings should be applied with extreme liberality.’” Id. This 15 liberality “is not dependent on whether the amendment will add causes of action or parties.” 16 DCD Programs, LTD. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Given the extreme 17 liberality of Rule 15, the Court will grant Plaintiff leave to file an amended complaint by 18 July 23, 2010. 19 IT IS ORDERED: 20 1. 21 22 23 The Kaffenbergers’ motion to dismiss (Dkt. #14) is granted in part and denied in part. 2. Plaintiff’s request that the Court not consider Section III.A. of the Kaffenbergers’ reply brief (Dkt. #19) is granted. 24 25 26 27 28 -9- 1 3. Plaintiff shall have until July 23, 2010, to file an amended complaint. 2 Dated this 1st day of July, 2010. 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 - 10 -
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