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Thorp v. Home Health Agency - Ariz., Inc.

United States District Court, D. Arizona

March 18, 2013

Robert B. Thorp, an individual, Plaintiff,
v.
Home Health Agency - Arizona, Inc., d/b/a Team Select Home Care, a Florida corporation; Michael W. Lovell, in his official and individual capacities, and Stacy P. Lovell, husband and wife; Jean Chicken, in her official capacities, and John Doe Chicken, husband and wife; John Does and Jane Does 1-X; White Corporations 1-X; Black Limited Liability Companies1-X; and Blue Partnerships 1- X, Defendants

For Robert B Thorp, an individual, Plaintiff: Joshua William Carden, LEAD ATTORNEY, Davis Miles McGuire Gardner PLLC, Tempe, AZ.

For Home Health Agency - Arizona Incorporated, a Florida corporation, doing business as, Team Select Home Care, Michael W Lovell, in his official and individual capacities/ husband, Stacy P Lovell, wife, Jean Chicken, in her official and individual capacities/ wife, Defendants: Dawn Christel Valdivia, LEAD ATTORNEY, Marian M Zapata-Rossa, Quarles & Brady LLP, Phoenix, AZ.

For Unknown Chicken, named as: John Doe Chicken/ husband, Defendant: Marian M Zapata-Rossa, Quarles & Brady LLP, Phoenix, AZ.

OPINION

Page 1139

ORDER

Michelle H. Burns, United States Magistrate Judge.

Pending before this Court is Defendants' Motion to Dismiss Counts III, IV, and V of Plaintiff's Complaint (Doc. 9), and Defendants' Motion to Dismiss Defendants Michael W. Lovell, Stacy P. Lovell, Jean Chicken, John Doe Chicken (hereinafter " individual defendants" ), and Fictitious Defendants (Doc. 10). Plaintiff has filed a consolidated Response (Doc. 14), and Defendants have filed a consolidated Reply (Doc. 19). Plaintiff does not object to the dismissal of the Fictitious Defendants from the Complaint, or the dismissal of the individual Defendants from Counts I and II of the Complaint, and therefore the Court will order the dismissal of the Fictitious Defendants from the Complaint, and the individual Defendants from Counts I and II of the Compliant.

Defendants move, pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Counts III, IV, and V against Home Health Agency - Arizona, Inc., d/b/a/ Team Select Home Care (hereinafter " Team Select" ), and Count III against Team Select and the individual defendants, for failure to state a claim upon which relief can be granted.

Plaintiff Thorp was employed by Defendant Team Select as a Clinical Supervisor from September 27, 2010, through approximately December 31, 2010. Plaintiff alleges in his Complaint that during his tenure with Team Select, he was routinely subjected to outrageous religious discrimination and sexual harassment. These allegations are the basis for the present lawsuit Plaintiff has filed against Defendants, which includes claims for: (I) Title VII discrimination and harassment; (II) retaliation; (III) intentional infliction of emotional distress; (IV) negligent hiring, retention, or supervision; and (V) breach of the covenant of good faith and fair dealing.

RULE 12(b)(6) STANDARD.

The Court may dismiss a complaint for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P., for two reasons: 1) lack of a cognizable legal theory, or 2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To adequately state a claim, a complaint must meet the requirements of Rule 8(a)(2), Fed.R.Civ.P., which requires a " short and plain statement

Page 1140

of the claim showing that the pleader is entitled to relief," so that the defendant has " fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader's obligation to provide the grounds for relief requires " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Rule 8(a)(2) " 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." Id. at 555 n. 3 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure ยง 1202, pp. 94, 95(3d ed.2004)). Rule 8's pleading standard demands more than " an ...


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