ORDER AND OPINION [Re Motion at docket 4]
JOHN W. SEDWICK, District Judge.
I. MOTION PRESENTED
At docket 4, the named defendants ("Defendants") move to dismiss the claims filed against them by plaintiffs Wendy Lorenz (Wendy") and Robert Lorenz ("Robert") (collectively "Plaintiffs") pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs' response is at docket 14, and a supplemental response is at docket 16. Defendants' reply is at docket 19. Oral argument was not requested and would not aid the court.
Plaintiffs are the grandparents of a minor child, E.C. Four of the individual defendants are employees of the State of Arizona Child Protective Services ("CPS"). Defendant Carter is the director fo the Arizona Department of Economic Security ("DES"). Plaintiffs' claims arise out of a contested adoption proceeding relating to E.C. They claim that defendants' "active interference" constituted negligence or gross negligence and also violated Plaintiffs' rights under the constitutions of the United States and the State of Arizona. Pursuant to 42 U.S.C. § 1983, Plaintiffs allege in Count One of their complaint that all Defendants, save the State of Arizona, violated their rights under the Fourteenth Amendment to due process and the equal protection of the law. In Count Two they allege that the negligence or gross negligence of all Defendants in dealing with Plaintiffs caused injury to Plaintiffs. Finally, in Count Three Plaintiffs allege that all Defendants denied Plaintiffs due process of law in violation of Article II, Section 4, of the Arizona Constitution.
This court has subject matter jurisdiction of the claim in Count One pursuant to 28 U.S.C. § 1331. This court has subject matter jurisdiction over the claims in Counts Two and Three pursuant to 28 U.S.C. § 28 U.S.C. § 1367, because the claims pled in all three Counts are so closely related that they form part of the same controversy.
III. STANDARD OF REVIEW
Rule 12(b)(6), tests the legal sufficiency of a plaintiff's claims. In reviewing such a motion, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party." To be assumed true, the allegations "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Dismissal for failure to state a claim can be based on either "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." "Conclusory allegations of law... are insufficient to defeat a motion to dismiss."
To avoid dismissal, a plaintiff must plead facts sufficient to "state a claim to relief that is plausible on its face." "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." "Where a complaint pleads facts that are merely consistent' with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief."
A. Facts Assumed To Be True
Facts pled by Plaintiffs and therefore assumed true for purposes of the motion at bar are set forth in this section. Shyla and Patrick are E.C.'s parents. Patrick is Wendy's son and Robert's stepson. Shyla became pregnant while living in a foster home, and had moved to another foster home operated by Paul and Jill Cryder by the time E.C. was born. Wendy visited the Cryder home and held E.C. for about an hour on June 10, 2008. Wendy had contact with some of the Defendants employed by CPS during that summer. She and Robert moved to Saipan on October 1, 2008. On November 4, 2008, the Juvenile Court entered an Order of Dependency of E.C. as to Shyla, and on November 12, 2008, an Order of Dependency of E.C. as to Patrick.
In May of 2009, Wendy attempted to contact some of the individual Defendants by phone from Saipan. Her calls were not returned. On June 18, 2009, a petition to intervene in the Juvenile Court proceedings relating to E.C. was filed on behalf of Plaintiffs. It was granted on July 28, 2009.
Meanwhile, Wendy had appeared telephonically at a June 23 hearing at which she explained she and Robert were very interested in adopting E.C. After that hearing Defendant Anne Russel told the Cryders they should fight to retain custody of E.C., because the situation was wrong. The Cryders filed a petition to intervene. Jill Cryder testified that she would not have ...