United States District Court, D. Arizona
THEODORE E. NIXON, Plaintiff,
MOHAVE COUNTY, PUBLIC WORKS DEPARTMENT, et al., Defendants,
H. RUSSEL HOLLAND, District Judge.
Motion to Dismiss
Defendants move to dismiss plaintiff's state law claims. This motion is opposed. Oral argument was not requested and is not deemed necessary.
Plaintiff is Theodore E. Nixon. Defendants are Mohave County, Steven P. Latoski, and Vickie Holcomb.
Plaintiff began working for Mohave County as a Facilities Engineering Manager in the Public Works Department on July 15, 2013. Latoski was plaintiff's direct supervisor, and Holcomb was one of plaintiff's assistants.
On August 9, 2013, plaintiff alleges that Holcomb reported to Human Resources that he was sexually harassing her. Plaintiff alleges that another employee, Greg Arnold, told him that "Holcomb and other female employees were organizing to get [p]laintiff fired" and that "Holcomb had a problem with men and that she had organized to have another male fired in the past." Plaintiff alleges that "Holcomb fabricated [the] story that [he] sexually harassed her." Plaintiff alleges that "Holcomb was acting in the course and scope of her employment by reporting alleged sexual misconduct to HR. In the alternative, Defendant Holcomb was not acting in the course and scope of her employment when making these false accusations."
Plaintiff alleges that later on August 9, 2013, after Holcomb had made her report to Human Resources, "Latoski summoned [p]laintiff to the conference room where another person was present. Defendant Latoski immediately notified [p]laintiff that he was being let go' because of his alleged failure to meet performance requirements of the position.'" Plaintiff alleges that he "was confused he was being terminated in light of the positive feedback he had been consistently receiving from" Latoski and that when he expressed his confusion, "Latoski provided the real reason for the termination." Latoski advised plaintiff that he was being terminated because he had "engaged in inappropriate sexual contact' with an unidentified female employee (now known to be Holcomb) and that was all [plaintiff] needed to know.'" Plaintiff alleges that "Latoski was acting in the course and scope of employment when terminating [him] for alleged sexual misconduct. In the alternative, Defendant Latoski was acting on his own accord by firing [him] knowing that the accusations of sexual misconduct were false."
Plaintiff commenced this action on February 27, 2014. In his complaint, plaintiff asserts a Title VII claim against the County. Plaintiff also asserts four state law claims against Holcomb and Latoski: 1) a defamation claim, 2) an injurious falsehood claim, 3) a false light claim, and 4) an intentional interference with contract claim. Plaintiff alleges that the County is liable for Holcomb's and Latoski's alleged tortious conduct on a respondeat superior theory.
Defendants now move to dismiss plaintiff's state law claims.
Although defendants bring their motion to dismiss pursuant to Rule 12(b)(6), the instant motion must be treated as a Rule 12(c) motion for judgment on the pleadings because defendants have already answered plaintiff's complaint. MacDonald v. Grace Church Seattle , 457 F.3d 1079, 1081 (9th Cir. 2006). In deciding a Rule 12(c) motion, "[t]he [c]ourt inquires whether the complaint at issue contains sufficient factual matter, accepted as true, to state a claim of relief that is plausible on its face.'" Harris v. County of Orange , 682 F.3d 1126, 1131 (9th Cir. 2012) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)). "The [c]ourt may find a claim plausible when a plaintiff pleads sufficient facts to allow the [c]ourt to draw a reasonable inference of misconduct, but the [c]ourt is not required to accept as true a legal conclusion couched as a factual allegation.'" Id . (quoting Iqbal , 556 U.S. at 678).
To the extent that plaintiff has asserted claims against the individual defendants based on allegations of conduct within the scope of their employment,  those claims are dismissed for lack of notice. "A claimant who asserts that a public employee's conduct giving rise to a claim for damages was committed within the course and scope of employment must give notice of the claim to both the employee individually and to his employer." Crum v. Superior Court in and for County of Maricopa , 922 P.2d 316, 317 (Ariz.Ct.App. 1996). Plaintiff provided notice of his claims to the County, but did not provide notice to Holcomb or Latoski. Because plaintiff cannot cure this notice problem, his claims against Holcomb and Latoski in their official capacities are dismissed with prejudice. See, e.g., Kroncke v. City of Phoenix, Case No. 1 CA-CV 10-0676, 2011 WL 6809841, at *3 (Ariz.Ct.App. Dec. 27, 2011) ("we hold that dismissal with prejudice was proper on the alternative ground that [Kroncke's tort claims] have been barred by his failure to comply with the mandatory notice of claim statute"); Holmes v. City of Flagstaff, Case No. CV09-8156 PCT-DGC, 2010 WL 994190, at *4 (D. Ariz. March 17, 2010) (dismissing state law claims with prejudice because the plaintiff did not file a notice of claim).
Plaintiff's state law claims against the County based on a respondeat superior theory of liability are also dismissed. Under Arizona law, "[a] dismissal with prejudice is an adjudication on the merits of the case." De Graff v. Smith , 157 P.2d 342, 345 (Ariz. 1945) (citation omitted); see also, Orlando v. City of Mesa, Case No. 1 CA-CV 08-0058, 2009 WL 551155, at *3 (Ariz.Ct.App. March 5, 2009) ("Arizona has long recognized that a dismissal with prejudice of a plaintiff's claims against an employee constitutes an adjudication on te merits"). If claims against individual employees are dismissed with prejudice, then the employer can never be found vicariously liable. See Law v. Verde Valley Med. Ctr. , 170 P.3d 701, 705 (Ariz.Ct.App. 2007) ("When a judgment on the merits-including a dismissal with prejudice-is entered in favor of the "other person" in A.R.S. § 12-2506(D)(2)..., there is no fault to impute and the party potentially vicariously liable... is not responsible for the fault' of the other person"); Orlando, 2009 WL 551155, at *3 (if the claims against the employee are dismissed with prejudice, then "an action against the employer based solely upon the doctrine of vicarious liability" is precluded). Because plaintiff's claims against the individual defendants in their official capacities are dismissed with prejudice, the County could never be vicariously liable for Holcomb's or Latoski's "official" conduct. If plaintiff could continue to assert claims for vicarious liability against the County even though his "official capacity" claims against Holcomb and Latoski have been dismissed with prejudice, then his failure to comply with the Notice statute as to Holcomb and Latoski would be excused, which would ...