United States District Court, D. Arizona
ORDER AND OPINION
[Re: Motion at Docket 4]
JOHN W. SEDWICK, Senior District Judge.
I. MOTION PRESENTED
At docket 4 defendants Maricopa County Superior Court ("Superior Court"), Karen Westover ("Westover"), Douglas Rayes ("Rayes"), Lori Ash ("Ash"), and Diane Alessi ("Alessi") move, pursuant to Federal Rule of Civil Procedure 12(b)(6), for an order dismissing plaintiff Karyl Krug's ("Krug") Complaint. Krug responds at docket 5. Defendants reply at docket 6. Oral argument was not requested and would not assist the court.
Krug and Alessi worked together as Superior Court Staff Attorneys assigned to criminal law cases. At times, Alessi critiqued Krug's work and revised it without Krug's knowledge. Because Alessi was not an attorney, Krug believed that Alessi was engaging in the unauthorized practice of law by supervising her work. Further, Krug believed that Alessi was committing fraud by not disclosing that she was not an attorney in a specific grant request, at CLE presentations, a judicial education training course she taught, and unspecified advertising material. Krug contacted the State Bar of Arizona ("State Bar") for ethical advice on how to handle this situation. The State Bar informed her that she had a mandatory duty to report her concerns to the State Bar, and she did so.
Alessi also allegedly called Krug passive-aggressive names and belittled her footwear, clothes, and the way she interacted with judges. Krug wrote Alessi an email informing her to stop supervising her work, stop harassing her, and "that she did not appreciate being included in" Alessi's fraud attempts.
Krug alleges that Westover (Krug's supervisor), Judge Douglas Rayes (also Krug's supervisor), and Ash (Superior Court Counsel) gave Alessi the authority to determine whether Krug would be fired. She then alleges that Westover, Rayes, and Ash terminated Krug for reporting Alessi to the State Bar and for the email she sent to Alessi. Since her termination, Krug has applied for up to 100 jobs, but has received few interviews. Krug believes that her former employers provided her with negative references, and this is why she has received few interviews. Krug did receive an interview for a job with the Maricopa County Attorney's Office, but did not receive the job "because her former employers blackballed her from the position" in retaliation for the statements she made as a Staff Attorney.
Krug's Complaint alleges two § 1983 First Amendment retaliation causes of action. Claim I alleges that each defendant terminated Krug in retaliation for First-Amendment-protected speech. Claim II apparently alleges that each defendant blackballed Krug in retaliation for First-Amendment-protected speech. Claim III seeks punitive damages. Defendants move to dismiss Krug's Complaint in its entirety.
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. Krug's Complaint Contains Only Two Substantive Claims
Defendants argue that Krug's hostile work environment and failure to supervise claims should be dismissed. Krug responds by stating that her Complaint does not contain such claims. Instead, her hostile work environment and failure to supervise allegations merely bolster her two retaliation claims. In ...