Ortiz v. Fluor Enterprises Inc.

          ORDER

          Honorable James A. Soto United States District Judge.

         Pending before the Court are Defendants AZZ Inc.'s (“AZZ”) and Atkinson Industries, Inc.'s (“Atkinson”) Motion to Dismiss Plaintiff's Second Amended Complaint for Wrongful Death (Doc. 116) and Motion to Dismiss Cross-Claim by Jacobs Field Services Americas, Inc. f/k/a Aker Kvaerner Industrial Contractors, Inc. (Doc. 112) and Joint Defendants' Motion to Dismiss Complaint for Failure to Comply with A.R.S. § 12-2602 (Doc. 130). All the motions have been fully briefed and are ripe for the Court's consideration. (Docs. 118, 119, 123, 124, 132, 134.) Based on the following reasoning, the Motion to Dismiss Plaintiff's Second Amended Complaint for Wrongful Death (Doc. 116) will be denied, and the Motion to Dismiss Cross-Claim by Jacobs Field Services Americas, Inc. f/k/a Aker Kvaerner Industrial Contractors, Inc. (Doc. 112) will be granted, in part, and denied, in part, and the Motion to Dismiss Complaint for Failure to Comply with A.R.S. § 12-2602 (Doc. 130) will be granted, in part, and denied, in part.

         Procedural History

         On April 5, 2017, Plaintiffs filed a complaint in the Arizona Superior Court in Pima County for the wrongful death of Bryan Ortiz. (Doc. 1-3.) On July 11, 2017, Defendant Aker Solutions Inc. removed this matter to this Court. (Doc. 1.) On April 5, 2018, Plaintiffs filed the First Amended Complaint. (Doc. 49.) Among other changes, the First Amended Complaint added AZZ as a defendant. (Doc. 49.) On April 27, 2018, AZZ represented to the Court that they had no involvement in this matter, but instead the correct party was their subsidiary, Atkinson, (Doc. 58). This motion was later withdrawn after a stipulation by the parties (Doc. 66). On May 7, 2018, the parties filed a stipulation that Plaintiffs would disclose expert affidavits in compliance with A.R.S. § 12-2602(b) by June 22, 2018. (Doc. 67.) The Court granted the parties' stipulation. (Doc. 69.) On June 22, 2018, Plaintiffs served a preliminary expert opinion affidavit to Defendants. (Doc. 93.) Plaintiffs later served an amended expert affidavit. On June 22, 2018, Plaintiffs filed the Second Amended Complaint, which added Atkinson as a defendant. (Doc. 92.) The Second Amended Complaint alleges that AZZ and Atkinson both engineered, designed, and constructed the solution extraction and electrowinning substations. Id. at 3. Further, Plaintiffs allege that the design and construction of the electrowinning substation was faulty, which caused the death of Bryan Ortiz. Id. at 7-8. Aker Kvaerner filed an answer and cross-claim against AZZ, Atkinson, and Defendant Beta Engineering L.L.C. (“Beta”), alleging a right of indemnity against the cross-defendants. (Doc. 98).

         Legal Standard

         Failure to State a claim

         Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although detailed factual allegations are not required, a pleading must provide more than “unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. Merely being consistent with liability is insufficient. Id.

         The Court may consider documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice without converting the motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).

         A party shall not be given leave to amend if amendment would be futile. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).

         Indemnification

         Arizona law states that common law indemnification requires that “the indemnity plaintiff must show, first, it has discharged a legal obligation owed to a third party; second, the indemnity defendant was also liable to the third party; and third, as between itself and the defendant, the obligation should have been discharged by the [indemnity] defendant.” MT Builders, L.L.C. v. Fisher Roofing, Inc., 197 P.3d 758, 764 n. 2 (Ariz.Ct.App. 2008); see KnightBrook Ins. v. Payless Car Rental Sys. Inc., 409 P.3d 293, 295 (Ariz. 2018). Common law indemnity will only be provided to those who were only passively or secondarily negligent. Evans Withycombe, Inc. v. Western Innovations, Inc., 159 P.3d 547, 551 (Ariz.Ct.App. 2006). The right to indemnity accrues not based on what a plaintiff has alleged, but instead once liability for a cause of action is established; “the indemnitee is not required to make actual payment.” INA, Ins. Co. of North America v. Valley Forge Ins., 722 P.2d 975, 980 (Ariz.Ct.App. 1986). These claims may be brought before they fully accrue as cross-claims or third-party claims. Fed.R.Civ.P. 13, 14; 16 Ariz. R. Civ. P. 13, 14; 1 The Law of Negligence in Arizona § 15.04[5] (2018).

         A party may be vicariously liable for an independent contractor when “the employer delegates performance of a special duty to an independent contractor and the latter is negligent.” Wiggs v. City of Phoenix, 10 P.3d 625, 627 (Ariz. 2000) (en banc) (quoting Ft. Lowell-NSS Ltd. P'ship v. Kelly, 800 P.2d 962, 967 (Ariz. 1990) (en banc)). This special duty is often referred to as a non-delegable duty. See id. at 626-27.

         “In Arizona, a common-law indemnity claim may be asserted by a contractor against its subcontractors.” Evan ...