United States District Court, D. Arizona
Honorable James A. Soto United States District Judge.
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
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 This motion was later withdrawn after a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).
to State a claim
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,
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
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.
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).
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).
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 (2018).
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.
Arizona, a common-law indemnity claim may be asserted by a
contractor against its subcontractors.” Evan ...