United States District Court, D. Arizona
Dominic W. Lanza United States District Judge
before the Court is the partial motion to dismiss filed by
the City of Phoenix and Mary Roberts (together,
“Defendants”). (Doc. 11.) Roberts has moved to dismiss
Plaintiffs' state-law claims against her for insufficient
compliance with Arizona's notice of claim statute, A.R.S.
§ 12-821.01(A), and both Defendants have moved under
Federal Rule of Civil Procedure 12(b)(6) to dismiss the
claims for abuse of process and intentional infliction of
emotional distress. For the reasons below, the Court will
grant the partial motion to dismiss in its entirety.
case was removed to the federal court on May 29, 2018. (Doc.
1.) Plaintiffs Darren Udd (“Darren”) and Amy Udd
(“Amy”) (together, “Plaintiffs”)
filed their first amended complaint on June 11, 2018. (Doc.
9.) The facts as alleged by Plaintiffs are as follows:
Facts Related to Underlying Claims
is a peace officer certified by the Arizona Peace Officer
Standards and Training Board (“AZPOST”) who
retired in December 2017 after working for approximately 24
years in the Phoenix Police Department (the
“Department”), most recently as a homicide
detective. (Id. ¶ 24.) Amy is Darren's
spouse and a civilian employee of the Department.
(Id. ¶ 54.) Roberts is an Assistant Chief for
the Department. (Id. ¶ 4.)
the relevant time period, Darren worked significant hours
from home or otherwise outside the office and outside normal
business hours, often working more than his regularly
scheduled eight-hour shift. (Id. ¶¶ 28-29,
35.) Darren, like many other police detectives, did not
record all the hours he worked. (Id. ¶ 31.) The
Homicide Unit of the Department has historically recognized
the non-standard work hours of its detectives and instituted
a de facto department policy known as “flex time”
that is not documented in the employee manual. (Id.
December 20, 2016, Darren was directed to report to the
office of his supervisor, where he was advised that Roberts
personally directed that he not be assigned to work on any
new cases. (Id. ¶ 39.) The Department claimed
that it had received an anonymous report questioning his work
hours, which caused the Department to open an investigation
in October 2016 and conduct an audit of his magnetic entry
card for headquarters and his radio transmissions and
computer logs. (Id. ¶¶ 40-41.)
allege that this audit had several significant limitations,
which resulted in underreporting of the hours Darren worked.
(Id. ¶ 43.) For example, it primarily
calculated the hours Darren worked based on Darren's use
of his magnetic entry card, assuming that the first use was
his start of the work day and second use was his leaving
work, which was not always accurate. (Id. ¶
44.) Plaintiffs allege that the Department was aware of these
limitations and the resulting underreporting. (Id.
¶¶ 43-45.) At one point, the audit showed that
Darren was deficient by 1, 054.5 hours from between October
2015 and October 2016, valued at $36, 717.69. (Id.
around October 2016, after being provided the audit and
investigation information, Roberts directed that Darren be
criminally investigated for theft of time. (Id.
¶¶ 48, 63.) Darren's supervisor, Sergeant
Lumley, was not interviewed until January 26, 2017.
(Id. ¶ 63.) In this interview, Lumley provided
extensive exculpatory evidence. (Id. ¶ 64.) A
search warrant was obtained for Darren's personal cell
phone records in connection with this investigation, and the
records were obtained on February 17, 2017. (Id.
¶¶ 50, 68.) Darren was not interviewed before the
investigation was opened and his interview did not occur
until April 19, 2017. (Id. ¶¶ 59, 69.)
that originated in Roberts's office circulated throughout
the department that Darren was under investigation for
“theft.” (Id. ¶ 52.) Amy was
informed by her supervisor of the investigation, which caused
her stress and anxiety. (Id. ¶¶ 54-55.)
April 2017, the amount of unaccounted for time had been
reduced to 221 hours, valued at $7, 695.22. (Id.
¶ 71.) Darren was never arrested during or after the
investigation. (Id. ¶ 60.) But an incident
report indicated that he was an arrested suspect.
(Id. ¶ 61.) The incident report also
recommended that Darren be charged with a class 3 felony for
theft of hours. (Id. ¶ 76.)
investigation was referred to the Maricopa County
Attorney's Office (“MCAO”) for possible
indictment and prosecution. (Id. ¶ 80.) The
MCAO declined to prosecute. (Id. ¶ 82.) The
MCAO has declined to prosecute many sworn officers and
civilian employees who have been referred for prosecution by
the Department. (Id. ¶ 83.) On information and
belief, the MCAO has advised the investigatory units of the
Department, including the Professional Standard Bureau and
the Office of the Phoenix Chief of Police, to cease referring
investigations for non-criminal activity. (Id.
allege that several employees of the Department over the age
of 40 have been subjected to a series of internal
investigations and other unwarranted adverse employment
actions, causing some of them to take early retirement and
leave the Department. (Id. ¶¶ 90-91.)
Plaintiffs further allege that male employees have been
subject to investigations and adverse employment actions that
female employees have not. (Id. ¶¶ 94,
the investigation, Roberts made comments about Darren that
attacked his reputation and falsely claimed that he would be
prosecuted. (Id. ¶ 98.)
16, 2017, Darren learned that Roberts had opened a separate
criminal investigation into Amy for using Darren's garage
key card at Department headquarters. (Id. ¶
100.) Darren had allowed Amy to use his parking spot so she
would not have to walk alone through downtown Phoenix at
night. (Id.) Darren and Amy were both referred to
the Phoenix City Prosecutor's Office for one count of
theft. (Id. ¶ 110.) The case was referred to
the Glendale City Prosecutor due to a perceived conflict of
interest, and the Glendale City Prosecutor declined to
prosecute either Darren or Amy. (Id. ¶¶
111, 113.) An incident report indicates that both Darren and
Amy were categorized as arrested suspects even though neither
was ever arrested in connection with this matter.
(Id. ¶¶ 112, 114.)
stress and health concerns, Darren took FMLA leave around
late May 2017. (Id. ¶ 101.) He remained on this
leave until his previously scheduled vacation leave began on
July 11, 2017. (Id.)
Darren returned to work on August 7, 2017, he was ordered to
immediately surrender his badge and gun, assigned to work
from home, and placed on paid administrative leave.
(Id. ¶ 102.) On September 6, 2017, Darren
requested that he be returned to his former duties; in
response, he was told that he was being transferred to
callback duty. (Id. ¶¶ 104-105.) Callback
was a desk job that involved returning calls to members of
the public, which Darren considered to be a highly demeaning
punishment. (Id. ¶¶ 108-109.)
provided the City of Phoenix, in its capacity as his
employer, with a Notice of Constructive Discharge.
(Id. ¶ 126.) The City of Phoenix has not
provided a written response to the Notice. (Id.
took early retirement in December 2017. (Id. ¶
128.) The City of Phoenix and the Department did not provide
him with a designation that he had taken an honorable
retirement. (Id. ¶ 130.)
Darren took his early retirement, the City of Phoenix and the
Department filed paperwork with AZPOST alleging misconduct in
an effort to have Darren's peace officer certification
removed. (Id. ¶ 131.) On May 2, 2018, Darren
received a letter from AZPOST stating that a review of the
criminal and administrative investigations had found nothing
to support the violation of any AZPOST rule, that his case
had been administratively closed without any Board action,
and that he had no further issue pending with AZPOST.
(Id. ¶ 132.)
allege that, as a result of Defendants' conduct, Darren
suffered physical and mental harm including emotional
distress, pain and suffering, mental anguish, humiliation,
stress, and stress-induced medical issues. (Id.
¶ 134.) They also allege that he suffered public
ridicule, contempt, disrepute, harm to reputation, attacks on
his integrity, lost wages and benefits, economic and other
financial losses, lost earnings capacity, and other damages.
(Id. ¶ 135.)
further allege that, as a result of Defendants' conduct,
Amy suffered severe and debilitating emotional distress,
humiliation, degradation, harm to her good name and
reputation, harm to her marital community, great anxiety,
fear of unjust prosecution, and significant harm to her
employability in her chosen field of psychology.
(Id. ¶ 138.)
Notice of Claim Service
August 14, 2017, Darren served notices of claim on the City
of Phoenix and Roberts. (Id. ¶ 140; Doc. 9-1
[Exs. 1-2].) A process server served the notice of claim on
the City of Phoenix through hand delivery on Norris
Cunningham, who indicated he was Special Deputy City Clerk,
at the Phoenix City Clerk's office. (Doc. 9 ¶ 143.)
A process server served the notice of claim on Roberts
through hand ...