United States District Court, D. Arizona
ORDER
Cindy
K. Jorgenson, Judge
Pending
before the Court is Defendants' Motion to Dismiss Counts
Five and Seven of the First Amended Complaint (Doc. 21).
Plaintiffs filed a Response (Doc. 23) to Defendants'
Motion to Dismiss and Defendants filed a Reply. (Doc. 24).
Factual
and Procedural Background
On
October 9, 2018, Plaintiffs Rene Mendoza (“Mr.
Mendoza”), Lani Salazar (“Mrs. Salazar”),
and Lionel Salazar filed an Amended Complaint against Rio
Rico Medical & Fire District (“Rio Rico”),
Albert Ibarra (“Mr. Ibarra”), Carmen Ibarra,
Albert Flores (“Mr. Flores”), and Beatrice
Flores. Among other things, Plaintiffs' alleged claims of
intentional infliction of emotional distress (Count Five) and
a violation of the Arizona Employment Protection Act (Count
Seven) in connection with various incidents of sexual assault
and harassment.
Arizona
requires that a Notice of Claim be filed before an individual
files suit against a public entity, such as Rio Rico.
See Ariz. Rev. Stat. Ann. § 12-821.01. On March
14, 2018, the Salazars sent Rio Rico and Mr. Flores a Notice
of Claim. (Doc. 23-1). The notice included a variety of
factual claims against Rio Rico and Mr. Flores and included a
specific amount for which the claims could be settled. On May
2, 2018, Mr. Mendoza sent Rio Rico and Mr. Ibarra a Notice of
Claim. (Doc. 23-3). The notice included a variety of factual
claims against Rio Rico and Mr. Ibarra and included a
specific amount for which the claims could be settled.
Neither
Notice of Claim was accepted within 60 days of receipt,
deeming them denied under § 12-821.01(E).[1] On December 24,
2018, Defendants filed the pending Motion to Dismiss Counts
Five and Seven of the First Amended Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). Defendants allege
that neither Mrs. Salazar nor Mr. Mendoza included claims for
intentional infliction of emotional distress or a violation
of the Arizona Employment Protection Act in their Notices of
Claim and, therefore, those claims should be dismissed.
Analysis
Arizona's
Notice of Claim requirement relating to public entities is
codified in Ariz.
Rev.
Stat. Ann. § 12-821.01(A), which provides:
Persons who have claims against a public entity, public
school or a public employee shall file claims with the person
or persons authorized to accept service for the public
entity, public school or public employee as set forth in the
Arizona rules of civil procedure within one hundred eighty
days after the cause of action accrues. The claim shall
contain facts sufficient to permit the public entity, public
school or public employee to understand the basis on which
liability is claimed. The claim shall also contain a specific
amount for which the claim can be settled and the facts
supporting that amount. Any claim that is not filed within
one hundred eighty days after the cause of action accrues is
barred and no action may be maintained thereon.
Therefore,
a Notice of Claim must include: “(1) facts sufficient
to permit the public entity to understand the basis upon
which liability is claimed, (2) a specific amount for which
the claim can be settled, and (3) the facts supporting the
amount claimed.” Backus v. State, 203 P.3d
499, 502 (Ariz. 2009). “The purpose of the notice is to
allow the public employee and his employer to investigate and
assess their liability, to permit the possibility of
settlement prior to litigation and to assist the public
entity in financial planning and budgeting.” Crum
v. Superior Court, 922 P.2d 316, 317 (Ariz.Ct.App.
1996). The notice of claim must “at least contain
enough information to allow the state to intelligently
ascertain these purposes so it can conscientiously allow or
disallow the claim.” Howland v. State, 818
P.2d 1169, 1175 (Ariz.Ct.App. 1991).
1.
Intentional Infliction of Emotional Distress
The
Salazars' Notice of Claim contains a myriad of factual
allegations that would permit Defendants to understand the
basis upon which Plaintiffs raise a claim for intentional
infliction of emotional distress. See (Doc. 23-1,
pg. 3) (“Flores then proceeded to rape Mrs. Salazar.
Mrs. Salazar fought Flores, but Flores penetrated
her.”); id. (“Flores grabbed Mrs.
Salazar by the arm and forced her into the gym at the First
District's fire station. Flores forced Mrs. Salazar to
have sex with him on top of a bench.”); id. at
4 (“As a result of Flores actions and Rio Rico's as
described above, Mrs. Salazar suffered severe mental distress
that requires therapy by a psychologist that is expected to
span years to treat the psychological damage that Flores
inflicted upon her.”).
Similarly,
Mr. Mendoza's Notice of Claim contains numerous factual
allegations that would permit Defendants to understand the
basis upon which Plaintiffs raise a claim for intentional
infliction of emotional distress. See (Doc. 23-3,
pg. 2) (“Captain Ibarra saw Mr. Mendoza standing by the
metal storage box and approached Mr. Mendoza to strike Mr.
Mendoza in the testicles with a flexible antenna from a
radio. Mr. Mendoza grimaced in pain. Captain Ibarra looked at
Mr. Mendoza grimacing, laughed and left the area. Mr. Mendoza
suffered physical pain and garden variety mental distress
including depression, anger, dignity, loss of self-esteem,
humiliation and worry about keeping his job.”);
...