United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE
before the Court is World Financial Group's Motion to
Dismiss (Doc. 12, “Mot.”). World Financial Group
(“WFG”) asks the Court to dismiss the Complaint
(Doc. 1, “Complaint”) because Plaintiff Erlinda
Isip's claims are barred by the statute of limitations
and this Court lacks personal jurisdiction over WFG for
Plaintiff Faye Perez's claims. Plainitff Erlinda Isip
filed a response. (Doc. 20). Plaintiff Perez filed a response
as well. (Doc. 27). WFG replied to both responses. (Docs. 24,
allege WFG is liable for fraud done by Maria Bernadette
Roxas-Smith. WFG describes itself as “a marketing
company that offers a business platform to individuals who
seek to run independent financial services businesses.”
(Mot. at 2-3). Plaintiffs refer to Ms. Roxas-Smith as the
“perpetrator” of the fraud and claim she acted as
a “life insurance agent with WFG” before her
termination in February 2017. (Complaint ¶ 8). In total,
they allege Ms. Roxas-Smith fraudulently took $200, 000 from
Plaintiff Isip and $331, 367 from Plaintiff Perez.
(Id. ¶¶ 19, 41). Most of their allegations
concern Ms. Roxas-Smith's behavior rather than acts of
the actual defendant in this case WFG. Generally, they seem
to be alleging that WFG enabled Ms. Roxas-Smith to conduct
her fraudulent schemes by allowing her to continue working on
behalf of WFG after Plaintiff Isip notified WFG executives of
Ms. Roxas-Smith's behavior, failed to report Ms.
Salas-Smith to the Nevada, California, and Arizona
Departments of Insurance, and ignored Plaintiffs concerns.
(Id. ¶¶ 21-24, 46-48).
moves for dismissal under Federal Rule of Civil Procedure
12(b)(6) and 12(b)(2). To survive a Rule 12(b)(6) motion for
failure to state a claim, a complaint must meet the
requirements of Rule 8(a)(2). Rule 8(a)(2) requires a
“short and plain statement of the claim showing that
the pleader is entitled to relief, ” so that the
defendant has “fair notice of what the . . . claim is
and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Dismissal
under Rule 12(b)(6) “can be based on the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss if
it contains sufficient factual matter, which, if accepted as
true, states a claim to relief that is “plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570).
to trial, a defendant may move to dismiss the complaint for
lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2);
Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557
F.2d 1280, 1285 (9th Cir. 1977). Plaintiffs bear the burden
of establishing personal jurisdiction. Ziegler v. Indian
River Cty., 64 F.3d 470, 473 (9th Cir. 1995). Where the
motion is based on written materials rather than an
evidentiary hearing, “the plaintiff need only make a
prima facie showing of jurisdictional facts.” Sher
v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). In
determining whether the plaintiff has met this burden,
uncontroverted allegations in the plaintiff's complaint
must be taken as true, and “conflicts between the facts
contained in the parties' affidavits must be resolved in
[the plaintiff's] favor for purposes of deciding whether
a prima facie case for personal jurisdiction exists.”
AT & T v. Compagnie Bruxelles Lambert, 94 F.3d
586, 588 (9th Cir. 1996).
no federal statute governs personal jurisdiction, the
district court applies the law of the forum state.”
Freestream Aircraft (Bermuda) Ltd. v. Aero Law Grp.,
905 F.3d 597, 602 (9th Cir. 2018). Arizona exerts personal
jurisdiction to the “maximum extent permitted by the
Arizona Constitution and the United States
Constitution.” Ariz. R. Civ. P. 4.2(a); see also A.
Uberti and C. v. Leonardo, 892 P.2d 1354, 1358 (Ariz.
1995) (analyzing personal jurisdiction in Arizona under
federal law). Therefore, the analyses of personal
jurisdiction under Arizona law and federal due process are
the same. See Schwarzenegger v. Fred Martin Motor
Co., 374 F.3d 797, 800-01 (9th Cir. 2004).
compliance with the applicable statute of limitations is not
a pleading requirement under Federal Rule of Civil Procedure
8, see Wyatt v. Terhune, 315 F.3d 1108, 1117-18 (9th
Cir.2003), dismissal on such grounds is not justified
“unless it appears beyond doubt that the plaintiff can
prove no set of facts that would establish the timeliness of
the claim, ” Hernandez v. City of El Monte,
138 F.3d 393, 402 (9th Cir.1998) (quotation omitted).
“Dismissal on statute of limitations grounds can be
granted pursuant to Fed.R.Civ.P. 12(b)(6) ‘only if the
assertions of the complaint, read with the required
liberality, would not permit the plaintiff to prove that the
statute was tolled, '” TwoRivers v. Lewis,
174 F.3d 987, 991 (9th Cir. 1999) (quoting Vaughan v.
Grijalva, 927 F.2d 472, 478 (9th Cir. 1991)), or had
otherwise not yet accrued.
Statute of Limitations
Complaint is not clear as to what legal theory Plaintiffs are
relying on for relief. Plaintiffs talk a lot about fraud, but
it alleges fraud on the part of Ms. Roxas-Smith and not fraud
committed by WFG. The Court agrees with WFG that Plaintiffs
are asserting a negligent supervision claim. Negligent
Supervision claims are subject to a two-year statute of
limitation. A.R.S. §12-542; Moses v. Phelps Dodge
Corp., 808 F.Supp. 1287, 1289 (D. Ariz. 1993). Plaintiff
Isip does not dispute that there is a two-year statute of
Isip's argument against application of the statute of
limitations here is the doctrine of equitable tolling and
that of equitable estoppel. Equitable tolling focuses on a
plaintiff's “excusable ignorance” of the
statute of limitations. Lehman v. United States, 154
F.3d 1010, 1016 (9th Cir. 1998). The doctrine is unavailable
to those who are negligent in exercising due diligence to
preserve their legal rights. Id. Its fact-intensive
nature is more appropriate for resolution on summary judgment
than at the pleading stage. See Supermail Cargo, Inc. v.
United States, 68 F.3d 1204, 1207 (9th Cir.1995)
(dismissal inappropriate “where the applicability of
the equitable tolling doctrine depended upon factual
questions not clearly resolved in the pleadings”).
“Equitable estoppel focuses primarily on the actions
taken by the defendant in preventing a plaintiff from filing
suit” and “may be invoked if the defendant takes
active steps to prevent the plaintiff from suing in time,
such as by misrepresenting or concealing facts necessary to
the discrimination claim.” Coppinger-Martin v.
Solis, 627 F.3d 745, 751 (9th Cir. 2010) (internal
quotation marks and citations omitted).
Response, Plaintiff Isip relates a number of facts that are
not contained in the Complaint to support her argument for
equitable estoppel. Plaintiff requests to be allowed to amend
her complaint to include those facts. However, the Court
finds that is unnecessary as there are sufficient facts in
the Complaint, when construed liberally, to support a finding
of equitable tolling at this stage. In the Complaint she
alleges ongoing activity in her investigation through
November 27, 2017. At what point during that investigation
did her claim accrue is a question ...