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Ross v. Woolf

United States District Court, D. Arizona

August 30, 2019

Ronald F. Ross, Plaintiff,
John Woolf and ProActive Physical Therapy, LLC, Defendants.


          Honorable Bruce G. Macdonald United States Magistrate Judge.

         Currently pending before the Court is Defendants John Woolf and ProActive Physical Therapy, LLC's (“ProActive”) Motion to Dismiss Plaintiff's Amended Complaint (Doc. 15). Plaintiff filed his Opposition to Defendants [sic] Motion to Dismiss (“Response”) (Doc. 17), and Defendants subsequently replied (Doc. 18). The motion is fully briefed and ripe for adjudication.

         In its discretion, the Court finds this case suitable for decision without oral argument. See LRCiv. 7.2(f). The Parties have adequately presented the facts and legal arguments in their briefs and supporting documents, and the decisional process would not be significantly aided by oral argument.


         Plaintiff worked for Tucson Physical Therapy for “over a year” prior to its merger with another company. Amended Compl. (Doc. 8) at 3. Plaintiff alleges that Tucson Physical Therapy merged with ProActive. Id. Plaintiff then worked for the new company for one (1) year. Id. Plaintiff was laid off in January 2017. Id. Plaintiff alleges he was “offered 2 positions and a marketing job but was passed [up] . . . [and] each time younger people were hired in [his] place.” Id. Plaintiff was forty-eight (48) years old at the time. Amended Compl. (Doc. 8) at ¶ 3.

         Plaintiff alleges that “John Woolf and ProActive Physical Therapy violated U.S. Code 621 Age Discrimination[.]” Id. Defendants seek dismissal of the Complaint pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.


         A complaint is to contain a “short and plain statement of the claim showing that the pleader is entitled to relief[.]” Rule 8(a), Fed.R.Civ.P. While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998) (“conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.”).

         Dismissal is appropriate where a plaintiff has failed to “state a claim upon which relief can be granted.” Rule 12(b)(6), Fed.R.Civ.P. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft, 556 U.S. at 678, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). Further, “[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. The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citations omitted).

         “When ruling on a motion to dismiss, [the Court must] accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011) (quoting Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005)). “The court draws all reasonable inferences in favor of the plaintiff.” Id. (citing Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008)). This Court is not required, however, to accept conclusory statements as a factual basis. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007); Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir. 1986) (“Although we must, in general, accept the facts alleged in the complaint as true, wholly vague and conclusory allegations are not sufficient to withstand a motion to dismiss.”).

         “As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d. 668, 688 (9th Cir. 2001) (quotations and citations omitted). “There are, however, two exceptions to the requirement that consideration of extrinsic evidence converts a 12(b)(6) motion to a summary judgment motion. Id. “First, a court may consider material which is properly submitted as part of the complaint[.]” Id. Second, “[a] court may take judicial notice of ‘matters of public record' without converting a motion to dismiss into a motion for summary judgment.” Id. at 689 (citing MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986)); see also Fed. R. Evid. 201. Additionally, the Ninth Circuit Court of Appeals has “extended the ‘incorporation by reference' doctrine to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

         III. ANALYSIS

         Defendant seeks dismissal of Plaintiffs' Complaint without leave to amend because 1) Plaintiff has failed to state a claim against Defendant John Woolf as he was not Plaintiff's employer; and 2) Plaintiff failed to demonstrate that ProActive was his employer. See Defs.' Mot. to Dismiss (Doc. 15).

         A. ...

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