United States District Court, D. Arizona
Ronald F. Ross, Plaintiff,
John Woolf and ProActive Physical Therapy, LLC, Defendants.
Honorable Bruce G. Macdonald United States Magistrate Judge.
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.
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
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.
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.
STANDARD OF REVIEW
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
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).
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.”).
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.
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).