United States District Court, D. Arizona
ORDER
Honorable John J. Tuchi United States District Judge
At
issue is Defendant Patrick Moore's Motion to Dismiss
(Doc. 27, Mot.), to which Plaintiff filed a Response (Doc.
33, Resp.) and Defendant[1] filed a Reply (Doc. 34, Reply). In his
Response, Plaintiff requested leave to amend the Complaint in
the event that the Court grants Defendant's Motion to
Dismiss. Because the parties' briefs were adequate for
the Court to resolve the issues raised in Defendant's
Motion, the Court declined to hold oral argument on the
briefs. See LRCiv 7.2(f). For the reasons that
follow, the Court grants Defendant's Motion and grants
Plaintiff leave to file his First Amended Complaint.
I.
BACKGROUND
Plaintiff
is a former Fire Chief of the Northern Arizona Consolidated
Fire District #1 (“NACFD”). He acted as Interim
Fire Chief from March through October 2017, at which time he
came under contract to serve as Fire Chief until December
2018. (Doc. 30 Ex. A; Doc 40.) Plaintiff's contract of
employment was terminated on May 23, 2018. (Doc. 1, Compl. at
3.) He alleges that, while he was on temporary medical leave,
the NACFD Board Members held an unauthorized and illegal
meeting in which they voted to terminate him prior to the
expiration of his contractual employment term. (Compl. at 3.)
Plaintiff alleges that his termination “was, among
other things, retaliatory, politically motivated, unlawful,
and a violation of his employment contract and the Fair Wages
and Healthy Family Act.” (Compl. at 4.)
In his
Complaint, Plaintiff brought nine claims against multiple
Defendants. Only one-Count VII, a claim for civil
conspiracy-is brought against Defendant, also a former Fire
Chief of NACFD who resigned from that position in 2016 and
was subsequently hired by Mike Collins at RM Excavation.
(Compl. at 5, 9.) According to the Complaint, Defendant's
acts and misrepresentations occurred while he was employed as
Fire Chief of NACFD. (Compl. at 4.) Pursuant to Federal Rule
of Civil Procedure 12(b)(6), Defendant now moves to dismiss
the claim against him. (Mot. at 1.)
II.
LEGAL STANDARD
Federal
Rule of Civil Procedure 12(b)(6) is designed to “test[]
the legal sufficiency of a claim.” Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal
under Rule 12(b)(6) for failure to state a claim can be based
on either (1) the lack of a cognizable legal theory or (2)
insufficient facts to support a cognizable legal claim.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). When analyzing a complaint under
Rule 12(b)(6), the well-pled factual allegations are taken as
true and construed in the light most favorable to the
nonmoving party. Cousins v. Lockyer, 568 F.3d 1063,
1067 (9th Cir. 2009). Legal conclusions couched as factual
allegations are not entitled to the assumption of truth,
Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and
therefore are insufficient to defeat a motion to dismiss for
failure to state a claim, In re Cutera Sec. Litig.,
610 F.3d 1103, 1108 (9th Cir. 2010). On a Rule 12(b)(6)
motion, Rule 8(a) governs and requires that, to avoid
dismissal of a claim, Plaintiff must allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
III.
ANALYSIS
A.
Count VII: Civil Conspiracy
Defendant
argues that Plaintiff failed to state a claim for civil
conspiracy because the Complaint fails to allege that
Defendant committed an underlying tort. (Mot. at 3-7.)
Plaintiff responds that the Complaint properly alleges the
underlying torts of wrongful termination and defamation and
the conspiracy to commit those torts. (Resp. at 3-4.)
Under
Arizona law, “[f]or a civil conspiracy to occur, two or
more people must agree to accomplish an unlawful purpose or
to accomplish a lawful object by unlawful means, causing
damages.” Wells Fargo Bank v. Ariz. Laborers,
Teamsters & Cement Masons Local No. 395 Pension Tr.
Fund, 38 P.3d 12, 36 (Ariz. 2002). However, an agreement
alone “to do a wrong imposes no liability; an agreement
plus a wrongful act” is necessary to establish
liability. Id. at 36 (citing Baker v. Stewart
Title & Tr. of Phx., 5 P.3d 249, 256 (Ariz.Ct.App.
2000)). Therefore, a complaint for civil conspiracy must
sufficiently plead that the alleged conspirators (1) had an
agreement to commit an underlying tort, and (2) accomplished
that tort. Id. at 36. A plaintiff must establish
both elements by clear and convincing evidence. Wells
Fargo Bank, 38 P.3d at 37; Collins v. Wells Fargo
Bank, No. CV-12-2284-PHX- LOA, 2013 WL 1092894, at *7
(D. Ariz. Mar. 15, 2013).
In his
Response, Plaintiff correctly states that a conspiratorial
agreement can be inferred from the nature of the acts, the
relationship of the parties, and the interests of the
conspirators. See Mohave Elec. Co-op, Inc. v. Byers,
942 P.2d 451, 465 (Ariz.Ct.App. 1997). Plaintiff argues that
Collins's hiring of Defendant demonstrates a close
relationship between the two parties, supporting a tacit
agreement to commit a tort against Plaintiff. However, the
Complaint itself merely states that Collins, a NACFD Board
Member at the time Plaintiff was terminated, hired Defendant
sometime after Defendant resigned as Fire Chief in 2016.
(Compl. at 5.) The Court cannot infer from this singular fact
that an agreement to commit an underlying tort existed.
Beyond that, Plaintiff relies on a formulaic recitation of
the elements of a civil conspiracy claim, which is
insufficient to state a claim for relief against Defendant
under Rule 12(b)(6). See Twombly, 550 U.S. at 555.
Moreover,
the allegations in the Complaint do not support the claim
that Defendant engaged in any underlying tort. As noted
above, Plaintiff maintains that the Complaint alleges the
underlying torts of defamation and wrongful termination. To
assert a claim for defamation, a plaintiff must allege facts
to support “(1) that the defendant made a false
statement; (2) that the statement was published or
communicated to someone other than the plaintiff; and (3)
that the statement tends to harm plaintiff's
reputation.” Ogundele v. Girls Scouts-Ariz. Cactus
Pine Council, Inc., No. CV-10-1013-PHX-GMS, 2011 WL
1770784, at *8 (D. Ariz. May 10, 2011) (citing Godbehere
v. Phx. Newspapers, Inc., 783 P.2d 781, 787 (Ariz.
1989)); see also Spratt v. N. Auto. Corp., 958
F.Supp. 456, 465 (D. Ariz. 1996). And under Arizona law, an
employee has a claim against an employer for wrongful
termination if the “employer has terminated the
employment relationship . . . in breach of an employment
contract.” A.R.S. § 23-1501(A)(3)(a).
Setting
aside the fact that the Complaint failed to even name
Defendant in either the wrongful termination or defamation
claims, Plaintiff does not allege any facts to support the
claim that Defendant participated in the commission of these
torts. With respect to wrongful termination, the Complaint
does not demonstrate that Defendant acted as Plaintiff's
employer or had any involvement in Plaintiff's
termination at NACFD. Indeed, Defendant had not worked for
NACFD since 2016, at least seventeen months before the
alleged meeting at which NACFD and the Board decided to
terminate Plaintiff. (Compl. at 5.) With respect to
defamation, the Complaint only states that Defendant's
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