Breeser, et al. v. Menta Group Incorporated NFP, et al.

Filing 38

ORDER granting in part and denying in part Defendants' 24 Motion to Dismiss; granting the Motion with regard to Counts Two, Three, Four, Six, Seven, and the Claim for Holding Up to a False Light, denying the Motion with regard to Count One and the Defamation Claim found in Count Five. Signed by Judge James A Teilborg on 4/18/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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LAURA BREESER; JOHN CHARLES)
BREESER, JR., wife and husband, on)
behalf of themselves and on behalf of their)
four minor children, A.B., J.B., D.B., and)
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M.B.,
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Plaintiffs,
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)
vs.
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THE MENTA GROUP, INC., NFP;)
SPECIAL EDUCATION SERVICES)
d/b/a SOUTHWEST EDUCATION)
CENTER; ELIZABETH ANN CONRAN)
and her husband, RORY CONRAN;)
KENNETH CARWELL and his wife,)
KATHRYN CARWELL; WILLIAM)
ANDREW HUBBLE and his wife, KIM)
HUBBLE; JOHN and JANE DOES I-X;)
BLACK and WHITE CORPORATIONS)
)
I-X,
)
)
Defendants.

No. 2:10-CV-01592-PHX-JAT
ORDER

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In response to Plaintiffs’ First Amended Complaint (“FAC”), filed on October 29,

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2010 (Doc. 20), Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the

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Federal Rules of Civil Procedure on November 24, 2010 (Doc. 24). Plaintiffs filed their

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Response on January 10, 2011 (Doc. 32), and Defendants filed their Reply on January 21,

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2011 (Doc. 35). The Court now rules on the Motion.

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I. Background.

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According to the FAC, Plaintiff Laura Breeser was a decades-long employee of

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The Menta Group, Inc. (“Menta”) and its affiliates (Doc. 20, ¶ 11), which, among other

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things, “provides services to children” in special education programs sponsored by various

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school districts in Arizona. (Id., ¶ 12). When the events underlying this action occurred,

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Laura Breeser served Menta by running its Arizona operation. (Id., ¶ 12).

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Laura Breeser suffered an on-the-job injury in late November, 2008, while

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attempting “to restrain an unruly student.” (Id., ¶ 13). Following her injury, the

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Defendants placed Laura Breeser on sabbatical. (Id.). In early February, 2009, Laura

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Breeser’s employers provided her with a Separation and Release Agreement, which would

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end her employment and pay her salary and benefits through June 30, 2009. (Id., ¶ 14).

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Plaintiffs claim that, prior to her sustaining an on-the-job injury, Laura Breeser notified

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her employers, the Defendants, that they were in violation of several Arizona laws. (Id.,

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¶ 16).

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On October 29, 2010, Laura Breeser and her fellow Plaintiffs filed their FAC,

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alleging seven counts against Defendants. (Doc. 20). These counts, as stated in the FAC,

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consist of (1) Wrongful Termination Based on Violation of Public Policy; (2) Intentional

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or Reckless Infliction of Emotional Distress; (3) Acting in Concert to Injure Plaintiffs; (4)

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Fraud; (5) Defamation and Holding Up to a False Light; (6) Loss of Consortium; and (7)

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Punitive or Exemplary Damages.

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Defendants argue that all counts alleged by Plaintiffs fail to state a claim upon

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which relief can be granted. (Doc. 24, 2:21-15:4). Additionally, Defendants argue that

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Plaintiffs failed to sufficiently plead liability against the individual Defendants and,

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therefore, all named individual Defendants should be dismissed as a matter of law. (Id.,

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14:19-27). In their response to Defendants’ Motion to Dismiss, Plaintiffs conceded that

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they currently lack sufficient facts to satisfy their false light claim (Doc. 32, 16:9-10),

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although they retained their defamation claim (id., 15:23), and withdrew their punitive

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damages claim as a separate cause of action. (Id. 17:5-6). Accordingly, both the false

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light claim and the punitive damages claim are dismissed.

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II. Legal Standard.

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The Court may dismiss a complaint for failure to state a claim under Rule 12(b)(6)

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for two reasons: (1) lack of a cognizable legal theory and (2) insufficient facts alleged

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under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

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(9th Cir. 1990).

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To survive a 12(b)(6) motion for failure to state a claim, a complaint must meet the

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requirements of Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires a “short

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and plain statement of the claim showing that the pleader is entitled to relief,” so that the

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defendant has “fair notice of what the . . . claim is and the grounds upon which it rests.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355

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U.S. 41, 47 (1957)).

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Although a complaint attacked for failure to state a claim does not need detailed

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factual allegations, the pleader’s obligation to provide the grounds for relief requires

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“more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do.” Id. (internal citations omitted). The factual allegations of the

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complaint must be sufficient to raise a right to relief above a speculative level. Id. Rule

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8(a)(2) “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Id.

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at 556. “Without some factual allegation in the complaint, it is hard to see how a claimant

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could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim,

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but also ‘grounds’ on which the claim rests.” Id. (citing 5 C. WRIGHT & A. MILLER,

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FEDERAL PRACTICE AND PROCEDURE §1202, pp. 94, 95(3d ed. 2004)).

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To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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which, if accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft

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v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Facial plausibility exists if the pleader pleads

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factual content that allows the court to draw the reasonable inference that the defendant

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is liable for the misconduct alleged. Id. Plausibility does not equal “probability,” but

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plausibility requires more than a sheer possibility that a defendant has acted unlawfully.

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Id. “Where a complaint pleads facts that are ‘merely consistent’ with a defendant’s
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liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to

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relief.’” Id. (citing Twombly, 550 U.S. at 557).

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In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the

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facts alleged in the complaint in the light most favorable to the drafter of the complaint

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and the Court must accept all well-pleaded factual allegations as true. See Shwarz v.

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United States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have

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to accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain,

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478 U.S. 265, 286 (1986).

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III. Analysis and Conclusion.

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The Court will examine each of Plaintiffs’ claims individually and determine

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whether the respective claims survive the Defendants’ challenges pursuant to Rule

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12(b)(6). The Court need not microscopically examine every alleged fact offered in

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support of each claim. As previously noted, a claim survives a 12(b)(6) motion if the facts

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alleged, taken as true, support the plausibility of the Plaintiffs’ claim. Iqbal, 129 S.Ct.

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at 1949. Furthermore, it is the factual allegations of the Plaintiffs’ Complaint that “must

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be sufficient to raise a right to relief above a speculative level.” Twombly, 550 U.S. at

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555. Accordingly, the Court will decide the survival of each Count by determining

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whether the factual allegations, if taken as true, support a valid claim and put the

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Defendants on fair notice of such a claim.

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A. Count One: Wrongful Termination Based on Violation of Pubic Policy.

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Regarding the wrongful termination claim, the Court finds that Plaintiffs stated a

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claim upon which relief can be granted. In their Motion, Defendants correctly point out

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that Plaintiffs’ FAC fails to name the particular statute under which Plaintiffs’ claim

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arises. (Doc. 24, 2:21-3:13). In their Response, Plaintiffs acknowledge their failure to

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name the statute under which they brought their claim, but argue such a statement is not

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required. (Doc. 32, 2:6-16).

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The Court is sympathetic to Defendants’ argument that plaintiffs should clearly

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state the law that defendants are accused of violating. But, for this particular claim,
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wrongful termination of employment under Arizona law, the Court agrees with Plaintiffs

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that stating the specific statute under which they brought their action is unnecessary. As

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Defendants acknowledge (Doc. 24, 2:26 -3:9), A.R.S. § 23-1501 superseded Wagenseller

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v. Scottsdale Mem’l Hosp. 147 Ariz. 370 (1985), previously the controlling authority on

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common law wrongful termination in Arizona. Chaboya v. Am. Nat’l Red Cross, 72

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F.Supp.2d 1081, 1092 (D. Ariz. 1999). Therefore, when a plaintiff brings an action

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claiming wrongful termination, only one statute is at issue. Id.; ARIZ. REV. STAT. ANN.

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§ 23-1501. Accordingly, the law that Defendants are accused of violating is clear.

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In Arizona, employees have a claim against their employer for termination of

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employment if, inter alia, the employee is terminated in retaliation for disclosing to the

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employer his or her knowledge or reasonable belief that the employer has violated, is

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violating, or will violate Arizona’s constitution or statutes. ARIZ. REV. STAT. ANN. § 23-

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1501(3)(c)(ii). Plaintiffs allege that Defendants terminated Laura Breeser’s employment

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in retaliation for her disclosing to Defendants, her employers, that on her knowledge or

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belief, Defendants were possibly violating the laws of Arizona. (Doc. 20, ¶ 16 j; Id., ¶

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18(i), (ii), & (iii)). Therefore, Defendants were given fair notice of the claim against

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them.

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The remaining issue as to Count One is whether Plaintiffs allege facts that show

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grounds upon which their claim for wrongful termination rests. Plaintiffs’ FAC denotes

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myriad examples of alleged wrongdoing on the Defendants’ part that were brought to

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Defendants’ attention by Laura Breeser.1 Instead of examining the multiple factual

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allegations set forth in the FAC, the Court offers the following few allegations in support

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of its finding that Plaintiffs satisfactorily stated a claim for which relief can be granted.

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In doing so, the Court takes no position on the legal merits of Plaintiffs’ allegations

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The Court notes Plaintiffs’ failure to state the particular statutes that Laura Breeser
allegedly told her employers they were violating. However, Plaintiffs offered factual
allegations that, if true, support the required elements of A.R.S. § 23-1501(3)(c)(ii). The
Court therefore finds the allegations sufficient to survive a motion to dismiss.
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against Defendants.

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Plaintiffs assert that Defendants “admonished” Laura Breeser to dispense

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medications to school children, and that Laura Breeser advised her employers that “it was

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illegal for non-medically competent people to dispense medications (including prescribed

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narcotics).” (Doc. 20, ¶ 16 e). Indeed, Arizona law requires any person who dispenses

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any controlled substance to obtain a proper license or permit and to be a registrant under

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the federal Controlled Substances Act. ARIZ. REV. STAT. ANN. § 36-2522(A)(1) & (2).

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Plaintiffs also assert that Laura Breeser disclosed to the Defendants, her employers,
that they would commit fraud on the state of Arizona if they billed the state for
transportation services that never took place. (Doc. 20, ¶ 16 f; Id., ¶ 16 g). In Arizona,
“a person commits deceptive business practices if in the course of engaging in a business,
occupation or profession such person recklessly . . . [s]ells . . . or delivers less than the
represented quantity of any commodity or service.” ARIZ. REV. STAT. ANN. § 132202(A)(2).

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Furthermore, Plaintiffs allege that Laura Breeser informed Defendants, “on more
than one occasion,” that Defendants “needed to ‘change’ their practices that could be
construed as violations of [Arizona] laws.” (Doc. 20, ¶ 16 l).

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These factual allegations, viewed in a light most favorable to the drafter of the

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FAC, and taken as true, put Defendants on fair notice of Plaintiffs claim under A.R.S. §

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23-1501(3)(c)(ii) and the grounds upon which the claim rests. Therefore, the above-

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referenced factual allegations are sufficient to raise a right to relief above a speculative

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level regarding Plaintiffs’ claim that Defendants terminated Laura Breeser’s employment

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in violation of Arizona’s public policy as expressed in A.R.S. § 23-1501(3)(c)(ii).

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Accordingly, as to Count One, Defendants’ Motion to Dismiss is denied.

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B. Count Two: Intentional or Reckless Infliction of Emotional Distress.

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As regards Plaintiffs’ infliction of emotional distress claim, the Court finds that

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Plaintiffs failed to state a claim upon which relief can be granted. To survive a motion

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to dismiss, such a claim must allege facts that plausibly support that (1) the conduct by

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the defendant was “extreme” and “outrageous”; (2) the defendants either intended to cause

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emotional distress or recklessly disregarded the near certainty that such distress would

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result from their conduct; and (3) severe emotional distress occurred as a result of

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defendant’s conduct. Mintz v. Bell Atlantic Sys. Leasing, 183 Ariz. 550, 553-54 (Ct. App.

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1995) (internal citations omitted). As Plaintiffs state (Doc. 32, 8:9-12), one of the issues

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examined by courts and juries to determine outrageous conduct is the “defendant's

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knowledge that the plaintiff is peculiarly susceptible to emotional distress by reason of

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some physical or mental condition.” Lucchesi v. Stimmell, 149 Ariz. 76, 79 (1986).

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However, although conduct, “would otherwise be extreme and outrageous, [it] may be

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privileged under the circumstances.” Mintz, 183 Ariz. at 554. “The actor is never liable,

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for example, where he has done no more than to insist upon his legal rights in a

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permissible way, even though he is well aware that such insistence is certain to cause

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emotional distress.” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. g).

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Toward that end, another relevant factor is whether the alleged conduct served a

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legitimate business interest. Id.

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As Defendants correctly point out, it is “extremely rare to find conduct in the

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employment context that will rise to the level of outrageousness necessary to provide a

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basis for recovery for the tort of intentional infliction of emotional distress.” (Doc. 24,

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6:26-7:1) (citing Mintz, 183 Ariz. at 554). Additionally, Defendants cite numerous cases

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that reflect the anomalousness of showing conduct that rises to a level of outrageousness

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in the employment context. (Doc. 35, 4:11-5:9). Plaintiffs, in their Response, dismiss this

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point as “irrelevant” because the Arizona Supreme Court, in Lucchesi, stated that “as

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‘extreme and outrageous conduct’ and ‘severe emotional distress’ are not readily capable

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of precise legal definition, a case-by-case analysis is required.” 149 Ariz. at 79; (Doc. 32,

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8:5-8). However, where Mintz dealt with a motion to dismiss an infliction of emotional

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distress claim in an employment context, 183 Ariz. at 552, and, thus, is analogous to the

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instant case, Lucchesi involved a motion for summary judgment on an infliction of

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emotional distress claim in the context of medical malpractice. Lucchesi, 149 Ariz. at 77.

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The Mintz court found that, in determining outrageousness on an employer’s part,

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the employer must engage in conduct that would obviously affect the plaintiff’s particular

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susceptibility to emotional distress. 183 Ariz. at 554. For example, an employer’s

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conduct rises to outrageousness when the employer assigns an employee to work at

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heights when the employer knows that the employee has a fear of heights.

Id.

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Here, Plaintiffs assert that Defendants knew that Laura Breeser was particularly

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susceptible to emotional distress by reason of some physical or mental condition because

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Defendants were aware that Laura Breeser was “physically injured, was suffering from

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job-related depression and had very high blood pressure for over a year prior to her

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termination.” (Doc. 32, 8:12-14). The Court will not consider the allegations that

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Defendants knew that Laura Breeser suffered from job-related depression and had high

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blood pressure, as Plaintiffs did not allege these facts in the FAC. Although the physical

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injury is cited in their FAC, Plaintiffs’ fail to make any factual allegations pertaining to

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Defendants’ conduct in relation to Laura Breeser’s physical injury that may be considered

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outside the province of legitimate business interests. (Doc. 20, ¶ 22). Additionally,

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Plaintiffs’ allegations fall far short of describing behavior that went beyond all bounds of

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decency. Johnson v. McDonald, 197 Ariz. 155, 160 (Ct. App. 1999) (“[P]laintiff must

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show that the defendant's conduct was ‘so outrageous in character, and so extreme in

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degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious

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and utterly intolerable in a civilized community.’”) (internal citations omitted).

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Plaintiffs also fail to state any result evidencing the claimed emotional distress.

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(Id.). Plaintiffs suggest that Defendants engaged in outrageous conduct because, after

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Laura Breeser suffered a physical injury on the job, Defendants required Laura Breeser,

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against her wishes, to go on workman’s compensation and take a sabbatical. (Id., ¶ 13;

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Doc. 32, 9:11-15).

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“Separation and Release Agreement” in the wake of Laura Breeser’s injury and sabbatical

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as supporting the claim of outrageous conduct. (Id., 9:17-20). These allegations do not

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rise to the requisite level of outrageousness as such actions serve legitimate business

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purposes. Mintz, 183 Ariz. at 554; RESTATEMENT (SECOND) OF TORTS § 46, cmt. g, illus.

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14 (1965). Plaintiffs’ acknowledge that, Laura Breeser’s job required her, at times, to

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engage in “physical management” during “crisis situations,” and that Defendants put

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Laura Breeser on “medical sabbatical” out of concern for her health stemming from her

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injury. (Doc. 20, ¶ 16 k). Therefore, requiring Laura Breeser to take a sabbatical while

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injured served a legitimate business purpose. An employer’s providing an employee with

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a Separation and Release agreement also falls within the scope of legitimate business

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purposes, as does, by definition, workman’s compensation.

Additionally, Plaintiffs’ cite the Defendants’ delivery of the

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Plaintiffs further state that Laura Breeser enjoyed a “special relationship of trust

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and confidence with said Defendants,” (Doc. 20, ¶ 12), the inference being that Laura

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Breeser suffered grief that naturally and normally follows the loss of such friendship.

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This susceptibility to emotional distress - experiencing grief over a personal loss - is not

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particular to Laura Breeser. Accordingly, as to Count Two, Defendants’ Motion to

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Dismiss is granted.

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C. Count Three: Acting In Concert to Injure Plaintiffs.

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Although described as “acting in concert to injure Plaintiffs,” this claim is for
common law civil conspiracy. (Doc. 20, ¶¶ 23-24; Doc. 32, 11:25-12:20). As to this
Count, the Court finds that Plaintiffs failed to state a claim upon which relief can be
granted

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A claim for civil conspiracy, requires a plaintiff to first properly allege a claim for

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an underlying tort. Wells Fargo Bank v. Ariz. Laborers, Teamsters and Cement Masons

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Local No. 395 Pension Trust Fund, 201 Ariz. 474, 498 (2002). Plaintiffs must allege facts

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showing the existence of a tacit understanding to commit at least one of the underlying
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torts. Ares Funding, L.L.C. v. MA Maricopa, L.L.C., 602 F.Supp.2d 1144, 1150 (D.Ariz.

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2009). “The existence of a conspiracy may sometimes be inferred from the nature of the

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acts done, the relations of the parties, the interests of the alleged conspirators, and other

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circumstances; however, a plaintiff must allege specific facts which support the inference

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of an agreement.” S. Union Co. v. Sw. Gas Co., 165 F.Supp.2d 1010, 1021 (D. Ariz.

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2001) (internal citations omitted). However, even if the alleged agreement is inferred, “a

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claim for civil conspiracy must include an actual agreement, proven by clear and

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convincing evidence.” Wells Fargo Bank, 201 Ariz. at 449 (emphasis added).

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Because Plaintiffs’ claims for wrongful termination and defamation survive

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Defendants’ Motion to Dismiss, Plaintiffs’ FAC satisfies the threshold requirement of

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claiming one or more underlying torts. The remaining issue, then, is whether Plaintiffs

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properly pleaded facts sufficient to put Defendants on notice of the grounds on which the

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civil conspiracy claim rests. Twombly, 550 U.S. at 555; S. Union Co., 165 F.Supp.2d at

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1021. In particular, the Court must determine whether Plaintiffs alleged specific facts that

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at least support the inference of an agreement on the Defendants’ part. Wells Fargo Bank,

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201 Ariz. at 449. Plaintiffs assert that Defendants “each acted in concert, one with the

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other to achieve an improper purpose by committing wrongful acts[,] . . . [including] an

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agreement to wrongfully terminate Plaintiff Laura Breeser . . . .” (Doc. 20, ¶ 24).

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Plaintiffs support this assertion by stating that “Defendants decided to terminate [Laura

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Breeser’s] employment,” that “Defendants knew that [] Laura Breeser [was aware] of

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[Defendants’] possible illegal actions, and that [Defendants] feared [] Laura Breeser

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would discover fully their actions.” (Id., ¶ 18) (emphasis added). But, in their defamation

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claim, Plaintiffs fail to show any facts, conclusory or otherwise, alleging an agreement

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among Defendants to defame Laura Breeser. (Id., ¶ 30).

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Despite Plaintiffs’ statement alleging a civil conspiracy (id., ¶¶ 23-24), they fail
to allege facts sufficient to comply with Rule 8's pleading standard. Twombly, 550 U.S.
at 555-56. While Plaintiffs offer legal conclusions that Defendants engaged in a civil

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conspiracy, Plaintiffs’ Complaint does not include factual allegations as to Defendants’

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actions giving rise to such claims. Plaintiffs did not adequately allege an agreement on

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the part of Defendants to commit any tort. The Court therefore grants Defendants’

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Motion to Dismiss as to Count Three.

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D. Count Four: Fraud.

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To properly allege fraud, a plaintiff “must state with particularity the circumstances
constituting fraud.” FED. R. CIV. P. 9(b). Under Rule 9(b), particularity means “an
account of the time, place, and specific content of the false representations as well as the
identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756,
764 (9th Cir. 2007) (citations omitted); DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th
Cir. 1990) (declaring that particularity “means the who, what, when, where, and how.”).
Additionally, Arizona case law holds that “actionable fraud cannot be predicated on
unfulfilled promises, expressions of intention or statements concerning future events
unless such were made with the present intent not to perform.” Spudnuts, Inc. v. Lane,
131 Ariz. 424, 426 (Ct. App. 1982).

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To support their fraud claim, Plaintiffs state that Defendants engaged in fraud
because they promised Laura Breeser fair treatment in her “compensation, continued
employment, [career] advancement, and that she would have a long-term career.” (Doc.
20, ¶ 26). Plaintiffs go on to assert that Defendants intended to keep these promises only
if certain conditions were met by Laura Breeser, and that Defendants led Laura Breeser
to believe that Defendants “would treat her in good faith and fairly,” but ultimately
Defendants acted contrary to their intentions and promises. (Id. ¶¶ 26-27). In support of
these general allegations, Plaintiffs allege that Defendants “represented to [] Laura
Breeser” that, upon meeting particular conditions, she would receive “full-time
employment until she chose to retire; a salary of at least $94,000 per year, plus continuing
existing benefits . . . ; a pension of a lump-sum payment of $400,000; and life insurance
in a commensurate amount . . . .” (Id., ¶ 28). Plaintiffs allege that these “promises . . .
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were false at the time made as the Defendants had no intention of keeping those

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promises.” (Id. ¶ 28). These assertions rely on alleged unfulfilled promises, expressions

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of intention, and statements concerning future events. Furthermore, the assertion that

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Defendants never intended to keep their alleged promises is merely consistent with the

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Defendants’ liability and, therefore, falls short of the proper pleading standard. Iqbal, 129

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S.Ct. 1937 at 1949 (internal citations omitted). Accordingly, regarding Plaintiffs’ fraud

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claim, the Court grants Defendants’ Motion to Dismiss.

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E. Count Five: Defamation.

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Regarding defamation, Plaintiffs stated a claim upon which relief can be

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granted. “To be defamatory, a publication must be false and must bring the defamed

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person into disrepute, contempt, or ridicule, or must impeach plaintiff's honesty,

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integrity, virtue, or reputation.” Turner v. Devlin, 174 Ariz. 201, 203-204 (1993)

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(quoting Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341 (1989)). One

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who publishes such a false and defamatory communication concerning a private

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person is subject to liability only if the publisher (1) knows that the statement is false

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and that it defames the other; (2) acts in a reckless disregard of these matters; or (3)

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acts negligently in failing to ascertain them. Peagler v. Phoenix Newspapers, Inc., 114

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Ariz. 309, 315 (1977). Additionally, “[i]n Arizona, a publication which impeaches the

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honesty, integrity, or reputation of a person is libelous per se.” Id. at 316.

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In support of their defamation claim, Plaintiffs allege that Defendants “stated to

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third parties matters that were false, which they knew to be false, and which directly

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injured the reputation of . . . Laura Breeser.” (Doc. 20, ¶ 30). More specifically,

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Plaintiffs assert that Defendants consistently and falsely reported to parents of children

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enrolled at Defendants’ schools that Laura Breeser abandoned her position when, in

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fact, Defendants required Laura Breeser to accede to a medical sabbatical for her

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benefit and welfare against her own will and judgment. (Id., ¶¶ 29-30). Plaintiffs

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further claim that Defendants made similar false statements about the circumstances of

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Laura Breeser’s employment and termination to her prospective employers. (Id., ¶

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30). Therefore, if taken as true, Plaintiffs make factual allegations that show that

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Defendants made statements about Laura Breeser that Defendants knew were false and

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defamatory, and that Defendants acted in reckless disregard to the effects their

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statements would have on Laura Breeser. Additionally, the suggestion to parents of

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enrolled students and to potential employers that Laura Breeser simply walked away

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from her responsibilities and obligations impeaches Laura Breeser’s integrity and

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reputation within her vocational field, which, in Arizona, is libelous per se. Therefore,

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Plaintiffs stated a claim upon which relief can be granted. Accordingly, the Court

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denies Defendants Motion to Dismiss as regards Plaintiffs’ claim for defamation.

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F. Count Six: Loss of Consortium.

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Here, Plaintiffs fail to state a claim upon which relief can be granted. In Arizona,

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parties may recover for loss of consortium. Nunsuch ex rel. Nunsuch v. U.S., 221

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F.Supp.2d. 1027, 1035 (D. Ariz. 2001) (citing City of Glendale v. Bradshaw ex rel.

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Bradshaw, 108 Ariz 582, 583-84 (1972)). A claim for loss of consortium between a

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husband and a wife consists of the loss of “the society, companionship, conjugal

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affections and assistance of the other; the so-called sentimental elements of consortium,

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to which each has the right.” Id. A cause of action brought by a child for loss of

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consortium with a parent is limited to “when the parent suffers serious, permanent,

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disabling injury rendering the parent unable to provide love, care, companionship, and

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guidance to the child.” Villareal v. State, Dept. of Transp., 160 Ariz. 474, 480 (1989).

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Furthermore, “[t]he parent's mental or physical impairment must be so overwhelming and

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severe that the parent-child relationship is destroyed or nearly destroyed.” Id. (citing Hay

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v. Med. Ctr. Hosp. of Vt., 496 A.2d 939, 941 (Vt. 1985) (finding that a child’s loss of

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consortium claim was legitimate when the parent was rendered permanently comatose);

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Theama by Bichler v. City of Kenosha, 344 N.W.2d 513, 515 (Wis. 1984) (declaring that

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a father's permanent mental and physical injuries essentially deprived his minor children

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of any further parent-child exchange)).
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Plaintiff John Breeser claims loss of consortium with his wife, Laura Breeser, as

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a result of “Defendants’ wrongful conduct.” (Doc. 20, ¶ 33). To this point, Plaintiffs

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allege that John Breeser “was deprived of the love and affection, society, companionship

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and support of Plaintiff Laura Breeser as a result of the wrongful acts of the Defendants.”

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(Id.). Despite Plaintiffs incorporation of all preceding paragraphs into their loss of

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consortium claim, they still fail to allege facts attesting to the plausibility of this claim.

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Plaintiffs fail to state the particular injury suffered by Laura Breeser that underlies the loss

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of consortium claim. (Id.). Plaintiffs also fail to allege any facts supporting the claimed

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deprivation of “love and affection, society, companionship, and support” suffered by John

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Breeser. (Id.). Thus, Plaintiffs’ allegations pertaining to John Breeser’s alleged loss of

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consortium are conclusory, offering no grounds on which this claim rests, and fall short

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of the pleading standard set out in Twombly. 550 U.S. at 555.

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Plaintiffs also allege that the Breesers’ minor children suffered loss of consortium

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relating to their mother, Laura Breeser, stemming from her injuries. (Doc. 20, ¶ 34).

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According to Plaintiffs’ FAC, Laura Breeser’s injuries, which the FAC fails to specify,

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resulted from the loss of her home, her unemployment, and her inability to financially

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support her family. (Id.). Furthermore, Plaintiffs seemingly allege a loss of consortium

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resulting from the ending of, or the damage caused to, the Breeser children’s relationship

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with Defendant Elizabeth Ann Conran. (Id.). While losing one’s home, suffering

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unemployment, enduring financial hardship, and ended or strained relationships are

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genuinely sad and difficult occurrences, such occurrences are not “serious, permanent,

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disabling injur[ies] rendering the parent unable to provide love, care, companionship, and

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guidance to the child.” Villareal, 160 Ariz. at 480. Therefore, the Court finds that

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Plaintiffs’ loss of consortium claim, as to both John Breeser and the Breeser children, fails

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to state a claim upon which relief can be granted. Accordingly, the Court grants

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Defendants’ Motion to Dismiss Plaintiffs’ loss of consortium claim.

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G. Allegations Against Individual Defendants.

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Defendants argue that, although Plaintiffs brought claims against particular
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individual Defendants in addition to the corporate Defendants, Plaintiffs “fail[ed] to

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identify specific conduct of the individual Defendants sufficient to form individual

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liability under any of [their] claims.” (Doc. 24, 14:19-27). Defendants therefore request

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that the Court dismiss these claims as a matter of law. (Id.). Plaintiffs assert that they did

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allege conduct by individuals sufficient to form individual liability (Doc. 32, 17: 9-12).

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The only particular allegation that Plaintiffs made against the individual Defendants

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pertained to the conspiracy claim, where Plaintiffs alleged that each individual Defendant

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agreed to wrongfully terminate Laura Breeser. (Doc. 20, ¶ 23-24). This general

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allegation does not set forth the action of any specific individual. The Court therefore

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finds that Plaintiffs failed to sufficiently plead liability for the individually named

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Defendants and dismisses said Defendants from this matter.

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Accordingly,

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IT IS ORDERED Granting in part and Denying in part Defendants’ Motion to

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Dismiss (Doc. 24). It is ordered Granting the Motion with regard to Counts Two, Three,

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Four, Six, Seven, and the Claim for Holding Up to a False Light. It is ordered Denying

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the Motion with regard to Count One and the Defamation Claim found in Count Five.

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DATED this 18th day of April, 2011.

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