Kunzi v. Arizona Board of Regents et al

Filing 32

ORDER granting 29 Motion for Leave to File Excess Pages; denying 11 Motion to Dismiss/Motion for Summary Judgment; granting 17 Motion to Amend; denying as moot 27 Motion to Strike. Plaintiff shall file her Amended Complaint within 5 days of the date of this Order. If Plaintiff fails to comply, the Clerk of Court shall dismiss this case. Signed by Senior Judge James A Teilborg on 7/29/13.(TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Tasha Kunzi, No. CV-12-02327-PHX-JAT 9 Plaintiff, 10 11 v. 12 ORDER Arizona Board of Regents, an Arizona public entity, Scott H. Decker, and Travis Pratt, 13 14 Defendants. 15 16 Pending before the Court are: (1) Defendants’ Motion to Dismiss/Motion for 17 Summary Judgment (Doc. 11), (2) Plaintiff’s Motion to Amend Complaint (Doc. 17), (3) 18 Defendants’ Motion to Strike Plaintiff’s Reply (Doc. 27), and (4) Plaintiff’s Motion for 19 Leave to File Excess Pages (Doc. 29). The Court now rules on the Motions. 20 I. BACKGROUND 21 On October 30, 2012, Plaintiff filed a Complaint alleging claims of sexual 22 harassment and retaliation against her former employer, Defendant Arizona Board of 23 Regents, and against her former supervisors, Defendants Scott Decker and Travis Pratt. 24 (Doc. 1). Plaintiff brings her claims pursuant to 42 U.S.C. § 2000e and 42 U.S.C. § 1983. 25 (Id.). In her Complaint, Plaintiff alleges that she exhausted her administrative remedies 26 with the EEOC and filed the Complaint within ninety days of her receipt of a Right to 27 Sue Letter from the Civil Rights Division of the United States Department of Justice. 28 (Id.). Plaintiff attached the Charge of Discrimination that she presented to the EEOC and 1 her Right to Sue letter to her Complaint. (Doc. 1-1 at Exhibit A and Exhibit B). 2 Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 3 12(b)(6) and Federal Rule of Civil Procedure 12(b)(1). (Doc. 11 and Doc. 12). In their 4 Motion to Dismiss, Defendants argue that Plaintiff’s claims are barred by the statute of 5 limitations and that Plaintiff failed to timely exhaust her administrative remedies. (Doc. 6 11 and Doc. 12). Defendants argue that the Court should either (1) convert their 12(b)(6) 7 motion to dismiss into one for summary judgment or (2) order Plaintiff to produce a more 8 definite statement pursuant to Federal Rule of Civil Procedure 12(e). 9 Rather than respond to Defendants’ Motion to Dismiss, Plaintiff filed a Motion to 10 Amend her Complaint.1 11 allegations should resolve Defendants’ concerns about the dates in her Complaint and 12 provide them with the more definite statement that they sought in their Motion to 13 Dismiss. (Doc. 17). 14 15 In her Motion to Amend, Plaintiff argues that her new Plaintiff complied with LRCiv 15.1 and attached her proposed amended complaint to her motion to amend. (Doc. 17-1). 16 II. ANALYSIS 17 In their Motion to Dismiss Plaintiff’s original Complaint, Defendants argue that 18 the Court may consider declarations attached to their 12(b)(6) motion to dismiss to decide 19 their statute of limitations arguments. Defendants cite to Jablon v. Dean Witter & Co., 20 614 F.2d 677, 682 (9th Cir. 1980) for the proposition that the Court can decide matters 21 outside the pleadings when evaluating a 12(b)(6) motion to dismiss. 22 Defendants’ assertions, the Court may not consider matters outside the pleadings on a 23 12(b)(6) Motion to Dismiss. 24 consider matters outside the pleadings if it chooses to convert a 12(b)(6) Motion to Contrary to Rather, as Jablon clearly states, the Court may only 25 26 27 28 1 Pursuant to LRCiv 7.2(m)(1), Defendants move to strike Plaintiff’s Reply in Support of her Motion to Amend because it exceeds the page limitations for such a reply as set forth in LRCiv 7.2(e)(2). In Response, Plaintiff filed a Motion to Extend the Page Limits Governing her Reply. Under the circumstances of this case, the Court will grant Plaintiff’s Motion to Extend Page Limits (Doc. 29). -2- 1 Dismiss to a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 2 12(d). See, e.g., First Horizon Home Loans v. Centerpiece Mortgage, LLC, No. CV 11- 3 0995-PHX-JAT, 2011 WL 6178447, at *2-3 (D. Ariz. Dec. 9, 2011) (citing Supermail 4 Cargo, Inc. v. U.S., 68 F.3d 124-1206-1207 (9th Cir. 1995) and Jablon, 614 F.2d at 682). 5 Rather, “for the defense of the running of the statute of limitations to be decided on a 6 motion to dismiss, the untimeliness must clearly appear on the face of the complaint.” 7 First Horizon, 2011 WL 6178447, at *3 (internal citations omitted). 8 It is entirely unclear to the Court why Defendants did not simply move for 9 summary judgment in the first instance rather than filing a 12(b)(6) motion to dismiss 10 and, in that motion, request that it be converted to a motion for summary judgment. If, 11 under Defendants’ proposed procedure, the Court were to convert their 12(b)(6) motion 12 to a motion for summary judgment, the Court would have to comply with the 13 requirements of Federal Rule of Civil Procedure 12(d) and allow all parties a reasonable 14 opportunity to present all material that is pertinent to the motion. See Fed. R. Civ. P. 15 12(d). 16 Likewise, in Response to Plaintiff’s Motion to Amend, Defendants attached three 17 exhibits to demonstrate that allowing Plaintiff leave to amend would be futile. However, 18 it would again be inappropriate for the Court to consider matters outside the pleadings in 19 deciding whether Plaintiff should be given leave to amend. See Miller v. Rykoff-Sexton, 20 Inc., 845 F.2d 209, 214 (9th Cir. 1988) (“proper test to be applied when determining the 21 legal sufficiency of a proposed amendment is identical to the one used when considering 22 the sufficiency of a pleading challenged under Rule 12(b)(6)”) (internal citation omitted). 23 These procedural irregularities make it difficult for the Court to properly analyze either 24 Defendants’ Motion to Dismiss or Defendants’ Response to Plaintiff’s Motion to Amend. 25 Accordingly, the Court will allow Plaintiff leave to amend her complaint. 26 Defendants may then file a proper response to Plaintiff’s Amended Complaint. 27 Defendants choose to file a Motion to Dismiss, they shall not attach matters outside the 28 pleadings to the Motion to Dismiss. If Defendants choose to file a Motion for Summary -3- If 1 Judgment, they shall fully comply with the rules for motions for summary judgment, 2 including Federal Rule of Civil Procedure 56 and LRCiv 56.1. 3 III. 4 Based on the foregoing, 5 IT IS ORDERED that Defendants’ Motion to Dismiss/Motion for Summary 6 CONCLUSION Judgment (Doc. 11) is denied. 7 IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend Complaint (Doc. 8 17) is granted. Plaintiff shall file her Amended Complaint (currently lodged at Doc. 17- 9 1) within 5 days of the date of this Order. If Plaintiff does not file her Amended 10 Complaint within 5 days of the date of this Order, the Clerk of the Court shall dismiss 11 this case without further notice. 12 13 14 15 16 IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Excess Pages (Doc. 29) is granted. IT IS FINALLY ORDERED that Defendants’ Motion to Strike Plaintiff’s Reply (Doc. 27) is denied as moot. Dated this 29th day of July, 2013. 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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