Scott v. Wenden Domestic Water Improvement District

Filing 15

ORDER denying 6 Motion to Dismiss; denying 8 Motion to Amend/Correct. Signed by Judge David G Campbell on 10/17/2013.(DGC, nvo)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Travis Scott, No. CV13-01667-PHX-DGC Plaintiff, 10 11 v. 12 ORDER Wenden Domestic Water Improvement District, 13 Defendant. 14 15 16 Defendant Wenden Domestic Water Improvement District has filed a motion to 17 dismiss. Doc. 6. The motion is fully briefed. Plaintiff Travis Scott has filed a motion to 18 amend the complaint. Doc. 8. For the reasons set forth below, the Court will deny 19 Defendant’s motion to dismiss and Plaintiff’s motion to amend.1 20 I. Background Facts. 21 Plaintiff’s complaint asserts claims for nonpayment of wages, nonpayment of 22 overtime, and quantum meruit. Plaintiff seeks three times the amount due as unpaid 23 wages under A.R.S. § 23-355, double the amount due under the Fair Labor Standards 24 Act, 29 U.S.C. § 216(b) (“FLSA”), reasonable attorneys’ fees and costs pursuant to 29 25 U.S.C. § 216(b) and A.R.S. § 12-341.01, and, alternatively, the reasonable value for his 26 services. 27 1 28 Plaintiff’s request for oral argument is denied because the issues have been fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 II. Legal Standard. 2 When analyzing a complaint for failure to state a claim under Rule 12(b)(6), the 3 well-pled factual allegations are taken as true and construed in the light most favorable to 4 the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal 5 conclusions couched as factual allegations “are not entitled to the assumption of truth,” 6 Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore “‘are insufficient to defeat a 7 motion to dismiss for failure to state a claim,’” In re Cutera Sec. Litig., 610 F.3d 1103, 8 1108 (9th Cir. 2010) (citation omitted). 9 complaint must plead “enough facts to state a claim to relief that is plausible on its face.” To avoid a Rule 12(b)(6) dismissal, the 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 11 III. Analysis. 12 A. Plaintiff’s First and Third Claims. 13 Defendant asserts that Plaintiff failed to file a notice of claim as required by 14 A.R.S. § 12-821.01(A). Doc. 6 at 1-2. Compliance with the notice of claim statute is a 15 mandatory prerequisite to filing a complaint against a public entity or employee in 16 Arizona and failure to comply with the statute bars any claim. See Salerno v. Espinoza, 17 115 P.3d 626, 628 (Ariz. Ct. App. 2005). Strict compliance with the notice of claim 18 statute is required. See, e.g., Deer Valley Unified Sch. Dist. No. 97 v. Houser, 152 P.3d 19 490 (Ariz. 2007). 20 Defendant’s motion asserts a pleading defect. Defendant argues that Plaintiff’s 21 complaint must be dismissed because it does not allege that he complied with the notice 22 of claim statute. Doc. 6 at 2. But Defendant cites no authority for the proposition that 23 compliance with the notice of claim statute must be pled affirmatively in a complaint, and 24 the Court is aware of none. The Court will not dismiss Plaintiff’s complaint for this 25 alleged pleading defect. 26 B. Plaintiff’s Second Claim. 27 Plaintiff’s second claim, though not artfully pled, clearly asserts an FLSA claim. 28 It alleges that “Plaintiff has not been paid at the statutorily required rate of 1-1/2 times his -2- 1 normal rate of pay for all hours worked in excess of 40 hours in one week.” Doc. 1 at 2. 2 The complaint also seeks damages under the FSLA. Id. As Plaintiff correctly notes, an 3 FSLA claim is not subject to Arizona’s notice of claim statute. Doc. 8 at 2; see Felder v. 4 Casey, 487 U.S. 131, 139-40 (1988). 5 C. 6 Plaintiff has not provided a copy of the proposed amended complaint, properly 7 highlighted, as required by Local Rule of Civil Procedure 15.1(a). The Court therefore 8 will deny his motion to amend. 9 Plaintiff’s Motion to Amend. IT IS ORDERED: 10 1. Defendant’s motion to dismiss (Doc. 6) is denied. 11 2. Plaintiff’s motion to amend complaint (Doc. 8) is denied. 12 Dated this 17th day of October, 2013. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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