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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Travis Scott,

No. CV13-01667-PHX-DGC
Plaintiff,

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v.

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ORDER

Wenden Domestic Water Improvement
District,

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Defendant.

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Defendant Wenden Domestic Water Improvement District has filed a motion to

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dismiss. Doc. 6. The motion is fully briefed. Plaintiff Travis Scott has filed a motion to

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amend the complaint. Doc. 8. For the reasons set forth below, the Court will deny

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Defendant’s motion to dismiss and Plaintiff’s motion to amend.1

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I.

Background Facts.

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Plaintiff’s complaint asserts claims for nonpayment of wages, nonpayment of

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overtime, and quantum meruit. Plaintiff seeks three times the amount due as unpaid

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wages under A.R.S. § 23-355, double the amount due under the Fair Labor Standards

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Act, 29 U.S.C. § 216(b) (“FLSA”), reasonable attorneys’ fees and costs pursuant to 29

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U.S.C. § 216(b) and A.R.S. § 12-341.01, and, alternatively, the reasonable value for his

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services.

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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).

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II.

Legal Standard.

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When analyzing a complaint for failure to state a claim under Rule 12(b)(6), the

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well-pled factual allegations are taken as true and construed in the light most favorable to

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the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal

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conclusions couched as factual allegations “are not entitled to the assumption of truth,”

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Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore “‘are insufficient to defeat a

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motion to dismiss for failure to state a claim,’” In re Cutera Sec. Litig., 610 F.3d 1103,

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1108 (9th Cir. 2010) (citation omitted).

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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

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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III.

Analysis.

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A.

Plaintiff’s First and Third Claims.

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Defendant asserts that Plaintiff failed to file a notice of claim as required by

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A.R.S. § 12-821.01(A). Doc. 6 at 1-2. Compliance with the notice of claim statute is a

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mandatory prerequisite to filing a complaint against a public entity or employee in

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Arizona and failure to comply with the statute bars any claim. See Salerno v. Espinoza,

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115 P.3d 626, 628 (Ariz. Ct. App. 2005). Strict compliance with the notice of claim

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statute is required. See, e.g., Deer Valley Unified Sch. Dist. No. 97 v. Houser, 152 P.3d

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490 (Ariz. 2007).

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Defendant’s motion asserts a pleading defect. Defendant argues that Plaintiff’s

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complaint must be dismissed because it does not allege that he complied with the notice

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of claim statute. Doc. 6 at 2. But Defendant cites no authority for the proposition that

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compliance with the notice of claim statute must be pled affirmatively in a complaint, and

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the Court is aware of none. The Court will not dismiss Plaintiff’s complaint for this

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alleged pleading defect.

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B.

Plaintiff’s Second Claim.

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Plaintiff’s second claim, though not artfully pled, clearly asserts an FLSA claim.

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It alleges that “Plaintiff has not been paid at the statutorily required rate of 1-1/2 times his

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normal rate of pay for all hours worked in excess of 40 hours in one week.” Doc. 1 at 2.

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The complaint also seeks damages under the FSLA. Id. As Plaintiff correctly notes, an

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FSLA claim is not subject to Arizona’s notice of claim statute. Doc. 8 at 2; see Felder v.

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Casey, 487 U.S. 131, 139-40 (1988).

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C.

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Plaintiff has not provided a copy of the proposed amended complaint, properly

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highlighted, as required by Local Rule of Civil Procedure 15.1(a). The Court therefore

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will deny his motion to amend.

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Plaintiff’s Motion to Amend.

IT IS ORDERED:

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1.

Defendant’s motion to dismiss (Doc. 6) is denied.

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2.

Plaintiff’s motion to amend complaint (Doc. 8) is denied.

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Dated this 17th day of October, 2013.

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