Wagoner v. First Fleet Incorporated

Filing 18

ORDER: Defendant First Fleet, Inc.'s Motion to Dismiss 17 is GRANTED. The Clerk of Court shall enter judgment, dismissing this case with prejudice. Signed by Senior Judge James A Teilborg on 1/19/2023. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gary L. Wagoner,
Plaintiff,

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v.

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First Fleet Incorporated,

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No. CV-22-00990-PHX-JAT
ORDER

Defendant.

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Pending before the Court is Defendant First Fleet, Inc’s (“First Fleet”) Motion to

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Dismiss. (Doc. 17). The Court now rules on this motion. Defendant’s Motion to dismiss is

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granted.

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I.

BACKGROUND

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The relevant factual background has already been described in this Court’s order

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dismissing Plaintiff Dr. Gary Wagoner’s initial complaint. (Doc. 14). Thus, this

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background will only be briefly described here.

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Plaintiff, a chiropractor in Phoenix, Arizona, treated Jeffrey Cagle in October of

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2019. (See Doc. 17). As part of his agreement to treat Cagle, Plaintiff had Cagle assign him

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all of his benefits and abilities under the Employee Retirement Income Security Act

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(ERISA) to collect any payments from First Fleet. (See Doc. 1-3 at 7). After a number of

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unsuccessful attempts to collect payment for services, Plaintiff brought suit alleging

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violations of Arizona insurance law and common law. (See Doc. 17 at 2–3). His complaint

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was dismissed on the grounds that his claims were preempted by ERISA. (See Doc. 14).

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Plaintiff then filed an amended complaint claiming that First Fleet had violated ERISA

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sections 502, 510, and 511 because it had failed to pay benefits under the plan, had

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interfered with his patient’s rights, and had engaged in coercive interference. (See Doc.

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15). Defendant then filed another Motion to Dismiss for Failure to State a Claim. (Doc.

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17). Plaintiff failed to file a response within 14 days and has not requested an extension of

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time.

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II.

LEGAL STANDARD

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A. Rule 12(b)(6)

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A complaint or claim can be dismissed under Rule 12(b)(6) either because it lacks

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“a cognizable legal theory” or because there are no “sufficient facts alleged under a

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cognizable legal theory.” Johnson v. Riverside Heatlhcare Sys., LP, 534 F.3d 1116, 1121–

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22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990)) (internal quotations omitted). In determining whether a complaint states a claim

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under this standard, the Court regards the allegations in the complaint as true and construes

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the pleadings in the light most favorable to the nonmovant. See Outdoor Media Group, Inc.

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v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A pleading must contain “a short

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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

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P. 8(a)(2). This statement “need only give the defendant fair notice of what … the claim is

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and the grounds upon which it rests,” and “[s]pecific facts are not necessary.” Erickson v.

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Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted). To survive a motion to

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dismiss, a complaint must state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009). This means that the Plaintiff must plead “factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (to survive a motion to

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dismiss, a plaintiff must allege “enough facts to state a claim to relief that is plausible on

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its face”).

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B. Local Rule 7.2(i)
Although this is a 12(b)(6) motion to dismiss, there was no response filed. Thus,

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this Court must look to Local Rule 7.2. District of Arizona Local Rule of Civil Procedure

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7.2(c) requires parties to file all responsive memoranda within fourteen days after service

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of the original motion. See L. R. Civ. 7.2. If a party fails to file a required responsive

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memorandum, Local Rule 7.2(i) states that the Court has the authority to consider that

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failure “a consent to the denial or granting of the motion ....” L. R. Civ. 7.2(i). Thus, if a

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party fails to respond to a motion to dismiss within fourteen days after service, the Court

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can deem that as consenting to the grant of the motion to dismiss by the plaintiff.

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Applying a straightforward and text-based reading of the Local Rules it would seem

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that the application of Rule 7.2(i) is quite black and white: if a party fails to file a response

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within 14 days the Court can grant the underlying motion. Yet the Ninth Circuit has stated

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that although “[f]ailure to follow a district court’s local rules is a proper ground for

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dismissal” there are five general factors that a court must consider before dismissing a case:

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1. The public’s interest in expeditious resolution of litigation, 2. The court’s need to

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manage its docket, 3. The risk of prejudice to defendants, 4. Public policy favoring merits

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dispositions, and 5. The availability of less drastic sanctions. See Ghazali v. Moran, 46

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F.3d 52, 53 (9th Cir. 1995). And the district court must consider these factors explicitly.

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See id. at 54.

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III.

DISCUSSION

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It is clear from the record that Plaintiff Wagoner did not file a response of any kind

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to the Motion to Dismiss his First Amended Complaint. Wagoner filed his amended

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complaint on August 18, 2022. (Doc. 15). Defendant filed a Motion to Dismiss on

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September 1, 2022. (Doc. 17). Since that time, nothing else has been filed in the case. Not

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only has there been no responsive memoranda submitted by Wagoner, there has not even

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been a motion for an extension of time. Consequently, Local Rule 7.2(i) applies here.

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This means that the Ghazali factors must be applied to determine whether granting

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the motion to dismiss is appropriate. All five factors point toward dismissal here. The first

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factor, the interest in expeditious resolution, clearly favors dismissal. The fastest and most

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efficient way to resolve this case is to dismiss the matter with prejudice. As the Ninth

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Circuit has noted, “the public’s interest in expeditious resolution of litigation always favors

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dismissal.” Irvin v. Madrid, 749 Fed.Appx. 546, 547 (9th Cir. 2019) (quoting Yourish v.

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Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)) (emphasis added). The same is true of

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the second factor. This Court can most efficiently manage its docket by resolving cases.

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The third factor is not as clear, but still ultimately points towards dismissal. While there

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would be no direct prejudice to Defendant, there will be some prejudice stemming from

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the fact that Defendant will be forced to raise its legal points once again in reply to any

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potential response this Court might order. Factors one through three, then, all weigh in

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favor of dismissal.

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When assessing the fourth factor, the policy favoring a merits determination, a court

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should look to whether it is likely that Plaintiff’s “complaint could have survived at the

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motion to dismiss stage” had it been considered on the merits. Espy v. Independence Blue

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Cross, 613 Fed.Appx. 633, 634 (9th Cir. 2015). While it is not appropriate for this Court

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to engage in a merits assessment when making a procedural determination, looking to the

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general issues raised by the Motion to Dismiss is appropriate. Given the specific sections

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of ERISA that Wagoner is bringing claims under, it does not seem likely that the complaint

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will survive the motion to dismiss stage. While it is true that at this stage the Court reads

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the facts in the light most favorable to the nonmoving party, it does not do so with the law.

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And Wagoner, it appears, likely cannot bring the claims that he is attempting to bring under

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ERISA. Ultimately, the fourth factor also weighs in favor of dismissal.

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Finally, the fifth factor cautions the Court that it should not dismiss if there are less

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drastic sanctions that it can apply. There are less serious sanctions available here. First, this

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Court could simply order Wagoner to file a reply. This would almost be a non-sanction.

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And given that over four months have passed since the motion to dismiss was filed, this

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seems inappropriate. The Court could also dismiss this case without prejudice, giving

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Wagoner the ability to refile. Yet this too does not seem to be right for a number of reasons.

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First, Defendant has already filed two full merits briefings, once for the initial complaint,

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and again for the amended complaint. Forcing it to do this for a third time would only place

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a burden on its time and resources as well as those of this Court. Second, it is not as if

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Wagoner is unfamiliar with the procedural rules and requirements. He filed a response to

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the initial Motion to Dismiss. (Doc. 9). Thus, he knows what he must do under the federal

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and local rules. It seems, then, that this factor also points towards dismissal with prejudice.

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But even if it did not. Even if this factor clearly pointed toward a less drastic alternative,

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the other four factors all point towards dismissal with prejudice. Ultimately then, under

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Ghazali, this Court should dismiss this case with prejudice. And that is what it will do.

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This result comports with the plain text of Local Rule 7.2(i) which states that if a

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party fails to serve and file the required responsive memoranda this failure “may be deemed

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a consent to the ... granting of the motion and the Court may dispose of the motion

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summarily.” L.R.Civ. 7.2(i). This is what occurred here. Consequently, this Court will

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follow the letter of the law and grant the Motion to Dismiss.

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IV.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that Defendant First Fleet, Inc’s Motion to Dismiss (Doc. 17) is

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GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment,
dismissing this case with prejudice.
Dated this 19th day of January, 2023.

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