McBeath v. Tucson Tamale Co., CV-16-00462-TUC-DCB (BPV)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
PartiesMelissa Martin McBeath, Plaintiff, v. Tucson Tamale Company, Defendant.
Docket NumberNo. CV-16-00462-TUC-DCB (BPV),CV-16-00462-TUC-DCB (BPV)
Decision Date31 January 2017

Pending before the Court are: (1) Defendant's Motion for Judgment on the Pleadings (Doc. 18); and Plaintiff's Motion for Leave to Amend Complaint (Doc. 25). This matter is referred to the undersigned Magistrate Judge for all pretrial proceedings and a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and LRCiv. 72.1, 72.2. For the following reasons, the Magistrate Judge recommends that the District Court: (1) deny Defendant's Motion for Judgment on the Pleadings; and (2) grant Plaintiff's Motion for Leave to Amend Complaint.


On July 11, 2016, Plaintiff, acting pro se, filed the instant action against her former employer, the Tucson Tamale Company, alleging violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (Doc. 1). Plaintiff alleges that she is over the age of 40. (Complaint at ¶40). Plaintiff further alleges that in April 2015, she began employment with Defendant in the positon of Area Manager based upon the promise that after a 90-day probationary period, she would "transition into the new role of Business Development Manager at an increased annual salary." (Id. at ¶¶14, 15, 21). The transition did not occur after the 90-day probationary period and Plaintiff's employment was ultimately terminated on February 22, 2016. (Id. at ¶¶24, 32, 35). Plaintiff also alleges that in or around September 2015, Defendant hired Lindsay Welch, who "is in her early 30s[] for the position of Business Development Manager that had been promised to Plaintiff." (Id. at ¶41). According to Plaintiff, she "is more qualified than Lindsay Welch to be [Defendant's] Business Development Manager, but was denied the position because of Plaintiff's age and Hispanic national origin." (Id. at ¶47).


On April 15, 2016, Plaintiff filed a pro se action in Arizona state court against the following Defendants: Tucson Tamale Company, the same Defendant against whom this federal action is pending, and Todd Martin, Sherry Martin, and Lisa Martin all of whom are associated with the Tucson Tamale Company. (Defendants' Motion for Judgment on the Pleadings (Doc. 18), Exh. 1 (Doc. 18-1)). Plaintiff alleges claims of: retaliatory discharge in violation of the Employment Protection Act, A.R.S. § 23-1501, against all defendants; fraud in the inducement against all defendants; negligent misrepresentation against all defendants; breach of employment agreement against the Tucson Tamale Company; failure to pay earned wages in violation of Arizona's wage Act, ARS § 23-350, et seq. against the Tucson Tamale Company; conversion against all defendants; and restitution/unjust enrichment against all defendants.


Defendant has filed a Motion for Judgment on the Pleadings pursuant to Fed.R.Civ.P. 12(c), arguing that the matter should be dismissed because Plaintiff has impermissibly split her claim between the Arizona state court and this Court. (Defendant's Motion for Judgment on the Pleadings (Doc. 18)). In addition to opposing Defendant's Motion (see Doc. 19), Plaintiff seeks leave to amend her Complaint to include a cause of action alleging national origin, race and ancestry discrimination in violation of 42 U.S.C. §2000e-2(a). (Plaintiff's Motion for Leave to Amend (Doc. 25)).


"Judgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.2009). "Analysis under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy." Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (internal quotation marks and citation omitted).

When analyzing a complaint under Rule 12(b)(6) for failure to state a claim, the Court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015) (internal quotation marks and citation omitted). However "[t]he tenet that a court must accept as true all of the allegations contained in a complaint..." does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009));; see also Telesaurus VPC, LLC. v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (pleadings that are no more than legal conclusions "'are not entitled to the assumption of truth.'") (quoting Iqbal, 556 U.S. at 679). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Moreover, the court "cannot assume any facts necessary to [the plaintiff's]...claim that they have not alleged." Jack Russell Terrier Network of Northern Calif. v. American Kennel Club, Inc., 407 F.3d 1027, 1035 (9th Cir. 2005).

The court will assume "'well-pleaded factual allegations,'. . . to be true, 'and then determine whether they plausibly give rise to an entitlement to relief.'" Telesaurus, 623 F.3d. at 1003 (quoting Iqbal, 556 U.S. at 679); see also Iqbal, 556 U.S. at 678 ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."). "The plausibility standard is not akin to a 'probability requirement,' but it asks for morethan a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Determining plausibility is a "context-specific task..." that requires the court to "draw on its judicial experience and common sense." Id. at 679. A complaint cannot survive dismissal where the court can only infer that a claim is merely possible rather than plausible. Id.

Although courts will not normally look beyond the pleadings in resolving a motion to dismiss for failure to state a claim, the Court may take judicial notice of matters of public record, such as Plaintiff's state complaint, if the facts are not subject to reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001), impliedly overruled on other grounds as discussed in Gallardo v. Dicarlo, 203 F.Supp.2d 1160, 1162 n.2 (C.D. Cal. 2002); see also Fed.R.Evid. 201.


Defendant argues that Plaintiffs' federal action must be dismissed based upon impermissible claim-splitting. "Plaintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant." Adams v. California Dep't of Heath Servs., 487 F.3d 684, 688 (9th Cir. 2007) (internal quotation marks and citation omitted), overruled on other grounds by Taylor v. Sturgell, 533 U.S. 880, 904 (2008). Whether to dismiss an action on grounds of claim-splitting is a matter within the trial court's discretion. Id. The issue of claim-splitting has generally been viewed as a concern related to docket management. See 18A Charles Alan Wright, Arthur R. Miller, Federal Practice & Procedure, §4406 (3d ed.); see also Kanciper v. Suffolk Cty. Soc. for the Prevention of Cruelty to Animals, Inc., 722 F.3d 88, 89, 91 nn. 2, 3 (2d Cir. 2013).

Here, Defendant requests dismissal of the instant federal action based upon Plaintiff's pending state court action. Unlike Adams, however, Plaintiff's actions are not pending in the "same court. . . ."1 Adams, 487 F.3d at 688.

The Ninth Circuit has recognized the long-settled rule that "overlapping or even identical federal and state court litigation may proceed simultaneously, limited only by doctrines of abstention and comity. . . ." Noel v. Hall,, 341 F.3d 1148, 1159 (9th Cir. 2003). In Noel, the Ninth Circuit explained that:

The rule that permits simultaneous litigation in state and federal court of overlapping and even identical cases is deeply rooted in our system. As the Court wrote in Atlantic Coast Line Railroad v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970): "[T]he state and federal courts had concurrent jurisdiction in this case, and neither court was free to prevent either party from simultaneously pursuing claims in both courts." Id. at 295, 90 S.Ct. 1739 (citing Kline v. Burke Constr. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922)). The Court has recognized that this rule can produce "inefficient simultaneous litigation in state and federal courts on the same issue.... But this is one of the costs of our dual court system...." Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 524-25, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 928, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) ("[T]he very existence of one system of federal courts and 50 systems of state courts, all charged with the responsibility for interpreting the United States Constitution, suggests that on occasion there will be duplicating and overlapping adjudication of cases which are sufficiently similar in content, time, and location to justify being heard before a single judge had they arisen within a unitary system.")[.]

Id. at 1159. The court went on to explain that:

The inefficiencies produced by the rule permitting simultaneous litigation in state and federal court are mitigated by a number of abstention doctrines that permit, and often require, a federal court to abstain in favor of state court litigation. They include Younger abstention, after Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Pullman abstention, after Railroad Commission of Texas v. Pullman

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