Spiker v. Sanjivan PLLC
| Decision Date | 16 September 2013 |
| Docket Number | No. CV-13-00334-PHX-GMS,CV-13-00334-PHX-GMS |
| Parties | Steven Spiker and Denise Spiker, husband and wife, Plaintiffs, v. Sanjivan PLLC, an Arizona professional limited liability company dba Buckeye Medical Clinic; Karen Padilla; John Doe Padilla; Wal-Mart Stores Incorporated, a Delaware corporation; Wal-Mart Transportation LLC, a foreign LLC; Wal-Mart Associates Incorporated, a Delaware corporation; Stephen Kracht, D.O.; and EScreen Incorporated, a Delaware corporation, Defendants. |
| Court | U.S. District Court — District of Arizona |
All Defendants move to dismiss Plaintiffs' Second Amended Complaint for failure to state a claim pursuant to Rule 12(b)(6). (Docs. 19, 20, 21.) For the reasons specified below, the Motion of Defendant Wal-Mart is granted in part and denied in part, the Motion of Defendants BMC and Padilla is denied, and the Motion of Defendants eScreen and Dr. Kracht is granted in part and denied in part.1
This case arises out of an employee drug test that revealed the existence of banned substances and led to the termination of the employee. Plaintiff Steven Spiker was employed as a truck driver for Defendant Wal-Mart for approximately seven years.2 (Doc. 14, Sec. Am. Compl. ¶ 31.) Truck drivers are subject to the Federal Omnibus Transportation Employee Testing Act (the "FOTETA") and the implementing Department of Transportation ("DOT") regulations. 49 U.S.C. §§ 45101, et seq. Defendant eScreen, a Third-Party Administrator ("TPA"), provided bundled drug testing services to Wal-Mart. (Doc. 14 ¶ 8.) eScreen handled the selection, hiring, training, and/or supervision of collection sites and medical review officers ("MROs"). (Id. ¶¶ 10-11.)
On September 2, 2011, Mr. Spiker was directed by Wal-Mart to submit to a random DOT drug test at a collection site, Defendant Buckeye Medical Clinic ("BMC"). (Id. ¶ 34.) Mr. Spiker reported to BMC and provided a urine specimen to BMC's employee, Defendant Karen Padilla. (Id. ¶¶ 35, 37-38.) At the time, the Complaint alleges that Padilla was not credentialed or trained pursuant to the DOT regulations. (Id. ¶ 38.) Padilla affixed a tamper-evident seal on Mr. Spiker's specimen bottle after Mr. Spiker initialed it. (Id. ¶ 37.) Padilla prepared the specimen, completed a Custody and Control Form ("CCF") that Mr. Spiker certified, and sent the specimen and the CCF to a laboratory. Padilla's handling of Mr. Spiker's specimens led to them being contaminated or mistakenly identified. (Id. ¶ 69.) At the laboratory, the specimen tested positive for banned substances. (Id. ¶ 43; Doc. 20-1, Ex. 1.) Defendant Stephen Kracht, D.O., the MRO, reviewed the CCF and the laboratory's findings but did not discover any flaws therein. (Doc. 14 ¶ 39.)
Upon receiving notice of the positive drug test report, Mr. Spiker complainedabout the report and the drug testing process to Defendants but they did not invalidate the report. (Id. ¶ 45.) As a result of the report, Wal-Mart terminated Mr. Spiker's employment. (Id. ¶ 46.) Further, Mr. Spiker's commercial driving record on file with the DOT was impacted negatively by the drug test. (Id. ¶ 48.) He is now subject to additional restrictions and requirements from the DOT. (Id. ¶ 50.) Prior to his termination, Spiker earned an annual salary of $92,500 with additional health and retirement benefits. (Id. ¶ 31.) Following his termination, Mr. Spiker was unemployed for approximately eight weeks. (Id. ¶ 51.) Although he found new employment, it was at a lower salary of $45,000 and a lower level of health and retirement benefits. (Id. ¶ 52.)
Mr. Spiker and his wife, Denise Spiker, brought an action against Defendants in the Maricopa County Superior Court on April 6, 2012. (Doc. 1-3.) The Spikers had named Clinical Reference Laboratory as a Defendant in the original state court complaint but removed the party in their amended complaint. (Docs. 1-1, 1-3.) Dr. Kracht removed the action to this Court on February 14, 2013, and all Defendants stipulated to the removal. (Doc. 1.) On April 2, the Spikers filed a Second Amended Complaint (the "SAC") alleging claims of negligence against all Defendants and negligent training and supervision against Wal-Mart, eScreen, and BMC. (Doc. 14 ¶¶ 58-80.) All Defendants now move to dismiss the SAC.
The Court ordered the Parties to "meet and confer prior to the filing of a motion to dismiss to determine whether it can be avoided." (Doc. 3 at 1.) The Court further ordered that (Id. at 1-2.)
Defendants BMC, Padilla, eScreen, and Dr. Kracht did not attach a certification ofconferral to their Motions. After the Spikers alerted the Court to that deficiency in their Response, Defendants attached a joint certification to their Reply briefs. (Doc. 36-1, Ex. 10.) In this circumstance, and because the requirement is new, the Court will review the adequacy of the certification.
In the certification, Defendants contend that they participated in "lengthy and numerous discussions with Plaintiffs' counsel with respect to deficiencies in Plaintiffs' [First Amended Complaint] prior to filing of their Motions to Dismiss." (Id. at 2.) Defendants further contend that all parties participated in a conference call on March 2, 2013, to discuss each party's respective issues with the First Amended Complaint and whether any deficiencies could be cured through amendment. The Spikers argue, however, that at the time of the March 2 conference, Wal-Mart was the only party that had filed a Motion to Dismiss and only issues that pertained to that Motion were discussed at the conference; none of the issues presented in Defendants' other Motions were raised at that time.
In addition to the March 2 conference, Defendants state that eScreen and Dr. Kracht have had "numerous other phone calls and exchanged multiple emails with Plaintiffs' counsel on other deficiencies with Plaintiffs' [First Amended Complaint]." (Id.) At the end of this exchange, "the parties agreed to disagree as to some other issues of law with the understanding that each party would be filing motions to dismiss after [the SAC] was filed." (Id.)
Although the Parties dispute what issues were raised in the March 2 conference, it is not disputed that Defendants have conferred with the Spikers regarding deficiencies in the First Amended Complaint and that the Spikers have once amended their Complaint in response to those conversations. Defendants may not have informally raised every issue pertinent to the Complaint that is raised in their Motions but the obligation to meet and confer does not include an obligation to assist the Spikers in carefully drafting a second amended complaint. The Court finds that the Defendants complied with their obligation to meet and confer with the Spikers prior to filing their Motions and will consider themerits of Defendants' arguments.
Rule 12(b)(6) is designed to "test the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While "a complaint need not contain detailed factual allegations . . . it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
When analyzing a complaint for the failure to state a claim under Rule 12(b)(6), "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).
The general rule is that parties must exhaust prescribed administrative remedies before seeking relief from the federal courts. McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992) (internal citations omitted); Minor v. Cochise Cnty., 125 Ariz. 170, 172, 608 P.2d 309, 311 (1980) (). The rule "is a salutary one allowing agencies to exercise their expertise, to correct their own errors, and to provide relief that may be both swifter and more satisfactory than relief available through more formal litigation." Payne v. Peninsula Sch. Dist., 653 F.3d 863, 878 (9th Cir. 2011) cert. denied, 132 S. Ct. 1540, 182 L. Ed. 2d 161 (2012). "Notwithstanding these substantial institutional interests, federal courts are vested with a virtually unflagging obligation to exercise the jurisdiction given them. McCarthy, 503 U.S. at 146 (internal quotation marks and citation omitted). Therefore, exhaustion may not be required "in some...
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