Steinaker v. Sw. Airlines, Co.

Decision Date16 July 2020
Docket NumberNo. CV-19-05022-PHX-SPL,CV-19-05022-PHX-SPL
Parties Renee STEINAKER and David Steinaker, Plaintiffs, v. SOUTHWEST AIRLINES, CO., et al., Defendants.
CourtU.S. District Court — District of Arizona

Diane Marger Moore, Pro Hac Vice, Ronald Laurence Goldman, Pro Hac Vice, Baum Hedlund Aristei & Goldman PC, Los Angeles, CA, Erin A. Hertzog, Joel Taylor Fugate, John Jeffrey Bouma, Larry J. Cohen, Cronus Law PLLC, Phoenix, AZ, for Plaintiffs.

Peter Christopher Prynkiewicz, Littler Mendelson PC, Robert Shawn Oller, Littler Mendelson, Phoenix, AZ, for Defendant Southwest Airlines Company.

Alyssa Rae Illsley, Dominique Koss Barrett, Lori A. Metcalf, Quintairos Prieto Wood & Boyer PA, Phoenix, AZ, for Defendants Terry Graham, Ryan Russell.


Steven P. Logan, United States District Judge

Pending before the Court is Defendant Southwest Airlines, Co.’s ("Southwest") Motion to Dismiss (the "Motion") (Doc. 29). Defendants Terry Graham ("Graham") and Ryan Russell ("Russell," and collectively with Graham, the "Pilots") have joined in the Motion. The Motion is fully briefed. For the reasons that follow, the Motion will be granted in part and denied in part.1

I. Background

Plaintiffs, both flight attendants employed by Southwest, allege in their Third Amended Complaint that two co-employees, the Pilots, surreptitiously watched Ms. Steinaker through a hidden camera when she used the forward lavatory aboard Southwest Flight No. 1088, which flew from Pittsburgh to Phoenix on February 27, 2017. (Doc. 28 at 3–4, 5–6) Additionally, Plaintiffs allege that Ms. Steinaker and the other flight attendants on Flight No. 1088 reported to Southwest that the Pilots were watching and recording everyone who used the forward lavatory (Doc. 28 at 9–10), that Southwest failed to properly investigate this incident, discipline the Pilots, or remedy their alleged misconduct (Doc. 28 at 11–12), and that Southwest has retaliated against Plaintiffs and the other flight attendants from Flight 1088 in an effort to intimidate and silence them (Doc. 28 at 13–14). The Third Amended Complaint contains six causes of action against Southwest: (1) intentional or reckless infliction of emotional distress ("IIED"); (2) invasion of privacy; (3) willful misconduct – failure to train, supervise, investigate, and discipline; (4) breach of the covenant of good faith and fair dealing; (5) sexual harassment/discrimination; and (6) Title VII retaliation. (Doc. 28 at 16–32) Plaintiff also allege two causes of action against the Pilots: (1) intentional or reckless infliction of emotional distress; and (2) invasion of privacy. (Doc. 28 at 16–18, 21–23) All causes of action besides the sexual harassment/discrimination and Title VII retaliation claims are state law causes of action which must be resolved under Arizona law.2 Plaintiffs allege that Defendants’ actions, or inaction for some of the claims, have caused Ms. Steinaker to suffer physical illness and both Plaintiffs to suffer significant mental and emotional distress. (Doc. 28 at 17–18, 25) Plaintiffs initially filed in the Maricopa County Superior Court on October 25, 2018 and Defendants removed the action to federal court on August 23, 2019. (Doc. 1)

II. Legal Standard
A. FRCP 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) "allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction." Kinlichee v. United States , 929 F. Supp. 2d 951, 954 (D. Ariz. 2013) (citing Tosco Corp. v. Comtys. for a Better Env't , 236 F.3d 495, 499 (9th Cir. 2001) ). Allegations raised under FRCP 12(b)(1) should be addressed before other reasons for dismissal because if the complaint is dismissed for lack of subject matter jurisdiction, other defenses raised become moot. Kinlichee , 929 F. Supp. 2d at 954. A motion to dismiss for lack of subject matter jurisdiction under FRCP 12(b)(1) may attack either the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction or the existence of subject matter jurisdiction in fact. Renteria v. United States , 452 F. Supp. 2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ'g Co., Inc. v. General Tel. & Elecs. Corp. , 594 F.2d 730, 733 (9th Cir. 1979) ); Edison v. United States , 822 F.3d 510, 517 (9th Cir. 2016). When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Renteria , 452 F. Supp. 2d at 919 (citing Federation of African Amer. Contractors v. City of Oakland , 96 F.3d 1204, 1207 (9th Cir. 1996) ). When the motion to dismiss is a factual attack on subject matter jurisdiction, however, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact. Renteria , 452 F. Supp. 2d at 919 (citing Thornhill , 594 F.2d at 733 ). A plaintiff has the burden of proving that jurisdiction does in fact exist. Renteria , 452 F. Supp. 2d at 919 (citing Thornhill , 594 F.2d at 733 ). Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss. Rosenbaum v. Syntex Corp. , 95 F.3d 922, 926 (9th Cir. 1996).

B. FRCP 12(b)(6)

Rule 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief," so that the defendant has "fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations omitted). Also, a complaint must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is "plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Facial plausibility exists if the pleader pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Plausibility does not equal "probability," but plausibility requires more than a sheer possibility that a defendant acted unlawfully. Id. "Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ " Id. (citing Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader's obligation to provide the grounds for relief requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted). Rule 8(a)(2) "requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests." Id. (citing 5 C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 1202, pp. 94, 95 (3d ed. 2004) ). Thus, Rule 8's pleading standard demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

In deciding a motion to dismiss the Court must construe the facts alleged in the complaint in the light most favorable to the drafter of the complaint and must accept all well-pleaded factual allegations as true. OSU Student Alliance v. Ray , 699 F.3d 1053, 1061 (9th Cir. 2012) ; Shwarz v. United States , 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).

Furthermore, a motion to dismiss under Rule 12(b)(6) must rely solely on the contents of the pleadings. See Fed. R. Civ. P. 12(d). A court may, however, consider "matters of judicial notice" without converting a motion to dismiss into one for summary judgment. United States v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003). Furthermore, a court need not accept as true "allegations that contradict matters properly subject to judicial notice" or "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig. , 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations omitted).

A court may take judicial notice of documents referenced in the complaint, as well as matters in the public record. Lee v. City of Los Angeles , 250 F.3d 668, 688–89 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara , 307 F.3d 1119, 1125–26 (9th Cir. 2002). In addition, the Court may take judicial notice of matters that are either "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Public records, including judgments and other court documents, are proper subjects of judicial notice. See, e.g. , United States v. Black , 482 F.3d 1035, 1041 (9th Cir. 2007). However, "[j]ust because the document itself is susceptible to judicial notice does not mean that every assertion of fact within that document is judicially noticeable for its truth." Khoja v. Orexigen Therapeutics, Inc. , 899 F.3d 988, 999 (9th Cir. 2018).

III. Analysis

At the outset, the Court notes that Defendants seek dismissal of all the state law causes of action because of the Court's alleged lack of subject matter jurisdiction based on the exclusivity provision of the Arizona Workers’ Compensation Act. (Doc. 29 at 4–9) In the alternative, Defendants argue that each...

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