Lin v. Deutsche Bank Securities Incorporated ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gary Lin, No. CV-23-00154-TUC-RM 10 Plaintiff, ORDER 11 v. 12 Deutsche Bank Securities Incorporated, et al., 13 Defendants. 14 15 Plaintiff Gary Lin1 filed a Verified Complaint alleging that Defendants failed to 16 pay him short-term disability income benefits in violation of A.R.S. § 23-350, et seq. 17 (Doc. 1-1.) Currently pending before the Court is Defendants’ Motion to Dismiss. (Doc. 18 11.) The Court warned Plaintiff of his responsibility to respond and extended his 19 response deadline three times (Docs. 14, 16, 17), but Plaintiff did not file a response. 20 I. Plaintiff’s Complaint 21 Plaintiff alleges that he was employed by Defendants and, as an employee, was 22 eligible for certain employee benefits offered by Defendants, including benefits under 23 Defendants’ short-term disability income program. (Doc. 1-1 at 5 ¶¶ 10, 12.)2 24 Defendants’ short-term disability income program is not an ERISA-based plan. (Id. at 6 25 ¶ 14.) Plaintiff alleges he was disabled within the meaning of Defendants’ short-term 26 disability income program due to mental health conditions, but that Defendants 27 1 Plaintiff was represented by counsel when he filed the Complaint but is now proceeding pro se. (See Doc. 1-1; Doc. 16.) 28 2 All record citations refer to the page numbers generated by the Court’s electronic filing system. 1 unreasonably denied his claim for benefits under the program. (Id. at 6-7 ¶¶ 15-26.) 2 Plaintiff asserts a claim pursuant to A.R.S. § 23-350 et seq., alleging that short-term 3 disability income benefits constitute “wages” within the meaning of A.R.S. § 23-350(7). 4 (Id. at 7 ¶¶ 27-35.) He seeks backpay, including treble damages and interest. (Id. at 8.) 5 II. Legal Standard 6 Dismissal of a complaint, or any claim within it, for failure to state a claim under 7 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 8 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 9 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) 10 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). “To 11 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 12 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 13 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 14 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that 15 allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Id. 17 III. Discussion 18 In their Motion to Dismiss, Defendants argue that disability benefits are not 19 “wages” within the meaning of A.R.S. § 23-350(7) because they are not compensation 20 due to an employee in return for labor or services rendered by the employee. (Doc. 11 at 21 4-5.) 22 The Arizona wage laws define “wages” to mean “nondiscretionary compensation 23 due an employee in return for labor or services rendered by an employee for which the 24 employee has a reasonable expectation to be paid whether determined by a time, task, 25 piece, commission or other method of calculation.” A.R.S. § 23-350(7). If an employer 26 “fails to pay wages due any employee,” the employee may recover treble damages in a 27 civil action against the employer. A.R.S. § 23-355(A). 28 The Arizona Court of Appeals has held that no “right to paid vacation time” exists under A.R.S. § 23-350 et seg. Abdulhussain v. MV Pub. Transp., No. 1 CA-CV 22-0522, 2|| 2023 WL 3843319, at *3 (Ariz. App. June 6, 2023). Such a right “exists, if at all, solely by agreement of the parties.” Jd. Similarly, here, a right to disability benefits under 4|| Defendants’ short-term disability income program exists solely by agreement of the || parties. Disability benefits do not constitute “nondiscretionary compensation due an || employee in return for labor or services rendered.” A.R.S. § 23-350(7) (emphasis 7\| added); cf Sw. Teamsters Sec. Fund vy. Arizona Dep’t of Economic Sec., 757 P.2d 1067, || 1068 (Ariz. App. 1988) (noting that disability benefits are not “‘wages’ in ordinary parlance’). 10 Plaintiff has not shown that Defendants’ alleged failure to pay him benefits under 11 || their short-term disability income program is actionable under A.R.S. § 23-350 et seq. || Furthermore, Plaintiff did not respond to Defendants’ Motion to Dismiss, and it appears 13 || he may have abandoned this litigation. See LRCiv 7.2(1) (a party’s failure to file a || required answering memoranda “may be deemed a consent to the . . . granting of the 15} motion and the Court may dispose of the motion summarily”). The Court will grant 16|| Defendants’ Motion to Dismiss and will dismiss Plaintiff's claim under A.R.S. § 23-350 || et seq. with prejudice, as the claim cannot be cured by the allegation of other facts. See || Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (district court should dismiss with || leave to amend “unless it determines that the pleading could not possibly be cured by the allegation of other facts” (internal quotation marks omitted)). 21 IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 11) is granted. The 22 || Clerk of Court is directed to enter judgment in favor of Defendants and close this case. 23 Dated this 11th day of October, 2023. 24 25 27 f a) Z Honorable Rostsiary □□□□□□□ 28 United States District □□□□□ -3-