Ross v. Proactive Physical Therapy LLC ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Ronald F. Ross, No. CV-18-0307-TUC-BGM 9 Plaintiff, 10 v. ORDER 11 12 John Woolf and ProActive Physical Therapy, LLC, 13 Defendants. 14 15 Currently pending before the Court is Defendants John Woolf and ProActive 16 Physical Therapy, LLC’s (“ProActive”) Motion to Dismiss Plaintiff’s Amended 17 Complaint (Doc. 15). Plaintiff filed his Opposition to Defendants [sic] Motion to 18 Dismiss (“Response”) (Doc. 17), and Defendants subsequently replied (Doc. 18). The 19 motion is fully briefed and ripe for adjudication. 20 In its discretion, the Court finds this case suitable for decision without oral 21 argument. See LRCiv. 7.2(f). The Parties have adequately presented the facts and legal 22 arguments in their briefs and supporting documents, and the decisional process would not 23 be significantly aided by oral argument. 24 25 I. FACTUAL BACKGROUND 26 Plaintiff worked for Tucson Physical Therapy for “over a year” prior to its merger 27 with another company. Amended Compl. (Doc. 8) at ¶ 3. Plaintiff alleges that Tucson 28 Physical Therapy merged with ProActive. Id. Plaintiff then worked for the new 1 company for one (1) year. Id. Plaintiff was laid off in January 2017. Id. Plaintiff 2 alleges he was “offered 2 positions and a marketing job but was passed [up] . . . [and] 3 each time younger people were hired in [his] place.” Id. Plaintiff was forty-eight (48) 4 years old at the time. Amended Compl. (Doc. 8) at ¶ 3. 5 Plaintiff alleges that “John Woolf and ProActive Physical Therapy violated U.S. 6 Code 621 Age Discrimination[.]” Id. Defendants seek dismissal of the Complaint 7 pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. 8 9 II. STANDARD OF REVIEW 10 A complaint is to contain a “short and plain statement of the claim showing that 11 the pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not 12 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 13 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 14 1937, 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of 15 action, supported by mere conclusory statements, do not suffice.” Id.; Pareto v. Fed. 16 Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998) (“conclusory allegations of law and 17 unwarranted inferences are not sufficient to defeat a motion to dismiss.”). 18 Dismissal is appropriate where a plaintiff has failed to “state a claim upon which 19 relief can be granted.” Rule 12(b)(6), Fed. R. Civ. P. “To survive a motion to dismiss, a 20 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 21 relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678, 129 S.Ct. at 1949 (quoting 22 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 23 929 (2007)). Further, “[a] claim has facial plausibility when the plaintiff pleads factual 24 content that allows the court to draw the reasonable inference that the defendant is liable 25 for the misconduct alleged. The plausibility standard is not akin to a ‘probability 26 requirement,’ but it asks for more than a sheer possibility that a defendant has acted 27 unlawfully.” Id. (citations omitted). 28 “When ruling on a motion to dismiss, [the Court must] accept all factual 1 allegations in the complaint as true and construe the pleadings in the light most favorable 2 to the nonmoving party.” Association for Los Angeles Deputy Sheriffs v. County of Los 3 Angeles, 648 F.3d 986, 991 (9th Cir. 2011) (quoting Knievel v. ESPN, 393 F.3d 1068, 4 1072 (9th Cir. 2005)). “The court draws all reasonable inferences in favor of the 5 plaintiff.” Id. (citing Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 6 n.2 (9th Cir. 2008)). This Court is not required, however, to accept conclusory 7 statements as a factual basis. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 8 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007); Mann v. City of Tucson, 782 F.2d 790, 793 9 (9th Cir. 1986) (“Although we must, in general, accept the facts alleged in the complaint 10 as true, wholly vague and conclusory allegations are not sufficient to withstand a motion 11 to dismiss.”). 12 “As a general rule, a district court may not consider any material beyond the 13 pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d. 14 668, 688 (9th Cir. 2001) (quotations and citations omitted). “There are, however, two 15 exceptions to the requirement that consideration of extrinsic evidence converts a 12(b)(6) 16 motion to a summary judgment motion. Id. “First, a court may consider material which 17 is properly submitted as part of the complaint[.]” Id. Second, “[a] court may take 18 judicial notice of ‘matters of public record’ without converting a motion to dismiss into a 19 motion for summary judgment.” Id. at 689 (citing MGIC Indem. Corp. v. Weisman, 803 20 F.2d 500, 504 (9th Cir. 1986)); see also Fed. R. Evid. 201. Additionally, the Ninth 21 Circuit Court of Appeals has “extended the ‘incorporation by reference’ doctrine to 22 situations in which the plaintiff’s claim depends on the contents of a document, the 23 defendant attaches the document to its motion to dismiss, and the parties do not dispute 24 the authenticity of the document, even though the plaintiff does not explicitly allege the 25 contents of that document in the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th 26 Cir. 2005). 27 . . . 28 . . . 1 III. ANALYSIS 2 Defendant seeks dismissal of Plaintiffs’ Complaint without leave to amend 3 because 1) Plaintiff has failed to state a claim against Defendant John Woolf as he was 4 not Plaintiff’s employer; and 2) Plaintiff failed to demonstrate that ProActive was his 5 employer. See Defs.’ Mot. to Dismiss (Doc. 15). 6 A. Defendant John Woolf 7 Defendants assert that Plaintiff’s Amended Complaint (Doc. 8) does not contain 8 any facts to support an age discrimination claim against Mr. Woolf individually. Def.’s 9 Mot. to Dismiss (Doc. 15) at 4–5. Plaintiff argues that Mr. Woolf was the founder of 10 ProActive and holds himself out as the Managing Partner. Pl.’s Response (Doc. 17) at 3. 11 The Age Discrimination in Employment Act (“ADEA”) makes it “unlawful for an 12 employer . . . to fail or refuse to hire or to discharge any individual [who is at least 40 13 years old] . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1); see also 29 14 U.S.C. § 631(a). The Ninth Circuit Court of Appeals has squarely addressed the issue of 15 individual liability under the ADEA. Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587 16 (9th Cir. 1993). The Ninth Circuit opined that “[t]he liability schemes under Title VII 17 and the ADEA are essentially the same in aspects relevant to this issue; they both limit 18 civil liability to the employer.” Id. (citing 42 U.S.C. § 2000e-5(g) (1988) (Title VII); 19 then citing 29 U.S.C. § 626(b) (1988) (ADEA)). The Miller court further observed that 20 “[b]ecause Congress assessed civil liability only against an employer under Title VII, this 21 court has held that ‘individual defendants cannot be held liable for back pay.’” Miller, 22 991 F.2d at 587 (quoting Padway v. Palches, 665 F.2d 965, 968 (9th Cir. 1982)). The 23 appellate court concluded that “[i]f Congress decided to protect small entities with 24 limited resources from liability, it is inconceivable that Congress intended to allow civil 25 liability to run against individual employees.” Miller, 991 F.2d at 587. The Ninth Circuit 26 then held that its “ruling in Padway that individual defendants cannot be held liable for 27 damages under Title VII is good law, and because of the similarities in the Title VII and 28 ADEA statutory schemes, is applicable to suits under the ADEA.” Id. at 587–88. 1 Here, Plaintiff has named Mr. Woolf a defendant simply because he is allegedly 2 the founder or managing partner of ProActive. Pl.’s Response (Doc. 17) at 3. Neither 3 Plaintiff’s Amended Complaint (Doc. 8) nor his Response (Doc. 17) contain any facts to 4 suggest that Mr. Woolf acted in a discriminatory manner. Moreover, the ADEA limits 5 civil liability to Plaintiff’s employer and individual defendants cannot be liable for 6 damages. Miller, 991 F.2d at 587–88. Accordingly, Plaintiff has failed to state a claim 7 against Mr. Woolf and no amendment could cure this shortcoming. Therefore, any 8 claims against Mr. Woolf will be dismissed. 9 B. Plaintiff’s Employer 10 Defendant ProActive asserts that it was not Plaintiff’s employer at the time of the 11 alleged discrimination. Defs.’ Mot. to Dismiss (Doc. 15) at 5–6. In his Amended 12 Complaint (Doc. 8), Plaintiff alleged that he was employed by Tucson Physical Therapy 13 which merged with ProActive, and he subsequently worked for ProActive for a year. 14 Amended Compl. (Doc. 8) at ¶ 3. Defendants submitted an offer letter that was sent to 15 Plaintiff, which reflects the merger of Tucson Physical Therapy and extends to Plaintiff 16 an offer of employment by OrthomEd, LLC. Defs.’ Mot. to Dismiss (Doc. 8), Woolf Ltr. 17 to Ross 12/21/2015 (Exh. “A”). On December 22, 2015, Plaintiff signed his acceptance 18 of the terms contained therein. Id. at 2. In response, Plaintiff submitted bank statements 19 purporting to show that he was paid by ProActive.1 Response (Doc. 17), Chase Checking 20 Summ. (Exh. “A”). 21 It is undisputed that Plaintiff’s post-merger employment agreement was with 22 OrthomEd, LLC. Furthermore, Plaintiff’s bank statements do not negate this agreement.2 23 Plaintiff has provided the Court with very few facts and those he has presented are vague 24 25 1 Defendants object to this submission, arguing a lack of foundation and that nothing establishes Plaintiff was paid by ProActive Physical Therapy. Defs.’ Reply (Doc. 18) at 2. 26 Plaintiff does indicate that the attached bank statements belong to him. Response (Doc. 17) at 3. 27 2 The statements also show direct deposits by “Tucson Physical” and the merger appears to have been combining Tucson Physical Therapy with ProActive Physical Therapy into the new 28 entity OrthomEd, LLC. See Response (Doc. 17), Exh. “A”; Pl.’s Mot. to Dismiss (Doc. 15), Exh. “A.” 1 and conclusory, which this Court is not required to accept. See Mann v. City of Tucson, 2 782 F.2d 790, 793 (9th Cir. 1986). Plaintiff has not demonstrated that ProActive was his 3 employer for purposes of an ADEA claim. 4 C. Amendment 5 “[T]he general rule [is] that Title VII claimants may sue only those named in the 6 EEOC charge because only they had an opportunity to respond to charges during the 7 administrative proceeding.” Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th Cir. 1990) (citing 8 2 A. Larson, Employment Discrimination, § 49.11(c)(2) (1990)). The Ninth Circuit Court 9 of Appeals has recognized a limited number of circumstances in which a Plaintiff may 10 sue a party not included in the EEOC complaint, including: (1) the party was “involved in 11 the acts” which gave rise to the claim; (2) the party “should have anticipated” that it 12 would be named in the complaint; (3) the respondent named in the EEOC complaint is 13 “substantially identical” to the unnamed party; or (4) the unnamed party had notice of and 14 participated in the EEOC conciliation efforts. Sosa, 920 F.2d at 1459. 15 Plaintiff was given an opportunity to amend his original Complaint (Doc. 1) and 16 respond to Defendants’ motion to dismiss. Plaintiff has not offered any explanation as to 17 why he did not name his actual employer, OrthomEd, LLC, in his EEOC complaint, nor 18 has he offered any facts to suggest that this omission should be excused. As such, the 19 Court finds that further amendment of Plaintiff’s complaint would be futile. 20 . . . 21 . . . 22 . . . 23 . . . 24 . . . 25 . . . 26 . . . 27 . . . 28 . . . 1|| VI. CONCLUSION 2 Based upon the foregoing, IT IS HEREBY ORDERED that: 3 1) Defendants’ Motion to Dismiss (Doc. 15) is GRANTED; 4 2) Plaintiff's Amended Complaint (Doc. 8) is DISMISSED WITH 5 || PREJUDICE; and 6 3) The Clerk of the Court shall close its file in this matter. 7 Dated this 30th day of August, 2019. 9 Honorable Bruce G. Macdonald 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-