Wray v. Greenburg ( 2022 )

Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 1 of 44 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Amanda Wray, et al., No. CV-22-00859-PHX-DWL 10 Plaintiffs, ORDER 11 v. 12 Jann-Michael Greenburg, et al., 13 Defendants. 14 15 INTRODUCTION 16 Amanda Wray, Kimberly Stafford, and Edmond Richard (together, “Plaintiffs”) are 17 the parents of children who attended school in the Scottsdale Unified School District 18 (“SUSD” or “the District”). (Doc. 34 ¶ 1.) In this action, Plaintiffs bring claims against 19 four Defendants: (1) SUSD; (2) SUSD board member Jann-Michael Greenburg (“Jann- 20 Michael”); (3) Jann-Michael’s father, Mark Greenburg (“Mark”); and (4) Mark’s wife, 21 Dagmar Greenburg (“Dagmar”). (Id. ¶¶ 9-12.) 22 In broad strokes, Plaintiffs allege that after they “formed associations with like- 23 minded parents” in mid-2020 an effort to “stand[] up for children and engag[e] in the 24 political process,” including by raising “issues related to SUSD’s COVID-19 policies,” 25 Defendants conspired together to “silence and punish [Plaintiffs’] dissenting voices and 26 frighten away other potential speakers who might dare express an opposing point of view.” 27 (Id. ¶¶ 1-2, 16-17.) According to Plaintiffs, Mark’s role in this conspiracy was to gather 28 various forms of “sensitive and personal data about Plaintiffs and other parents,” which Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 2 of 44 1 was stored in a Google drive account, that could be used “to attack Plaintiffs publicly and 2 privately, with the intent to silence their speech.” (Id. ¶¶ 19-29.) 3 Now pending before the Court is a motion by Mark and Dagmar (the “Moving 4 Defendants”) to dismiss all of Plaintiffs’ claims against them. (Doc. 36.) For the following 5 reasons, the motion is granted in part and denied in part. 6 BACKGROUND 7 I. Relevant Factual Allegations 8 The facts below, which are presumed true for purposes of the pending motion to 9 dismiss, are derived from Plaintiffs’ First Amended Complaint (“FAC”). (Doc. 34.) 10 In August 2020, Plaintiffs and other SUSD parents and stakeholders formed a 11 private Facebook group called “Scottsdale Unified—CAN (Community Advocacy 12 Network).” (Id. ¶ 16.) Wray was the group’s administrator, and Stafford also served as an 13 administrator before she left the group in March 2021. (Id.) “The Facebook Group initially 14 began as a way for concerned parents to discuss issues related to SUSD’s COVID-19 15 policies, but later expanded its focus to include general matters of concern such as 16 curriculum, school budgetary priorities, and student safety.” (Id. ¶ 17.) Plaintiffs generally 17 “dared to express opinions contrary to the District’s chosen course of action.” (Id. ¶ 18.) 18 Following the creation of the Facebook group, “Defendants began to collect 19 information about individuals they viewed as their political enemies, including Plaintiffs.” 20 (Id. ¶ 19.) “[F]or over a year, Defendants gathered Plaintiffs’ public and private data, 21 internally shared [that] information (including private communications solely possessed by 22 the District),” and placed that information in a “public Google drive.” (Id. ¶¶ 19-20.) “The 23 drive included addresses, a full social security number, background checks, divorce 24 records, photographs, videos, recordings, internal unredacted communications parents had 25 with the District, and much, much more” and eventually contained “approximately 100 26 gigabytes of data.” (Id. ¶ 20.) The FAC sometimes refers to the contents of the drive as 27 “the Dossier.” (Id. ¶¶ 2, 20-21, 37, 46-49, 54, 56.) 28 “Mark . . . was primarily responsible for gathering, storing, and strategically -2- Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 3 of 44 1 disseminating Plaintiffs’ . . . information.” (Id. ¶ 21.) For example, “Mark . . . videotaped, 2 obtained photographs (including of Plaintiffs’ minor children), and recorded Plaintiffs as 3 well as other local parents and children.” (Id. ¶ 23.) “Mark . . . also collected various other 4 sensitive and personal data about Plaintiffs and other parents,” including Wray’s 5 employment history and mortgage records, Stafford’s “high school information, birthday, 6 child’s name and age, and state of residence,” 15 background checks on Plaintiffs and other 7 parents (including a “162-page ‘comprehensive report’ on one individual”), bankruptcy 8 filings, traffic court records, criminal records, business and licensing information, 9 mortgage documents, credit history information, and demographic information. (Id. ¶ 24.) 10 The Dossier also included “a bankruptcy record for an individual sharing Amanda Wray’s 11 maiden name and home state, which circumstances would have shown was not Ms. Wray.” 12 (Id. ¶ 25.) When compiling this information, Mark sometimes “impersonated others on 13 social media to gain access to their private groups.” (Id. ¶ 29.) Finally, the Dossier 14 contained a meme about Wray, which said: 15 Meet Amanda Wray, community activist and moderator of the SUSD CAN Page and wife of Daniel Wray, a VP of Sales for National General Insurance. 16 Ms. Wray advocates for reducing access to Covi-19 [sic] vaccines to the underserved communities within the SUSD School District and believes she 17 has been called by God to offer her dubious financial planning services to families seeking to enroll their children in private religious schools. Ms. 18 Wray might want to get her own financial house in order before giving advice to others. She has two mortgages on her primary residence and used the 19 proceeds of the second mortgage to buy a vacation home in Prescott, which she is operating as an Airbnb. We are so happy to have her here in the 20 Scottsdale Unified School District. Sunshine is the best disinfectant. End racism now within our community[.] 21 22 (Id. ¶ 65.) 23 On an unspecified date, Jann-Michael accidentally revealed the existence of the 24 Dossier when, to support his claims that the Facebook group was unable to “control racist, 25 homophobic, transphobic, anti-Catholic, anti-Semitic, and other discriminatory content,” 26 he “attached a screenshot of the public Google Drive hyperlink to one of the many files 27 [Mark] had amassed about the Facebook Group” to an email sent from his “official District 28 email account.” (Id. ¶ 61.) “On September 29, 2021, Amanda Wray was provided with a -3- Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 4 of 44 1 hyperlink to the Google Drive, which was openly accessible by anyone with the link that 2 [Jann-Michael] had broadcast, and discovered that [Mark] had stored all the various files 3 described in this Complaint and had shared those files with Board members [Jann-Michael] 4 and Zach Lindsay, as well as Jennifer McDowell, a community member supportive of the 5 Greenburgs.” (Id. ¶ 62.) After discovering the “staggering amount of information [Mark] 6 had compiled about her or purportedly about her, Ms. Wray became physically ill and 7 vomited.” (Id. ¶ 63.) 8 Mark’s “efforts to investigate Plaintiffs’ activities often immediately followed 9 [Plaintiffs’] criticism of [Jann-Michael] or SUSD.” (Id. ¶ 27.) For example, “[b]etween 10 August 20 and 21, 2021, Mark . . . created at least fifty-seven screenshots of Amanda 11 Wray’s social media activity, all of which he saved to the Google Drive.” (Id. ¶ 26, 12 emphasis omitted.) Then, the “District directly prevented the public from attending and 13 making their concerns known at [an] August 24, 2021 board meeting.” (Id. ¶ 39.) At the 14 same time, “[Jann-Michael] was on social media repeatedly comparing Facebook Group 15 members to Nazis, stating ‘[t]he comparison is apropos’ and claiming that they had ‘made 16 anti-Semitic, racist, and xenophobic comments.’” (Id. ¶ 40.) “Between August 25, 2021, 17 and September 1, 2021, the Scottsdale Parent Council, an association of involved parents 18 in which Amanda Wray was involved, received ten anonymous complaints by email about 19 Amanda Wray which included unfounded and demeaning statements about Ms. Wray. 20 Upon information and belief, [Mark] sent some or all of these complaints using information 21 gleaned from the Dossier and from private District records.” (Id. ¶ 49.) 22 Mark also engaged in various intimidation tactics. In one incident, “[u]sing Plaintiff 23 Kim Stafford’s employment history from the Dossier, [Mark] made veiled threats against 24 her employment because she publicly supported in-person schooling. . . . And lest the 25 implication be mistaken, in addition to publicly posting his threat, [Mark] also sent it to 26 Ms. Stafford via direct message.” (Id. ¶ 48.) Mark also “regularly used terms like 27 ‘mentally repulsive,’ ‘racist,’ ‘white supremacist,’ ‘psychos’ and ‘parasite,’ to refer to 28 Plaintiffs. He referred to one critic as ‘more like an animal than an actual person.’” (Id. -4- Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 5 of 44 1 ¶ 50.) On July 7, 2021, Mark “recorded a video of a discussion on the SUSD-CAN 2 Facebook page where he, among other things, stated out loud after coming across a 3 comment by Edmond Richard criticizing SUSD policies, ‘I really want Edmond to die. I’ll 4 be so happy. I’ll have a fucking party.’” (Id. ¶ 22.) 5 Mark also “tried to physically intimidate Plaintiffs to prevent them from expressing 6 their point of view.” (Id. ¶ 52.) For example, “[o]n January 19, 2021, Amanda Wray 7 attended an SUSD Board meeting. [Mark] arrived after the meeting began and made eye 8 contact with Ms. Wray when she turned her head to see who had entered the meeting room. 9 [Mark] initially sat on the left side of the room, with multiple chairs separating he and Ms. 10 Wray. After several minutes, [Mark], who is a large man, got up and moved seats to sit 11 directly behind Ms. Wray. He repeatedly and purposefully coughed at her. Ms. Wray felt 12 intimidated by [Mark’s] actions and made her fears regarding [his] alarming behavior 13 known to the District. The District, rather than acting to protect Ms. Wray, promptly 14 relayed her concerns, unredacted, directly to the perpetrator.” (Id. ¶ 53.) “Shortly after” 15 this incident, Mark messaged Wray from the “fake Frank Graham account,” stating, “I 16 finally saw you in person. You might want to buy a peloton bike.” (Id. ¶ 55.) Similarly, 17 Jann-Michael “at an August 24, 2021 Board meeting . . . whispered the following into his 18 microphone after Amanda Wray made a public comment: ‘Jesus fucking Christ, these 19 people.’” (Id. ¶ 57.) 20 While documenting Plaintiffs’ activities and online interactions, “Mark . . . kept 21 SUSD officials apprised of his conduct. For example, on September 12, 2020, Mark . . . 22 took a screenshot of an argument he was having on a Facebook comment thread with 23 Kathleen Angelos, who was running for an open seat on the SUSD Governing Board at the 24 time, in which he accused her of racism. In that same screenshot, Mark . . . can be seen 25 speaking on Facebook Messenger with Zach Lindsay, then a candidate for the SUSD 26 Board, who later had access to the Google Drive as a member of the SUSD Board. Mark 27 . . . wrote, ‘I’m baiting her[.] She’s so fucking stupid.’” (Id. ¶ 28.) Mark also used fake 28 profiles to post comments and capture Plaintiffs’ interactions on social media. (Id. ¶ 29.) -5- Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 6 of 44 1 While “Mark . . . was using dubious public means to gather information, Jann- 2 Michael and the District were curating and collecting Plaintiffs’ and other parents’ personal 3 information and communications.” (Id. ¶ 30.) “Defendants had a pattern and practice of 4 using SUSD funds, access, and resources to contribute Plaintiffs’ private information to 5 the Google Drive’s cache of data.” (Id.) As evidence of SUSD’s involvement in Mark’s 6 activities, Plaintiffs note that the Dossier included unredacted copies of: (1) “emails 7 exchanged between Amanda Wray and Superintendent Scott Menzel which could only 8 have been obtained from District staff or agents and from the District’s email system”; 9 (2) “emails Kim Stafford sent to the district which could only have been obtained from 10 District staff or agents and from the District’s email system”; and (3) an “unredacted email 11 of a parent named Jake Davis raising concerns about [Jann-Michael’s] conduct as a board 12 member and [Mark’s] actions of taking pictures of students and parents before a board 13 meeting, which could have only been obtained from District staff or agents and from the 14 District’s email system.” (Id. ¶ 31.) According to Plaintiffs, Mark also made public records 15 requests directly after these private emails were sent, as a cover for SUSD’s inappropriate 16 dissemination of information. (Id. ¶ 34.) 17 A separate component of the alleged conspiracy was SUSD’s selective enforcement 18 of District policies. (Id. ¶ 36.) For example, after the SUSD mask mandate went into 19 effect, “a small number of parents (not the Plaintiffs)” were disruptive at a school board 20 meeting that caused the meeting to be adjourned early, despite the fact that “most attendees 21 were wearing masks” and “most attendees were seated and quiet as they prepared for the 22 meeting to begin.” (Id.) Superintendent Menzel “described the meeting as having ‘felt 23 like a January 6th moment’ and attendees as ‘agitated and non-compliant.’ He further 24 specifically singled out the Facebook Group as being the source of some ‘rumbling.’” (Id.) 25 “The following week, Superintendent Menzel provided the SUSD Board with a subsequent 26 written update after a meeting with some members of the Facebook Group. He admitted 27 to those present that, while he was not a member of the group, he had been monitoring the 28 Facebook Group’s speech. On information and belief, he had been monitoring the -6- Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 7 of 44 1 Facebook Group by way of information gathered and provided to the District by Mark . . . 2 from the Dossier.” (Id. ¶ 37.) Additionally, a public records request made by Wray in 3 November 2021 revealed that “Superintendent Menzel had emailed himself a screenshot, 4 the file name of which began with ‘AMANDA BLAMING GREENBURG . . .’ depicting 5 comments that Ms. Wray and another person made on Facebook.” (Id. ¶ 38.) Notably, 6 “[t]he Google Drive contained a PDF entitled, ‘AMANDA BLAMING GREENBURG 7 SHENANIGANS ON INABILITY OF DISTRICT TO HIRE SUPER,’ and included the 8 very same screenshot Superintendent Menzel included in his email.” (Id.) 9 The District also selectively enforced its trademarks against the Facebook group. 10 (Id. ¶ 42.) Because “SUSD” is a trademarked term, SUSD’s lawyers reached out to the 11 Facebook group in July 2021 and requested they cease using SUSD in the group’s name. 12 (Id. ¶¶ 42-43.) But the same request was not made to a related “SUSD Teacher Support 13 group,” although that group had changed its name in June 2021 to remove SUSD. (Id. 14 ¶ 42.) “Photos of the cease-and-desist letter sent from the District’s Counsel directly to the 15 Facebook Group were also found in the Google Drive, along with a video of Mark . . . and 16 Jann-Michael . . . discussing the contents of the letter.” (Id. ¶ 45.) 17 After “Defendants’ conspiracy became public,” SUSD hired a crisis 18 communications firm to provide consulting and social media monitoring services. (Id. 19 ¶ 66.) “[P]rior to this the District had been relying on Mark . . . and the information he 20 collected and disseminated for its social media monitoring.” (Id. ¶ 67.) “To date, the 21 District still has not provided any answer as to how Superintendent Menzel monitored the 22 internal communications of the private Facebook Group of which he was not a member. 23 The District has also not provided any explanation for how Plaintiffs’ private, unredacted 24 emails to District officials made their way to the Google Drive.” (Id. ¶ 69.) 25 After the Dossier became public, Mark sued Wray (and her husband, Daniel) in 26 separate actions in state and federal court. (Id. ¶¶ 70-72.) In the state-court lawsuit, Mark 27 “assert[ed] various privacy torts . . . arising from Ms. Wray’s statements about the 28 wrongdoing alleged in this Complaint.” (Id. ¶ 71.) In the federal action, Mark alleged -7- Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 8 of 44 1 “that Ms. Wray violated the federal Computer Fraud and Abuse Act when she accessed the 2 publicly available Google Drive whose address Jann-Michael . . . had shared.” (Id. ¶ 70.) 3 In June 2022, the Arizona Attorney General’s office “filed a Complaint against 4 Jann-Michael . . . and the District for their violations of Arizona’s Open Meeting Law.” 5 (Id. ¶¶ 73-80.) Specifically, “Attorney General Brnovich alleged that Jann-Michael . . . 6 and the SUSD Board purposefully tried to evade the requirements of the Open Meeting 7 Law and silence comments relating to the District’s proposed mask mandate by bifurcating 8 the August 17, 2021 SUSD Board meeting.” (Id. ¶ 76.) 9 Based on the forgoing allegations, Plaintiffs assert six causes of action in the FAC. 10 In Count One, Plaintiffs assert a First Amendment retaliation claim pursuant to 42 U.S.C. 11 § 1983 against all Defendants. (Id. ¶¶ 82-111.) In Count Two, Plaintiffs assert a separate 12 First Amendment claim pursuant to 42 U.S.C. § 1983 against Jann-Michael. (Id. ¶¶ 112- 13 22.) In Count Three, Plaintiffs assert a claim for intentional infliction of emotional distress 14 against the Moving Defendants. (Id. ¶¶ 123-30.) In Count Four, Plaintiffs assert a claim 15 for negligent infliction of emotional distress against the Moving Defendants. (Id. ¶¶ 131- 16 38.) Finally, in Counts Five and Six, Wray alone asserts claims against the Moving 17 Defendants for defamation and false light invasion of privacy. (Id. ¶¶ 139-56.) 18 II. Procedural History 19 On May 5, 2022, Plaintiffs filed this action in state court. (Doc. 1-3 at 5-35.) 20 On May 18, 2022, the Moving Defendants removed this action to federal court. 21 (Doc. 1.) 22 On July 14, 2022, Plaintiffs filed the FAC. (Doc. 34.) 23 On July 28, 2022, the Moving Defendants filed the pending motion to dismiss (Doc. 24 36), which is now fully briefed (Docs. 43, 48). 25 On November 30, 2022, the Court issued a tentative ruling. (Doc. 57.) 26 On December 16, 2022, the Court heard oral argument. (Doc. 59.) During oral 27 argument, neither side sought to challenge the conclusions in the tentative ruling. 28 … -8- Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 9 of 44 1 DISCUSSION 2 I. Legal Standard 3 To survive a motion to dismiss under Rule 12(b)(6), “a party must allege ‘sufficient 4 factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” In 5 re Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting Ashcroft v. 6 Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads 7 factual content that allows the court to draw the reasonable inference that the defendant is 8 liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). “[A]ll well- 9 pleaded allegations of material fact in the complaint are accepted as true and are construed 10 in the light most favorable to the non-moving party.” Id. at 1444-45 (citation omitted). 11 However, the court need not accept legal conclusions couched as factual allegations. Iqbal, 12 556 U.S. at 678-79. Moreover, “[t]hreadbare recitals of the elements of a cause of action, 13 supported by mere conclusory statements, do not suffice.” Id. at 678. The court also may 14 dismiss due to “a lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 15 1065 (9th Cir. 2015) (citation omitted). 16 II. Procedural Challenges 17 A. Notice Of Claim 18 1. The Parties’ Arguments 19 The Moving Defendants argue that because Plaintiffs allege that Mark acted under 20 the color of law for purposes of their § 1983 claim, Plaintiffs were also required by A.R.S. 21 § 12-821.01 to file a notice of claim before they could proceed on their state-law claims. 22 (Doc. 36 at 1.) 23 Plaintiffs characterize this argument as “bizarre[]” given that Mark “is not a ‘public 24 entity, public school or a public employee’” and therefore does not meet the eligibility 25 requirements of A.R.S. § 12-821.01. (Doc. 43 at 5-6.) Plaintiffs continue: “Notably, Mark 26 cites no authority that supports his argument that a private individual who acts under color 27 of law must be treated as a public official when he is also sued in his personal capacity in 28 tort—there is no such authority.” (Id. at 6.) Plaintiffs further argue that the “purpose of -9- Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 10 of 44 1 § 12-821.01 is to provide public entities with an opportunity to investigate the claim, 2 evaluate potential liability, conduct settlement negotiations, and budget accordingly,” and 3 thus the “statute clearly has no application to tort claims against a private citizen, as Mark[,] 4 not SUSD, will be liable for any damages assessed against him in this lawsuit.” (Id.) 5 In reply, the Moving Defendants contend that Plaintiffs “cannot have it both ways: 6 If [Mark] is not acting under color of state law, they have no Constitutional claims; if 7 [Mark] was acting under color of state law, they were required to issue a Notice of Claim 8 pursuant to A.R.S. § 12-821.01.” (Doc. 48 at 2.) The Moving Defendants contend that, 9 based on the statutory language of § 12-820(1) “and [Plaintiffs’] allegations that Mark was 10 directed and authorized by SUSD to perform services for it, Plaintiff was required to issue 11 a Notice of Claim in relation to [Mark].” (Id.) 12 2. Analysis 13 The Moving Defendants are not entitled to the dismissal of Plaintiffs’ state-law 14 claims based on Plaintiffs’ purported non-compliance with A.R.S. § 12-802.01. 15 “In order to state a claim under 42 U.S.C. § 1983, [plaintiffs] must show two 16 essential elements: (1) that the defendants acted under color of state law; and (2) that the 17 defendants caused them to be deprived of a right secured by the constitution and laws of 18 the United States.” Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983). Meanwhile, 19 under A.R.S. § 12-821.01(A), “[p]ersons who have claims against a public entity, public 20 school or a public employee shall file claims with the person or persons authorized to 21 accept service for the public entity, public school or public employee as set forth in the 22 Arizona rules of civil procedure within one hundred eighty days after the cause of action 23 accrues.” Arizona defines “employee” in this context as an “officer, director, employee or 24 servant, whether or not compensated or part time, who is authorized to perform any act or 25 service, except that employee does not include an independent contractor,” and/or as 26 “noncompensated members of advisory boards appointed as provided by law and leased 27 employees.” Id. § 12-820(1). Additionally, a “public employee” is an “employee of a 28 public entity.” Id. § 12-820(6). Accordingly, in this context, “public employees” are a - 10 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 11 of 44 1 subset of “employees” generally. Villasenor v. Evans, 386 P.3d 1273, 1276 (Ariz. Ct. App. 2 2016). 3 Here, the Moving Defendants place heavy emphasis on the allegation in the FAC 4 that Mark “acted in concert with [Jann-Michael].” (Doc. 34 ¶ 87.) But in the very same 5 paragraph, the FAC clarifies that Mark “is not a District official.” (Id.) Even assuming 6 that a private citizen’s efforts to act in concert with a public official may mean the private 7 citizen is acting under color of state law for purposes of a § 1983 claim—an issue that is 8 addressed in later portions of this order—it doesn’t follow that such a private citizen is also 9 transformed into a “public employee” for purposes of A.R.S. § 12-821.01(A). The “public 10 employee” analysis turns on whether, per A.R.S. § 12-820(1), the individual is (1) an 11 officer, director, employee or servant, whether or not compensated or part time, who is 12 authorized to perform any act or service; (2) a noncompensated member of an advisory 13 board as provided by law; or (3) a leased employee. The factual allegations in the FAC 14 suggest that Mark does not fall into any of these categories—as alleged in paragraph 87, 15 he “is not a District official”—and the Moving Defendants have not proffered any evidence 16 that might support a different conclusion.1 To the contrary, the Moving Defendants argue 17 elsewhere in their motion papers that “Mark has never held public office, he is not a SUSD 18 school board member, he is not an SUSD employee, he is not an SUSD agent, and does 19 not have any matters pending before SUSD. Furthermore, Mark does not volunteer for 20 SUSD nor has he been a member of any SUSD committees.” (Doc. 48 at 6.) 21 … 22 … 23 1 24 It is unclear whether the Moving Defendants could have proffered evidence outside the pleadings in an attempt to secure dismissal on this basis. Udd v. City of Phoenix, 2018 25 WL 6727267, *5 n.2 (D. Ariz. 2018) (noting that “there is disagreement on th[e] question” of which portion of Rule 12(b) governs a motion to dismiss based on non-compliance with 26 Arizona’s notice of claim statute, with some courts applying Rule 12(b)(6), other courts applying Rule 12(b)(5), and still other courts reasoning that “the notice of claim statute 27 constitutes [a] failure to exhaust non-judicial remedies . . . which is subject to an unenumerated Rule 12(b) motion to dismiss”) (citations and internal quotation marks 28 omitted). But even assuming they could have attempted to do so, they did not proffer any evidence here. - 11 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 12 of 44 1 B. Compulsory Counterclaims 2 1. The Parties’ Arguments 3 The Moving Defendants argue that, because Mark already sued Wray in federal and 4 state court and “the foundation” for the complaints in all three lawsuits is “the existence, 5 discovery, and publication (by Plaintiffs) of the private Google drive,” Wray’s claims here 6 are compulsory counterclaims under Federal Rule of Civil Procedure 13 and are thus 7 “waived and barred.” (Doc. 36 at 1-3.) As for the claims brought by Richard and Stafford, 8 the Moving Defendants argue that, had Wray’s compulsory counterclaims been 9 appropriately filed in the earlier cases, Richard and Stafford would have been joined as 10 required parties and would have been able to assert their claims in those cases. (Id. at 3, 11 citations omitted.) The Moving Defendants contend that, instead of filing compulsory 12 counterclaims, “Plaintiffs called a press conference and filed their complaint as a new 13 lawsuit, a move that fails to promote judicial economy and results in a substantial 14 duplication of effort and time.” (Id.) 15 Plaintiffs characterize this argument as “meritless.” (Doc. 43 at 6.) As an initial 16 matter, Plaintiffs note that the Moving Defendants “provided the Court with no evidence 17 (let alone properly authenticated evidence appropriate for consideration on a Rule 12(b)(6) 18 motion) from which the Court could possibly conclude that Plaintiffs’ claims arise from 19 the same transaction or occurrence as the claims Mark asserted in his two lawsuits. Mark 20 essentially invites the Court to go on an independent scavenger hunt for the information 21 about these lawsuits Mark failed to provide.” (Id.) Turning to the merits, Plaintiffs argue 22 that the federal action (which involved a claim under the Computer Fraud and Abuse Act) 23 does not arise from the same transaction or occurrence as the claims here because it was 24 “based solely on [Wray] accessing the Google Drive.” (Id. at 6.) As for the state-court 25 action, Plaintiffs contend it was “based on isolated statements [Wray] made that are not at 26 issue here and her accessing the Google Drive.” (Id. at 6-7.) Plaintiffs continue: “The 27 factual issues in this case (involving Defendants’ violations of Plaintiffs’ First Amendment 28 rights) are wholly distinct, as this Court will examine neither the propriety of Ms. Wray - 12 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 13 of 44 1 accessing the Google Drive nor the nature of several statements Ms. Wray allegedly made 2 about Mark.” (Id. at 7.) Next, Plaintiffs argue that the Moving Defendants’ arguments 3 lack merit for the additional reason Wray had not yet filed a “pleading” within the meaning 4 of Rule 13 in response to the state or federal lawsuits at the time this action was filed, so 5 there was no mechanism “to which Ms. Wray could (let alone must) have attached her 6 counterclaim.” (Id.) In a related vein, Plaintiffs contend that because Rule 13 does not 7 require compulsory counterclaims when “the party in the later suit was not a party in the 8 earlier suit,” and Richard, Stafford, and Dagmar are not parties to the earlier lawsuits, this 9 provides another reason why the Moving Defendants’ argument lacks merit. (Id.) Finally, 10 Plaintiffs argue that “judicial economy would not be served by joining five new parties 11 (Ms. Stafford, Mr. Richard, Jann-Michael, Dagmar, and SUSD) and all the attendant new 12 claims to either of Mark’s actions because they do not involve the same evidence or legal 13 theories,” so even if the court were inclined to reject Plaintiffs’ other arguments, “it should 14 exercise its discretion to let Ms. Wray’s claims against Mark proceed in this action” or 15 “consolidate the actions” under Federal Rule of Civil Procedure 42. (Id. at 8.) 16 In reply, the Moving Defendants urge the Court to take judicial notice of the 17 pleadings in the other cases. (Doc. 48 at 2.) The Moving Defendants describe Mark’s 18 state-court action as including claims for “defamation, false light, intrusion upon seclusion, 19 and public disclosure of private fact claims” based on Wray accessing the Google drive 20 and various Facebook posts “made by Plaintiff Wray smearing [Mark] and making false, 21 defamatory statements against him.” (Id. at 2-3.) They argue that “[b]ecause the claims 22 [in the state-court case] are so similar to those pending in this case,” “Wray is required to 23 bring them as a counterclaim and not a separate lawsuit.” (Id. at 3.) As for the federal 24 action, Mark contends that the Computer Fraud and Abuse Act claim focuses on “Ms. 25 Wray’s unauthorized access of the Google drive,” and while the motion doesn’t explain 26 precisely why the causes of action overlap, nevertheless, the answer Wray filed “did not 27 include this compulsory counterclaim.” (Id.) Finally, the Moving Defendants contend that 28 had the compulsory counterclaims been filed appropriately, Stafford and Richard would - 13 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 14 of 44 1 have been joined as required parties and similarly would have been required to plead their 2 claims in Mark’s original lawsuits. (Id. at 4.) The Moving Defendants also contest 3 Plaintiffs’ version of the procedural history in the federal case, stating “this is not a situation 4 in which Wray filed an Answer before the causes of action brought in the current matter 5 had not yet matured” because “Plaintiffs filed their First Amended Complaint[] two weeks 6 after Wray filed an Answer in the computer fraud case” and the “claims brought in this 7 case had [already] accrued.” (Id. at 3.) Finally, the Moving Defendants argue that any 8 case law cited by Plaintiffs is distinguishable and that the facts of the earlier lawsuits 9 require dismissal. (Id. at 4-5.) 10 2. Analysis 11 A counterclaim is compulsory if it “arises out of the transaction or occurrence that 12 is the subject matter of the opposing party’s claim” and “does not require adding another 13 party over whom the court cannot acquire jurisdiction.” Fed. R. Civ. P. 13(a)(1). “A 14 counterclaim which is compulsory but is not brought is thereafter barred.” Baker v. Gold 15 Seal Liquors, Inc., 417 U.S. 467, 469 n.1 (1974). “Arizona Rule of Civil Procedure 13(a), 16 which defines a compulsory counterclaim, is identical to Federal Rule of Civil Procedure 17 13(a).” Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 1249 (9th Cir. 1987). “Like 18 the federal courts, Arizona applies the liberal ‘logical relationship’ test to determine 19 whether two claims arise out of the same ‘transaction or occurrence.’” Id. (quoting Fed. 20 R. Civ. P. 13(a)). In deciding whether a claim is compulsory, the phrase “transaction or 21 occurrence” is “read broadly.” Id. at 1252. Under the logical relationship test, the court 22 “analyze[s] whether the essential facts of the various claims are so logically connected that 23 considerations of judicial economy and fairness dictate that all the issues be resolved in 24 one lawsuit.” Id. at 1249 (citation omitted). “A logical relationship exists when the 25 counterclaim arises from the same aggregate set of operative facts as the initial claim, in 26 that the same operative facts serve as the basis of both claims or the aggregate core of facts 27 upon which the claim rests activates additional legal rights otherwise dormant in the 28 defendant.” In re Pegasus Gold Corp., 394 F.3d 1189, 1196 (9th Cir. 2005) (quoting In re - 14 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 15 of 44 1 Pinkstaff, 974 F.2d 113, 115 (9th Cir. 1992)). 2 At this stage of the case, the Court declines to go on a “scavenger hunt” to determine 3 whether Plaintiffs’ claims should have been asserted as compulsory counterclaims in 4 Mark’s earlier actions. The Moving Defendants did not provide copies of the operative 5 complaints in the other actions, let alone provide any detailed comparison of the pleadings. 6 On this record, the Court cannot conclude that, as a matter of law, the claims in Mark’s 7 other actions bear a logical relationship to the claims in this action. Although the FAC 8 acknowledges the existence of these other actions and generically notes that at least some 9 of the claims in the state-court lawsuit “aris[e] from Ms. Wray’s statements about the 10 wrongdoing alleged in this Complaint” (Doc. 36 ¶¶ 70-72), it does not provide enough 11 information to establish that the claims in those lawsuits “rest upon the same aggregate 12 core of facts.” This issue is better resolved at a time when the Moving Defendants’ 13 arguments are accompanied by the underlying documents and are supported with detailed 14 analysis. Therefore, the request to dismiss on this ground is denied without prejudice to its 15 reassertion at a later stage of the case. Compare Pochiro, 827 F.2d at 1250-51 (affirming 16 dismissal after conducting a detailed comparison of the claims and allegations in the 17 relevant pleadings), with Velardo v. Fremont Inv. & Loan, 2008 WL 958184, *3 (M.D. Fla. 18 2008) (“ASC argues that the entry of summary judgment in the state court action is a final 19 judgment on the merits of the instant claims because those claims were compulsory 20 counterclaims in the state court action. However, this Court has not been provided with a 21 copy of the original state court complaint, or the order granting summary judgment to ASC. 22 Without being able to review those documents, this Court cannot determine whether res 23 judicata applies.”). 24 III. Count One: First Amendment Retaliation 25 In Count One of the FAC, Plaintiffs allege that “Defendants willfully and 26 cooperatively participated in the conspiracy to censor and retaliate against Plaintiffs’ 27 political speech while acting under color of state law.” (Doc. 34 ¶ 86.) Plaintiffs allege 28 that “[a]lthough Mark . . . is not a District official, he acted in concert with Jann- - 15 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 16 of 44 1 Michael . . . and the District to chill Plaintiffs’ First Amendment rights, such that he acted 2 under color of state law.” (Id. ¶ 87.) According to Plaintiffs, “Jann-Michael . . . and the 3 District relied on Mark . . . to carry out their goal of suppressing Plaintiffs’ speech and 4 worked closely with Mark.” (Id.) Plaintiffs further allege that, to chill and retaliate against 5 them for their speech, Defendants released and used “private information” (id. ¶¶ 91-92), 6 selectively enforced SUSD policies (id. ¶ 93), violated Arizona’s Open Meeting Law (id.), 7 and engaged in intimidation tactics intended “to prevent them from further speech” (id. 8 ¶ 98). Plaintiffs conclude: “Defendants’ actions would chill a person of ordinary firmness 9 from continuing to engage in protected activity.” (Id. ¶ 99.) 10 As the foregoing allegations make clear, and as Plaintiffs clarify in their response 11 (Doc. 43 at 8), Count One is a First Amendment retaliation claim. The Ninth Circuit has 12 explained that, because the First Amendment “prohibits government officials from 13 subjecting individuals to retaliatory actions after the fact for having engaged in protected 14 speech,” “[i]f an official takes adverse action against someone based on that forbidden 15 motive, and non-retaliatory grounds are in fact insufficient to provoke the adverse 16 consequences, the injured person may generally seek relief by bringing a First Amendment 17 claim.” Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 2022) (cleaned up). To succeed 18 on such a claim, a plaintiff must establish “that (1) it engaged in constitutionally protected 19 activity; (2) the defendant’s actions would ‘chill a person of ordinary firmness’ from 20 continuing to engage in the protected activity; and (3) the protected activity was a 21 substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus 22 between the defendant’s actions and an intent to chill speech.” Ariz. Students’ Ass’n v. 23 Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (citations omitted). 24 The Moving Defendants contend that Count One is subject to dismissal for four 25 reasons: (1) failure to plead that Mark acted under color of law; (2) failure to plead that 26 “retaliatory animus” was a “but for cause” of adverse action; (3) absence of adverse action; 27 and (4) absence of “individual injury.” (Doc. 36 at 4-9.) The Court will address each 28 argument in turn. - 16 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 17 of 44 1 A. Color Of Law 2 1. The Parties’ Arguments 3 The Moving Defendants argue that a “presumption exists that private conduct does 4 not constitute government action ‘no matter how discriminatory or wrong.’” (Doc. 36 at 5 5, citations omitted.) Although the Moving Defendants acknowledge that a private citizen 6 may be held liable under § 1983 via the law of conspiracy, they argue that “Plaintiffs fail 7 to plead that there was any agreement or meeting of the minds between the parties to 8 conspire to deprive Plaintiffs of a constitutional right and that there was an actual 9 constitutional deprivation.” (Id. at 7.) The Moving Defendants also contend that, because 10 the FAC alleges that the records in the Google Drive were public (and, thus, were “openly 11 accessible by anyone”) and does not allege that the Facebook group was “‘private’ or that 12 [Plaintiffs] had any expectation of privacy on a public Facebook Group” (especially given 13 that “any member of the public” could join the group and the group “in fact invited SUSD 14 board members and other government officials to join”), it follows that there can be no 15 conspiracy. (Id.) 16 Plaintiffs respond that they “pleaded ample facts showing that Mark worked in 17 concert with Jann-Michael and SUSD to violate Plaintiffs’ rights.” (Doc. 43 at 9.) 18 Plaintiffs also clarify that they are not seeking to establish the color-of-law requirement via 19 the conspiracy test and instead “principally rel[y] on the joint action test in order to hold 20 Mark liable under § 1983.” (Id.) Plaintiffs note that the Moving Defendants “do[] not 21 address the joint action test anywhere in the Motion, focusing only on the red herring of 22 conspiracy liability.” (Id.) According to Plaintiffs, the FAC demonstrates that “Mark acted 23 in concert with Jann-Michael and SUSD to violate Plaintiffs’ First Amendment rights, and 24 they accepted the benefits of his unconstitutional behavior, thereby constituting joint 25 action.” (Id. at 10.) Plaintiffs also argue that the public nature of some of the documents 26 is not dispositive under § 1983 and the unredacted nature of the emails in the Dossier 27 demonstrates that they were “not produced in the normal course pursuant to a Public 28 Records Request.” (Id.) - 17 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 18 of 44 1 In reply, the Moving Defendants argue that the “bottom line is there was no 2 deprivation of a constitutional right” because, for example, “Plaintiffs were able to appear 3 at SUSD board meetings.” (Doc. 48 at 5.) More specifically, the Moving Defendants argue 4 that “Plaintiffs erroneously allege that SUSD prevented the public from attending and 5 voicing concerns at the August 24, 2021, board meeting” even though “SUSD’s August 6 public meeting minutes reflect . . . that all individuals who wished to speak were provided 7 the opportunity to do so, in person.”2 (Id. at 6.) Alternatively, the Moving Defendants 8 argue that Plaintiffs did not adequately plead conspiracy or joint action because “Plaintiffs 9 fail to allege facts to support the notion that Mark . . . , a private citizen, had significant 10 state involvement. . . . [Mark] is simply a private citizen who pays property taxes in 11 Scottsdale, which are distributed to SUSD.” (Id. at 5.) The Moving Defendants contend 12 that Plaintiffs “cannot connect the dots to show there was a benefit derived by SUSD as a 13 result of the content contained on Mark’s private Google drive.” (Id. at 6.) 14 2. Analysis 15 To prevail on a claim under § 1983, a plaintiff must establish “that the defendants 16 acted under color of state law.” Howerton, 708 F.2d at 382. See also Am. Mfrs. Mut. Ins. 17 Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (“Like the state-action requirement of the 18 Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its 19 reach ‘merely private conduct, no matter how discriminatory or wrongful.’”) (citations 20 omitted). “Action taken by private individuals may be ‘under color of state law’ where 21 there is ‘significant’ state involvement in the action.” Howerton, 708 F.2d at 382. Among 22 the ways a plaintiff can show significant state involvement is the joint-action test, which 23 asks “whether state officials and private parties have acted in concert in effecting a 24 particular deprivation of constitutional rights.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 25 1140 (9th Cir. 2012) (finding joint action where private casino security guards were trained 26 2 27 On a motion to dismiss, all factual allegations must be accepted and all reasonable inferences must be drawn in Plaintiffs’ favor. Therefore, the contradictory facts asserted 28 by the Moving Defendants in their motion papers (e.g., Doc. 48 at 6) cannot be considered at this stage of the case. - 18 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 19 of 44 1 by Las Vegas police and were permitted to issue citations for misdemeanor trespassing). 2 This test “can be satisfied either by proving the existence of a conspiracy or by showing 3 that the private party was a willful participant in joint action with the State or its agents.” 4 Id. (cleaned up). Relevant factors include “a substantial degree of cooperative action,” 5 Collins v. Womancare, 878 F.2d 1145, 1154-56 (9th Cir. 1989) (finding no joint action, 6 even though arrests were precipitated by private parties, where officers conducted their 7 own independent assessment before acting), whether the state has “so far insinuated itself 8 into a position of interdependence with [the private entity] that it must be recognized as a 9 joint participant in the challenged activity,” Gorenc v. Salt River Project Agric. 10 Improvement & Power Dist., 869 F.2d 503, 507-08 (9th Cir. 1989) (finding no joint action 11 where a utility provider was privately owned, for the benefit of private landowners, and 12 state regulation alone was not enough to confer state action), and whether the state 13 “knowingly accepts the benefits derived from unconstitutional behavior,” Tsao, 698 F.3d 14 at 1140 (citation omitted). Ultimately, “there is no specific formula for defining state 15 action.” Howerton, 708 F.2d at 383 (citation omitted). “Only by sifting facts and weighing 16 circumstances can the nonobvious involvement of the State in private conduct be attributed 17 its true significance.” Id. (citation omitted). 18 In Howerton, the court concluded that a landlord acted under color of law after a 19 local police officer helped serve a notice of eviction, returned alone the following day to 20 falsely inform the tenant “that the [landlords] were using proper eviction procedures and 21 advised them to quit the premises,” advised the tenant of “other available rental units,” and 22 a few days later, returned to the premises and “accompanied the [landlords] when they 23 disconnected the power services running to the [trailer].” Id. at 381-82. The Ninth Circuit 24 held the landlords acted under color of law because (1) the police “were on the scene at 25 each step of the eviction,” (2) “[a landlord] testified that the police presence gave him the 26 feeling he had the right to cut off the utilities,” and (3) “the police officer actively 27 intervened,” which could not be seen as passive action. Id. at 384. Altogether, the officer’s 28 actions “created an appearance that the police sanctioned the eviction.” Id. - 19 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 20 of 44 1 Here, the Court is satisfied that Plaintiffs have pleaded sufficient factual allegations 2 to satisfy the joint-action test with respect to Mark. As a general theme, the FAC alleges 3 that Defendants “maliciously targeted” Plaintiffs to reach their end goal of “silenc[ing] and 4 punish[ing] dissenting voices and frighten[ing] away other potential speakers who might 5 dare express an opposing point of view.” (Doc. 34 ¶¶ 1-2.) Factually, the FAC alleges that 6 “Mark . . . was primarily responsible for gathering, storing, and strategically disseminating 7 Plaintiffs’ Dossier information on behalf of the conspiracy, as well as effectuating the goals 8 of retaliating against Plaintiffs and others for their speech.” (Id. ¶ 21.) Mark is alleged to 9 have taken several actions on behalf of the conspiracy, including compiling the Dossier 10 (id. ¶¶ 23-26), insulting Plaintiffs in the Facebook group or by direct Facebook message 11 (id. ¶¶ 29, 48, 51, 55), generally threatening Plaintiffs (id. ¶ 48), physically intimidating 12 Plaintiffs (id. ¶ 53), and disparaging Plaintiffs (id. ¶¶ 23, 49). Critically, the FAC also 13 alleges that, as he was compiling the information, “Mark . . . kept SUSD officials apprised 14 of his conduct.” (Id. ¶ 28.) The FAC further alleges that Jann-Michael and others in the 15 District augmented the Dossier being compiled by Mark by adding “[u]nredacted copies of 16 emails . . . which could only have been obtained from District staff or agents and from the 17 District’s email system” to the Google drive. (Id. ¶¶ 30-31.) It is immaterial, at this stage, 18 whether those emails also could have been obtained lawfully through a public records 19 request. Taking the allegations in the FAC as true, Jann-Michael and the District used 20 “SUSD funds, access, and resources to contribute Plaintiff’s private information to the 21 Google Drive’s cache of data” (id. ¶ 30), which Mark then used against Plaintiffs. There 22 are also several allegations that imply that Mark’s conduct was sanctioned by SUSD 23 officials. (See, e.g., id. ¶¶ 32 [“The Google Drive also included a video conversation of 24 Jann-Michael and [Mark] discussing the contents of the private email from Amanda Wray 25 to the District wherein she told the Superintendent [Mark] had taken actions to harass and 26 intimidate her at a prior SUSD Board meeting.”].) 27 Taken together, Plaintiffs’ factual allegations plausibly suggest that Jann-Michael, 28 SUSD, and Mark engaged in joint action to retaliate against Plaintiffs due to Plaintiffs’ - 20 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 21 of 44 1 protected conduct. The FAC alleges that Mark was tasked with the “dirty work” of 2 compiling and storing information regarding Plaintiffs and haranguing Plaintiffs with the 3 hope that they would cease criticizing the District while Jann-Michael and SUSD added 4 fuel to the fire (and provided at least some encouragement, given that SUSD officials were 5 repeatedly updated on Mark’s conduct) and were using Mark to monitor the Facebook 6 page. (See, e.g., id. ¶ 38.) At a minimum, the factual allegations show a “substantial degree 7 of cooperative action” between Mark and the board members, Collins, 878 F.2d at 1154, 8 and/or “an appearance that the [board members] sanctioned” Mark’s conduct, Howerton, 9 708 F.2d at 384. Therefore, Plaintiffs have adequately alleged that Mark acted under color 10 of law for purposes of their § 1983 claim. 11 B. Chill A Person Of Ordinary Firmness 12 1. The Parties’ Arguments 13 The Moving Defendants argue that Count One also fails because “SUSD took no 14 adverse action against Plaintiffs based on their expressed views. Plaintiffs were never 15 deprived of their First Amendment rights to speak at or attend the Board’s public meetings, 16 contrary to their pleadings.” (Doc. 36 at 7.) The Moving Defendants argue that the cease- 17 and-desist letter Plaintiffs received was neither retaliatory nor a “prior restraint on 18 speech”—instead, it only asked that the Facebook group stop using “SUSD” and was meant 19 to prevent confusion. (Id. at 7-8.) The Moving Defendants further contend that “all 20 individuals who wished to speak on May 18, 2021 (but who were prevented from doing so 21 because the meeting was adjourned early), were provided the opportunity to speak on May 22 24, regardless of viewpoint or topic.” (Id. at 8.) In a related vein, the Moving Defendants 23 contend that “Plaintiffs erroneously allege that SUSD prevented the public from attending 24 and voicing concerns at the August 24, 2021, board meeting. Yet the August 24 meeting 25 minutes reflect that all individuals who wished to speak were provided the opportunity to 26 do so, in person. SUSD received 36 public comments, including one from Ms. Wray.” 27 (Id.) Finally, the Moving Defendants contend that SUSD possessed no confidential or 28 private documents and “Plaintiffs fail to plead why redaction of these public records should - 21 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 22 of 44 1 be legally required or why they should have been kept private.” (Id. at 9.) 2 Plaintiffs respond that the Moving Defendants “ignore[] critical facts in the FAC 3 and misstate[] the law.” (Doc. 43 at 11.) Plaintiffs contend that a First Amendment 4 retaliation claim only requires action that “would chill a person of ordinary firmness from 5 continuing to engage in the protected activity” and identify various paragraphs in the FAC 6 that, in their view, reveal an “official, concerted campaign of retaliatory personal 7 harassment of the government’s critics [that] would chill the average person from voicing 8 criticism of official conduct.” (Id. at 12, emphasis and internal quotation marks omitted.) 9 In reply, the Moving Defendants argue that “Plaintiffs ignore the fact that the SUSD 10 Teacher Support Group that also used ‘SUSD’ in its title stopped using ‘SUSD’ in its title 11 by June 15, 2021, over a month before SUSD-CAN received the cease-and-desist letter on 12 July 28, 2021.” (Doc. 48 at 6.) Next, the Moving Defendants argue that Plaintiffs cannot 13 claim that the contents of the Dossier had any chilling effect because Wray, after accessing 14 the Dossier “without permission or authority, . . . immediately went to the media and 15 publicized [its] content.” (Id.) Thus, the Moving Defendants contend that the Dossier had 16 the “opposite impact” of chilling, as Wray “found herself being interviewed on cable news 17 channels discussing the Google drive, its contents, and her dislike of [Mark].” (Id. at 6-7.) 18 Regarding any publication of the documents within the Dossier, the Moving Defendants 19 argue that the “contents of the drive consisted of public records—not private information,” 20 as confirmed by the Scottsdale Police Department, and Plaintiffs were the ones who 21 publicized the Dossier’s contents. (Id. at 7.) Finally, the Moving Defendants argue that 22 “there is nothing illegal about taking videos in public places where there is no expectation 23 of privacy or posting videos criticizing Mr. Richard on YouTube.” (Id.) According to the 24 Moving Defendants, the FAC “seeks to make illegal the exceptionally common practice of 25 conducting background research.” (Id.) 26 2. Analysis 27 The Moving Defendants’ arguments misunderstand the First Amendment retaliation 28 framework. As noted, in the Ninth Circuit, a plaintiff must plead three elements to establish - 22 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 23 of 44 1 a First Amendment retaliation claim: (1) engagement in a constitutionally protected 2 activity, (2) that “the defendant’s actions would ‘chill a person of ordinary firmness’ from 3 continuing to engage in the protected activity,” and (3) that “the protected activity was a 4 substantial or motivating factor in the defendant’s conduct.” Ariz. Students’ Ass’n, 824 5 F.3d at 867. “[T]o prevail on such a claim, a plaintiff need only show that the defendant 6 ‘intended to interfere’ with the plaintiff’s First Amendment rights and that it suffered some 7 injury as a result; the plaintiff is not required to demonstrate that its speech was actually 8 suppressed or inhibited.” Id. “The test is generic and objective.” O’Brien v. Welty, 818 9 F.3d 920, 933 (9th Cir. 2016). See also Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 10 2009) (“The district court examined several occasions on which Brodheim claims his 11 exercise of the right to file grievances was ‘chilled’ . . . and concluded that Brodheim failed 12 to produce sufficient evidence of such chilling. However, this focus on whether or not the 13 record showed Cry was actually chilled was incorrect. . . . [A]n objective standard governs 14 the chilling inquiry; a plaintiff does not have to show that his speech was actually inhibited 15 or suppressed, but rather that the adverse action at issue would chill or silence a person of 16 ordinary firmness from future First Amendment activities.”) (citations and internal 17 quotation marks omitted). 18 As an initial matter, to the extent the Moving Defendants argue that Plaintiffs were 19 still able to express their views and/or spoke to the media after learning about the 20 challenged conduct, such assertions are not dispositive. Plaintiffs are not required to plead 21 a total deprivation of the ability to express their views. Mendocino Env’t Ctr. v. Mendocino 22 Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999) (“Because it would be unjust to allow a 23 defendant to escape liability for a First Amendment violation merely because an unusually 24 determined plaintiff persists in his protected activity, we conclude that the proper inquiry 25 asks ‘whether an official’s acts would chill or silence a person of ordinary firmness from 26 future First Amendment activities.’”) (citations omitted); O’Brien, 818 F.3d at 933 27 (“Whether O’Brien himself was, or would have been, chilled is not the test.”); Brodheim, 28 584 F.3d at 1271 (same). - 23 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 24 of 44 1 More generally, the Moving Defendants’ arguments miss the forest for the trees by 2 focusing on the specific contents of the Dossier and whether those specific documents were 3 illegally obtained and/or private. But Plaintiffs’ First Amendment retaliation claim does 4 not turn on whether the documents in the Dossier were illegally obtained or compiled. Ariz. 5 Students’ Ass’n, 824 F.3d at 869 (“Otherwise lawful government action may nonetheless 6 be unlawful if motivated by retaliation for having engaged in activity protected under the 7 First Amendment.”). The issue is whether the challenged actions would chill an ordinary 8 person from continuing to engage in protected activity. O’Brien, 818 F.3d at 932-33. It is 9 difficult to interpret the Moving Defendants’ motion as challenging the objective chilling 10 effect of the challenged conduct because none of the Moving Defendants’ specific factual 11 assertions (i.e., Plaintiffs were in fact able to speak at the May 18, May 24, and August 24 12 board meetings, the cease-and-desist letter sent to SUSD-CAN was not a prior restraint on 13 speech, and Plaintiffs communications with SUSD were not private) negates the objective 14 chilling effect of the Moving Defendants’ combined actions on a person of ordinary 15 firmness. 16 Even ignoring these deficiencies, the Court is satisfied that the FAC pleads 17 sufficient facts to suggest the challenged actions would chill a person of ordinary firmness. 18 In Arizona School Association, defendant ABOR (“a state board whose members are 19 appointed by the Governor and confirmed by the Arizona State Senate”) directly funded 20 the ASA, a non-profit student group, through a small per-student fee. 824 F.3d at 862-63. 21 As part of its work, ASA advocated for a ballot initiative that would expand funding in 22 higher education. Id. at 863. ABOR, which openly opposed the initiative, responded by 23 “vot[ing] to suspend collection of the ASA fee” and “with[holding] the fee income it 24 already had collected for the Spring 2013 semester.” Id. The Ninth Circuit concluded that 25 ABOR’s efforts to remove ASA’s funding mechanism would chill a person of ordinary 26 firmness, both because the “acts directly undermined the ASA’s ability to pursue its core 27 purpose” and because an inherent power disparity existed between ABOR and the student 28 - 24 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 25 of 44 1 group. Id. at 868-69.3 2 This is not a case where Plaintiffs merely make vague allegations of harassment. 3 Compare Watison v. Carter, 668 F.3d 1108, 1116-17 (9th Cir. 2012) (“Watison alleged no 4 facts about Rodriguez’s alleged harassing behavior, and he failed to allege that the 5 harassment constitutes chilling conduct.”). Plaintiffs’ allegations track the allegations 6 deemed sufficient in Arizona Students Association in that Plaintiffs allege both a power 7 disparity with a more powerful educational board and attempted interference with the core 8 purpose of their Facebook group. Accordingly, and again construing all reasonable 9 inferences in Plaintiffs’ favor (as the Court must do at the pleading stage), the Court 10 concludes that the alleged pattern of challenged conduct would likely chill an ordinary 11 person from continuing to speak out. 12 C. Substantial Motivating Factor 13 The briefing from the Moving Defendants on this point is difficult to decipher. The 14 heading describes the challenge as “fail[ure] to plead government’s ‘retaliatory animus’ 15 was a ‘but for cause’ of adverse action.” (Doc. 36 at 8.) However, in a First Amendment 16 retaliation case, “[a]t the pleading stage, a plaintiff adequately asserts First Amendment 17 retaliation if the complaint alleges plausible circumstances connecting the defendant’s 18 retaliatory intent to the suppressive conduct.” Ariz. Students’ Ass’n, 824 F.3d at 870. 19 Retaliatory motive can be shown by direct or circumstantial evidence, and “evidence of 20 temporal proximity” may also be considered. Id. See also Watison, 668 F.3d at 1114 21 (“Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, 22 allegation of a chronology of events from which retaliation can be inferred is sufficient to 23 survive dismissal.”). Plaintiffs simply must show “the protected activity was a substantial 24 motivating factor in the defendant’s conduct—i.e., that there was a nexus between the 25 defendant’s actions and an intent to chill speech.” Ariz. Students’ Ass’n, 824 F.3d at 867. 26 Here, the Moving Defendants do not offer any reasoned basis for disputing that 27 3 28 The Ninth Circuit also analyzed whether the decision to cease fee collecting was a deprivation of a valuable government benefit. Ariz. Students’ Ass’n, 824 F.3d at 869-70. - 25 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 26 of 44 1 Mark was substantially motivated to act because of Plaintiffs’ speech. In contrast, 2 Plaintiffs identify various allegations in the FAC that plausibly suggest a causal connection 3 between Mark’s actions and Plaintiffs’ speech. (Doc. 43 at 12-14.) In reply, the Moving 4 Defendants do not challenge whether Plaintiffs’ protected speech was a substantial 5 motivating factor in Mark’s conduct. (See generally Doc. 48 at 5-7.) 6 Given their underdeveloped arguments on this point, the Moving Defendants’ 7 request for dismissal on but-for causation grounds is denied. 8 D. Standing/Individual Injury 9 1. The Parties’ Arguments 10 The Moving Defendants’ final basis for challenging Count One is that “[e]ach 11 Plaintiff fails to plead individual injury.” (Doc. 36 at 9.) More specifically, the Moving 12 Defendants argue that “Plaintiffs admit Ms. Stafford was not a member of the SUSD-CAN 13 group by the time SUSD-CAN received the cease-and-desist letter on July 28, 2021, having 14 left the group in March 2021”; that Plaintiffs “do not plead Mr. Greenburg obtained any 15 public records regarding Plaintiff Richard [or Stafford]”; and that the interactions between 16 Wray, Mark, Stafford, and Richard were “private.” (Id.) 17 Plaintiffs respond that “[c]ontrary to Mark’s assertion otherwise, Plaintiffs did 18 allege that Mark gathered information about Mr. Richard and shared information to the 19 Google Drive viewers about Ms. Stafford and Mr. Richard”; that “Mark further ignores 20 Plaintiff’s allegations about how Mark, acting in concert with Jann-Michael and SUSD, 21 made vicious attacks about Mr. Richard online”; and that Stafford’s early departure from 22 the group “is of no consequence” because “the other Defendants nonetheless engaged in 23 other actions directed at Ms. Stafford that would chill an average person’s speech” like 24 when “Jann-Michael, using files Mark collected and stored on the Google Drive, publicly 25 (and falsely) accused Ms. Stafford of being anti-Semitic, conspiratorial, and prejudicial.” 26 (Doc. 43 at 11-12.) 27 In reply, the Moving Defendants offer the same arguments regarding injury (or the 28 lack thereof) that are summarized in Part III.B.1 above. (Doc. 48 at 6-7.) - 26 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 27 of 44 1 2. Analysis 2 “[S]tanding is an essential and unchanging part of the case-or-controversy 3 requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 4 “[T]he irreducible constitutional minimum of standing contains three elements”: (1) a 5 concrete and particularized injury in fact; (2) a causal connection between the injury and 6 the challenged conduct; and (3) a likelihood that the injury would be redressed by a 7 favorable decision. Id. at 560-61. “A chilling of First Amendment rights can constitute a 8 cognizable injury, so long as the chilling effect is not ‘based on a fear of future injury that 9 itself [is] too speculative to confer standing.’” Index Newspapers LLC v. United States 10 Marshals Serv., 977 F.3d 817, 826 (9th Cir. 2020) (citation omitted). “First Amendment 11 challenges . . . present unique standing considerations such that the inquiry tilts 12 dramatically toward a finding of standing . . . because, as the Supreme Court has 13 recognized, a chilling of the exercise of First Amendment rights is, itself, a constitutionally 14 sufficient injury.” Libertarian Party of L.A. Cnty. v. Bowen, 709 F.3d 867, 870 (9th Cir. 15 2013) (citations omitted). 16 As stated in Part III.C above, Plaintiffs have plausibly alleged that Defendants acted 17 in a way that would chill a person of ordinary firmness. It follows that each Plaintiff has 18 “show[n] he personally has suffered some actual or threatened injury.” Valley Forge 19 Christian Colls. v. Ams. United for Separation of Church and State, 454 U.S. 464, 472 20 (1982). The Moving Defendants’ arguments to the contrary are based on a 21 misapprehension of what qualifies as an injury in this context—as noted, a chilling effect 22 (which is measured objectively) may itself suffice, even if each Plaintiff was not in fact 23 deterred from engaging in further protected activity. At any rate, the FAC also contains 24 specific allegations regarding each individual Plaintiff. As for Richard, there is an 25 inference that he posted something opposing the District on September 12, 2020 (in the 26 Facebook Group) by virtue of Mark’s response through the pseudonym of Guy Phillips. 27 (Doc. 34 ¶ 29 [“Hi Edmond. I agree with you completely . . . .].) The FAC also specifically 28 alleges that Mark publicly insulted Richard at another time. (Id. ¶ 51.) As for Stafford, - 27 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 28 of 44 1 after she “publicly supported in-person schooling,” Mark “made veiled threats against her 2 employment” both publicly and via direct message. (Id. ¶ 48.) As for Wray, the FAC 3 generally alleges that she was critical of the District (which neither side disputes) and that, 4 in response, Mark physically intimidated her at a board meeting (id. ¶ 53), insulted her via 5 direct Facebook message (id. ¶ 55), and later that year, disparaged her to another parent 6 association (id. ¶ 49)—all to prevent her continued criticisms. (See also Doc. 43 at 11-12 7 [Plaintiffs’ summary of conduct and harm].) Finally, Plaintiffs allege their speech was in 8 fact censored when they were prevented from expressing their views at the August 24 board 9 meeting. (Id. ¶ 39.) 10 IV. Count Three: Intentional Infliction Of Emotional Distress 11 In Count Three, Plaintiffs allege that Mark “engaged in ‘extreme’ and ‘outrageous’ 12 conduct by amassing voluminous records about Plaintiffs on the Google Drive, including, 13 without limitation, photographs of Amanda Wray and Kim Stafford’s respective children, 14 financial documents, background checks, employment information, mortgage information, 15 and more, and sharing that information with SUSD officials and others.” (Doc. 34 ¶ 124.) 16 Plaintiffs further allege that they “each suffered emotional distress sufficiently severe so as 17 to manifest physical symptoms as a result of [Mark’s] actions.” (Id. ¶ 127) 18 A. The Parties’ Arguments 19 The Moving Defendants outline the elements of an intentional infliction of 20 emotional distress (“IIED”) claim as follows: “Plaintiffs bear the burden of proving: (1) 21 [Mark] engaged in ‘extreme’ and ‘outrageous’ conduct; (2) [Mark] must have intended to 22 cause emotional distress to the Plaintiffs or recklessly disregard the near certainty that the 23 Plaintiffs will suffer emotional distress as a result of their conduct; and, (3) the Plaintiffs 24 did, in fact, suffer severe emotional distress as a result of Defendants’ conduct.” (Doc. 36 25 at 12.) They argue the FAC is deficient because it does not allege (1) the requisite extreme 26 or outrageous conduct; or (2) severe emotional distress. (Id. at 13-14.) As for the former, 27 the Moving Defendants argue that “Plaintiffs are seeking to make unlawful the extremely 28 common practice of documenting and storing publicly available information about - 28 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 29 of 44 1 individuals.” (Id. at 14.) As for the latter, the Moving Defendants argue that Wray’s 2 vomiting is not severe emotional distress under Arizona law and that “Daniel Wray, 3 Richard, and Stafford plead no physical manifestation or any severe emotional distress 4 whatsoever, solely alleging that ‘Plaintiffs each suffered emotional distress sufficiently 5 severe so as to manifest physical symptoms,’ but do not identify any symptoms.”4 (Id.) 6 Plaintiffs respond that “Mark’s conduct went far beyond ‘documenting and storing 7 publicly available information about people,’ both in terms of what Mark collected, and 8 what he did with it. Mark collected photographs of Mses. Wray and Stafford’s minor 9 children; amassed voluminous amounts of records about Plaintiffs that he shared with their 10 children’s school district; and released personal information about Plaintiffs in an attempt 11 to retaliate against them for their speech. Mark glosses over the reality of his behavior, 12 which meets the definition of ‘extreme and outrageous.’” (Doc. 43 at 17.) Plaintiffs also 13 argue that “pleading that each [Plaintiff] sustained severe emotional distress, including that 14 the distress caused Ms. Wray to vomit when she discovered what Mark had stored on the 15 Google Drive,” was sufficient. (Id.) 16 In reply, the Moving Defendants contend that “Plaintiffs seem to give up on the 17 emotional distress claims.” (Doc. 48 at 10.) The Moving Defendants contend that “[n]o 18 interpretation of the facts alleged by Plaintiff could lead a reasonable person to conclude 19 that [Mark’s] conduct was ‘atrocious’ or ‘beyond all possible bounds of decency.’”5 (Id. 20 at 11.) The Moving Defendants also “maintain that Plaintiffs Richard and Stafford plead 21 no physical manifestation or any severe emotional distress whatsoever anywhere in the 22 complaint” and therefore “this cause of action should be dismissed in its entirety.” (Id.) 23 B. Analysis 24 Under Arizona law, “[t]he three required elements [of an IIED claim] are: first, the 25 conduct of the defendant must be ‘extreme’ or ‘outrageous’; second, the defendant must 26 4 To avoid confusion, the Court notes that Daniel Wray is not a party to this lawsuit. 5 27 The Moving Defendants also attempt to dispute some of the factual assertions in the FAC, such as disputing whether Wray’s vomiting reaction was an “exaggeration” or 28 whether she was “sick to her stomach when she appeared on Fox News.” (Doc. 48 at 10- 11.) These arguments are misplaced at the motion-to-dismiss stage. - 29 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 30 of 44 1 either intend to cause emotional distress or recklessly disregard the near certainty that such 2 distress will result from his conduct; and third, severe emotional distress must indeed occur 3 as a result of defendant’s conduct.” Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987). 4 Outrageous or extreme conduct goes “beyond all possible bounds of decency” and is 5 “regarded as atrocious and utterly intolerable in a civilized community in which an average 6 member of the community would exclaim, ‘Outrageous!’” Id. (quoting Restatement 7 (Second) of Torts § 46(1) cmt. b) (cleaned up). See also Christakis v. Deitsch, 478 P.3d 8 241, 245 (Ariz. Ct. App. 2020) (“Such conduct must completely violate human dignity 9 and strike to the very core of one’s being, threatening to shatter the frame upon which one’s 10 emotional fabric is hung.”) (citation and internal quotation marks omitted). As for the final 11 requirement that the emotional distress be “severe,” “[e]xamples of emotional distress 12 considered severe by the courts [include] . . . heart attack and nervous exhaustion,” 13 “premature birth of dead baby,” “severe nervousness and headaches resulting in such a 14 breakdown of [the plaintiff’s] physical and emotional well being that she was unable 15 thereafter to perform her job,” “severe headaches and stress and [the plaintiff’s] state of 16 anxiety ultimately required hospitalization,” and “stress and a relapse resulting in a 17 permanent impairment of [the plaintiff’s multiple sclerosis] condition.” Midas Muffler 18 Shop v. Ellison, 650 P.2d 496, 501 (Ariz. Ct. App. 1982) (citations omitted). 19 Here, the most glaring defect in the FAC regarding Count Three is the absence of 20 factual allegations describing Plaintiffs’ emotional distress. The only specific allegation 21 of emotional distress is that “[w]hen Amanda Wray discovered the staggering amount of 22 information Mark Greenburg had compiled about her or purportedly about her, Ms. Wray 23 became physically ill and vomited.” (Doc. 34 ¶ 63.) Although the FAC also includes the 24 conclusory assertion that “Plaintiffs each suffered emotional distress sufficiently severe so 25 as to manifest physical symptoms as a result of [Mark’s] actions” (id. ¶ 127), no 26 corresponding details are alleged in the 156-paragraph complaint apart from the one 27 allegation regarding Wray’s vomiting episode. This, alone, requires the dismissal of 28 Stafford’s and Richard’s IIED claims. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the - 30 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 31 of 44 1 elements of a cause of action, supported by mere conclusory statements, do not suffice.”). 2 As for Wray, the single instance of vomiting does not rise to the level of “severe” 3 emotional distress as required under Arizona law. In Midas Muffler Shop, the Arizona 4 Court of Appeals not only described the sorts of emotional distress that could qualify as 5 “severe” for purposes of an IIED claim—including heart attacks, nervous episodes 6 requiring hospitalization, and the premature birth of a dead baby—but held that the 7 plaintiff’s IIED claim failed as a matter of law where she merely testified that the 8 challenged conduct “upset her and made her cry, and that she had difficulty sleeping on 9 several occasions after” the conduct. 650 P.2d at 501. The court emphasized that “[i]t is 10 only where [emotional distress] is extreme that the liability arises. Complete emotional 11 tranquility is seldom attainable in this world, and some degree of transient and trivial 12 emotional distress is a part of the price of living among people.” Id. at 501 (quoting 13 Restatement (Second) of Torts § 46 cmt. j). Wray’s single instance of vomiting is 14 insufficient to show severe emotional distress and instead evidences a “transient” 15 emotional response.6 16 V. Count Four: Negligent Infliction Of Emotional Distress 17 In Count Four, Plaintiffs assert a claim for negligent infliction of emotional distress 18 (“NIED”). As with Count Three, Plaintiffs allege that they “experienced emotional distress 19 when they discovered the existence and contents of the Google Drive” that “was 20 sufficiently severe so as to manifest physical symptoms as a result of [Mark’s] actions. For 21 example, Amanda Wray vomited when she discovered the information about her stored on 22 the Google Drive.” (Doc. 34 ¶¶ 132-33.) Plaintiffs further allege that Mark “knew or 23 should have known [that] amassing vast amounts of Plaintiffs’ and community members’ 24 personal records, as well as records that would portray Plaintiffs and community members 25 6 26 The Court is also skeptical that the challenged conduct would qualify as extreme or outrageous. See generally Christakis, 478 P.3d at 245 (noting extreme or outrageous 27 conduct “does not include ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities’”) (citation omitted). However, it is unnecessary to reach 28 that issue in light of the deficiency of Plaintiffs’ allegations regarding severe emotional distress. - 31 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 32 of 44 1 in a false light, involved an unreasonable risk of causing distress” and that “the emotional 2 distress that would likely result from Plaintiffs’ discovery of the Google Drive might result 3 in illness or bodily harm.” (Id. ¶¶ 134-35.) 4 A. The Parties’ Arguments 5 The Moving Defendants argue that Plaintiffs failed to plead a prima facie case of 6 NIED “either as a witness or direct participant.” (Doc. 36 at 15.) They argue that to plead 7 “a claim for NIED as a witness, Plaintiffs must plead facts sufficient to prove: (1) the 8 Plaintiffs witnessed an injury to a closely related person; (2) the Plaintiffs suffered mental 9 anguish that manifested itself as a physical injury; and, (3) the Plaintiffs were within the 10 ‘zone of danger’ such that [Mark] subjected the Plaintiffs to an unreasonable risk of bodily 11 harm.” (Id., citations omitted.) The Moving Defendants argue that “[n]o interpretation of 12 the facts pled by the Plaintiffs demonstrates (1) the witnessing of any injury to a closely 13 related person; (2) any physical injury to any person, that there is any ‘zone of danger,’ or 14 that the alleged emotional distress manifested itself as a physical injury.” (Id.) Next, as 15 for a direct NIED claim, the Moving Defendants argue that “Plaintiffs must plead facts 16 sufficient to prove: (1) the defendant was negligent; (2) defendant’s negligence created an 17 unreasonable risk of bodily harm to plaintiff; (3) and defendant suffered physical injury or 18 illness due to the emotional distress.” (Id.) The Moving Defendants contend that 19 “Plaintiffs do not plead any facts showing that [Mark] created an unreasonable risk of 20 bodily harm to plaintiffs, that plaintiffs were in a ‘zone of danger’ of sustaining bodily 21 harm, or that plaintiffs suffered any physical injury or illness as a result,” in part because 22 Wray’s vomiting is not an injury and because no facts support Stafford’s or Richard’s 23 claims. (Id. at 16.) 24 Plaintiffs respond that an NIED claim only requires two elements: “(a) [the 25 tortfeasor] should have realized that his conduct involved an unreasonable risk of causing 26 the distress . . . and (b) from facts known to him should have realized that the distress, if it 27 were caused, might result in illness or bodily harm.” (Doc. 43 at 18.) Plaintiffs contend 28 that the FAC is sufficient to state a claim under this standard because “[i]t was entirely - 32 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 33 of 44 1 foreseeable, and Mark should have known, that when he stored a massive trove of sensitive 2 information about Plaintiffs on an unsecured Google Drive, and shared that drive with three 3 other people, the Google Drive might become public, and that Plaintiffs would suffer 4 emotional distress as a result.” (Id.) 5 In reply, the Moving Defendants argue that “Plaintiffs appear to concede this 6 claim.” (Doc. 48 at 11.) They reiterate that “Plaintiffs do not plead any facts to 7 demonstrate (1) the witnessing of any injury to a closely related person; (2) any physical 8 injury to any person, that there is any ‘zone of danger,’ or that the alleged emotional distress 9 manifested itself as a physical injury.” (Id.) 10 B. Analysis 11 Under Arizona law, “[d]amages for emotional disturbance alone are too 12 speculative” to support “recovery for the tort of negligent infliction of emotional distress. 13 Keck v. Jackson, 593 P.2d 668, 669-70 (Ariz. 1979). Instead, “the Arizona cases and 14 Restatement § 436A make clear that a physical injury, as well as a long-term physical 15 illness or mental disturbance, constitute[] sufficient bodily harm to support a claim of 16 negligent infliction of emotional distress.” Monaco v. HealthPartners of S. Ariz., 995 P.2d 17 735, 739 (Ariz. Ct. App. 1999). “‘Transitory physical phenomena’ such as weeping and 18 insomnia ‘are not the type of bodily harm which would sustain a cause of action for 19 emotional distress.’” Gau v. Smitty’s Super Valu, Inc., 901 P.2d 455, 457 (Ariz. Ct. App. 20 1995) Id. (citations omitted). See generally Dehart v. Johnson & Johnson, 562 F. Supp. 21 3d 189, 196-97 (D. Ariz. 2022) (“[T]he rule in Arizona is that when an NIED plaintiff 22 seeks recovery for an emotional injury unaccompanied by a physical injury, the plaintiff 23 must show that the emotional injury eventually resulted in some form of bodily harm, such 24 as a physical injury or a long-term physical illness or mental disturbance.”) (cleaned up). 25 As with the IIED claim, Plaintiffs Stafford and Richard have not pleaded any facts 26 suggesting they suffered a physical injury or bodily harm (or, indeed, any specific injury, 27 emotional or otherwise, at all). Therefore, their NIED claims fail. 28 As for Wray, although the FAC pleads that she became physically ill and vomited, - 33 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 34 of 44 1 a single instance of vomiting is a transitory phenomenon that is insufficient to support an 2 NIED claim. Cf. Gau, 901 P.2d at 455, 457 (rejecting NIED claim, where a four-year-old 3 child suffered “transitory nightmares and sleep disturbance” after his mother was falsely 4 accused of shoplifting and the mother and child were detained and separated, because the 5 child “suffered no physical injury” and the emotional injuries “subsided without medical 6 treatment”). 7 VI. Count Five: Defamation 8 In Count Five, Wray alleges that Mark defamed her by “plac[ing] a bankruptcy 9 filing belonging to one Amanda J. Ross in the Google Drive” which implied “that Amanda 10 Wray, a professional financial advisor, had filed for bankruptcy under her maiden name of 11 ‘Amanda Ross.’” (Doc. 34 ¶¶ 140, 143.) Wray continues: “The false notion that Amanda 12 Wray filed for bankruptcy would bring her into disrepute, contempt, or ridicule, as she is a 13 financial advisor, and would also tend to harm her professional reputation.” (Id. ¶ 144.) 14 Wray further alleges that, at a minimum, Mark published the document to “[Jann-Michael], 15 Zach Lindsay, and Jennifer McDowell” and that Mark “knew” or “acted in reckless 16 disregard” of the fact that she had not filed for bankruptcy, by virtue of the background 17 check on her that Mark obtained in January 2021. (Id. ¶¶ 142, 145.) 18 A. The Parties’ Arguments 19 The Moving Defendants argue that “Wray is, at a minimum, a limited purpose 20 public figure if not a general public figure and must additionally plead [Mark] acted with 21 actual malice” and that the FAC fails on this score because it only alleges that Mark “knew 22 or should have known” about the middle initial because of the background check, which 23 does not rise to the level of malice. (Doc. 36 at 10-11.) Alternatively, the Moving 24 Defendants argue that the act of uploading the document is not a “statement” under Arizona 25 law, so it cannot give rise to a defamation claim. (Id. at 10-11.) As for the publication 26 element, the Moving Defendants argue that “Wray provides no factual support” that any 27 defamatory material was published to anyone because she “does not even plead that anyone 28 other than [Mark] accessed or saw the bankruptcy pleading” and any other allegations are - 34 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 35 of 44 1 “speculative.” (Id.) Finally, the Moving Defendants argue that imputing liability to 2 “widespread background research” that might be “inaccurate” after the fact would 3 “undoubtedly chill First Amendment rights.” (Id. at 11.) 4 Plaintiffs respond that “Mark’s argument that his placement of the bankruptcy 5 record on [the] Google Drive was not a ‘statement’ is inconsistent with Arizona law.” 6 (Doc. 43 at 14.) According to Plaintiffs, the proper inquiry is “whether Mark used the 7 bankruptcy filing to imply an idea about Ms. Wray (i.e., that she declared bankruptcy)” 8 and, under that test, “Mark’s inclusion of the bankruptcy filing on the Google Drive falsely 9 conveyed to the other Google Drive viewers that Ms. Wray had filed bankruptcy. Mark 10 therefore made a defamatory communication.” (Id. at 14-15.) As for the publication 11 element, Plaintiffs argue it only requires “communication to a third party” and by placing 12 the bankruptcy filing into the Google Drive, Mark shared it with “Jann-Michael, Mr. 13 Lindsay, and Jennifer McDowell.” (Id.) Plaintiffs argue it is far from speculative to infer 14 that those individuals saw the filing, given that the Restatement only requires “an 15 unreasonable risk that the defamatory matter will be communicated to a third person.” (Id.) 16 Plaintiffs also contend that “Mark’s intent is made ever more evident by the fact that he 17 also included on the Google Drive a meme in which he disparaged Ms. Wray’s ‘dubious 18 financial planning services’ and stated that Ms. Wray did not have ‘her own financial house 19 in order’ because of the mortgages on her primary home and vacation home.’” (Id.) 20 Finally, regarding malice, Plaintiffs argue “[t]here are no facts in the FAC that support the 21 conclusion that Ms. Wray was a public figure—she was a mother who spoke out about 22 school board policy.” (Id. at 16.) In the alternative, Plaintiffs contend they adequately 23 pleaded malice because Mark’s possession of the background check “shows that Mark 24 either knew the bankruptcy petition was not Ms. Wray’s or acted in reckless disregard for 25 the truth.” (Id.) Plaintiffs also note that defamation is not protected by the First 26 Amendment and any factual arguments about “background research” are inappropriate on 27 a motion to dismiss. (Id.) 28 In reply, the Moving Defendants argue that “[t]he most favorable reading of - 35 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 36 of 44 1 Plaintiff’s allegations is that they are speculative in nature and utterly conclusory.” (Doc. 2 48 at 8.) They contend that uploading the bankruptcy filing cannot be considered a 3 “statement,” especially given that “[i]f someone did view the filing and paid close attention 4 to detail, they would notice that the filing contained the name of an individual with a similar 5 maiden name as [Ms.] Wray with a different middle initial.” (Id. at 9.) The Moving 6 Defendants also argue that any implication that Wray filed for bankruptcy would be “based 7 on sheer speculation” and note the absence of any allegation that there was any “impact on 8 Ms. Wray’s business” or that “her clients ever saw the filing.” (Id.) Finally, the Moving 9 Defendants argue that Wray’s “appearances on politically charged media outlets” confer, 10 at a minimum, limited purpose public figure status. (Id. at 8-9.) 11 B. Analysis 12 Arizona “follows the Restatement (Second) of Torts (1977) . . . on claims relating 13 to defamation of a private person.” Desert Palm Surgical Grp., P.L.C. v. Petta, 343 P.3d 14 438, 449 (Ariz. Ct. App. 2015). Under the Restatement, “[t]o create liability for defamation 15 there must be: (a) a false and defamatory statement concerning another; (b) an unprivileged 16 publication to a third party; (c) fault amounting at least to negligence on the part of the 17 publisher; and (d) either actionability of the statement irrespective of special harm or the 18 existence of special harm caused by the publication.” Restatement (Second) of Torts § 558. 19 “In an ordinary defamation action between private individuals, a speaker may be liable for 20 damages if a falsehood is published that injures the plaintiff’s reputation. ‘Unless this is 21 free from reasonable doubt, it is for the jury to determine the meaning and construction of 22 the alleged defamatory language.’” Rogers v. Mroz, 502 P.3d 986, 990 (Ariz. 2022) 23 (internal citations omitted). Further, a defamatory statement “need not identify the 24 defamed person by name.” Id. Rather, “‘it is enough that there is such a description of or 25 reference to him that those who hear or read reasonably understand the plaintiff to be the 26 person intended,’ which may be supported by extrinsic facts.” Id. (quoting Restatement 27 (Second) of Torts § 563 cmt. e). Defamation by implication, which is recognized in 28 Arizona, acknowledges that a statement may be actionable if it “implies a clearly - 36 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 37 of 44 1 defamatory meaning.” Id. 2 The analysis differs when the plaintiff asserting a defamation claim is not a private 3 person but a public official or public figure. In New York Times Co. v. Sullivan, 376 U.S. 4 254 (1964), the Supreme Court held that “a public official” may not recover damages for 5 a defamatory falsehood “relating to his official conduct unless he proves that statement was 6 made with ‘actual malice’—that is, with knowledge that it was false or with reckless 7 disregard of whether it was false or not.” Id. at 279-83. “Those who, by reason of the 8 notoriety of their achievements or the vigor and success with which they seek the public’s 9 attention, are properly classed as public figures.” Gertz v. Robert Welch, Inc., 418 U.S. 10 323, 342 (1974). “In some instances an individual may achieve such pervasive fame or 11 notoriety that he becomes a public figure for all purposes and in all contexts. More 12 commonly, an individual voluntarily injects himself or is drawn into a particular public 13 controversy and thereby becomes a public figure for a limited range of issues. In either 14 case such persons assume special prominence in the resolution of public questions.” Id. at 15 351. 16 Construing the FAC in the light most favorable to Plaintiffs, the allegations do not 17 support that Wray sought the “public’s attention” such that she should be held to the 18 heighted requirements of a limited purpose public figure. The Moving Defendants fail to 19 identify any factual allegations in the FAC that suggest Wray was a public figure. Instead, 20 the Moving Defendants use their reply brief to inject the new factual allegation that Wray 21 made “appearances on politically charged media outlets” and then attempt to rely on that 22 purported fact to argue that “she is certainly a limited purpose public figure, at a minimum.” 23 (Doc. 48 at 9.) But there are no factual allegations in the FAC regarding Wray’s 24 appearances on media outlets (politically charged or otherwise). The Moving Defendants 25 cannot secure dismissal under Rule 12(b)(6) by asserting new facts, which don’t appear in 26 the complaint, for the first time in their reply brief. Hal Roach Studios, Inc. v. Richard 27 Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989) (“Generally, a district court 28 may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.”). - 37 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 38 of 44 1 Therefore, at least for motion-to-dismiss purposes, Wray was not required to plead actual 2 malice. 3 The Moving Defendants’ other arguments fare no better. As noted, Wray was 4 required to plead sufficient facts to establish the following four elements: (1) a false and 5 defamatory statement, (2) publication, (3) fault—at least negligence, and (4) harm. 6 Restatement (Second) of Torts § 558. The Moving Defendants do not challenge element 7 four in their motion7 and only challenge the third element as it relates to malice, as 8 discussed above. 9 As for the first element, Wray has adequately pleaded there was a “statement” within 10 the meaning of Arizona law. The Restatement explains that “[t]he word ‘communication’ 11 is used to denote the fact that one person has brought an idea to the perception of another.” 12 Restatement (Second) of Torts § 559 cmt. a. It is reasonable to infer that, by uploading the 13 bankruptcy filing, Mark intended to convey to the perception of another (i.e., those with 14 access to the drive) the idea that Wray had filed for bankruptcy.8 15 As for the second element, the FAC adequately alleges that Mark published the 16 statement. The FAC alleges that Mark uploaded the bankruptcy filing to the “public” 17 Google drive, to which at least three people had access. (Doc. 34 ¶¶ 25, 62.) The FAC 18 7 In their reply, the Moving Defendants assert that “[t]here is no allegation that the 19 filing of someone else’s bankruptcy history had any impact on Ms. Wray’s business” and that “there is no allegation that any of her clients even saw the filing.” (Doc. 48 at 9.) To 20 the extent these arguments are intended to challenge the sufficiency of the FAC’s allegations concerning the harm/damage element of Wray’s defamation claim, they come 21 too late—the Moving Defendants did not raise a challenge to that aspect of Count Five in their motion. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court 22 need not consider arguments raised for the first time in a reply brief.”). 8 The Court further notes that such a communication could injure Wray’s reputation 23 as a financial advisor if a person believed she had previously filed for bankruptcy. Rogers, 502 P.3d at 990 (permitting defamation by implication when the statement “implies a 24 clearly defamatory meaning”). The name on the filing closely matches Wray’s maiden name. (Doc. 34 ¶ 25.) It also matches her home state. (Id.) Given those details, and 25 because Wray was one of the main subjects of the materials compiled within the Dossier, it is reasonable that Jann-Michael, Jennifer, and Zach, all of whom had access to the drive, 26 would believe the filing concerned Wray. Rogers, 502 P.3d at 990 (permitting extrinsic facts to support defamatory meaning). The meme about Wray’s “dubious financial 27 planning services” (Doc. 34 ¶ 65), which was also included in the Dossier, further supports the inference that the bankruptcy filing was intended to convey a negative perception 28 regarding Wray’s financial wherewithal. - 38 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 39 of 44 1 also alleges that “Jann-Michael and the District were curating and collecting Plaintiffs’ and 2 other parents’ personal information and communications and supplying it to be stored in 3 the Google Drive” and that “Defendants had a pattern and practice of using SUSD funds, 4 access, and resources to contribute Plaintiffs’ private information to the Google Drive’s 5 cache of data.” (Id. ¶ 30.) Thus, when Mark uploaded the bankruptcy filing, it would have 6 been published—at a minimum—to Jann-Michael, a third party. 7 VII. Count Six: False Light Invasion Of Privacy 8 In Count Six, Wray alleges that Mark “gave publicity to information about Amanda 9 J. Ross’s bankruptcy petition in such a way as to convey to the viewer that Amanda Wray 10 filed a petition for bankruptcy, which she did not.” (Doc. 34 ¶ 152.) Wray alleges that it 11 would be “highly offensive to a reasonable person in [her] position (i.e., a professional 12 financial advisor) to be placed in the false light of having filed for bankruptcy.” (Id. ¶ 153.) 13 A. The Parties’ Arguments 14 The Moving Defendants argue that Wray cannot meet the first prong of a false light 15 claim, namely that Mark gave publicity to the bankruptcy filing. (Doc. 36 at 11-12.) 16 According to the Moving Defendants, “Ms. Wray solely pleads that [Mark] ‘placed a 17 bankruptcy filing’ into a computer server to which three others had access,” which is 18 insufficient to show that the matter was “made public,” i.e., the information was 19 “communicat[ed] to the public at large, or to so many persons that the matter must be 20 regarded as substantially certain to become one of public knowledge.” (Id. at 12, citations 21 omitted.) 22 In response, Plaintiffs argue that publication to a small group of people is sufficient 23 to satisfy the publicity element. (Doc. 43 at 16-17.) Plaintiffs further note that because 24 “Mark configured the Google Drive so that it was viewable by anyone with a link, not just 25 the three primary viewers . . . Mark’s actions (including the Google Drive) became public.” 26 (Id.) 27 In reply, the Moving Defendants argue that “Plaintiff Wray all but concedes the 28 false light claim is unsubstantiated” because she “fails to demonstrate [Mark] ‘gave - 39 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 40 of 44 1 publicity’ to the bankruptcy filing.” (Doc. 48 at 10.) They further argue that if anyone 2 gave publicity to the filing, it was Wray, who “went on major media news outlets to discuss 3 the contents of the Google drive and her extreme dislike of [Mark]” and “has used this case 4 to launch herself into the public political arena,” especially given that “after filing the initial 5 lawsuit in this case, Ms. Wray held a press conference with her lawyers.” (Id.) Based on 6 these actions, the Moving Defendants contend that “[h]er actions are inconsistent with 7 someone who has been ‘highly offended’ by the alleged bankruptcy filing.” (Id.) Finally, 8 the Moving Defendants argue that the Google drive was “private” and “not intended to be 9 accessed by the public,” so it is unlike the examples set out in the Restatement that indicate 10 publication is satisfied if “a creditor post[s] a notice in the window of a debtor’s shop for 11 all shop patrons to see.” (Id.) 12 B. Analysis 13 The Arizona Supreme Court has adopted the tort of false light invasion of privacy 14 from the Restatement (Second) of Torts § 652E. Godbehere v. Phx. Newspapers, Inc., 783 15 P.2d 781, 787-88 (Ariz. 1989). “[T]he tort is established if the defendant knowingly or 16 recklessly published false information or innuendo about the plaintiff that a reasonable 17 person would find highly offensive.” Hart v. Seven Resorts Inc., 947 P.2d 846, 854 (Ariz. 18 Ct. App. 1997). In Hart, the court provided the following explanation of the difference 19 between “publication” for defamation purposes and “publicity” for false light purposes: 20 “Publicity” as it is used in this Section, differs from “publication” [for defamation purposes] . . . which includes any communication by the 21 defendant to a third person. “Publicity” on the other hand, means that the matter is made public, by communicating it to the public at large, or to so 22 many persons that the matter must be regarded substantially certain to become one of public knowledge. The difference is not one of the means of 23 communication which may be oral, written, or by any other means. It is one of a communication that reaches, or is sure to reach, the public. [I]t is not an 24 invasion of the right of privacy . . . to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons. 25 On the other hand, any publication in a newspaper or magazine, even of small circulation, . . . or statement made in an address to a large audience, is 26 sufficient. 27 Hart, 947 P.2d at 854 (quoting Restatement (Second) of Torts § 652D). 28 Wray relies on paragraphs 62 and 66 of the FAC to support her assertion that Mark - 40 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 41 of 44 1 publicized the bankruptcy filing to a large group of people. (Doc. 43 at 17.) Paragraph 62 2 recounts that when Wray was provided with the hyperlink that Mark “had broadcast,” the 3 Drive was “openly accessible by anyone with the link.” (Doc. 34 ¶ 62.) The files were 4 shared with “Jann-Michael,” “Zach Lindsay,” and “Jennifer McDowell.” (Id.) Paragraph 5 66 alleges that “[w]hen Defendants’ conspiracy became public, the District hired Hennes 6 Communications, a crisis management and communications firm, which it paid at least 7 $16,963.00 for consulting and ‘Social Media Monitoring.’” (Id. ¶ 66.) 8 Even reading these allegations in the light most favorable to Wray, it is not 9 reasonable to construe paragraphs 62 and 66 as alleging widespread dissemination of the 10 Dossier, much less the bankruptcy filing. Looking back to paragraph 61, the hyperlink was 11 disclosed in what appears to be a private email exchange between Jann-Michael and 12 Stafford. (Id. ¶ 61.) Even assuming the link was public and thus theoretically accessible 13 to anyone, there are no facts that suggest the link was in fact widely disseminated or placed 14 in a location where anyone could access it. In Hart, the court stated that something other 15 than an overt act is required to communicate the false impression, citing a Kentucky case 16 in which the court held that firing an employee alone was not enough to prove publicity. 17 947 P.2d at 854-55 (citing Stewart v. Pantry, Inc., 715 F. Supp. 1361, 1369-70 (W.D. Ky. 18 1988)). Instead, the employer needed to have “communicated the reasons for plaintiffs’ 19 termination to members of the public.” Id. at 854. Here, there are no facts suggesting that 20 Mark “publicized” the bankruptcy filing in a manner sufficient to trigger false-light 21 liability. Emailing a public link to a shared drive to a single person is unlike publicizing 22 information in a regional magazine or newspaper. The FAC accuses three people of having 23 access to and viewing the Google drive, but publication to a small number of people is 24 insufficient to satisfy the publicity element in a false light action. The mere possibility that 25 others could have accessed the Google drive does not satisfy the requirement that “the 26 matter . . . be regarded substantially certain to become one of public knowledge.” 27 Restatement (Second) of Torts § 652D cmt. a. 28 … - 41 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 42 of 44 1 VIII. Punitive Damages 2 Plaintiffs seek punitive damages pursuant to each of their claims against the Moving 3 Defendants. (Doc. 34 ¶¶ 108, 130, 138, 148, 156.) 4 A. The Parties’ Arguments 5 The Moving Defendants argue that no punitive damages can be assessed because, 6 under Arizona law, a public employee who acts within the course and scope of his 7 employment cannot be held liable for punitive damages. (Doc. 36 at 16.) The Moving 8 Defendants argue that, because Plaintiffs have alleged that Mark acted under color of law, 9 it follows that punitive damages are unavailable. (Id.) 10 Plaintiffs respond that (1) Mark is not a public employee; and (2) even if he were, 11 he could still be liable for punitive damages pursuant to the § 1983 claim. (Doc. 43 at 18.) 12 In reply, the Moving Defendants pivot and argue for the first time that “Plaintiffs 13 cannot demonstrate any reckless or callous indifference to the rights of others” and that 14 “Mark did not engage in any conduct amounting to evil motive.” (Doc. 48 at 12.) 15 B. Analysis 16 As explained in Part II.A above, the FAC does not support the conclusion that Mark 17 is a “public employee” under Arizona law. Therefore, punitive damages remain 18 recoverable based on Plaintiffs’ state-law claims, notwithstanding A.R.S. § 12-820.04 19 (“Neither a public entity nor a public employee acting within the scope of his employment 20 is liable for punitive or exemplary damages.”). As for the Moving Defendants’ broader 21 challenge to the sufficiency of the factual allegations underlying all of Plaintiffs’ punitive 22 damage claims, the challenge is forfeited because it was raised for the first time in a reply 23 brief. Zamani, 491 F.3d at 997. 24 IX. Leave to Amend 25 In their response to the motion to dismiss, “Plaintiffs request leave to file a Second 26 Amended Complaint to plead additional factual material sufficient to cure any legal 27 defect.” (Doc. 43 at 18.) In reply, the Moving Defendants contend that “[b]ased on their 28 response to the motion to dismiss, Plaintiffs seem to come to grips with the fact that they - 42 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 43 of 44 1 failed to state claims for defamation, false light, and the emotional distress causes of 2 action” and request the FAC “be dismissed in its entirety, with prejudice.” (Doc. 48 at 12.) 3 Rule 15(a) of the Federal Rules of Civil Procedure “advises the court that ‘leave [to 4 amend] shall be freely given when justice so requires.’” Eminence Cap., LLC v. Aspeon, 5 Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citation omitted). “This policy is ‘to be applied 6 with extreme liberality.’” Id. (citation omitted). Thus, leave to amend should be granted 7 unless “the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; 8 (3) produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. v. 9 Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). 10 It appears the Moving Defendants rely on futility as their basis for opposing 11 Plaintiffs’ request for leave to amend. (Doc. 48 at 12.) Although it is true that “the test for 12 futility is whether the amendment can survive a motion to dismiss under Rule 12(b)(6),” 13 Fulton v. Advantage Sales & Mktg., LLC, 2012 WL 5182805, *3 (D. Or. 2012), 14 “[o]rdinarily, courts will defer consideration of challenges to the merits of a proposed 15 amended pleading until after leave to amend is granted and the amended pleading is filed.” 16 Fair Hous. Council of Cent. Calif., Inc. v. Nunez, 2012 WL 217479, *4 (E.D. Cal. 2012); 17 see also Green Valley Corp. v. Caldo Oil Co., 2011 WL 1465883, *6 (N.D. Cal. 2011) 18 (noting “the general preference against denying a motion for leave to amend based on 19 futility”). Therefore, without prejudging the merit of any futility argument, the Court will 20 grant Plaintiffs’ request for leave to file a Second Amended Complaint to the extent they 21 wish to attempt to address the deficiencies that led to the dismissal of the IIED, NIED, and 22 false light claims. 23 … 24 … 25 … 26 … 27 … 28 … - 43 - Case 2:22-cv-00859-DWL Document 60 Filed 12/16/22 Page 44 of 44 1 Accordingly, 2 IT IS ORDERED that the Moving Defendants’ motion to dismiss (Doc. 36) is 3 granted in part and denied in part. Counts Three, Four, and Six are dismissed. 4 IT IS FURTHER ORDERED that Plaintiffs may file a Second Amended 5 Complaint within 21 days of the issuance of this order. Any changes shall be limited to 6 attempting to cure the deficiencies raised in this order and Plaintiffs shall, consistent with 7 LRCiv 15.1(a), attach a redlined version of the pleading as an exhibit. 8 Dated this 16th day of December, 2022. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 44 -