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Sean M. Carroll, #027171

Darrell E. Davis, #011442

David Weissman, #027042

CLARK HILL PLC

14850 N Scottsdale Road, Suite 500

Scottsdale, Arizona 85254

Telephone: (480) 684-1100

Email: scarroll@clarkhill.com

ddavis@clarkhill.com

dweissman@clarkhill.com

Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Alyssa Jones,

Plaintiff,

v.

Riot Hospitality Group, LLC, RHG

Ventures, LLC, Eric Sanchez, individually

and Ryan Hibbert, individually,

Defendants.

Case No.: 2:17-CV-04612-BSB

DEFENDANTS’ MOTION TO

DISMISS FOR LACK OF SUBJECT

MATTER JURISDICTION TO

COMPEL ARBITRATION

-OR IN THE ALTERNATIVEMOTION TO DISMISS CERTAIN

COUNTS FOR FAILURE TO STATE

A CLAIM

I. INTRODUCTION

Defendants Riot Hospitality Group, LLC, RHG Ventures, LLC, Eric Sanchez, and

Ryan Hibbert (collectively, “Defendants”) request that the Court dismiss the Complaint

filed by Plaintiff Alyssa Jones (“Plaintiff”) and compel arbitration for all of her claims

under the Federal Arbitration Act, 9 U.S.C. §1 et seq., (“FAA”), and award Defendants

their attorneys’ fees and costs under A.R.S. § 12-341 and A.R.S. § 12-341.01(A).

Alternatively, the Court should dismiss:

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(a) Plaintiff’s Title VII and Arizona Civil Rights Acts claims in Counts I, II, and

III against Defendants Sanchez and Hibbert because Ninth Circuit authorities preclude

individual liability;

(b) all of Plaintiff’s Title VII and the Arizona Civil Rights Act retaliation claims

in Counts II and III because Plaintiff alleges no protected conduct to support a retaliation

claim and she failed to exhaust her administrative remedies; and

(c) Plaintiff’s state law tort claims against Defendant Hibbert contained in Counts

IV and V because the Complaint is devoid of any factual allegations that can support

them.

This Motion is supported by the following Memorandum of Points and

Authorities.

II. MEMORANDUM OF POINTS AND AUTHORITIES

A. Factual and Procedural Background

Plaintiff’s five-count Complaint (Document “Doc.” 1) alleges sexual harassment

and retaliation under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

et seq. (“Title VII”) and the Arizona Civil Rights Act, A.R.S. §§ 41-1461 et seq. (the

“ACRA”). It further alleges state law tort claims against Defendant Hibbert for sexual

battery and intentional infliction of emotional distress. Defendants categorically deny the

allegations.

But, critical to this Motion is that all of Plaintiff’s claims arise from allegations

related to her employment relationship with El Hefe Scottsdale (“El Hefe”), where she

has been employed as a cocktail waitress since November 2015.1 Upon commencing her

1

Plaintiff’s Complaint incorrectly identifies Defendants Riot Hospitality Group, LLC and

RHG Ventures, LLC as the owners and operators of El Hefe. El Hefe is actually owned

and operated by a different entity. Defendants will address this issue either in arbitration

or in subsequent proceedings in this Court. Regardless, the Arbitration Agreement at

issue in this case mandates arbitration of all of Plaintiff’s claims in the Complaint against

all parties because they all arise from, relate to, or are connected with her employment

with El Hefe.

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employment with El Hefe, Plaintiff agreed that her “continued employment [was]

contingent” on her agreeing to the terms of a “Binding Arbitration” provision (the

“Arbitration Agreement”) contained in El Hefe’s Employee Handbook. The

Arbitration Agreement requires the parties to utilize binding arbitration for any claims

arising from, related to, or having any relationship or connection whatsoever with

Plaintiff’s employment by, or other association with El Hefe (including, but not limited to

sexual harassment) and all employment-related claims against El Hefe and its owners,

directors, officers, managers, employees, and agents. The Arbitration Agreement states

as follows:

Binding Arbitration

I agree and acknowledge that El Hefe and I will utilize binding

arbitration to resolve all disputes that may arise out of the

employment context. Both El Hefe and I agree that any claim,

dispute, and/or controversy that either I may have against El Hefe

(or its owners, directors, officers, managers, employees, agents,

and parties affiliated with its employee benefit and health plans) or

El Hefe may have against me, arising from, related to, or having

any relationship or connection whatsoever with my seeking

employment with, employment by, or other association with El

Hefe shall be submitted to and determined exclusively by binding

arbitration under the Federal Arbitration Act.

Included within the scope of this Agreement are all disputes,

whether based on tort, contract, statute (including, but not limited

to, any claims of discrimination and harassment, whether they be

based on the Arizona Civil Rights Act, Title VII of the Civil Rights

Act of 1964, as amended, or any other state or federal law or

regulation), equitable law, or otherwise, with exception of claims

arising under the National Labor Relations Act which are brought

before the National Labor Relations Board, claims for medical and

disability under the Arizona Workers’ Compensation Act,

Employment Security Administration claims, or as otherwise

required by state or federal law. However, nothing herein shall

prevent me from filing and pursuing proceedings before the

Arizona Civil Rights Division or the United States Equal

Employment Opportunity Commission (although if I choose to

pursue a claim following the exhaustion of such administrative

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remedies, that claim would be subject to the provisions of this

Agreement).

In addition to any other requirements imposed by law, the

arbitrator selected shall be a retired Arizona Superior Court Judge

and shall be subject to disqualification on the same grounds as

would apply to a judge of such court. All rules of pleading, all

rules of evidence, all rights to resolution of the dispute by means of

motions for summary judgment, and judgment on the pleadings

shall apply and be observed. Resolution of the dispute shall be

based solely upon the law governing the claims and defenses

pleaded, and the arbitrator may not invoke any basis (including but

not limited to, notions of “just cause”) other than such controlling

law. The arbitrator shall have the immunity of a judicial officer

from civil liability when acting in the capacity of an arbitrator,

which immunity supplements any other existing immunity.

Likewise, all communications during or in connection with the

arbitration proceedings and the substance of the proceedings are

privileged and confidential and shall not be disclosed outside the

parties to the proceedings.

As reasonably required to allow full use and benefit of this

agreement’s modifications to the Act’s procedures, the arbitrator

shall extend the times set by the Act for giving of notices and

setting of hearings. Awards shall include the arbitrator’s written

reasoned opinion, and attorneys’ fees may be granted to the

prevailing party. I understand and agree to this binding arbitration

provision, and both I and El Hefe give up our right to trial by jury

of any claim I or El Hefe may have against each other.

See COPY OF THE Arbitration Agreement attached to this Motion as Exhibit A,

pp. 25-26, and Plaintiff’s November 12, 2015 acknowledgment of same, attached as

Exhibit B.

All of Plaintiff’s claims reference, and depend upon, purported conduct by the

Defendants that somehow negatively impacted, or relate to, her employment

relationship.2See Complaint, ¶¶ 13-21, 44-45, 47, 53-58, 64-65, 67, 70-72, 75, 78. This

2

Plaintiff’s Complaint also contains certain allegations related to an alleged incident of

allegedly rape committed by an alleged friend of Defendant Hibbert who is not a party to

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includes Plaintiff’s allegations related to Defendant Sanchez, who was allegedly

Plaintiff’s manager and supervisor at El Hefe, and Hibbert, who is allegedly one of the

owners of El Hefe. See Complaint, ¶¶ 13-21, 54-55, 75, 78. Thus, there can be no

dispute that all the operative allegations of Plaintiff’s Complaint arise directly from her

employment relationship, and thus, are governed by the Arbitration Agreement and the

FAA. Further, even if Plaintiff were not bound to arbitrate, a multitude of independent

grounds justify dismissing her claims for failure to state a claim upon which relief can be

granted.

B. Legal Argument

1. The Court Lacks Subject Matter Jurisdiction. The Arbitration

Agreement Must Be Enforced Under the FAA and Plaintiff’s Claims Should Be

Dismissed In Favor of Arbitration.

The Arbitration Agreement explicitly states that it, together with all claims

subsumed by it, is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq The FAA

mandates arbitration where, as here, (1) a valid agreement to arbitrate exists and (2) the

parties’ dispute falls within the purview of that agreement. Chiron Corp v. Ortho

Diagnostic Systems, Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). The FAA requires courts

to “rigorously enforce” private arbitration agreements in accordance with their terms and

to resolve any doubts about arbitrability in favor of arbitration. American Express Co. v.

Italian Colors Restaurant, 133 S. Ct. 2304, 2309, 186 L. Ed. 2d 417 (2013) (reaffirming

that arbitration agreements must be enforced pursuant to their terms and that federal

this lawsuit. See Complaint, ¶¶ 34-43. None of those paragraphs of the Complaint

contain allegations of conduct by any Defendant in this case, nor do they appear to be

relevant to necessary to support any of Plaintiff’s claims. Certain of those allegations

refer to an unspecified “Defendant” in connection with the series of events leading up to

and including the alleged rape. See Complaint, ¶¶ 38, 41, 42. However, when read in

context, it is clear that Plaintiff is referring to individual who is alleged to have

committed the rape when making those allegations, who apparently has also been sued by

Plaintiff in a separate action in Maricopa County Superior Court.

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statutory claims are arbitrable); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,

23-24 (1991) (the FAA manifests a “liberal federal policy favoring arbitration

agreements”); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22-23

(1983) (“any doubts concerning the scope of arbitrable issues should be resolved in favor

of arbitration”). As stated by the Ninth Circuit in Simula, Inc. v. Autoliv, Inc., 175 F.3d

716, 721 (9th Cir. 1999), “[t]o require arbitration, [Plaintiff’s] factual allegations need

only ‘touch matters’ covered by the contract containing the arbitration clause and all

doubts are to be resolved in favor of arbitrability.”

Plaintiff’s claims against Defendants unequivocally arise from, relate to, or

otherwise have a connection to her employment or other association with El Hefe. In

turn, they fall unquestionably within the purview of the Arbitration Agreement. Thus,

Plaintiff’s claims are not properly brought in this Court, and the Court must order

Plaintiff to arbitrate and dismiss this case.3

2. Plaintiff’s Title VII and ACRA Claims Against Defendants

Sanchez and Hibbert Must Be Dismissed.

If the Court does not compel arbitration, the Court should dismiss Counts I, II, and

III against Defendants Sanchez and Hibbert under Fed. R. Civ. P. 12(b)(6). Counts I and

III assert claims for sexual harassment and retaliation under Title VII against Defendants

Sanchez and Hibbert as individuals. Count II asserts nearly identical claims under the

ACRA. It is well-settled law in the Ninth Circuit that “individual defendants cannot be

held liable for damages under Title VII . . . “ Miller v. Maxwell’s Int’l Inc., 991 F.2d

583, 587 (9th Cir. 1993) (holding that district court properly dismissed Title VII claims

3

It is clear from the face of the Complaint that Plaintiff’s statutory claims in Counts I, II,

and III and her state law tort claims in Counts IV and V all relate to her employment with

El Hefe and/or her association with its owners, managers, and/or employees. But, even if

the Court determined that only Plaintiff’s statutory claims are within the scope of the

Arbitration Agreement, the Court should nonetheless dismiss Counts IV and V for lack of

subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).

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against defendants in their individual capacities for failure to state a claim); Ransom v.

State of Ariz. Bd. of Regents, 983 F. Supp. 895, 904 (D. Ariz. 1997) (“[u]nder Title VII...

an individual employee is not an ‘employer’ for purposes of liability”). The same rule of

law applies to claims brought under the ACRA. Ransom, 983 F. Supp. at 904.

Accordingly, the Title VII and ACRA claims against Defendants Sanchez and Hibbert

cannot proceed and must be dismissed.

3. Plaintiff’s Title VII and ACRA Retaliation Claims Against All

Defendants Must Be Dismissed.

Also only to the extent this Court does not compel arbitration of some or all of

Plaintiff’s claims, the Court should dismiss Plaintiff’s claim for retaliation under the

ACRA in Count II and Title VII in Count III for failure to state a claim. Under Title VII,

it is unlawful for an employer “to discriminate against any of his employees . . . because

he has opposed any practice made an unlawful employment practice by this subchapter,

or because he has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” Lyons v. England, 307 F.3d

1092, 1118 (9th Cir. 2002( (citing 42 U.S.C. § 2000e-3(a)). In order to sustain a claim for

retaliation under Title VII, a plaintiff must allege that she engaged in protected activity

under the statute, that her employer took some adverse action against her, and that there

is a causal link between her protected activity and the adverse employment action.

Lyons, 307 F.3d at 1118. These same federal standards apply to a retaliation claim under

the ACRA. See Bodett v. CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004) (noting that

Title VII and the ACRA are “generally identical” and federal Title VII case law is

persuasive in interpreting the ACRA).

Here, Plaintiff has not alleged that she engaged in any conduct protected by Title

VII or the ACRA, e.g., complaining to her employer of sexual harassment or other

violations of these statutes, participating in an investigation or hearing related to such a

complaint, or opposing an unlawful employment practice. Nor does Plaintiff allege she

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was fired. Indeed, she remains gainfully employed at El Hefe. Instead, it appears that

Plaintiff is alleging that Defendants took adverse action against her because she has filed

a lawsuit against an unrelated third party in Maricopa County Superior Court. See

Complaint, ¶ 71. Moreover, she appears to connect this alleged adverse action to her

allegation that her employer requested its servers to interact with wealthy customers in an

effort to increase sales. See Complaint, ¶ 18, 71. This is not the type of conduct that is

intended to be protected under Title VII or the ACRA, and therefore cannot support a

claim for retaliation. Accordingly, Plaintiff’s claims for retaliation in Counts II and III

must be dismissed for failure to state a claim.

Further, Plaintiff’s retaliation claims must be dismissed for failure to exhaust her

administrative remedies. Specifically, Plaintiff’s Charge of Discrimination with the

EEOC does not assert a claim for retaliation. See Alyssa Jones September 7, 2017

Charge of Discrimination (“Charge”), attached as Exhibit C. Plaintiff neither mentions

a retaliation claim in her Charge nor did she check the box for “Retaliation,” and the

allegations of her Charge do not describe any form of retaliation. See Exhibit C.

Accordingly, the Court lacks subject matter jurisdiction over these claims. See Loos v.

Lowe’s HIW, Inc., 796 F. Supp. 2d 1013, 1017-19 (D. Ariz. 2011) (dismissing plaintiff’s

Title VII and ACRA retaliation claims for lack of subject matter jurisdiction based on a

failure to exhaust administrative remedies when plaintiff did not mark the “Retaliation”

box on her Charge of Discrimination, did not list retaliatory conduct in her written

description, and alleged retaliation for the first time in her complaint). The retaliation

claims should be dismissed.

4. Plaintiff’s State Law Sexual Battery and Intentional Infliction of

Emotional Distress Claims Must Be Dismissed.

a. Pleading the bare elements of battery is insufficient.

Plaintiff’s claim for battery against Defendant Hibbert merely states the legal

standard in Arizona, that in order to state a claim for battery, a plaintiff must establish

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that the defendant intentionally caused a harmful or offensive contact with the plaintiff.

Johnson v. Pankratz, 196 Ariz. 621, 623, 2 P.3d 1266, 1268 (Ct. App. 2000). But, as the

United States Supreme Court has repeatedly confirmed, a pleading must offer more than

“labels and conclusions or a formulaic recitation of the elements of a cause of action”;

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009)

(citations and internal quotation marks omitted). See also In re Stac. Electronics

Securities Litigation, 89 F. 3d 1933, 1402 (9th Cir. 1996) (conclusory allegations

insufficient to defeat a motion to dismiss). Plaintiff’s claim for battery identifies no

conduct in which Defendant Hibbert allegedly engaged that amounts to battery. It merely

recites the elements of a battery claim with the conclusory allegation that Defendant

Hibbert is liable. Under all applicable authorities, this is woefully inadequate to state a

claim for relief. Count IV should be dismissed.

b. Pleading the bare elements of IIED is insufficient.

As with Plaintiff’s battery claim, Plaintiff’s claim for intentional infliction of

emotional distress (“IIED”) is likewise devoid of any factual support or allegations that

can support it. In order to state a claim for IIED under Arizona law, a plaintiff must

establish (1) conduct by the defendant that is extreme and outrageous; (2) the defendant

either intended to cause emotional distress or recklessly disregarded the near certainty

that such distress would result; and (3) severe emotional distress occurred as a result of

the defendant’s conduct. Loos v. Lowe’s HIW, Inc., 796 F. Supp. 2d 1013, 1021 (D. Ariz.

2011). Moreover, the plaintiff must demonstrate that the defendant’s conduct was “so

outrageous in character and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious and utterly intolerable in a civilized

community.” Id. When evaluating a motion to dismiss such a claim, a court must

determine whether the defendant’s alleged conduct is sufficiently extreme and outrageous

to state a claim for relief. Id.

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Here, Plaintiff’s Complaint falls dramatically short of its requirements. It makes

only a conclusory allegation that Defendant Hibbert “engaged in extreme and outrageous

conduct,” but specifies no conduct. Indeed, the claim omits any reference to conduct that

was “so outrageous in character and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized

community” as is required to support claim for IIED under Arizona law. See Loos, 796

F. Supp. 2d 1023-24 (applying Arizona law and granting dismissal of plaintiff’s claim for

IIED based solely on allegations that plaintiff’s supervisor engaged in sexual talk, made

sexual gestures in her presence and involved her in conversations with sexual topics).

Plaintiff failed to meet the pleading requirement for her IIED claim to proceed. Count V

should be dismissed.

III. CONCLUSION

The Court should uphold the liberal federal policy favoring arbitration. Plaintiff’s

claims fall within the scope of the Arbitration Agreement she agreed to in November

2015 as a condition of continued employment with her employer, El Hefe. Accordingly,

she is bound to arbitrate under the Federal Arbitration Act and this Court lacks

jurisdiction over this matter. Defendants respectfully request that this Court dismiss this

lawsuit in its entirety, and compel Plaintiff to arbitrate in accordance with the Arbitration

Agreement. In the alternative, Defendants request that this Court enter an order: (a)

dismissing Defendants Hibbert and Sanchez as parties to Counts I, II, and III of the

Complaint; (b) dismissing all claims of retaliation in Count II of the Complaint; (c)

dismissing Count III of the Complaint in its entirety; (d) dismissing Count IV of the

Complaint in its entirety; and (e) dismissing Count V of the Complaint in its entirety.

Finally, Defendants request an award of their reasonable attorneys’ fees pursuant to

A.R.S. § 12-341.01(a) and costs pursuant to A.R.S. § 12-341 in connection with

Plaintiff’s breach of the terms of the Arbitration Agreement.

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DATED this 10th day of January, 2018.

CLARK HILL PLC

By: s/ Sean M. Carroll

Sean M. Carroll

Darrell E. Davis

Davis Weissman

Attorneys for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on January 10, 2018, I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF System for filing, and transmittal of a

Notice of Service of Electronic Filing to the following CM/ECF registrants:

Philip J. Nathanson

philipj@nathansonlawfirm.com

By: s/ Joyce Johnston

216754527.2 09999/09999-030025

Case 2:17-cv-04612-GMS Document 10 Filed 01/10/18 Page 11 of 11