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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Reel Precision, Inc., an Arizona 

corporation; Alfred and Sheree Levett, a 

married couple filing jointly; 

Plaintiffs, 

v. 

FedEx Ground Package Systems, Inc., a 

Delaware corporation doing business in 

Arizona; FedEx Corporation, a Delaware 

corporation doing business in Arizona; Eric 

Pagano and Jane Doe Pagano, a married 

couple; Amy Gosselink and Stacy 

Meendering, a married couple; John and 

Jane Does I-X; Black Corporations I-X; 

White Partnerships I-X; Red Limited 

Liability Companies I-X, 

Defendants. 

No. CV-15-02660-PHX-NVW

ORDER 

Before the Court is Defendants’ Partial Motion to Dismiss or for More Definite 

Statement (Doc. 25). On March 11, 2016, Defendants moved to dismiss Counts IV and 

V of the Second Amended Complaint for failure to state claims upon which relief can be 

granted. On April 11, 2016, the Court ordered that if Plaintiffs contended any further 

amendment of the Second Amended Complaint could cure any alleged deficiency, 

Plaintiffs must submit a proposed further amended complaint containing all further 

allegations Plaintiffs could make. The Court further ordered that no leave would be 

granted to amend the Second Amended Complaint beyond what was offered in the 

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proposed further amended complaint. On April 22, 2016, Plaintiffs lodged a proposed 

Third Amended Complaint. Defendants’ motion will be considered a motion to dismiss 

Counts IV and V of the proposed Third Amended Complaint. 

I. LEGAL STANDARD 

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all 

allegations of material fact are assumed to be true and construed in the light most 

favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 

2009). To avoid dismissal, a complaint need contain only “enough facts to state a claim 

for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007). The principle that a court accepts as true all of the allegations in a complaint 

does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Id. 

II. FACTUAL ALLEGATIONS ASSUMED TO BE TRUE FOR DECIDING 

THE MOTION TO DISMISS 

Plaintiffs Alfred and Sheree Levett are a married couple and the managing 

shareholders of Plaintiff Reel Precision, Inc. Defendants are FedEx Corporation, its 

wholly owned subsidiary FedEx Ground Package System, Inc., and two of its managers 

and their spouses. Reel Precision was formed for the purpose of contracting with FedEx 

to provide pick-up and delivery services in specific primary service areas or routes. 

Plaintiffs owned and operated the vehicles and other equipment used to perform package 

pick-ups and deliveries. They also hired other drivers to assist with the pick-up and 

delivery services. Plaintiffs performed services for FedEx pursuant to an operating 

agreement. 

In 2012 FedEx managers formed a Contractor Safety Committee. During a 

meeting of the Contractor Safety Committee in November or December 2013, which 

Plaintiff Sheree Levett attended, Defendant Eric Pagano introduced a concept he referred 

to as the “walk of shame.” Pagano explained that any driver or person related to the 

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driver who was involved in a vehicle accident should be required to personally change 

the electronic signage displaying the number of days since the last accident. The signage 

was located so that any person who would be required to take the “walk of shame” would 

be observed by others. 

On April 25, 2014, a driver hired by Plaintiffs was involved in a vehicle collision. 

On April 29, 2014, Sheree and Plaintiffs’ driver met with Defendant Amy Gosselink to 

discuss the collision. Alfred was not present at the FedEx facility at the time. After the 

meeting, Gosselink told Sheree she was required to take the “walk of shame” by 

personally changing the electronic signage displaying the number of days since the last 

accident. When Sheree resisted, Gosselink coerced Sheree to comply and escorted her to 

the signage area. Sheree was extremely embarrassed and humiliated by being forced to 

change the signage in view of other personnel and drivers. Upon completing the “walk of 

shame,” Sheree drove her vehicle to a secluded area and burst into tears. She was unable 

to concentrate or focus on her work. Subsequently, Sheree has experienced depression, 

anxiety, loss of concentration, and trembling. 

Within a few days of taking the “walk of shame,” Sheree spoke with FedEx’s 

Contractor Relations Specialist, Vicki Perry. Perry told Sheree that she thought the 

“walk of shame” was disgusting and that she had lost sleep several nights after hearing 

that Sheree had been forced to take the “walk of shame.” In May 2014, Alfred told Perry 

his concerns regarding Sheree being forced to take the “walk of shame” and regarding 

FedEx management forcing Plaintiffs to make delivery attempts beyond the requirements 

of their operating agreement without additional compensation. Alfred told Perry he 

believed compelling Sheree to take the “walk of shame” may have constituted illegal 

harassment and requiring delivery attempts beyond the requirements of their operating 

agreement without additional compensation illegally violated the terms of the operating 

agreement and applicable wage laws. Plaintiffs believe that Perry immediately conveyed 

Alfred’s complaints to Pagano and Gosselink. 

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Another contractor for FedEx told Alfred that Gosselink subjecting Sheree to the 

“walk of shame” was “out of order.” One of Plaintiffs’ drivers said he wished he was 

present when it occurred because he would have stopped it from happening. Plaintiffs’ 

driver who was involved in the collision said that Gosselink was a “bitch” because she 

made Sheree take the “walk of shame.” 

FedEx’s policies prohibit harassment and retaliation against a person who reports 

in good faith any known or suspected misconduct. Plaintiffs are aware of other drivers 

who have been in vehicle collisions but neither the driver nor anyone related to the driver 

was similarly required to take the “walk of shame.” 

On July 10, 2014, Pagano notified Plaintiffs that he was recommending to FedEx 

that their contracts not be renewed. On July 14, 2014, Alfred requested a written 

explanation, which Pagano refused. Pagano’s oral comments referred to Alfred 

complaining to Perry. On August 5, 2014, Alfred received notice of non-renewal 

effective October 9, 2014. No explanation for non-renewal was given. 

III. ANALYSIS 

A. Count V: Intentional Infliction of Emotional Distress 

Although the proposed Third Amended Complaint alleges that “Plaintiffs”—

plural—suffered severe and debilitating emotional distress, Plaintiffs’ response to the 

motion to dismiss states that “Ms. Levett has sufficiently pled all of the required IIED 

elements.” (Doc. 31 at 6.) The response repeatedly refers to Ms. Levett’s claim, but does 

not refer to any other Plaintiff having a claim for intentional infliction of emotional 

distress. Therefore, Count V is deemed to be pled only by Sheree Levett. 

Under Arizona law, a claim for intentional infliction of emotional distress requires 

factual allegations showing that (1) Defendants engaged in “extreme” and “outrageous” 

conduct, (2) Defendants either intended to cause emotional distress or recklessly 

disregarded the near certainty that such distress would result from Defendants’ conduct, 

and (3) Plaintiffs suffered “severe emotional distress” as a result of Defendants’ conduct. 

Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir. 2007); Ford v. Revlon, 

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Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987); Mintz v. Bell Atl. Sys. Leasing Int’l, 

Inc., 183 Ariz. 550, 553–54, 905 P.2d 559, 562–63 (Ct. App. 1995). “[C]onduct 

necessary to sustain an intentional infliction claim falls at the very extreme edge of the 

spectrum of possible conduct.” Watts v. Golden Age Nursing Home, 127 Ariz. 255, 257, 

619 P.2d 1032, 1035 (1980). It “must completely violate human dignity. The conduct 

must strike to the very core of one’s being, threatening to shatter the frame upon which 

one’s emotional fabric is hung.” Pankratz v. Willis, 155 Ariz. 8, 15, 744 P.2d 1182, 1189 

(Ct. App. 1987). 

As explained in Restatement (Second) of Torts § 46 cmt. d: 

Liability has been found only where the conduct has been 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. Generally, the case is one in which the recitation of 

the facts to an average member of the community would arouse his 

resentment against the actor, and lead him to exclaim, “Outrageous!” 

The liability clearly does not extend to mere insults, indignities, threats, 

annoyances, petty oppressions, or other trivialities. The rough edges of our 

society are still in need of a good deal of filing down, and in the meantime 

plaintiffs must necessarily be expected and required to be hardened to a 

certain amount of rough language, and to occasional acts that are definitely 

inconsiderate and unkind. There is no occasion for the law to intervene in 

every case where someone’s feelings are hurt. 

The trial court must make a preliminary determination whether the conduct may 

be considered sufficiently “extreme” and “outrageous” to permit recovery. Nelson v. 

Phoenix Resort Corp., 181 Ariz. 188, 199, 888 P.2d 1375, 1386 (Ct. App. 1994). That 

issue may only go to the jury where “reasonable minds may differ.” Id. Even 

unjustifiable conduct by a defendant does not necessarily rise to the level of “atrocious” 

and “beyond all possible bounds of decency” to be considered “outrageous” by an 

average member of the community. Id. Case-by-case analysis is required to determine 

whether a defendant’s conduct is “outrageous.” Lucchesi v. Frederic N. Stimmell, M.D., 

Ltd., 149 Ariz. 76, 79, 716 P.2d 1013, 1016 (1986). 

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Plaintiffs allege that the “walk of shame” is “atrocious” and “utterly intolerable” 

because four people made comments indicating that they were offended by it, Defendants 

intended to embarrass and humiliate Sheree, and the “walk of shame” violates company 

policies and Arizona laws prohibiting hazing and harassment. But the standard is not 

whether any individuals have actually exclaimed, “Outrageous!” The standard is an 

objective one: would an average person in this community consider the conduct to be so 

outrageous and so extreme as to go “beyond all possible bounds of decency” and to be 

“utterly intolerable”? Is the conduct more than mere insult and indignity? 

Published decisions applying Arizona law show that an average member of the 

community would not find Defendants’ conduct to be extreme and outrageous. See Craig 

v. M & O Agencies, Inc., 496 F.3d 1047, 1059 (9th Cir. 2007) (supervisor repeatedly 

propositioning employee, following employee into bathroom, and sticking his tongue in 

her mouth could be extreme and outrageous conduct); Mintz v. Bell Atl. Sys. Leasing 

Int’l, Inc., 183 Ariz. 550, 553–54, 905 P.2d 559, 562–63 (Ct. App. 1995) (firing an 

employee by letter delivered to hospital bed where the employee was being treated for 

severe emotional problems was not extreme and outrageous); Nelson v. Phoenix Resort 

Corp., 181 Ariz. 188, 199-200, 888 P.2d 1375, 1386 (Ct. App. 1994) (escorting employee 

out of premises in middle of night by armed security team, allowing employee to use 

bathroom on way out only if accompanied into stall by armed escorts, and firing 

employee in lobby in front of coworkers and media was not extreme and outrageous); 

Pankratz v. Willis, 155 Ariz. 8, 15, 744 P.2d 1182, 1189 (Ct. App. 1987) (stealing child 

from parent was extreme and outrageous); Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 

P.2d 580, 585 (1987) (corporation’s delay of more than a year in investigating an 

employee’s claims of sexual assault and continuing threats and harassment by her 

supervisor, which led to the employee’s attempted suicide, was extreme and outrageous); 

Midas Muffler Shop v. Ellison, 133 Ariz. 194, 198, 650 P.2d 496, 500 (Ct. App. 1982) 

(six phone calls over a three-month period by collection agency after payment was made 

was not extreme and outrageous); Watts v. Golden Age Nursing Home, 127 Ariz. 255, 

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257, 619 P.2d 1032, 1035 (1980) (nursing home’s two-day delay in informing wife that 

her husband was diagnosed with terminal pneumonia, which caused his death four days 

after diagnosis, was not extreme and outrageous). 

The Court finds that Defendants’ alleged conduct does not raise an issue “where 

reasonable minds may differ.” Requiring Sheree to personally change the electronic 

signage displaying the number of days since the last accident in the presence of other 

people may be a form of safety and personnel management few people would agree with. 

But the law does not mandate good management or outlaw fear management. Moreover, 

Sheree was personally present when it was introduced six months before in the 

Contractor Safety Committee meeting, so she knew of the plan. The complaint does not 

allege she raised any objection. This conduct falls well short of the level of “atrocious” 

and “beyond all possible bounds of decency” required for a claim of intentional infliction 

of emotional distress under Arizona law. 

Therefore, Count V will be dismissed. 

B. Count IV: Whistleblower Retaliation in Violation of A.R.S. § 23-1501 

(Wrongful Termination) 

The Third Amended Complaint alleges that A.R.S. § 23-1501(A)(3)(c)(ii) 

prohibits an employer from discharging an employee1

 for whistleblowing activities. 

Section 23-1501 provides in part: 

A. It is the public policy of this state that: 

 1. The employment relationship is contractual in nature. 

 2. The employment relationship is severable at the pleasure of 

 either the employee or the employer unless both the employee and the 

 employer have signed a written contract to the contrary setting forth that 

 the employment relationship shall remain in effect for a specified duration 

 of time or otherwise expressly restricting the right of either party to 

 terminate the employment relationship. Both the employee and the 

 

1

 Defendants state that the present motion does not require a determination of whether Plaintiffs were independent contractors or employees, but they contend that Plaintiffs were not employees, and they reserve the right to challenge Plaintiffs’ employment status in subsequent proceedings in this matter. 

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 employer must sign this written contract, or this written contract must be 

 set forth in the employment handbook or manual or any similar 

 document distributed to the employee, if that document expresses the intent 

 that it is a contract of employment, or this written contract must be set forth 

 in a writing deemed sufficient to eliminate the requirements set forth in 

 this paragraph. Nothing in this paragraph shall be construed to affect the 

 rights of public employees under the Constitution of Arizona and state and 

 local laws of this state or the rights of employees and employers as defined 

 by a collective bargaining agreement. 

 3. An employee has a claim against an employer for termination 

 of employment only if one or more of the following circumstances have 

 occurred: 

 (a) The employer has terminated the employment 

relationship of an employee in breach of an employment contract, as set 

forth in paragraph 2 of this subsection, in which case the remedies for the 

breach are limited to the remedies for a breach of contract. 

 (b) The employer has terminated the employment 

relationship in violation of a statute of this state. If the statute provides a 

remedy to an employee for a violation of the statute, the remedies provided 

to an employee for the violation of the statute are the exclusive remedies for 

a violation of the statute or the public policy set forth in or arising out of the 

statute, including the following: 

 . . . 

 (iii) The statutes governing the hours of 

employment prescribed in chapter 2 of this title. [A.R.S. §§ 23-201 et seq.] 

 . . . 

 . . . If the statute does not provide a remedy to an employee 

of the violation of the statute, the employee shall have the right to bring a 

tort claim for wrongful termination in violation of the public policy set 

forth in the statute. 

 (c) The employer has terminated the employment 

relationship of an employee in retaliation for any of the following: 

 (i) The refusal by the employee to commit an act or 

omission that would violate the Constitution of Arizona or the statutes of 

this state. 

 (ii) The disclosure by the employee in a reasonable 

manner that the employee has information or a reasonable belief that the 

employer, or an employee of the employer, has violated, is violating or will 

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violate the Constitution of Arizona or the statutes of this state to either the 

employer or a representative of the employer who the employee reasonably 

believes is in a managerial or supervisory position and has the authority to 

investigate the information provided by the employee and to take action to 

prevent further violations of the Constitution of Arizona or statutes of this 

state or an employee of a public body or political subdivision of this state or 

any agency of a public body or political subdivision. 

 . . . 

B. If the statute provides a remedy to an employee for a violation of the 

statute, the remedies provided to an employee for a violation of the statute 

are the exclusive remedies for the violation of the statute or the public 

policy prescribed in or arising out of the statute. 

Plaintiffs do not allege they were terminated “in breach of an employment 

contract.” A.R.S. § 23-1501(A)(3)(a). Nor do they allege they were terminated “in 

violation of a statute of this state.” A.R.S. § 23-1501(A)(3)(b). Plaintiffs attempt to 

plead a claim under A.R.S. § 23-1501(A)(3)(c)(ii) for termination in retaliation for 

disclosing to FedEx that it “has violated, is violating, or will violate . . . the statutes of 

this state.” Violations of three statutes are alleged to be complained about. The first is 

A.R.S. § 23-350 et seq. by failing “to pay an employee wages for all time worked.” 

(Doc. 35-1 at 18.) The second is § 44-121 (“Every contract in writing imports a 

consideration.”). The third is A.R.S. § 12-1809(S) by harassing Sheree by forcing her to 

take the “walk of shame.” 

Plaintiffs do not state a claim for retaliation under any of these bases, as Plaintiffs 

could not have had a “reasonable belief” that FedEx was violating “the statutes of this 

state” in light of the plain meaning of those statutes. 

1. Despite four versions of their complaint and warning after the third that 

only one more would be considered, Plaintiffs do not specify which of the numerous 

sections of “A.R.S. § 23-350 et seq.” they claim under. Whichever unnamed section it is, 

the remedy for failure to pay wages is “treble the amount of the unpaid wages.” A.R.S. 

§ 23-355(A). Alternatively, within one year an employee may file a claim “for unpaid 

wages” with the Arizona Department of Labor if the amount does not exceed $5,000. 

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A.R.S. § 23-356(A). Those express statutory remedies are exclusive. A.R.S. 

§ 23-1501(B). 

Plaintiffs complained that FedEx wrongfully added tasks beyond what the 

Operating Agreement required and, because they really are employees, they are entitled 

to extra wages for performing extra tasks. If this is a valid wage claim, not just a breach 

of contract claim, the termination might look like a retaliation under A.R.S. 

§ 23-1501(A)(3)(c)(ii) for complaining if that clause were read without consideration of 

the rest of the statute. But the clause is subject to subsection B, which limits the entire 

section to remedies provided in the underlying statute if a remedy is provided. Under 

general contract law, a party may breach and pay and still be free to terminate a contract 

terminable at will. By ignoring subsection B, Plaintiffs would turn this clause into a 

general entitlement to employment tenure any time an employer is said to have breached 

and the employee makes a claim to a higher-up. The legislature could say that, but it is 

unlikely to have said that in the same statute in which it said exactly the opposite. 

2. Plaintiffs get no help from A.R.S. § 44-121, which states: “Every contract 

in writing imports a consideration.” A preeminent American dictionary at the time 

defined the verb “import” as “[t]o bear or convey in meaning or implication; signify; 

mean; denote; betoken.” 4 The Century Dictionary and Cyclopedia 3013 (1897). The 

statute has nothing to do with making it a violation of statute to fail to render agreed 

consideration. Nor does it mean that a valid contract with consideration is actionable by 

statute. It means that the writing itself constitutes or substitutes for consideration, 

eliminating the need to plead or prove consideration to enforce the contract. That had 

long been an historical effect of a sealing. 

Want of consideration is not a sufficient answer to an action on a sealed 

instrument. The seal imports a consideration, or renders proof of 

consideration unnecessary; because the instrument binds the parties by 

force of the natural presumption that an instrument executed with so much 

deliberation and solemnity is founded upon some sufficient cause. 

Storm v. United States, 94 U.S. 76, 84 (1876) (citations omitted). 

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This statute was enacted in 1901 to abolish the need for a private seal for the 

validity of any instrument. It restated in the affirmative that contracts in writing have the 

same effect on consideration doctrine as sealed instruments. 

4054 (Sec. 1.) No private seal or scroll shall be necessary to the 

validity of any contract, bond or conveyance, whether respecting real or 

personal property, or any other instrument in writing, whether official 

judicial or private, except such as are made by corporations, nor shall the 

addition or omission of a seal or scroll in any way affect the force and 

effect of any of the instruments mentioned 4054. (Sec. 1.) No private 

seal or scroll shall be necessary to the herein, which have been heretofore 

or which may be made. 

4055 (Sec. 2.) Every contract, in writing, hereafter made shall be 

held to import a consideration in the same manner and as fully as sealed 

instruments have heretofore done. 

Rev. Stat. of 1901, §§ 4054, 4055 (emphasis added). The text explicitly gave contracts 

in writing the same presumption of consideration as sealed instruments. 

 The Revised Statutes of 1913 merged these two sections into one without textual 

change. Rev. Stat. of 1913, § 5564. The Struckmeyer Code deleted some words and 

phrases from the first sentence and deleted from the last sentence the words “in the same 

manner and as fully as sealed instruments have heretofore done.” Rev. Code of 1928, 

§ 3048. No doubt this was pursuant to the Code Commissioner’s charge to “reduce in 

language” but not “make any change of existing laws.” 1925 Ariz. Sess. Laws, ch. 35 

§ 3. The Arizona Code Annotated of 1939 made no change. A.C.A. of 1939 § 1-111. 

The Arizona Revised Statutes of 1956 similarly made no change but separated the two 

sentences into different sections, § 1-202 eliminating the need to seal any instrument in 

writing and § 44-121 for “Every contract in writing imports a consideration.” The latter 

section has always had the same meaning: to put unsealed contracts in writing on the 

same footing for purposes of consideration as sealed contracts previously had. It said that 

expressly for the first 28 years, and it has continued to mean that since the surplusage was 

trimmed in 1928. 

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The only significant Arizona case confirms this. It holds a party suing on a 

contract in writing need not plead consideration and a party denying consideration must 

plead it specially, not by general denial: 

It is the ordinary rule of pleading that, where a suit is based upon an 

instrument which as a matter of law imports a consideration, it is not 

necessary that a consideration be pleaded, nor can a want or failure thereof 

be offered in defense under a general denial. 

The note and assignment on which plaintiff relies, under the law of 

Arizona, import a consideration. Section 3048, Rev. Code 1928. It was not 

necessary for plaintiff to plead or prove a consideration . . . . [T]he general 

denial of intervener . . . was entirely insufficient to raise the issue of want 

of consideration. 

Sapp v. Lifrand, 44 Ariz. 321, 324-25, 36 P.2d 794, 796 (1934) (citations omitted). 

 No claim of retaliatory termination can be grounded on A.R.S. § 44-121. The 

slightest inquiry into this statute would have shown that. 

3. Arizona statutes provide an accelerated peace-keeping process for an 

“injunction against harassment.” A.R.S. § 12-1809. It can be filed before any municipal 

magistrate, justice of the peace, or superior court judge anywhere in the state, regardless 

of the respondent’s location. No security is required. Injunctions without notice are not 

prohibited, though a petitioner must show what efforts were made to give notice or why 

notice should not be given. In practice notice is rarely given. The addressee of the 

injunction can demand a hearing to lift the injunction, which must be held at the earliest 

possible time and within ten days. 

The statute defines “harassment” as “a series of acts over any period of time that is 

directed at a specific person and that would cause a reasonable person to be seriously 

alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or 

harasses the person and serves no legitimate purpose.” A.R.S. § 12-1809(S). The only 

remedy under the statute is the injunction, but the same conduct may be actionable on 

other grounds. 

Plaintiffs allege Sheree’s subjection to the “walk of shame” was “harassment” 

under A.R.S. § 12-1809(S) and that complaining to higher-ups about it triggered a right 

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against retaliatory termination under A.R.S. § 23-1501(A)(3)(c)(ii). Thus, voicing 

disagreement about a personnel policy gives the very tenure in employment that A.R.S. 

§ 23-1501(A)(2) repudiates. Plaintiffs’ discussion of this is devoid of analysis, consisting 

of four lines in the Third Amended Complaint, five lines in their Response, and nothing 

in their Supplemental Response. This retaliation claim fails as a matter of law on at least 

the following grounds: 

--Bare conclusory allegations do not state a claim. 

--The “walk of shame” is not “harassment” under the plain language of § 12-

1809(S). There was only one “walk of shame,” not a series. It “serves a legitimate 

purpose”—employee safety incentive within the discretion of employers, whether or not 

wise, unless the act is specifically prohibited. The statute is not a mandate for courts to 

add new, unenumerated terms of labor regulation, already one of the most highly 

regulated activities in our society. 

--The definition of “harassment” as “acts . . . that . . . seriously . . . harassed” . . . 

“a reasonable person” is circular. “Reasonable” includes everything that is not irrational 

and everything for which the opposing views are also reasonable. That raises serious 

questions of compliance with due process of law in statutory drafting. The word 

“harassment” alone is so overused and diluted that it has no reliable import for basing 

severe legal consequences on it. The statute should be construed narrowly in hopes of 

saving its constitutionality. 

By no means would the “walk of shame” suffice under § 12-1809(S) to enter an 

injunction against harassment. The Plaintiffs could not reasonably believe it would. 

Count IV fails to state any claim for retaliatory termination under A.R.S. § 23-

1501(A)(3)(c)(ii). The motion to dismiss that claim will be granted. 

C. No Leave to Amend Is Sought or Justified 

Although leave to amend should be freely given “when justice so requires,” Fed. 

R. Civ. P. 15(a)(2), five factors should considered: bad faith, undue delay, prejudice to 

the opposing party, futility of amendment, and whether the plaintiff has previously 

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amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). 

“Futility alone can justify the denial of a motion to amend.” Id. Leave to amend should 

be granted if the complaint’s deficiencies can be cured with additional factual allegations 

that are consistent with and do not contradict allegations in the challenged pleading. 

United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). Dismissal 

without leave to amend is proper if the complaint cannot be cured by any amendment. Id. 

Courts have “especially broad” discretion to deny leave to amend where the plaintiff 

already has had one or more opportunities to amend a complaint. Ascon Props., Inc. v. 

Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir. 1989); Moore v. Kayport Package Exp., 

Inc., 885 F.2d 531, 538 (9th Cir. 1989). In this case, Plaintiffs were expressly warned 

after the Second Amended Complaint that the Third would be the last opportunity to 

amend. They have had ample opportunity to amend, they have not sought leave to file a 

fifth complaint, and they have not suggested anything more they could plead to cure the 

deficiencies. 

Counts IV and V will be dismissed with prejudice. 

IT IS THEREFORE ORDERED granting Plaintiffs leave to file their proposed 

Third Amended Complaint (“redline” version lodged as Doc. 35-1). 

IT IS FURTHER ORDERED that Defendants’ Partial Motion to Dismiss or for 

More Definite Statement (Doc. 25) is granted and Count V (Intentional Infliction of 

Emotional Distress) and Count IV (Statutory Retaliatory Termination) of the Third 

Amended Complaint are dismissed with prejudice. 

Dated: August 8, 2016. 

Neil V. Wake

Senior United States District 

Judge

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