Arizona Cases November 09, 2022: Hobbs v. Oppenheimer

Case Description

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ORDER

John C. Hinderaker United States District Judge

Before the Court are Defendants' Motion to Dismiss ("Motion I") (Doc. 7) and Plaintiff's "Responsive in [sic] Memorandum in Opposition to Defendants' Motion to Dismiss and Plaintiff[']s Counter Motion for Default Judg[]ment" ("Motion II") (Doc. 12).

I. Background

Plaintiff Lawrence H. Hobbs commenced this pro se action on June 29, 2022. (Doc. 1 (the "Complaint").) The following is drawn from Motion I's claims, taking them as true. Hobbs and Defendant William Oppenheimer ("WO") have been friends since 1990 and were colleagues at some point. ( Id. at 5.) Hobbs and WO are both project managers in the "mineral industry." ( Id. ) Hobbs is a "degreed Mining Engineer with extensive public and private sector applicable experience." ( Id. ) WO is either a "degreed Geologist" or a "Project Manager" or both. ( Id. ) WO works for the Arizona firm M3 Engineering & Technology ("M3"), which is an "employee-owned," "medium-sized construction company with 488 employees and a revenue of $55.0M." ( Id. ) In the course of their 30-year relationship, WO "offered to employ [Hobbs] with his firm" "multiple times." ( Id. )

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On February 27, 2022, WO contacted Hobbs and "again extend[ed] . . . a verbal offer of employment[] as a project manager, with former associates Mr. Donald Earnest and Mr. John Barber at ¶ 3." ( Id. ) Hobbs "accepted [the verbal offer]" and eleven weeks later, on May 18, 2022, "formally submitted [his] resume to . . . an active ad for employment on M3's career website for a project manager which had been active since January 2022." ( Id. )

As the result of "subsequent discussions" with WO, Hobbs "arranged to spend a few days at [WO's] residence over the course of [Hobbs's] travels to and from the west coast." ( Id. at 6.) As Hobbs was "traveling en route . . . by train," WO "began to question [Hobbs's] mode of travel . . . and . . . declared ["to [Hobbs] and to others" that Hobbs] was traveling by train due to having lost his driver's license privileges, due in part to criminal activity pertinent to his prior employment relationship and engagement in protected EEO activity." ( Id. )

On June 20, 2022, Hobbs arrived at Defendants' residence, where WO and WO's wife Defendant Barbara Oppenheimer ("BO") "began to additionally harass [Hobbs] about his prior employment experiences." ( Id .) The next day, Defendants "let it be known . . . that M3 would not employ [Hobbs] on the basis of his age, his sex as a male, and for a false assertion record of prior criminal activity, based on his prior EEO activity, which led [to] the revoking of his driver's license, and for his prior engagement in activity protected by the equal employment laws and/or the whistleblowing laws of the United States and the State of Arizona." ( Id. )

On June 27, 2022, M3 "rescinded the previous posting for the Project Manager . . . and . . . placed a new posting on [M3's] career website for a project manager." ( Id. )

On June 29, 2022, Hobbs filed this action. He pleads nine claims:

(1) Defendants "slandered and defamed the Plaintiff, as either libel, 'slander per se' and/or 'defamation per se', with negligence and malice, made oral and/or written statements, before one or more persons, inclusive of persons considering the Plaintiff for employment, in making one or more statements that brings the plaintiff

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into disrepute, contempt, or ridicule, or impeaches a [sic] plaintiff's honesty, integrity, virtue, or reputation, by asserting his driver's license was revoked for unlawful activity, namely DUI";

(2) Defendants "slandered and defamed the Plaintiff [as in Claim 1], by asserting his performance as an employee would be negatively affected by his age and younger employees should be considered and/or hired in lieu of submitting an offer to the Plaintiff for employment";

(3) Defendants "slandered and defamed the Plaintiff [as in Claim 1], by asserting his performance as an employee would be negatively affected by his prior engagement in protected employment activity, under Title VII, that is namely reporting certain unlawful and discriminatory employment practices, and thus Plaintiff would be a risk to the potential employer, and other candidates should be considered and/or hired in lieu of submitting [an] offer to the Plaintiff for employment";

(4) Defendants "slandered and defamed the Plaintiff [as in Claim 1], by asserting his performance as an employee would be negatively affected by his prior engagement in protected employment activity, under The Whistleblowers Protection Act, that is namely reporting certain unlawful and discriminatory practices, of mining companies['] interactions with the Federal government, and thus Plaintiff would be a risk to the potential employer, and other candidates should be considered and/or hired in lieu of submitting an offer to the Plaintiff for employment";

(5) Defendants "through their libelous, slanderous and defamatory statements, executed intentional, malicious and unlawful tortious interference by 'intentionally and improperly interfer[ing] with the performance of a contract between another and a third person by inducing or otherwise causing the third person not to perform the contract";

(6) Defendants committed tortious interference as in Claim 5 by "intentional interference with Plaintiff['s] performance of his own contract, that caused another to terminate or not to perform a contract, or that makes another's performance of a

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contract impossible or more difficult";

(7) Defendants committed tortious interference as in Claim 5 by "inducing or otherwise causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the relation";

(8) Defendants breached an employment contract "[p]ursuant to [the] Statute of Frauds . . . and/or A.R.S. § 23-1501" when "one or more Defendants[] failed to live up to their agreement in a contract, or an employer terminates [sic] an employee for reasons that are not provided for in the employment contract or are protected by state or federal laws, thus one or more Defendants [breached] a verbal contract for employment"; and

(9) Defendants "fraudulently represented they had the authority to enter into a contract for employment on behalf of M3 Engineering and Technology, when offering a verbal offer of contract for employment."

II. Jurisdiction and Venue

The Court has jurisdiction under 28 U.S.C. § 1332 because Plaintiff is a citizen of Texas, Defendants are citizens of Arizona, and the amount in controversy is $1,500,000. (Doc. 1 at 2-3.) Venue is proper under 28 U.S.C. § 1391 because Defendants reside in Arizona. (Doc. 1 at 2.)

III. Legal Standard

A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This provides defendants with "fair notice" of the claims against them and the grounds for relief. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (internal quotations and citation omitted). A complaint filed pro se must be "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94 (2007).

A court may dismiss a complaint under Rule 12(b)(6) if the complaint does not contain enough facts to state a claim that is plausible on its face. Id . at 570. A claim is facially plausible where "the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id . (quoting Twombly , 550 U.S. at 557). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555 (internal citations and parentheticals omitted). In considering a motion to dismiss, a court assumes the truth of the allegations and all reasonable inferences from them, and construes them in the light most favorable to the plaintiff. Id . at 550; see also Coleman v. City of Mesa , 230 Ariz. 352, 355-56 (2012).

IV. Analysis

a. Motion I

i. The Court dismisses Defendants BO and John/Jane Does #1-6.

The Complaint fails to show any entitlement to relief from Defendants BO and John/Jane Does #1-6. First, the Complaint does not plausibly allege any claims against Defendant BO. The Complaint does not state that BO works at ¶ 3 or contributes to M3's hiring decisions. The Complaint includes no facts that give rise to the reasonable inference that BO did or could (1) defame Hobbs to M3's hiring managers, (2) interfere with any of Hobbs's contracts, (3) form a verbal employment contract with Hobbs, or (4) fraudulently represent that she could offer M3 employment to Hobbs. Instead, the Complaint focuses entirely on Defendant WO, who worked at ¶ 3, who offered Hobbs a job at ¶ 3 several times including in February, 2022, who declared "to [Hobbs] and to others" that Hobbs's license was revoked due to criminal and EEO activity, and who was in any position to talk to M3 employees reviewing Hobbs's application. By contrast, Defendant BO is related to the action only by marriage to WO and by a vague inclusion in claims that much more clearly implicate WO. Finally, the Complaint does not allege that WO's actions were “for

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the benefit and furtherance of the marital community” as required for a judgment against marital property in Arizona. See, e.g. , Selby v. Savard , 134 Ariz. 222, 229 (1982). Without that or additional facts plausibly alleging BO's specific involvement, such as a connection between BO and M3, the Complaint fails to show entitlement to relief from BO.

Second, and similarly, the Complaint lists M3 employees "John/Jane Does #1-6" as defendants, but does not name M3 as a defendant or show any basis to infer wrongdoing by M3 employees. ( See Doc. 1 at 2, 5-8.) The Court therefore grants in part Motion I and dismisses Defendant BO and all John/Jane Does without prejudice. The Court will use "Oppenheimer" to refer to the remaining Defendant WO going forward.

ii. The Court does not dismiss Claims 1-4 (Defamation).

To state a claim for defamation, a plaintiff must plead facts plausibly alleging a defendant (1) wrote or said something false and disparaging (2) either knowingly, recklessly, or negligently. See Peagler v. Phoenix Newspapers, Inc. , 114 Ariz. 309, 315 (1977). Generally, a defamation claim must establish damages. Modla v. Parker , 17 Ariz.App. 54, 56 (1972) (citation omitted). But damages are assumed when the defamation "tends to injure a person in his profession, trade or business." Id. This "defamation per se" requires disparagement of "a character that is peculiarly valuable in the plaintiff's business or profession," not merely a disparagement "of a general character, equally discreditable to all persons." Breeser v. Menta Group, Inc., NFP , 934 F.Supp.2d 1150, 1163 (2013) (quoting Restatement (Second) of Torts § 573 cmt. e (1977)).

Oppenheimer makes just one legal argument against Hobbs's defamation claims. Oppenheimer argues that Hobbs's claims suffer from a "generalized" and "vague description" that do not "raise a right to relief above the speculative level." (Doc. 7 at 7-8 (citing Bell Atl. Corp. , 550 U.S. at 555).) The Court disagrees. Although Hobbs's defamation claims are difficult to decipher, they are not vague or generalized. Hobbs pleads that Oppenheimer defamed him by making statements (1) that Hobbs's driver's license was revoked for driving under the influence; (2) that Hobbs's age would negatively affect his performance; (3) that Hobbs's previous Title VII activity would negatively affect his

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employment; and (4) that Hobbs's former Whistleblowers Protection Act activity would negatively affect his employment. Those are not vague claims. They allege the specific character of the defamatory statements, the approximate time and place where they were made, and the Complaint clearly implies that the statements were made to M3 employees responsible for evaluating Hobbs's application. They are also, at least in part, statements that could support a defamation claim.

Oppenheimer's argument is also unpersuasive for what it fails to do. Rather than comparing the elements of defamation to Hobbs's claims, Motion I instead resorts to conclusory arguments. For example, Motion I states that Hobbs fails to "establish a colorable defamation claim" when he alleges that Oppenheimer let it be known that M3 would not hire Hobbs due to "criminal activity" and "prior involvement in 'EEO' or other protected activity." (Doc. 7 at 7.) But simply stating that Hobbs failed to establish a colorable claim is insufficient without explaining why Hobbs failed. The next sentence similarly argues that Hobbs's "vague" description "fails to show that the alleged statements were defamatory," but then never explains why. Conclusory statements do not establish a failure to state a claim any more than they establish a claim. That is particularly true when the conclusory statements contain a detailed recognition of the claims' substance.

For these reasons, Motion I is denied in part as it relates to Claims 1-4.

iii. The Court dismisses Claims 5-6 (Interference with Contract).

Oppenheimer treats Claims 5-7 as all alleging interference with a contract, ( see Doc. 7 at 8), but Claims 5 and 6 plead interference with a contract, and Claim 7 pleads interference with a prospective contract. This distinction illustrates a fundamental tension

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within the Complaint's facts and claims. Hobbs appears simultaneously to plead both (1) a contract formed between Hobbs and M3 in February, and (2) no contract formed but Hobbs expected one after applying to M3 in June.

Rule 8(d) permits inconsistent claims and arguments in the alternative. Fed.R.Civ.P. 8(d)(2)-(3). But Rule 8 does not indicate whether inconsistent facts are permissible-the rule does not mention facts at all. The Court's mandate in this context is to accept all alleged facts as true. See Iqbal , 556 U.S. at 678. That mandate therefore extends even to inconsistent facts. But the Court's mandate also distinguishes between truth and plausibility. See Twombly , 550 U.S. at 556 (referring to each distinctly). The Court's task is first to take the facts as true, and second to analyze whether they plausibly state a claim. Iqbal, 556 U.S. at 678. Because the Court must accept all facts as true but need not accept all facts as plausibly stating a claim, the Court concludes that it may view inconsistent facts as less capable than consistent facts of plausibly stating a claim.

Claims 5 and 6 imply that Oppenheimer formed a contract between Hobbs and M3. Both claims refer to interference with the performance of a contract, which requires the existence of a contract to perform. ( See Doc. 1 at 7.) To plausibly state a claim for interference with a contract, a complaint must allege "(1) the existence of a valid contractual relationship; (2) knowledge of the relationship on the part of the interferer; (3) intentional interference inducing or causing a breach; (4) resultant damage to the party whose relationship has been disrupted; and (5) improper action on the part of the defendant." Bar J. Bar Cattle Co., Inc. v. Pace , 158 Ariz. 481, 483 (App. 1988).

Oppenheimer objects that the Complaint pleads only Hobbs's own conclusion that a verbal contract for employment existed, that Oppenheimer made defamatory statements, and that M3 pulled and then reposted the project manager position on its career site. (Doc. 7 at 8-9.) Oppenheimer also asserts that Hobbs's reference to an "offer" and "acceptance" does not establish the existence of a valid contractual relationship. ( Id. at 9.) Finally, Oppenheimer concludes that the "remaining factual allegations fail to satisfy any of the other elements of a tortious interference with contract claim" without explaining why. ( Id. )

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As above, Oppenheimer fails to show his work. But Oppenheimer's conclusion is correct.

Hobbs pleads more than his own conclusion that a contract formed in February, 2022. The Complaint states that "[o]n or about February 27th, 2022, [Oppenheimer] . . . contacted [Hobbs], again extending to him a verbal offer of employment, as a project manager, with former associates Mr. Donald Earnest and Mr. John Barber at ¶ 3." (Doc. 1 at 5.) The Complaint further states that "[p]ursuant to that verbal offer, [Hobbs] accepted[.]" ( Id. ) If accurate, and if Oppenheimer had actual or apparent authority to hire M3 project managers when he made Hobbs an offer, these statements could plausibly allege a contract was formed. The offer allegation is also detailed, specifying the date, position, and anticipated co-workers.

But Hobbs does not plead enough facts to plausibly allege that a contract formed. For example, the Complaint characterizes Oppenheimer's statement to Hobbs as "extending to [Hobbs] a verbal offer of employment." A characterization is insufficient in this context, which requires more than a "recitation of a claim's elements." Twombly , 550 U.S. at 555. Hobbs must provide the specific statement Oppenheimer made that Hobbs chose to characterize as a "verbal offer of employment." The Court can then decide whether to characterize the statement as a "verbal offer." The same is true of Hobbs's "acceptance." Hobbs may not simply characterize his reply to Oppenheimer as "accepting [pursuant to the verbal offer]." That is a conclusion of law reserved for the Court. Hobbs must instead provide the specific statement he made in response to Oppenheimer's specific statement. Because Hobbs alleges that Oppenheimer formed a contract between Hobbs and M3, Hobbs must also allege specific facts showing-not merely concluding-that Oppenheimer had authority to form employment contracts on M3's behalf. Finally, the Court notes that the facts are somewhat inconsistent. Hobbs pleads both that Oppenheimer offered him an M3 position in February, and that Hobbs applied for the position in June. Without disputing the truth of either fact, the Court concludes that the Complaint's inconsistency reduces the plausibility of its allegation that a contract formed in February.

For these reasons, the Court grants in part Motion I as it relates to Claims 5-6.

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iv. The Court dismisses Claim 7 (Interference with Expectancy).

Claim 7, as well as Claims 1-4 and 9, imply that Oppenheimer did not form a contract between Hobbs and M3, but Hobbs nevertheless expected one to form. Claim 7 refers to the Restatement Second of Torts § 766B, which prohibits interference with "another's prospective contractual relations." Claims 1-4 state that Oppenheimer defamed Hobbs by telling "persons considering [Hobbs] for employment" (Claim 1) that "other candidates should be considered and/or hired in lieu of submitting [ an ] offer to [Hobbs] for employment" (Claims 2-4). (Doc. 1 at 7 (emphasis added).) Finally, Claim 9 alleges Oppenheimer misrepresented his authority to offer Hobbs a position at ¶ 3. ( Id. )

The Complaint also pleads several facts that imply a contract between Hobbs and M3 never formed. The Complaint describes Hobbs as "an extremely well qualified candidate for employment as pertinent to this cause." ( Id. at 5.) The Complaint further states Hobbs "formally submitted [his] resume to [M3] to an active ad for employment on M3's career website . . . on or about May 18th, 2022." ( Id. ) As noted above, the fact that Hobbs applied for employment in June belies the fact that Hobbs accepted an offer of employment from Oppenheimer in February. That inconsistency would disappear if, for example, Oppenheimer did not offer Hobbs employment but instead solicited his application and assured Hobbs he would get the position. But the Complaint does not say that. As written, the Complaint plausibly alleges only that Hobbs expected to get the M3 position when he applied in June because he was well qualified. Why else Hobbs expected to get the position is left to the Court's imagination.

Arizona law on interference with a prospective contract is slightly different from its law on interference with a contract. Compare Bar J. Bar Cattle Co., Inc. , 158 Ariz. at 483 (listing interference with contract elements), with Dube v. Likins , 216 Ariz. 406, 412-13 (App. 2007) (listing interference with prospective contract elements). Since the claims' inception in 1853, courts have struggled to separate and apply them, allowing them to evolve together in "an illogical and piecemeal fashion." Larry Watkins, Tort Law-Tortious Interference with Business Expectancy-A Trap for the Wary and Unwary Alike , 34 U. Ark.

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Little Rock L. Rev. 619, 619-21 (2012). Some courts follow the Restatement, see, e.g. , Webster v. Culbertson , 158 Ariz. 159, 162 (1988) (en banc), and others do not. See Kutcher v. Zimmerman , 87 Hawai'i 394, 406 (App. 1998). In any event, the claims are distinct in Arizona. See Mann v. GTCR Golder Rauner, L.L.C. , 483 F.Supp.2d 884, 923 (D. Ariz. 2007) (rejecting an attempt to recast an interference with contract claim as an interference with business expectancy claim after four years of litigation and four amended complaints).

A prospective contract-or "expectancy" -is inherently speculative. To allege facts plausibly stating a claim of a valid expectancy, a complaint must allege more than a "mere hope." Marmis v. Solot Co. , 117 Ariz. 499, 501-02, (App. 1977). In Marmis , bidders for an estate-sale property sued for interference with the bidders' expectation that their bid would secure the property. Id. at 501. The bidders expected their bid would win because their initial list-price offer was accepted. Id. The bidders were disappointed to learn that, after accepting their bid, the court responsible for supervising the estate sale subsequently accepted another, higher bid from another bidder. Id. at 502. The reviewing court held that the bidders had no justifiable expectation of purchasing a property for its listed offer price because offer acceptance was conditioned on court approval and the absence of other bidders. Id. at 502. The court reasoned that:

"[r]easonable assurance … in view of all the circumstances is sufficient [to establish a valid expectancy] … [but] substantial damages cannot be recovered from one who interferes to prevent another from securing a contract for which he has bid, where the person receiving the bids has the right to reject any bid , so that there is nothing to show that the contract would have been secured in the absence of interference."

Id. (quoting 45 Am. Jur. 2d § 12) (emphasis added).

An expectancy is more than a "mere hope" when "evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered." See Dube v. Likins , 216 Ariz. 406, 412, 414 (App. 2007) (quoting Ethan Allen, Inc. v. Georgetown Manor, Inc. , 647 So.2d 812, 814 (Fla. 1994)).

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In Dube , the court held that a post-graduate student had no reasonable expectation of finding employment where he presented evidence that he had a 4.0 GPA but did not allege he had begun negotiations with any employer. Id. at 414. The Dube court distinguished another Arizona interference case, Edwards v. Anaconda Co. , 115 Ariz. 313, 314 (App. 1977), where negotiations were well underway. In Edwards , the plaintiff met with a representative of the Continental Oil Company, Conoco, several times from May to October, 1971, to discuss Conoco's purchase of Edwards' mining claims. Appellant's Opening Brief at 7-8, Edwards v. Anaconda , 115 Ariz. 313 (1977) (No. 2CA-CIV-2232). In early October, Conoco's representative told Edwards that Conoco was "very interested" in acquiring the claims. Id. at 8. A week later, Edwards presented detailed purchase terms to Conoco, and Conoco's representative replied that they were generally acceptable to Conoco with a minor modification. Id. at 9. A week after that, Edwards delivered maps and technical data to the Conoco representative, who told Edwards that "everything was a go- we have a deal." Id. But the next week Conoco's representative called and said that Conoco would withdraw from further consideration, making vague allusions to a competitor's competing claims. Id. The court denied Edwards' claim against the competitor under a now-defunct approach to tortious interference while noting "indications of intentional interference." Edwards , 115 Ariz. at 316.

In Ethan Allen , the Florida case cited in Dube , the court determined that expecting customers to return was a "mere hope" where a furniture retailer had no identifiable agreement with past customers that they would return to purchase furniture in the future. 647 So.2d at 815. The furniture retailer sought to claim, in part, that a competitor's ad tortiously interfered with the retailer's prospective "relationship" with 89,000 customers who had shopped at the retailer in the past and "might shop there again in the future." Id. at 814. The Ethan Allen court disagreed. Id. at 815. It contrasted the furniture retailer's situation with Landry v. Hornstein , where a valid expectancy existed because negotiations

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between a pharmacist and prospective buyer had progressed beyond the stage of an offer from the prospective buyer to "an understanding" between the two parties. Id. (citing 462 So.2d 844, 846-47 (Fla. Ct. App. 1985)); see also 360 Construction Company, Inc. v. Atsalis Bros. Painting Co., 915 F.Supp.2d 883 (E.D. Mich. 2012) (jury reasonably could conclude that the expectancy had passed the point of wishful thinking and matured to a reasonable likelihood where two copies of the contract had been sent for signature); Physical Excellence v. Dow , No. CIV 03-0150-PHX-EHC, 2006 WL 8441227, at *7 (D. Ariz. Mar. 6, 2006) (jury question whether a reasonable expectancy existed where two companies negotiated for three months, drafted a license agreement, counsel for each reviewed the draft and proposed changes, and an executive testified that the "deal points are all squared away with the attorneys and we anticipate executing this agreement" within a month).

Here, Hobbs has not pled enough facts to plausibly allege a contract with M3 was forthcoming. Hobbs pleads only that he was qualified and that he submitted his application to M3. Hobbs does not state that M3 was obliged to offer him a position. Hobbs does not state that he and M3 were negotiating the terms, or identify any tacit or explicit agreement between Hobbs and M3. The Complaint's reference to Oppenheimer's statements is either conclusory, vague, or contradictory. From these facts, the Court cannot infer a contract was forthcoming and not a mere hope. Like the 4.0-GPA student in Dube , Hobbs's qualifications do not establish a reasonable assurance M3 would accept his application. Like the court in Marmis that had the right to reject bids on the estate property, M3 has the right to reject applications for lawful, nondiscriminatory reasons. And unlike Edwards , 360 Construction Co. , and Physical Excellence , where negotiations were robust, ongoing, and nearly complete, here the Complaint describes no negotiations between Hobbs and M3.

For these reasons, the Court grants in part Motion I as it relates to Claim 7.

v. The Court dismisses Claim 8 (Breach of Contract).

To state a claim for breach of a contract in Arizona, the plaintiff must plead facts plausibly alleging "(1) a contract exists between the plaintiff and the defendant, (2) the

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defendant breached the contract, and (3) the breach resulted in damage to the plaintiff." Hannibal-Fisher v. Grand Canyon Univ. , 523 F.Supp.3d. 1087, 1093 (D. Ariz. 2021) (citation omitted). In his claim, Hobbs also refers to A.R.S. § 23-1501, which affords protections for employment contracts provided they contain certain terms and are executed in writing and signed by the party to be charged.

Oppenheimer argues that he is not an "employer," as implied by Hobbs's citation to A.R.S. § 23-1501. ( Id. ) Oppenheimer reiterates that statute's requirement that employment contracts must be in writing and signed by the party to be charged. ( Id. ) The Court agrees with the gist of Oppenheimer's argument. Hobbs pleads no facts plausibly alleging that Oppenheimer formed or breached a contract between Oppenheimer and Hobbs. Rather, Hobbs clearly identifies any contract as between Hobbs and M3 by listing anticipated M3 co-workers Mr. Earnest and Mr. Barber, by specifying the position of project manager, and by detailing his "formal" submission of a resume to M3 for a project manager position listed on its career website. (Doc. 1 at 5.) Therefore, taking Hobbs's allegations as true, a contract could not exist between Hobbs and Oppenheimer, only between Hobbs and M3.

For that reason, the Court grants in part Motion I as it relates to Claim 8.

vi. The Court dismisses Claim 9 (Fraudulent Misrepresentation).

To state a claim for fraudulent misrepresentation, a plaintiff must plausibly allege "(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of the representation's falsity or ignorance of its truth; (5) the speaker's intent that it be acted upon by the recipient in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the right to rely on it; and (9) his consequent and proximate injury." Echols v. Beauty Built Homes , 132 Ariz. 498, 500 (1982). The Federal Rules of Civil Procedure require a higher pleading standard for fraud claims. See Fed. R. Civ. P. 9(b) (claims must be stated "with particularity").

Oppenheimer states that Hobbs does not establish any of the claim elements under 9(b)'s heightened standard, but then fails to explain why. Oppenheimer is mistaken. Hobbs pleads several elements with particularity. Hobbs pleads facts alleging a representation

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(Oppenheimer extended Hobbs a verbal offer of employment with two former colleagues on February 27, 2022), its materiality (an offer of employment), and his injury (the rescission of the offer or breach of the contract). But several of the other elements are not pled with particularity. Hobbs does not plead particular facts plausibly alleging that Oppenheimer's representation was false; instead, he argues in the alternative that either a contract was formed and then breached, or that a contract was not formed but was forthcoming. Oppenheimer's representation could only be false under the second theory. Faced with particular facts pled under the first theory-the February offer-and only an implication supporting the second theory-the June application-the Court concludes that the Rule 9(b) particularity requirement is not met for falsity elements (2), (4), and (6).

Similarly, Hobbs does not plead particular facts plausibly alleging that he relied on Oppenheimer's representation or that Oppenheimer intended Hobbs to rely on it. Hobbs does not claim that he would not have visited Oppenheimer absent a contract for employment. In fact, the Complaint implies the visit was a matter of convenience. ( See Doc. 1 at 6 (Hobbs arranged to spend a few days with Oppenheimer "over the course of [Hobbs's] travels to and from the [West Coast]").) Hobbs pleads no other facts showing reliance on an offer of employment. The fact that Hobbs "formally" applied to M3 in June implies he did not rely on Oppenheimer's offer at all. The Court also concludes that the Rule 9(b) particularity requirement is not met for elements (5) and (7).

The Court therefore grants in part Motion I as it relates to Claim 9.

vii. The Court will not adjudicate the Complaint's "Future Claims."

Oppenheimer does not mention the Complaint's section titled "Future Claims by

Amendment." In it, Hobbs appears to "reserve his right to amend" the Complaint and indicates some claims he intends to bring at a later date. (Doc. 1 at 8.) Because these future claims are not well pled, the Court need not, and does not, reach them now.

viii. The Court dismisses Defendants BO, John/Jane Does #1-6, and Claims 5-9 without prejudice to Hobbs's right to seek leave to amend.

If a pleading can be remedied through the addition of facts, the plaintiff should be granted an opportunity to amend. Lopez v. Smith , 203 F.3d 1122, 1127-29 (9th Cir. 2000)

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(en banc). Dismissal should not be without leave to amend unless the face of the complaint is clearly frivolous and could not be amended to state a claim. See, e.g. , Cato v. United States , 70 F.3d 1103, 1106 (9th Cir. 1995) (dismissed as frivolous). A dismissal without prejudice preserves a party's right to seek leave to amend under Fed.R.Civ.P. 15(a)(2).

Here, the Complaint is not obviously frivolous, however tenuous some of its claims appear to be. If Hobbs can provide additional facts-not legal authority or arguments- that justify reincorporating the dismissed parties or claims, he is welcome to seek amendment. The Court will permit him 21 days from the date of this order to do so. Failure to file an amended complaint within 21 days of this order may result in the dismissal with prejudice of those claims the Court has thus far dismissed without prejudice.

b. Motion II

In Motion II, Hobbs "asserts all the Defendants[] notices and pleadings were improperly submitted pursuant to the Federal Rules of Civil Procedure (FRCP) and/or other certain local rules of this court." (Doc. 10 at 2.) Hobbs seeks default judgment against Oppenheimer because (1) Oppenheimer failed "to file an answer within sixty days of Wednesday June 29th, 2022, which calculates to Sunday, August 28, 2022 [and] Defendants . . . filed their Notice of Appearance and [Motion I] on Monday August 29th, 2022" ( id. at 4); (2) Oppenheimer improperly served Motion I by failing to notify Hobbs by U.S. Postal Service 1st class mail "or greater" ( id. at 4-5); and (3) Oppenheimer failed to comply with LRCiv 12.1(c)'s conferral requirements. (Doc. 10 at 5.)

First, when the last day of any period falls on a Sunday, the period continues to run to the next day that is not a Sunday or legal holiday. Fed.R.Civ.P. 6(a)(1). Hobbs filed the Complaint on June 29, 2022. (Doc. 1.) Sixty-one days later, on Monday, August 29, 2022, Oppenheimer filed Motion I. (Doc. 7.) Motion I is therefore timely.

Second, Oppenheimer certified service, mailed hard copies of Motion I by U.S. Mail, and emailed a copy to Hobbs when Oppenheimer filed Motion I. (Doc. 11-1 at 2.) Hobbs was aware Motion I and its contents because he timely responded to it in detail in Motion II. Motion I was therefore not deficient for improper service.

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Third, Oppenheimer sent Hobbs a conferral letter one week before the deadline to respond to the Complaint, and Hobbs acknowledged receipt the same day. (Doc. 11-2 at 3.) Hobbs then announced his willingness to amend the Complaint the morning Oppenheimer's response was due. (Doc. 11-2 at 6-7.) Oppenheimer was not obligated to wait for Hobbs's reply until the minute before Oppenheimer's motion was due. Hobbs's delay was also unreasonable under the circumstances. Oppenheimer therefore did not violate his conferral obligations when filing Motion I.

For these reasons, Motion II is denied .

V. Order

Accordingly, IT IS ORDERED DENYING IN PART Motion I (Doc. 7) regarding Claims 1-4;

IT IS FURTHER ORDERED GRANTING IN PART Motion I (Doc 7) and dismissing without prejudice Defendant Barbara Oppenheimer, Defendants John/Jane Does #1-6, and Claims 5-9. Plaintiff has until November 30, 2022, to file an amended complaint to the extent allowed by this Order and the Rules of Civil Procedure. The Court cautions that failure to file an amended complaint by November 30, 2022, may result in the dismissal of those parties and claims the Court has thus far dismissed without prejudice;

IT IS FURTHER ORDERED DENYING Motion II (Doc 10);

IT IS FURTHER ORDERED DIRECTING Defendant Oppenheimer to answer the Complaint Claims 1-4 no later than December 21, 2022, if Plaintiff does not file an amended complaint. If Plaintiff does file an amended complaint, Defendant shall either answer it or file another motion to dismiss no later than December 21, 2022.