Summary
This order addresses several motions in a pro se plaintiff’s employment-related action against Nationwide Mutual Insurance Company and NCS Arizona LLC. The court denies defendants’ motion to dismiss the defamation per se claim, finding that the alleged workplace communications were conditionally privileged but that actual malice remained a factual issue, and concludes that agency allegations were sufficient at the pleading stage. The court also denies plaintiff’s motion to amend, motion to disqualify the judge, and motion to subpoena witnesses, lifts the stay, and refers further pretrial matters to a magistrate judge.
Topics
Practice areas
Questions Presented
- Whether Plaintiff plausibly stated a defamation per se claim despite qualified privilege, lack of adequately pleaded actual malice, and alleged failure to plead employer ratification or authority.
- Whether Plaintiff should be granted leave to file a Fourth Amended Complaint after the amendment deadline.
- Whether proposed amendments asserting a private cyberstalking claim under 18 U.S.C. § 2261A were futile.
- Whether the judge should be disqualified under 28 U.S.C. § 455(a) based primarily on allegedly unfavorable prior rulings and courtroom management.
- Whether Plaintiff's motion to subpoena witnesses for depositions should be granted while discovery disputes and a discovery stay remained unresolved.
Holdings
- The alleged statements were made in connection with an internal workplace investigation and were conditionally privileged, but the privilege did not require dismissal because Plaintiff sufficiently alleged that Defendants acted with actual malice.
- Plaintiff could proceed with the defamation claim under an alleged agency relationship because the complaint plausibly suggested that the supervisor made the statements with actual authority and within the scope of employment, even though ratification was not adequately pleaded.
- Leave to amend was denied because the motion was filed after the amendment deadline without a satisfactory explanation, largely proposed new theories or revisions to existing claims, and included futile proposed cyberstalking amendments.
- Recusal was denied because Plaintiff identified no extrajudicial source of bias, and adverse rulings and ordinary courtroom administration were insufficient to establish that the judge's impartiality could reasonably be questioned.
- The motion to subpoena witnesses was denied without prejudice because the discovery stay was being lifted and resolution of the parties' joint discovery dispute could affect which subpoenas were necessary.
Key quotations
“The Court finds that the qualified privilege described in Miller applies to the present circumstances.” (Opinion § I.C.1)
“Therefore, Plaintiff may proceed with his defamation claim under the alleged agency relationship.” (Opinion § I.C.2.b)
“To the extent plaintiff disagrees with the undersigned’s determinations, such issues are properly raised through an appeal to the Ninth Circuit, not a motion to recuse.” (Opinion § III)
Factual background
Plaintiff was previously employed by Defendants as a security officer. He alleged that coworkers and his supervisor reported that he had engaged in stalking, harassment, aggressive behavior, and voyeurism, including allegedly possessing recordings of coworkers engaging in sexual activity. Defendants' Office of Associate Relations investigated the allegations and reportedly found them unsupported, but Plaintiff claimed the statements damaged his reputation, caused emotional distress, and resulted in lost wages.
Procedural history
Plaintiff filed a Third Amended Complaint alleging, among other claims, defamation per se arising from statements by coworkers and a supervisor during an internal workplace investigation. Defendants moved to dismiss Claim VII. Plaintiff moved to amend, disqualify the judge, and subpoena witnesses. The court denied all four motions, denied the subpoena motion without prejudice, lifted the discovery stay, and referred further pretrial matters to a magistrate judge.
Remand instructions
No remand. The court lifted the discovery stay, directed that further pretrial matters be referred to a magistrate judge, and directed the magistrate judge to rule on the unresolved joint discovery dispute.