Opinion
No. 1 CA-CV 13-0563
01-13-2015
CHINEDU ONUIGBO, Plaintiff/Appellant, v. EARLY WARNING SERVICES, LLC, Defendant/Appellee.
COUNSEL Chinedu Onuigbo, Glendale Plaintiff/Appellant Greenberg Traurig, LLP, Phoenix By Peter W. Sorensen, Nedda R. Gales Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2012-056061
The Honorable Thomas L. LeClaire, Judge
AFFIRMED
COUNSEL Chinedu Onuigbo, Glendale
Plaintiff/Appellant
Greenberg Traurig, LLP, Phoenix
By Peter W. Sorensen, Nedda R. Gales
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Michael J. Brown joined. SWANN, Judge:
¶1 Chinedu Onuigbo appeals the dismissal of his action against Early Warning Services, LLC ("EWS"). We affirm. The superior court properly dismissed Onuigbo's amended complaint under Ariz. R. Civ. P. 8(a) and 12(b)(6) for failure to state a claim upon which relief could be granted.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2012, Onuigbo commenced an action against EWS and Security Enforcement Services, Inc. ("SES"), purporting to allege various tort claims. The defendants promptly moved to dismiss the complaint under Rules 8(a) and 12(b)(6). The superior court agreed with the defendants that the complaint failed to state a claim, but allowed Onuigbo the opportunity to amend his pleading. Onuigbo timely filed an amended complaint. Again, the defendants moved to dismiss under Rules 8(a) and 12(b)(6). The court granted the defendants' motions and dismissed the action with prejudice. Onuigbo appeals the dismissal with respect to EWS only. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶3 We review an order granting dismissal under Rule 12(b)(6) de novo, affirming only if the plaintiff would not, as a matter of law, be entitled to relief under any interpretation of the facts susceptible of proof. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8, 284 P.3d 863, 867 (2012).
¶4 Under Rule 8, a pleading must give the opposing party fair notice of the nature and basis of the claim by setting forth a short and plain statement that demonstrates entitlement to relief. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6, 189 P.3d 344, 346 (2008). If the pleading fails to comply with Rule 8, it may be subject to dismissal under Rule 12(b)(6) for failure to state a claim. Id. at ¶ 7. In considering whether a claim has been stated, the court must take as true all well-pled factual allegations and reasonable inferences. Id. But the court may not speculate about hypothetical facts, id. at 420, ¶ 14, 189 P.3d at 347, and "a complaint that states only legal conclusions, without any supporting factual allegations, does not satisfy Arizona's notice pleading standard under Rule 8," id. at 419, ¶ 7, 189 P.3d at 346.
¶5 Here, Onuigbo's amended complaint alleged that EWS "engaged and continues to engage in activities that compromise the safety, privacy and reputation of plaintiff"; "continued to invest a significant amount of money and resources that promote [a] harsh and hostile environment for plaintiff"; "compromised [plaintiff's services] such as [the] Onstar in [his] vehicle, [his] Phone, [and his] Internet"; "provid[ed] direction and financial funding for SES surveillance activities against plaintiff," which activities were "vicious, harassing and highly offensive to a reasonable person"; "intentionally intercepted, disclosed or used private conversations and/or affairs of plaintiff disseminating plaintiff's private conversations and/or affairs to the public"; and was "stalking plaintiff." Based on these allegations, Onuigbo purported to set forth claims for harassment and stalking, malicious prosecution, and violation of his constitutional right to privacy under Ariz. Const. art. 2, § 8. For relief, Onuigbo requested that the court enter an injunction against harassment, award civil damages under A.R.S. § 12-731 based on criminal interference with his communications, order an apology letter, and grant equitable relief.
On appeal, Onuigbo asserts additional facts and claims. We consider only the allegations and claims presented in the superior court. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990) ("An appellate court's review is limited to the record before the trial court.").
¶6 The amended complaint's allegations were insufficient to support legally cognizable claims. First, to obtain an injunction against harassment, a person must file a verified petition that includes "[a] specific statement showing events and dates of the acts constituting the alleged harassment." A.R.S. § 12-1809(B)(1), (C)(3). Onuigbo's amended complaint included no such statement. Second, to state a claim for malicious prosecution, a plaintiff must allege that the defendant "(1) instituted a civil action which was (2) motivated by malice, (3) begun without probable cause, (4) terminated in [the] plaintiff's favor and (5) damaged [the] plaintiff." Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 417, 758 P.2d 1313, 1319 (1988). Onuigbo's amended complaint set forth no allegations to support any of these elements. Third, to state a claim for violation of a constitutional right, a plaintiff must allege that the violation was the result of state action. See Hart v. Seven Resorts Inc., 190 Ariz. 272, 276-77, 947 P.2d 846, 850-51 (App. 1997) (analyzing federal constitutional right to privacy). Onuigbo's amended complaint did not allege any state action. To the extent that the claim was intended to be one for the tort of invasion of privacy, Onuigbo was required to allege facts showing that EWS "intentionally intrude[d], physically or otherwise, upon the solitude or seclusion of [Onuigbo] or his private affairs and concerns . . . [and] the intrusion would be highly offensive to a reasonable person." Id. at 279, 947 P.2d at 853 (quoting Restatement (Second) of Torts § 652B (1977)). He did not do so -- his vague and conclusory allegations regarding surveillance were insufficient under Rule 8 to place the defendant on notice of the substance of his claims. Similarly, his conclusory allegations regarding interference with communications were insufficient to describe a claim for damages under A.R.S. § 12-731, which requires allegation and proof of intentional criminal interception, disclosure, or use of a person's wire, oral, or electronic communications.
¶7 The superior court correctly concluded that the amended complaint failed to state a claim upon which relief could be granted. Contrary to Onuigbo's contentions, the dismissal of his action was not based on "mere technicalities" and he was not unfairly deprived of the opportunity to be heard -- his pleading failed to demonstrate that he could be entitled to any relief, and he did not seek leave for further amendment.
CONCLUSION
¶8 We affirm for the reasons set forth above.