O.W. v. Arizona, State of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
O.W.,
Plaintiff,
v.
State of Arizona, et al.,
Defendants.
No. CV-25-00044-PHX-DWL
ORDER
Plaintiff O.W., who has been granted permission to proceed under her initials during
the pretrial phase of this case (Doc. 21), alleges that she was sexually assaulted by an
inmate while working as a civilian kitchen worker in the Rincon Unit of the Arizona State
Prison Complex-Tucson. The defendants named in Plaintiff’s operative complaint are the
State of Arizona (“the State”), the private entities that employed her, and certain prison
officials, but Plaintiff and the entities have now settled. (Docs. 60, 63.) Plaintiff asserts
federal claims under 42 U.S.C. § 1983 and Title VII as well as three-state law claims
against the State—Count Two is a claim for “Intentional Infliction of Emotional Distress,”
Count Three is a claim for “Negligence/Gross Negligence: Failure to Adequately Staff,
Train, Supervise, and Monitor,” and Count Four is a claim for “Negligence/Gross
Negligence: Vicarious Liability.”
Now pending before the Court is the State’s motion to dismiss Counts Two, Three,
and Four. (Doc. 53.) Notably, the motion only seeks relief under Rule 12(b)(1), under the
theory that the Court lacks subject-matter jurisdiction over the challenged claims. (Id. at
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1.) In a nutshell, the State’s argument is that “[b]ecause the State is Plaintiff’s statutory
employer, Plaintiff’s exclusive remedy against the State for her alleged injuries is through
Arizona’s workers’ compensation scheme.” (Id.) Plaintiff opposes the State’s motion on
a variety of grounds, including that “[t]he worker’s compensation issue that the State
raises—whether or not it was Plaintiff’s statutory employer—has nothing to do with
subject matter jurisdiction.” (Doc. 56 at 1.) In reply, the State acknowledges that Plaintiff
is “arguably” correct on this point. (Doc. 61 at 5.)
The State’s jurisdictional challenge lacks merit. Even assuming for the sake of
argument that the State qualifies as Plaintiff’s “statutory employer”—and, thus, the
Arizona Workers’ Compensation Act would preclude an Arizona state court from granting
relief in relation to Counts Two, Three, and Four—it doesn’t follow that this Court lacks
subject-matter jurisdiction over those claims. The Fourth Circuit recently confronted a
nearly identical issue and addressed it as follows:
South Carolina law provides that certain workers’ compensation disputes are
within the exclusive cognizance of the state Workers’ Compensation
Commission. This means that covered employees cannot bring common-law
actions, like tort claims, in state courts. But state law cannot circumscribe
federal subject matter jurisdiction. So when these injured workers arrived in
federal court and were met with a motion to dismiss for lack of subject matter
jurisdiction, which cited the state law, a procedural mess ensued. Despite the
understandable confusion about the state law’s effect on federal jurisdiction,
we conclude that the district court erred in dismissing the workers’ complaint
for lack of subject matter jurisdiction. We thus vacate that decision and
remand for further proceedings.
Wideman v. Innovative Fibers LLC, 100 F.4th 490, 492 (4th Cir. 2024).
In reaching this conclusion, the Fourth Circuit “align[ed] [itself] with other courts
who have similarly found that state workers’ compensation statutes do not deprive federal
courts of subject matter jurisdiction,” id. at 498 n.8, including Begay v. Kerr-McGee Corp.,
682 F.2d 1311 (9th Cir. 1982). In Begay, the Ninth Circuit rejected the argument “that the
Arizona workers’ compensation statutes, by vesting exclusive jurisdiction in the Arizona
Industrial Commission, deprive the district court of diversity jurisdiction” and explained
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that where “a state denial of the judicial remedy is equivalent to a denial of the substantive
right asserted, the plaintiff may not state a claim for relief in either the state or the federal
court . . . [b]ut that does not mean, as the companies maintain, that the district court does
not have jurisdiction.” Id. at 1316-17. See also U.S. Fid. & Guar. Co. v. Lee Invs. LLC,
641 F.3d 1126, 1132-33 (9th Cir. 2011) (“[T]he Employer claims that the district court
lacked subject matter jurisdiction because California law vests the State Board alone with
jurisdiction to entertain the Insurer’s claims. However, in [Begay], we rejected the
argument that exclusivity provisions in state workers’ compensation laws, like those in
California’s Workers’ Compensation Act, could divest federal courts of subject matter
jurisdiction . . . . Thus, even if we were to hold that the exclusivity provisions applied, they
would not operate to divest the federal court of subject matter jurisdiction.”) (footnotes
omitted). In light of these authorities, the State’s request to dismiss Counts Two, Three,
and Four pursuant to Rule 12(b)(1) must be denied.1
The State attempts to pivot in its reply, arguing that “if the Court determines that
the State’s Motion is procedurally improper under Rule 12(b)(1), it should, in its discretion,
consider the motion as one for failure to state a claim under Rule 12(b)(6) or a motion for
judgment on the pleadings under Rule 12(c).” (Doc. 61 at 6.) According to the State, this
outcome is “require[d]” as a matter of “the equitable administration of the law.” (Id. at 5.)
This argument is unavailing. It is hornbook law that “[t]he district court need not
consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d
990, 997 (9th Cir. 2007). There are sound reasons for this rule—because “the non-moving
party ordinarily has no right to respond to the reply brief,” considerations of “litigation
fairness and procedure” counsel against providing “the moving party with a new
opportunity to present yet another issue for the court’s consideration” for the first time in
a reply. Novosteel SA v. U.S., Bethlehem Steel Corp., 284 F.3d 1261, 1274 (Fed. Cir. 2002).
Those considerations are particularly salient here because the ultimate issue the State seeks
1 To the extent the State has identified decisions by district courts within the Ninth
Circuit that appear to deviate from the approach taken in Begay, this Court must follow
Ninth Circuit law.
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to have resolved in its favor—whether it was Plaintiff’s “statutory employer at the time of
[her] injury”—“is a mixed question of law and fact.” Pruitt v. State, 571 P.3d 356, 360
(Ariz. Ct. App. 2025). As a result, it appears that courts typically address this issue at
summary judgment. Nevertheless, due to the mistaken manner in which the State
attempted to raise this issue in its motion, the usual summary judgment briefing process
was not followed (and Plaintiff has not been heard on, for example, whether she should be
allowed to pursue additional discovery before responding to an early summary judgment
motion). Cf. Shapiro v. Community First Servs., Inc., 2013 WL 1122628, *5-6 (E.D.N.Y.
2013) (“[A]s a threshold matter, the Federal Rules of Civil Procedure do not explicitly
authorize the conversion of a Rule 12(b)(1) motion into a motion for summary judgment
. . . . Notably absent from Rule 12(d) is any mention of, much less authorization for,
converting a Rule 12(b)(1) motion into a motion for summary judgment. . . . Second, even
if the court were authorized to convert defendants’ improper Rule 12(b)(1) motion into one
for summary judgment as requested, the court, in its discretion, would decline to do so in
this case. It is well established that federal courts have complete discretion in determining
whether to convert a motion to one for summary judgment.”) (cleaned up). Given the
“procedural complexities” at issue here, Wideman, 100 F.4th at 498 n.9, the best course of
action is to adhere to the usual rule barring a movant from seeking to prevail on a new
theory raised for the first time in a reply.
Accordingly,
IT IS ORDERED that the State’s Rule 12(b)(1) motion to dismiss (Doc. 53) is
denied.
Dated this 6th day of April, 2026.
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