Rose v. Assurance Relocation Systems LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Charles Rose,
Plaintiff,
v.
Assurance Relocation Systems LLC, et al.,
Defendants.
No. CV-25-01418-PHX-SHD
ORDER
Pending before the Court are Defendant Troy Emerson’s motion to dismiss, (Doc.
13), Plaintiff Charles Rose’s motion to strike Emerson’s motion to dismiss, (Doc. 16), and
Rose’s motion to dismiss Defendant/Counterclaimant Fedelyne Bernabe’s counterclaims,
(Doc. 21). The motions are fully briefed. (Docs. 18, 20, 22, 26, 27, 28.) For the reasons
stated below, Rose’s motions to strike and to dismiss, (Docs. 13, 26), will be granted, and
Emerson’s motion to dismiss, (Doc. 21), will be correspondingly stricken.
I. BACKGROUND
On April 28, 2025, Rose initiated this action alleging violations of the Fair Labor
Standards Act, the Arizona Minimum Wage Act, and the Arizona Wage Act based on
unpaid wages. (Doc. 1 at ¶ 1.) He alleged that Defendants Fedelyne Bernabe and Troy
Emerson are a married couple and together own two Arizona LLCs—Assurance Relocation
Systems LLC (“Assurance Relocation”) and Tucson Movers LLC (“Tucson Movers”)
(collectively, the “LLC Defendants” and, together with Bernabe and Emerson,
“Defendants”)—which operate as a “single enterprise” moving company in Maricopa
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County, Arizona. (Id. at ¶¶ 11–21.)
Rose alleges that he worked for Defendants for one week in November 2024 as a
driver. (Id. at ¶ 40–41.) Although Defendants “agreed to pay [Rose] an hourly rate of
approximately $27” and Rose “worked approximately 45 total hours,” Rose was never paid
for his labor. (Id. at ¶¶ 44–46.) Rose brought this action to recover his unpaid wages and
associated damages under Federal and Arizona law.
On May 30, 2025, Bernabe filed a “Motion to Allow Exception to Represent Single
Member LLC Assurance Relocation and Tucson Movers LLC in Federal Court.” (Doc.
10.) As the title suggests, Bernabe, proceeding pro se, sought permission from the Court
to represent the LLC Defendants. (Id.) Simultaneously with her motion, Bernabe filed an
answer on behalf of Assurance Relocation, (Doc. 11), and a second answer “as an
individual and on behalf of the community property,” (Doc. 12). Bernabe’s answer filed
on her own behalf asserted eight counterclaims against Rose. (Id. at 7–8.)
On June 5, 2025, Emerson filed a motion to dismiss, in which he argued he was not
a proper party because he does not own and is not involved in the operation of Assurance
Relocation or Tucson Movers. (Doc. 13.) He further expressed confusion about whether
he was named as an individual defendant, or just by virtue of his marriage to Bernabe. (See
e.g., id. at 2 (“The caption of the complain [sic] assert that defendant Troy Emerson is listed
as Fedelyne Bernabe and Troy Emerson, a married couple. What does this mean?”).) On
June 20, 2025, Rose moved to strike Emerson’s motion because he failed to certify that he
satisfied the conferral requirements of Local Rule 12.1(c) and the Court’s Preliminary
Order. (Doc. 16.) This motion is fully briefed. (Docs. 18, 20.)
On June 6, 2025, one day after Emerson filed his motion to dismiss, Bernabe filed
a motion to dismiss on behalf of Tucson Movers. (Doc. 14.) The Court denied Bernabe’s
motion to represent the LLC Defendants, (Doc. 10), struck the answer Bernabe filed on
behalf of Assurance Relocation, (Doc. 11), and struck the motion to dismiss Bernabe filed
on behalf of Tucson Movers, (Doc. 14). (Doc. 17.) The Court ordered Rose to respond to
the Counterclaims asserted in Bernabe’s answer and set a new deadline for the LLC
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Defendants to respond to the Complaint. (Id.)
On July 21, 2025, Rose filed a motion to dismiss Bernabe’s counterclaims. (Doc.
21.) He argues that Bernabe has failed to satisfy the requirements of Rules 8(a)(2) and
12(b)(6) of the Federal Rules of Civil Procedure, and that the court lacks jurisdiction over
her state law claims. (Id.) Bernabe responded, (Doc. 26), and Rose replied, (Doc. 28).
The LLC Defendants did not respond to Rose’s complaint. On August 29, 2025,
the Court issued an order to show cause why the LLC Defendants should not be dismissed
for failure to prosecute, and gave Rose until September 8, 2025, to apply for default
judgment. (Doc. 29.) Rose did so the next day, and default was entered on September 3,
2025. (Docs. 30, 31.) To date, Rose has not filed a motion for default judgment.
II. LEGAL STANDARD
Under Rule 8(a)(2), “a pleading must contain a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677–
78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). While this does not require “detailed factual
allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. at 678 (quotation marks omitted). To meet this standard, “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. (quotation marks omitted). Thus, a complaint must include
“factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.; see also id. (“Nor
does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” (cleaned up)). Pro se filings must be construed “liberally when evaluating
them under Iqbal.” Jackson v. Barnes, 749 F.3d 755, 763–64 (9th Cir. 2014).
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may
attack either the allegations of the complaint, or the existence of subject matter jurisdiction
in fact. Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016). “When the motion to
dismiss attacks the allegations of the complaint as insufficient to confer subject matter
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jurisdiction, all allegations of material fact are taken as true and construed in the light most
favorable to the nonmoving party.” Blackhawk Network Inc. v. SL Card Co., Inc., 589 F.
Supp. 3d 1115, 1123 (D. Ariz. 2022) (quotation marks omitted). The party invoking the
jurisdiction of the court has the burden of proof. Kokkonen v. Guardian Life Ins. Co., 511
U.S. 375, 377 (1994).
III. DISCUSSION
A. Emerson’s Motion to Dismiss and Rose’s Motion to Strike
Rose moves to strike Emerson’s motion to dismiss for failure to comply with the
conferral requirements outlined in Preliminary Order, (Doc. 5), and Local Rule 12.1(c).
(Doc. 16 at 2–3.) Emerson and Bernabe filed a joint Response, arguing that they conferred
with Rose in an email sent on May 27, 2025. (Doc. 18 at 1–3.) The email was not attached
to their Response. In reply, Rose asserts that the May 27, 2023 email was sent by Bernabe,
not Emerson, and that Emerson was not cc’d or in any way a party to the email. (Doc. 20
at 1–2.) Rose did not attach the email to his Reply. Rose argues that because Bernabe is
a pro se litigant, not an attorney, she cannot represent Emerson in this matter, and any
action Bernabe took on Emerson’s behalf does not satisfy the conferral requirements
outlined in the Court’s preliminary order. (Id.)
The Court’s Preliminary Order states the following:
Any motion under Federal Rule of Civil Procedure 12 is discouraged if the
challenged defect in the pleading can be cured by filing an amended pleading.
The Court therefore requires that: (1) before filing a Rule 12(b)(6) motion to
dismiss, a Rule 12(c) motion for judgment on the pleadings, or a Rule 12(f)
motion to strike, the movant confer with the opposing party to determine
whether such motion can be avoided; and (2) the movant attach a certificate
of conferral, certifying that it notified the opposing party of the issues
asserted in its motion and that the parties conferred but were unable to agree
that the pleading was curable in any part by a permissible amendment offered
by the pleading party. See also LRCiv 12.1(c). The requirement to meet and
confer and attach a certificate of conferral applies in equal force to motions
to dismiss amended complaints, notwithstanding earlier conferrals and
certificates filed before the complaint was amended. Any motion lacking the
required certification may be summarily stricken.
(Doc. 5 at 4–5.) These conferral requirements are critical to efficiently and expediently
resolving cases and ensure the Court’s resources are spent on significant issues that the
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parties cannot readily resolve via amendment.
It is unclear whether Emerson properly conferred with Rose. The email that
Emerson and Bernabe cite in their joint response has not been submitted, so the Court
cannot verify whether Emerson was a party to it. If Rose is correct, and Emerson was not
cc’d or otherwise included, then the email does not satisfy Emerson’s conferral
requirements. Bernabe is not authorized to represent Emerson, and any attempt by Bernabe
to confer on Emerson’s behalf would not satisfy his conferral requirement. See Johns v.
County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (“While a non-attorney may appear
pro se on [her] own behalf, [she] has no authority to appear as an attorney for others than
himself.” (cleaned up)); see also Grae-El v. City of Seattle, 2022 WL 721489, at *3 (W.D.
Wash. 2022) (“While pro se litigants may represent themselves, they may not—as non-
lawyers—represent others, regardless of any familial relationships.”).
Because it is unclear whether the parties have met and conferred as required by the
Preliminary Order and Local Rule 12.1(c), and because Emerson failed to certify that he
did so in his motion to dismiss, the Court will grant Rose’s motion to strike, without
prejudice to Emerson raising the same issues, if necessary, after complying with the Local
Rules and this Court’s orders. See LRCiv 12.1(c) (“A motion that does not contain the
required certification may be stricken summarily.”).
B. Rose’s Motion to Dismiss Bernabe’s Counterclaims
Rose moves to dismiss Bernabe’s counterclaims under Federal Rules of Civil
Procedure 12(b)(6) for failure to state a claim, and alternatively under 12(b)(1) for lack of
subject matter jurisdiction. (Doc. 21.)1 Because Bernabe has inadequately pled her
counterclaims, they must be dismissed under both Rule 12(b)(6) and (b)(1).
Bernabe asserts eight counterclaims, ranging from fraud and breach of contract to
harassment and extreme negligence. (Doc. 12 at 7–8.) Each counterclaim is supported by
1 Bernabe argues that Rose’s motion to dismiss should be stricken because he did not
satisfy the conferral requirements. (Doc. 26 at 1.) But Rose supplied documentation of his
conferral with Bernabe with his Reply. (See Doc. 28.) Rose also certified in his motion
that he satisfied the conferral requirements. (Doc. 21 at 2.) Accordingly, Bernabe’s
argument is rejected.
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no more than two sentences. (Id.) For example, under “Fraud” Bernabe states only that
“Evidence at trial will show that plaintiff Rose knew that he was not owed 45 hours but
deliberately misrepresented that he was owed 45 hours.” (Id. at 7.) Under “Damage to
Company property and Customer property,” Bernabe alleges that “Plaintiff Rose cause
[sic] damages to customer property which caused a loss to Company Assurance Relocation
Systems.” (Id.) And under “Extreme Negligence,” Bernabe alleges that “Defendant Rose
left truck lights on all day while he took his personal calls and cause the other workers to
stop working to jump a truck for one hour of which he was still on the telephone.” (Id. at
8.) Bernabe’s five other claims are equally devoid of context or factual support. (See id.
at 7–8.) Without “factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,” a complaint cannot survive a
motion to dismiss. Ashcroft, 556 U.S. at 678. Here, it is difficult to discern what
misconduct is alleged, let alone whether Rose is liable for it. Accordingly, Bernabe fails
to state a claim under Rule 12(b)(6).
Rose additionally argues that the Court lacks jurisdiction over Bernabe’s
counterclaims because they “are permissive, state-law claims that bear no relation to
[Rose’s] wage claims.” (Doc. 21 at 5.) As it stands, the Complaint’s allegations are so
vague and conclusory that it is impossible to tell whether supplemental jurisdiction over
Bernabe’s state law claims would be proper. See, e.g., Fed. R. Civ. P. 13(a)–(b) (defining
compulsory and permissive claims); Randall v. Nelson & Kennard, 2009 WL 2710141 at
*2–6 (D. Ariz. 2009) (conducting the supplemental jurisdiction analysis under Fed. R. Civ.
P. 13). This predicament underscores the inadequacy of the allegations supporting
Bernabe’s counterclaims and requires dismissal under Rule 12(b)(1). See Smiley v. JP
Morgan Chase, 2014 WL 2605434, at *2 (N.D. Cal. 2014) (dismissing a complaint where
it was “almost completely devoid of any factual allegations” and thus, failed “to
demonstrate that th[e] Court ha[d] subject matter jurisdiction”).
Because it is possible that Bernabe can amend her counterclaims to state a plausible
claim for relief over which the Court would have jurisdiction, she will be granted leave to
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amend. See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend] when
justice so requires.”).
IV. CONCLUSION
For the reasons stated above,
IT IS ORDERED granting Rose’s Motion to Strike the Motion to Dismiss (Doc.
16), and striking Emerson’s Motion to Dismiss, (Doc. 13).
IT IS FURTHER ORDERED Emerson shall respond to Rose’s Complaint no later
than April 10, 2026.
IT IS FURTHER ORDERED granting Rose’s Motion to Dismiss Bernabe’s
Counterclaims, (Doc. 21). Bernabe shall file any amended counterclaims no later than
April 10, 2026.
Dated this 4th day of March, 2026.
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