Garcia v. Arizona Board of Regents et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kristen Garcia,
Plaintiff,
v.
Jonathan Rose,
Defendants.
No. CV-25-04666-PHX-SMB
ORDER
The Court now considers Defendant Jonathan Rose’s Motion to Dismiss and Motion
to Strike (Doc. 5) and Plaintiff Kristen Garcia’s Motion to Dismiss (Doc. 13). The Court
denies Rose’s Motions and grants Kristen’s Motion.
I. BACKGROUND
Garcia was enrolled in a master’s program at Arizona State University (“ASU”).
(Doc. 1-1 at 5.) This case arises out of an alleged romantic relationship between Garcia
and her professor Erin Jordan. (Id. at 11.) Garcia originally sued: Jordan; other ASU
faculty; the Arizona Board of Regents (“ABOR”); and Jordan’s then-partner, Rose.
However, only Rose remains pursuant to a stipulated dismissal. (Doc. 19).
A complete recitation of the Complaint is unnecessary given that Rose is the only
remaining Defendant. In short, Garcia took a class taught by Jordan and the pair began to
flirt after the semester ended. (Doc. 1-1 at 7.) During this time Garcia bought Jordan
several lavish gifts. (Id.) However, Jordan’s behavior shifted and she texted Garcia “I’m
sorry, it’s not you,” and indicated that she would not accept any more gifts. (Id. at 8.)
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Shortly thereafter, Garcia filed a Title IX complaint against Jordan for sexual harassment
and retaliation with ASU’s Title IX Coordinator. (Id. at 9.)
Thereafter, Jordan filed a complaint with ASU against Garcia. (Id. at 10.) ASU
informed Garcia “that she was potentially in violation of ABOR’s Student Code of Conduct
for ‘stalking’ and sending ‘unwanted gifts’ to Jordan.” (Id. at 10.) ASU also sent Garcia
a copy of its investigative report and summary of the evidence. (Id. at 11.)
As relevant here, the evidence included a letter from Rose that he wrote to Jordan.
(Id.) In that letter, Jordan: “call[ed] Garcia a ‘clearly infatuated and mentally disturbed
individual’”; “insinuate[ed] [that] Garcia was a ‘stalker’”; “call[ed] Garcia’s behavior
‘grotesquely inappropriate’”; alleg[ed] [that] Garcia ‘threatened’ and ‘harassed’ Jordan”; ;
and “insinuate[ed] that when Garcia was in Arizona, she demanded and/or attempted to
spend time with Jordan against her will.” (Id. at 11–12.) Rose and Garcia never met. (Id.
at 12.) Plaintiff thereafter sued Rose for defamation and false light invasion of privacy.
(Id. at 17–19.)
II. LEGAL STANDARD
To survive a Federal Rule of Civil Procedure (“Rule”) 12(b)(6) motion for failure
to state a claim, a complaint must meet the requirements of Rule 8(a)(2). Rule 8(a)(2)
requires a “short and plain statement of the claim showing that the pleader is entitled to
relief,” so that the defendant has “fair notice of what the . . . claim is and the grounds upon
which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). This notice exists if the pleader sets
forth “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory
or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a
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cognizable legal theory will survive a motion to dismiss if it contains sufficient factual
matter, which, if accepted as true, states a claim to relief that is “plausible on its face.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal
“probability,” but requires “more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’”
Id. (quoting Twombly, 550 U.S. at 557).
In ruling on a Rule 12(b)(6) motion to dismiss, the well-pleaded factual allegations
are taken as true and construed in the light most favorable to the nonmoving party. Cousins
v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as
factual allegations are not given a presumption of truthfulness, and “conclusory allegations
of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto
v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence
outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. See United States
v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider
materials—documents attached to the complaint, documents incorporated by reference in
the complaint, or matters of judicial notice—without converting the motion to dismiss into
a motion for summary judgment.” Id. at 908.
III. DISCUSSION
The Court begins with Rose’s Motion. The Court notes that Rose’s Motion rests
within a single filing that includes Rose’s: Answer; a Motion to Dismiss; a Motion to
Strike; and Counterclaims. (See generally Doc. 5.) The Court begins with the Motion to
Dismiss.
A. Rose’s Motion to Dismiss
Rose seeks to dismiss the Complaint pursuant to Arizona’s Anti-SLAPP statute,
A.R.S. § 12-751. (Doc. 5 at 13.) Rose’s Motion is scant and suffers from multiple defects.
“The Ninth Circuit employs a two-step process to evaluate anti-SLAPP motions.”
Avid Telecom LLC v. Frankel, No. CV-22-00558-TUC-JCH, 2023 WL 5056949, at *2 (D.
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Ariz. May 26, 2023). “First, the court determines whether the actions at issue involve an
exercise of protected rights.” Id. “Second, the court analyzes whether the anti-SLAPP
motion raises a legal or a factual challenge.” Id. Defendant Jones’ Motion raises a legal
challenge. (Doc. 22 at 9.) “When the anti-SLAPP motion challenges the legal sufficiency
of a claim, a district court should apply the Federal Rule of Civil Procedure 12(b)(6)
standard and consider whether a claim is properly stated.” Frankel, 2023 WL 5056949,
at *2 (citation modified).
“To establish defamation under Arizona common law, a publication must be false
and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach
plaintiff's honesty, integrity, virtue, or reputation.” Rogers v. Mroz, 502 P.3d 986, 988
(Ariz. 2022) (citation modified). “To establish a claim for false light invasion of privacy,
a plaintiff must show (1) the defendant, with knowledge of falsity or reckless disregard for
the truth, gave publicity to information placing the plaintiff in a false light, and (2) the false
light in which the plaintiff was placed would be highly offensive to a reasonable person in
the plaintiff’s position.” Desert Palm Surgical Grp., P.L.C. v. Petta, 343 P.3d 438, 450
(Ariz. Ct. App. 2015).
The Court now turns to Rose’s Motion; the Motion is two pages. The Court need
not reach the substance of Garcia’s defamation claim. To start, Rose has not demonstrated
that his letter is “an exercise of protected rights.” Frankel, 2023 WL 5056949, at *2.
Arizona’s Anti-SLAPP statute protects the “lawful exercise of [rights] . . . pursuant to the
United States Constitution or Arizona Constitution.” § 12-751(A). Rose contends that he
“exercised his First Amendment right to free speech and his right to petition by submitting
testimony to ASU’s Title IX/OURR proceeding.” (Doc. 5 at 13.) According to Rose:
“This constitutes speech in connection with an official proceeding and on a matter of public
concern.” (Id.) Rose does not cite any authority establishing that his letter filed in an ASU
Title X proceeding constitutes an official proceeding on a matter of public concern.
Even assuming Rose’s speech was protected, he still “has the burden of establishing
prima facie proof that the legal action was substantially motivated by a desire to deter,
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retaliate against or prevent the lawful exercise of a constitutional right.” § 12-751(B).
“The moving person may submit evidence based on the record, a sworn affidavit or other
evidence that is submitted with the motion to dismiss or quash.” Id. Plaintiff does not
point to any such evidence. Instead, Rose only contends that “Plaintiff’s lawsuit is
transparently motivated by a desire to punish Mr. Rose for participating in the Title
IX/OURR proceeding and to chill similar protected speech. This is precisely the type of
retaliatory lawsuit the Anti-SLAPP statute was designed to prevent.” (Doc. 5 at 13–14.)
Rose does not point to any evidence corroborating this assertion. Accordingly, Rose’s
Motion fails to sufficiently implicate Arizona’s Anti-SLAPP statute.
Rose also contends that Garcia’s claim is time barred because his “letter was
published November 1, 2024. Plaintiff filed suit November 11, 2025—ten days after the
one-year limitations period expired under A.R.S. § 12-541(1).” (Doc. 5 at 14.) Rose’s
argument fails for multiple reasons. First, the Court is not required to accept as true Rose’s
claim that his letter was published on November 1; indeed, Rose does not direct this court
to any evidence corroborating this assertion. Even if Rose did, it is not clear that Garcia’s
cause of action necessarily began to accrue on that date. “The discovery rule holds that
when defamatory statements are published in a manner in which they were peculiarly likely
to be concealed from the plaintiff, the cause of action accrues when the plaintiff discovers
the statements or reasonably should have discovered them.” Breeser v. Menta Grp., Inc.,
NFP, 934 F. Supp. 2d 1150, 1161 (D. Ariz. 2013), aff’d sub nom. Breeser v. Menta Grp.,
Inc., 622 F. App’x 649 (9th Cir. 2015) (citation modified). Here, the Complaint alleges
that Rose’s letter was submitted as part of an ostensibly private proceeding initiated by
Jordan. Garcia was only made aware of the letter on November 14. (Doc. 1-1 at 11.) It
appears that Garcia would not have had any way to learn of the letter or its contents before
that point. Accordingly, the Court finds that Plaintiff’s claims are not time-barred.
Rose also argues that his statements “are absolutely privileged as communications
in a quasi-judicial proceeding.” (Doc. 5 at 14.) Rose does not cite any authority
corroborating this assertion. As a practical matter, the Court is not convinced that his
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statements—which were not made under oath—are shielded from a defamation challenge
merely because they were entered into evidence during an ASU internal proceeding.
Again, Rose cites no authority to the contrary.
Rose also argues that Garcia’s claims must be dismissed because his statements “are
substantially true and supported by extensive documentary evidence” or are otherwise
“protected opinions.” (Doc. 5 at 14.) Rose does not materially expound upon these
assertions. Nonetheless, the Court is unable to reach these conclusions as a matter of law.
Rose is alleged to have accused Garcia of criminal conduct such as harassment and
stalking. (Doc. 1-1 at 11–12.) At this juncture, construed in Garcia’s favor, these
statements “may be reasonably interpreted as factual assertions, not simply statements of
opinion.” See Breeser, 934 F. Supp. 2d at 1162. The Court is also poorly situated to
evaluate the truth of Rose’s statements at this stage of the proceedings
The Court thus denies Jordan’s Motion to Dismiss. The Court notes that the Motion
does not mention Garcia’s false light claim. The Court acknowledges that Rose made
certain conclusory assertions challenging this claim in his Answer, but such arguments did
not appear in the Motion to Dismiss portion of Garcia’s filing.
B. Rose’s Motion to Strike
The Court next considers Rose’s Motion to Strike. Rose moves for the Court to
strike paragraph 82 of the Complaint. (Doc. 5 at 15.) Paragraph 82 references Rose’s
letter, stating: “Upon information and belief [Rose] repeated such statements and/or
innuendos to multiple third parties throughout 2024 and 2025.” (Doc. 1-1 at 12.) Rose
contends that such statement should be stricken pursuant to Arizona Rule of Civil
Procedure 12(f) because the “allegation is impermissibly vague and conclusory” as it “fails
to identify: (1) any specific third party to whom statements were allegedly made; (2) any
specific date on which such statements were allegedly made; (3) any specific statement
that was allegedly repeated; or (4) any factual basis for the ‘information and belief’ upon
which this allegation rests.” (Doc. 5 at 15.)
Although Rose originally filed this Motion in state court, the Court analyzes his
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Motion under the Federal Rules of Civil Procedure. See Erie R.R. Co. v. Tompkins, 304
U.S. 64, 78 (1938). Under Rule 12(f), “[t]he court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The
Court may do so on its own, or “on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days after being served with the
pleading.” Fed. R. Civ. P. 12(f)(2). Rose’s Motion is thus untimely because he filed it
with his Answer.
Nonetheless, the Motion lacks merit. At a general level, motions to strike “are
disfavored and infrequently granted.” Complete Distribution Servs., Inc. v. All States
Transp., LLC, No. 3:13-CV-00800-SI, 2015 WL 1393281, at *3 (D. Or. Mar. 25, 2015)
(citation modified). The Court recognizes that the statement is relatively conclusory,
however, the Court finds that this not a sufficient basis upon which to strike it.
The Court thus denies Rose’s Motion to Strike.
C. Garcia’s Motion to Dismiss
Finally, the Court considers Garcia’s uncontested Motion to Dismiss. Garcia seeks
to dismiss Rose’s abuse of process counter claim. “The two essential elements of the abuse
of process tort include (1) a willful act in the use of judicial process (2) for an ulterior
purpose not proper in the regular conduct of the proceeding.” Houston v. Ariz. State Bd.
of Educ., No. CV-10-8160-PHX-GMS, 2012 WL 466474, at *7 (D. Ariz. Feb. 14, 2012),
aff’d, 579 F. App’x 591 (9th Cir. 2014) (citation modified).
Rose argues that Garcia “committed willful acts in filing this lawsuit against Mr.
Rose despite: (a) having been advised of multiple absolute defenses; (b) knowing the
claims were time-barred; and (c) having no good faith basis to believe Mr. Rose made any
false statement.” (Doc. 5 at 17.) Rose contends that Garcia “acted for ulterior purposes
not proper in the regular conduct of litigation, including punishing protected speech,
intimidating witnesses, harassing Dr. Jordan through her partner, and imposing costs on
Mr. Rose.” (Id.)
The Court disagrees. As found, many of Rose’s “absolute defenses” are meritless
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and Rose failed to demonstrate that Garcia’s claims were time-barred. Additionally, the
Court is not obligated to accept Rose’s bare assertions that Garcia acted with malicious
intent in filing this case.
The Court thus grants Garcia’s Motion to Dismiss and dismisses Rose’s
counterclaim for abuse of process without prejudice.
IV. CONCLUSION
Accordingly,
IT IS ORDERED denying Jonathan Rose’s Motion to Dismiss and Motion to
Strike (Doc. 5)
IT IS FURTHER ORDERED granting Plaintiff Kristen Garcia’s Motion to
Dismiss (Doc. 13). Rose’s counterclaim is dismissed without prejudice. Rose may file an
amended counterclaim within thirty (30) days of the date of this Order.
Dated this 24th day of June, 2026.
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