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Misty Sommer v. Elmore County

September 28, 2012


The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge


Pending before the Court is Defendants Motion to Dismiss (Dkt. 19). Having considered the briefing and counsels' oral arguments, and otherwise being fully advised, this motion is denied, in part, and granted, in part, for the reasons explained below.


Defendant Elmore County terminated the employment of Plaintiff Misty Sommer ("Sommer") on October 4, 2010. Compl., ¶ 32 (Dkt. 1). Sommer asserts that Elmore County was required to provide her an opportunity to appeal her termination pursuant to the process provided in its personnel policy. Sommer argues that her status with Elmore County was as a full-time regular employee in a probationary period; Elmore County responds that, because of her probationary status, Sommer was not a "regular" employee entitled to an appeal.

Sommer filed a Complaint on June 22, 2011, bringing claims against Defendant Elmore County and Marsa Plummer, the Elmore County Clerk, (collectively "Defendants") for (1) wrongful termination in violation of Sommer's due process rights and (2) negligent infliction of emotional distress. Defendants responded with the Motion to Dismiss at issue now.


Federal Rule of Civil Procedure 12(b)(6)*fn1 tests the sufficiency of the plaintiff's claim for relief. The relevant inquiry is whether the plaintiff's allegations are sufficient under Federal Rule of Civil Procedure 8(a), which sets forth the minimum pleading requirement, i.e., that the plaintiff provide a "short and plain statement of the claim showing that the pleader is entitled to relief," and "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

When reviewing a motion to dismiss, the Court must accept as true all non-conclusory, factual (not legal) allegations made in the complaint, Ashcroft v. Iqbal, 565 U.S. 662, 678-79 (2009); Erickson v. Pardus, 551 U.S. 89 (2007), and draw all reasonable inferences in favor of the non-moving party, Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949 (9th Cir. 2009). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Iqbal, 565 U.S. at 678 (citing Twombly, 550 U.S. at 555). A complaint must contain sufficient factual allegations to provide plausible grounds for entitlement to relief. Twombly, 550 U.S. at 555-56. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 565 U.S. at 678.

The Court may not consider any evidence contained outside the pleadings without converting the motion to one for summary judgment. See Fed. R. Civ. P. 12(b); United States v. Ritchie, 342 F.3d 903, 907-908 (9th Cir. 2003). "A court may, however, consider certain 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 (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); 2 James Wm. Moore et al., Moore's Federal Practice § 12.34[2] (3d ed.1999)).

Sommer attached five documents to her Complaint: (1) the written Notice of Termination, (2) the Elmore County Personnel Policy, (3) Sommer's Request for an Appeal Hearing, (4) a Notice of Action finding Sommer ineligible for food stamps, and (5) a Notice and Application for Emergency Unemployment Compensation. Compl., Exs. A-E (Dkts. 1-4 - 1-8). The Court has considered only the written Notice of Termination and the Personnel Policy in ruling on the Motion to Dismiss. Defendants have not objected to the authenticity of these documents and, indeed, have cited to them in their briefing. Accordingly, these two documents are the type that may be considered without converting the motion into one for summary judgment. See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) ("[D]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss.").


A. Due Process Claim

"A threshold requirement to a [either] substantive or procedural due process claim is the plaintiff's showing of a liberty or property interest protected by the Constitution." Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994); Mathews v. Eldridge, 424 U.S. 318, 332 (1976). To state a claim under the Due Process Clause, Sommer must first establish she possessed a property interest, deserving of constitutional protection.*fn2 Id.; see also Gilbert v. Homar, 520 U.S. 924, 928--29 (1997). If a property interest exists, the essential requirements of due process are notice and an opportunity to respond. See Cleveland Bd. of Educ. v. Loudermill et al., 470 U.S. 532, 546 (1985).

In Idaho, employment is at-will unless an employee is hired pursuant to a contract that specifies the duration of employment or limits the reasons for which an employee may be discharged. See Jenkins v. Boise Cascade Corp., 108 P.3d 380, 387 (Idaho 2005). Thus, in the absence of an agreement limiting a party's right to terminate the employment relationship, they may terminate it at any time or for any reason. See Mitchell v. Zilog, Inc., 874 P.2d 520, 523 (Idaho 1994); see also Metcalf v. Intermountain Gas Co., 778 P.2d 744, 746 (Idaho 1989) ("Unless an employee is hired pursuant to a contract which specifies the duration of the employment or limits the reasons for which an employee may be discharged, the employment is at the will of either party and the employer may terminate the relationship at any time for any reason without incurring liability."). This rule applies to state/county employers as well: if an employee serves at-will, "he or she has no ...

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