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Grimmer v. Costco Wholesale Corp.

United States District Court, Ninth Circuit

September 27, 2013



RONALD E. BUSH, Magistrate Judge.

Pending before the Court is Defendant's Motion to Dismiss (Dkt. 3) and Motion to Strike (Dkt. 14). Having considered the briefing and counsels' oral arguments, and otherwise being fully advised, this motion to dismiss is granted for the reasons explained below.


Plaintiff Nicole Grimmer ("Grimmer") believes that her brother Patrick Curtis should not have been fired by Defendant Costco on November 27, 2010, for allegedly being intoxicated at work. She contends that she was damaged as a result of that firing, allegedly because it led to Curtis discontinuing premium payments on a life insurance policy of which she was a beneficiary.[1] Curtis stopped paying premiums about January 1, 2012, approximately 13 months after his firing on November 27, 2010. Compl. ¶¶ 7-11, 16, 22, 28. Approximately eight months later, and almost two years after he lost his job at Costco, Curtis passed away. Id. at ¶ 2.

Grimmer argues that Costco did not follow its own policy for handling suspected workplace intoxication when firing Curtis and that, had Costco not fired Curtis, the life insurance policy would have remained in place at the time of his death. Grimmer alleges she was the named beneficiary on that policy. Compl. ¶ 27, 33. Her claim for relief alleges "wrongful interference with prospective economic advantage". Compl., p. 7. Costco has moved to dismiss, arguing that Grimmer's Complaint fails to state a claim for relief.


The Court is first faced with a preliminary issue - whether the Court must convert the motion into one for summary judgment because of the submission of evidence from outside the pleading record, or instead should strike Grimmer's affidavits in support of her opposition brief. Costco argues that the materials should be stricken because they were not referenced in the Complaint and because "basic fairness requires that the motion to dismiss not be converted to one for summary judgment." Mot. Strike, p. 2 (Dkt. 14-1).

A. Standard

When ruling on a motion to dismiss, the court must normally convert a Rule 12(b)(6) motion into one for summary judgment under Rule 56 if the court considers evidence outside of the pleadings. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). However, a court may consider certain materials, such as 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.

"[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." Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). Federal Rule of Evidence 201 also allows for the court to take judicial notice of a fact that is not subject to reasonable dispute where, as here, the fact "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b) (2). See also Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006); Allen v. United Financial Mortg. Corp., 660 F.Supp.2d 1089, 1093 (N.D.Cal. 2009) (proper to take judicial notice of a purchase and assumption agreement that is a matter of public record when deciding a motion to dismiss).

B. Discussion

Grimmer's Affidavit attaches several documents, including an "Employee Agreement" pertaining to Curtis, through which (Grimmer argues) Costco provided Curtis various benefits of employment, including a life insurance policy paid for by Costco. Compl., ¶ 6 (Dkt. 1-1). She contends that the Employment Agreement required a "confirmation test" before an employee could be terminated for alcohol use on the job. Id. at p.2, ¶ 8. A second appended document - the Costco Drug and Alcohol Free Workplace Policy - is not specifically referred to in her Complaint, but Grimmer does discuss it in the context of her claim.

At the hearing on these motions, the Court said it likely would consider the Employee Agreement and the Workplace Policy document because, even though not attached to the Complaint, the two documents were an intrinsic part of the factual background related to Curtis's employment at Costco, and there was no genuine dispute as to their authenticity. The other documents appended to the Grimmer Affidavit, however, are not appropriate matters for the record of a Rule 12(b) ...

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