Motions under Rule 12(b)(6) are largely undeveloped. This appeal comes from the granting of such a motion on an undeveloped piece of land. Hammer Homes contacted the City of Phoenix asking about land restrictions or stipulations. The planner misses some zoning-related stipulations, and Hammer purchased the property. The city later tells Hammer about the stipulations. Hammer alleges the property is undevelopable as planned and demands $2.5 million in lost profits. The trial court holds no duty and, oddly, the representations were legal not factual. (Our guess is the city was looking for immunity or a lack of duty and was having trouble finding it.) The court of appeals holds there is a duty, and based on the allegations, Hammers sufficiently alleges negligent misrepresentation under Restatement (Second) of Tort § 552(1). The court of appeals finds a duty under § 552: the only section in the entire Restatement regarding negligent communication and economic loss. This expansive section includes innocent misrepresentation and states if one has a pecuniary interest and negligently provides false information for the guidance of others in their business, and they rely upon this information, then there may be liability for negligent misrepresentation. The duty, the court of appeals holds, is created by providing information. Since the city would have received fees had the property been developed, the court of appeals hold this “pecuniary interest” is sufficiently pleaded. The city argued Hammer was seeking legal advice on whether applicable zoning and land-use stipulations applied and not factual information. The court of appeals responds: “But Hammer did not request or rely on a legal opinion about a stipulation; it merely asked whether any existed.” The court of appeals rejects additional arguments focusing on whether there could have been justifiable reliance. Since this was decided on a motion to dismiss, we expect better arguments and evidence on summary judgment. Our criticism: Stop issuing opinions on remanded motions to dismiss when neither the facts nor the law is developed. Doing so creates an impression of substance. This opinion creates more questions than answers. Pecuniary interest? Reliance? Lost profits? Better to sort this out on summary judgment. For now, at the notice pleading stage a 12(b)(6) motion is a mumble strip on entry into court.

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Gray filed suit claiming breach of an employment contract. Gray actually filed three lawsuits: two in state and federal court in New York and this one. Her former employer responded with a combined motion to dismiss and motion to compel arbitration. The employment agreement included an arbitration provision. GC Services argued Gray did not state a cognizable claim because it was precluded by the other lawsuits. GC Services asked “merely as an alternative” for the trial court to compel arbitration. The trial court granted the motion to dismiss and decided there was no need to decide whether the arbitration clause applied. The case was dismissed, and Gray appealed. GC Services defended the appeal by arguing Gray’s opening brief did not follow the rules. Court holds the brief is close enough. The court of appeals then holds the trial court should have compelled arbitration rather than dismiss. And, regardless of whether there is a “legally cognizable claim” the case should be decided by arbitration.  We wonder. How did the plaintiff not waive arbitration by filing the lawsuit? And, as a defendant, why ask for arbitration when the complaint fails to state a claim?

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Plaintiffs sued the wrong entity. Maricopa County is not vicariously liable for a deputy sheriff’s negligent driving. The party vicariously responsible is the Maricopa County Sheriff as an elected official whose duties are imposed by statute and the Arizona Constitution. The sheriff controls his deputies. The court cites 50 years of precedent including its own memorandum decision from earlier this year. The county’s fiscal accountability for the sheriff’s office including paying salary, expenses, and providing equipment is not the control imposing vicarious liability. The court patiently addresses each of plaintiffs’ arguments, but the dismissal is inevitable. Plaintiffs’ counsel failed to serve the sheriff with a notice of claim under A.R.S. § 12-821, and the court rejects the argument the only “entity” is the county. The sheriff is also an entity. A few minor criticisms. The court’s references other jurisdictions holding a sheriff is an independently elected officer and vicarious liability does not attach to the county. No need. Just stick with Arizona law. There is also little need to bring in federal civil rights cases either. Our second minor suggestion is the time the court spends checking dictionaries. Here, the court checks the word “entity” and whether an entity includes the sheriff. We understand Justice Scalia’s influence. Our readers may recall the spat between MCI and AT&T, when Scalia used four different dictionaries to help define the word “modify.” But dictionaries give choices too. While a sign of a good judge is not to play with words, we are confident in our court of appeals using common sense definitions. Do we really need a reference to Merriam-Webster? Common sense tells us an entity includes a person. Is this not what courts are really saying when they look in dictionaries anyway?

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