Banerjee v. Cont'l Inc., Case No. 2:16-CV-669 JCM (VCF)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
Writing for the CourtJames C. Mahan UNITED STATES DISTRICT JUDGE
PartiesADRISH BANERJEE, an individual, and YAN HE, an individual, Plaintiff(s), v. CONTINENTAL INCORPORATED, INC., et al., Defendant(s).
Decision Date11 October 2016
Docket NumberCase No. 2:16-CV-669 JCM (VCF)

ADRISH BANERJEE, an individual, and YAN HE, an individual, Plaintiff(s),

Case No. 2:16-CV-669 JCM (VCF)


October 11, 2016


Presently before the court is defendants Continental Incorporated, Inc.'s and Leapers, Inc.'s motion to dismiss. (ECF No. 24). Plaintiffs Adrish Banerjee and Yan He filed a response (ECF No. 37), to which defendants replied (ECF No. 38).

I. Facts

Plaintiffs are online retailers of outdoor products, including rifle scopes bearing the "SNIPER" trademark. (ECF No. 20). Defendant Leapers, Inc. ("Leapers") manufactures rifle scopes, to which it claims intellectual property rights. (ECF No. 20). Defendant Continental Incorporated, Inc. ("Continental") is a private investigation firm. (ECF No. 20).

Suspecting that plaintiffs were infringing on its trademark, Leapers hired Continental to investigate the alleged infringement in 2014. (ECF No. 20). As part of the investigation, Continental made two purchase orders online for rifle scopes from plaintiffs in July and August of 2014. (ECF No. 20). Later, in early September 2014, Continental made another rifle scope purchase from plaintiffs at a Las Vegas gun show and expressed an interest in becoming plaintiffs' dealer in Indiana. (ECF No. 20).

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Subsequently, defendants met with a detective from the Vanderburgh County sheriff's office to examine the rifle scopes purchased from plaintiffs, during which the rifles were deemed counterfeits. (ECF No. 20). The Vanderburgh County superior court issued a warrant for the arrest of plaintiffs in December 2014, based on the detective's affidavit of probable cause. (ECF No. 20).

In February 2015, Las Vegas Metropolitan Police Department ("LVMPD") arrested plaintiffs at another Las Vegas area gun show pursuant to the arrest warrant. (ECF No. 20). Plaintiffs were held for approximately one week before being freed on bond. (ECF No. 20).

Later, in March 2015, the governor of Indiana issued an executive warrant, which empowered law enforcement to arrest and transport plaintiffs to Indiana. (ECF No. 20). In April 2015, LVMPD arrested plaintiffs at their home. (ECF No. 20). In May 2015, plaintiffs were transported to Indiana, wherein they were released on their own recognizance. (ECF No. 20). In August 2015, the Vanderburgh County district attorney dismissed all charges against plaintiffs. (ECF No. 20).

On February 24, 2016, plaintiffs filed the instant complaint in state court. (ECF No. 1). Defendants removed the case to this court on March 28, 2016. (ECF No. 1). On May 9, 2016, plaintiff filed their first amended complaint. (ECF No. 20).

In their first amended complaint, plaintiffs allege fourteen causes of action: (1) constitutional rights violation under 42 U.S.C. § 1983; (2) abuse of process; (3) false imprisonment; (4) defamation; (5) intentional infliction of emotional distress; (6) civil conspiracy; (7) negligence; (8) malicious prosecution under 42 U.S.C. § 1983; (9) malicious prosecution under common law; (10) Racketeer Influenced and Corrupt Organizations Act ("RICO") under 18 U.S.C. § 1964; (11) RICO under NRS 207.470; (12) tortious placing in false light; (13) interference with prospective economic advantage; and (14) respondeat superior liability of Leapers. (ECF No. 20).

In the instant motion, defendants move to dismiss all fourteen (14) claims for failure to state a claim. (ECF No. 24). The court will address each in turn.

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II. Legal Standard

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

"Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. 662, 678 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678.

Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged—but not shown—that the pleader is entitled to relief." Id. (internal quotation marks omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, in relevant part:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that

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are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.


III. Discussion

A. Constitutional violation under 42 U.S.C. § 1983

In the instant motion, defendants argue that plaintiffs failed to allege any conduct by defendants that would constitute state action to support a § 1983 claim. (ECF No. 24 at 4). In particular, defendants contend that plaintiffs merely alleged that defendants provided information about their whereabouts to federal/state actors. (ECF No. 24 at 6). Defendants maintain that providing information to government actors does not constitute state action even if the information provided was false and relied upon in making the decision to arrest plaintiffs. (ECF No. 24 at 6). The court agrees.

Title 42 U.S.C. § 1983 provides a cause of action for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006).

In certain circumstances, a plaintiff may bring a § 1983 action against a private party based on a violation of a constitutional right. See, e.g., Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (recognizing suit for a private party's violation of another's Fourth Amendment rights); Brunette v. Humane Soc'y of Ventura Cnty., 294 F.3d 1205, 1209 (9th Cir.), as amended on denial of reh'g & reh'g en banc (Aug. 23, 2002). Specifically, "[s]ection 1983 liability extends to a private party where the private party engaged in state action under color of law and thereby deprived a plaintiff of some right, privilege, or immunity protected by the Constitution or the laws of the United States." Brunette, 294 F.3d at 1209.

"Whether a private party engaged in state action is a highly factual question." Id. Nevertheless, "private parties are not generally acting under color of state law." Price v. State of

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Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). Further, "'[c]onclusionary allegations, unsupported by facts, [will be] rejected as insufficient to state a claim under the Civil Rights Act.'" Id. at 708 (quoting Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984)).

A person may become a state actor by conspiring with a state official, or by engaging in joint activity with state officials. A person may also become a state actor by becoming so closely related to the State that the person's actions can be said to be those of the State itself. That might be found because the nexus is so close as to cause the relationship to be symbiotic. It might also be for such other reasons as performing public functions or being regulated to the point that the conduct in question is practically compelled by the State.

Id. at 708-09 (citations omitted).

Plaintiffs allege that defendants were state actors because they conspired or acted in concert with the Vanderburgh County prosecutor and sheriff's office under color of law. (ECF No. 20 at 8). Specifically, plaintiffs assert that defendants provided state agents with the false representations that formed the basis of the probable cause affidavit for plaintiffs' arrests. (ECF No. 20 at 8). Plaintiff maintains that these acts resulted in the violation of their constitutional right against unreasonable searches and seizures. (ECF No. 20 at 8-9).

"But the mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under § 1983." Lockhead v. Weinstein, 24 F. App'x 805, 806 (9th Cir. 2001) (citing Benavidez v. Gunnell, 722 F.2d 615, 618 (10th...

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