Dannenbring v. Wynn Las Vegas, LLC

• Court: U.S. District Court — District of Nevada
• Decision Date: 23 January 2013
• Docket Number: 2:12-CV-00007 JCM (VCF)
• Citation: Dannenbring v. Wynn Las Vegas, LLC, 2:12-CV-00007 JCM (VCF) (D. Nev. Jan 23, 2013)
• Parties: GINA DANNENBRING, Plaintiff(s), v. WYNN LAS VEGAS, LLC, Defendant(s).

GINA DANNENBRING, Plaintiff(s),

v.WYNN LAS VEGAS, LLC, Defendant(s).

2:12-CV-00007 JCM (VCF)

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DATED January 23, 2013

ORDER

Presently before the court is defendant Wynn Las Vegas, LLC's motion to dismiss plaintiff Gina Dannenbring's second amended class action complaint. (Doc. # 24). Plaintiff responded (doc. # 30), and defendant replied (doc. # 31). Defendant filed for leave to supplement its motion to dismiss. (Doc. # 35). Plaintiff filed a non-opposition to defendant's filing of the supplemental brief and responded to the supplement on its merits. (Doc. # 40). Defendant replied. (Doc. # 41).

Also before the court is defendant's motion to strike. (Doc. # 25). Plaintiff responded (doc. # 29), and defendant replied (doc. # 32).

Lastly, before the court is plaintiff's motion for leave to amend her complaint. (Doc. # 28). Defendant responded (doc. # 33), and plaintiff replied (doc. # 34).

I. Factual background

On January 3, 2012, plaintiff filed her original complaint asserting various violations of state and federal laws arising from an alleged wrongful termination. (Doc. # 1). Defendant moved to dismiss this complaint. (Doc. # 5). In response, plaintiff amended her complaint to include collectiveand class causes of action under federal and state wage and hour laws. (Doc. # 7). Defendant moved for partial dismissal of plaintiff's first amended complaint. (Doc. # 9). The court then granted in part and denied in part defendant's partial motion to dismiss plaintiff's first amended complaint. (Doc. # 22).

On August 17, 2012, plaintiff filed her second amended class action complaint. (Doc. # 23). The second amended complaint contains six causes of action: (1) violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; (2) violation Nevada's Equal Opportunities for Employment Act, NRS § 613.310, et seq.; (3) retaliation; (4) intentional infliction of emotional distress; (5) violation of the Fair Labor Standards Act; and (6) violation of NRS § 608.140. (Doc. # 23).

Defendant now moves to dismiss plaintiff's third and sixth causes of action for failure to state a claim upon which relief can be granted. (Doc. # 24). Defendant also seeks to strike a references to an offer to compromise as well as references to judicial findings regarding claims for unemployment benefits by other judicial bodies made in the second amended complaint. (Doc. # 25).

II. Legal standards

A. Rule 12(b)(6)

A court may dismiss a plaintiff's 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, 129 S.Ct. 1937, 1949 (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, 129 S.Ct. at 1949 (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 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 1949.

Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's complaint alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949.

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 quotations 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, "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 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." Id.

B. Rule 12(f)

Rule 12(f) of the Federal Rules of Civil Procedure provides that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "Immaterial matter is that which has no essential or important relationship to the claim for relief" and "[i]mpertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (internal citations omitted), rev'd on other grounds 510 U.S. 517 (1994). "The function of a 12(f) motion tostrike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Generally, federal courts disfavor motions to strike unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation. Germaine Music v. Universal Songs of Polygram, 275 F.Supp.2d 1288, 1300 (D. Nev. 2003) (internal citations omitted).

III. Discussion

A. Motion to dismiss (doc. # 24)

I. Third cause of action, retaliation

The court dismissed plaintiff's retaliation claim in her first amended complaint for failure to plead a prima facie case. The court found that plaintiff's factual allegations were "merely consistent" with defendant's liability and stopped "short of the line between possibility and plausibility of entitlement to relief." (Doc. # 22, 5:5-7, citing Iqbal, 129 S. Ct. at 1949). Lastly, the court declined to recognize plaintiff's filing for unemployment benefits as a protected activity under Title VII.

Plaintiff's second amended complaint alleges that defendant retaliated against her by opposing her unemployment claim without a proper basis to do so. Plaintiff asserts that defendant's opposition was in retaliation of her filing a charge with the Nevada Equal Rights Commission ("NERC"). (Doc. # 23).

Defendant moves to dismiss this claim, arguing that this cause of action is nearly identical to plaintiff's claim for retaliation in her first amended complaint and that the second amended complaint asserts no additional facts to support a claim for retaliation. (Doc. # 24). Defendant also argues that plaintiff failed to plead any facts that would establish a causal connection between the NERC charge and defendant's opposition of her unemployment benefits claim. Specifically, defendant argues that plaintiff has not pleaded the timing of these events to establish that one happened before the other. (Doc. # 31).

The elements of a prima facie Title VII retaliation claim are: "(1) involvement in a protected activity, (2) an adverse employment action, and (3) a causal link between the two." Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). An employee engages in protected activity by: (1) opposing any practice made unlawful by Title VII or (2) making a charge, testifying, or participating in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a).

Plaintiff alleges her involvement in a protected activity under Title VII, namely the filing of a charge with NERC. Plaintiff also alleges that defendant retaliated against plaintiff by opposing her claim to unemployment benefits in response to plaintiff filing a charge with NERC. (Doc. # 23).

While the court acknowledges the requirement to plead a casual link between plaintiff's involvement in a protected activity and the adverse employment action, the court does not find the allegation need include the dates of these events as defendant suggests. A claim for retaliation under Title VII is evaluated under Rule 8, not Rule 9-thus, the court finds the allegation need not include "the who, what, when, where, and how" as is required in fraud. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (emphasis added).

Plaintiff has alleged that she engaged in a protected activity, and that because of the protected activity, defendant took adverse employment action against her. This is sufficient factual matter under Rule 8 to "state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citation omitted).¹

ii. Sixth cause of action, NRS § 608.140

The court dismissed plaintiff's NRS §§ 608.018 (overtime pay), 608.020 (payment at time of discharge), and 608.040 (penalty if employer fails to pay an employee after discharge) claims in her first amended complaint for failure to include a violation of NRS § 608.140 to enforce unpaid wages under NRS § 608.018. (Doc. # 22). The court found that NRS §§ 608.018, 608.020, and 608.040 could not be asserted as private rights of action. The court followed Lucatelli v. Texas De Brazil (Las Vegas) Corp., 2:11-CV-01829-RCJ, 2012 WL...