Chocolate Magic Las Vegas LLC v. Ford

337 F. Supp. 3d 950
CourtDistrict Court, D. Nevada
DecidedSeptember 14, 2018
DocketCase No.: 2:17-cv-00690-APG-NJK
StatusPublished
Cited by4 cases

This text of 337 F. Supp. 3d 950 (Chocolate Magic Las Vegas LLC v. Ford) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chocolate Magic Las Vegas LLC v. Ford, 337 F. Supp. 3d 950 (D. Nev. 2018).

Opinion

ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

Defendants Blair Elliot Ford, Jr. (Ford), Cindy Wix-Ingling (Wix-Ingling), Norman Vida (Vida), and Alice Kelly (Kelly) worked for plaintiff Chocolate Magic Las Vegas LLC (CM). In late 2016 and early 2017, the relationship deteriorated to the point that the defendants resigned or were terminated. In the aftermath, CM sued these former employees on multiple causes of action. Some of these employees have asserted counter-claims against CM and counter-defendants Dino Dicienzo and Douglas Birrell.

CM filed an amended complaint, to which Wix-Ingling and Ford answered. ECF Nos. 65, 66, and 67. Both of those answers asserted the affirmative defense of failure to state a claim upon which relief can be granted. Wix-Ingling thereafter filed a motion to dismiss the amended complaint and Ford joined that motion. ECF Nos. 68 and 70. CM and the counter-defendants oppose and move to strike the motion to dismiss. ECF Nos. 73 and 72.

I deny the motion to strike. Wix-Ingling and Ford asserted the Federal Rule of Civil Procedure 12(b)(6) defense in their answers to CM's amended complaint and *954thereby preserved their right to seek dismissal on that ground later. I grant the defendants' motion to dismiss in part and dismiss the portion of CM's breach of contract claim that alleges a violation of the no-raiding provision. That provision prohibits raiding only after employment is terminated, but CM's amended complaint alleges that the improper behavior occurred during employment. I deny the motion to dismiss the remaining claims.

I. BACKGROUND

CM operates the Hershey's Chocolate World Las Vegas retail attraction under a licensing agreement with The Hershey Company (Hershey's), and a lease agreement with the New York-New York Hotel & Casino. ECF No. 65 at 5. CM is managed and directed from Canada. Id. CM hired Ford to be general manager and Wix-Ingling to be assistant general manager before the attraction opened in June 2014. Id. at 6. Upon recommendation of Ford and Wix-Ingling, Vida and Kelly were hired as assistant general manager and replenishment manager, respectively. As the general manager, Ford was tasked by CM with continually improving the store's profitability with assistance from Wix-Ingling, Vida, and Kelly. Id. at 7. Ford and Wix-Ingling were given control over the store's inventory and responsibility for product development. Id.

By summer of 2016, sales were 25% below budget while expenses continued to grow. Id. The store's profitability declined 90% year over year in August 2016, while there was a significant increase in overtime payments. Id. CM hired Douglas Birrell, a consultant, to "oversee a course correction." Id. at 8. Ford and his co-defendants allegedly instructed employees to refrain from reporting any problems or concerns to Birrell or CM's corporate office. Id. After an investigation, Birrell emailed Ford regarding the need to turn the store around. Id.

In November 2016, Hershey's conducted a two-day assessment of Hershey's Chocolate World Las Vegas. Id. at 9. A "sharply negative and critical" written assessment was provided to Birrell, who forwarded it to Ford. Id. CM issued Ford a disciplinary notice on December 1, 2016. Id. Ford shared this notice with his co-defendants, and the following day all four lodged a complaint with CM's human resources department alleging a hostile work environment. Id. According to CM, this complaint was spurious and made as a protest by the defendants because they believed that they would soon be terminated. Id at 10.

CM alleges that at that time, Ford and his co-defendants attempted to convince staff to quit and made disparaging comments about CM to them. Id. at 10. On January 11, 2017, Ford advised CM that Vida was resigning. Id. The next day, Ford, Wix-Ingling, and Kelly tendered their resignations. Id. Ford then sent a letter to Suzanne Jones, an executive at Hershey's, in which he "accused Chocolate Magic of violating Nevada state health standards and endangering the public by re-using wrapped, covered candy that had been segregated in [a] special collection container ...." Id. at 10.

CM reassigned at least three employees from other operations to Hershey's Chocolate World Las Vegas on an emergency basis. Id. at 11. It hired an inventory consultant and discovered that thousands of dollars' worth of product was spoiled or missing. Id. CM terminated Kelly before her resignation date and put Ford on paid vacation leave until his resignation became effective. Id. at 12. This lawsuit followed.

II. MOTION TO STRIKE

CM and the counter-defendants move to strike the motion to dismiss, arguing *955that Federal Rule of Civil Procedure 12(b) requires defenses to be made prior to filing an answer but that Wix-Ingling and Ford moved to dismiss after they filed their answers to the amended complaint. ECF 72. Wix-Ingling and Ford respond that by including Rule 12(b)(6) defenses in their answers, they retained the right to subsequently move to dismiss on those grounds. They are correct.

In addressing the timing of defenses, Rule 12(b) states, "[a] motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed." However, this court has allowed post-answer motions when the applicable defense was included in the answer. Bank of Am., N.A. v. Regency Vill. Owner's Ass'n, Inc. , No. 2:16-cv-00496-GMN-CWH, 2017 WL 2817882, at *3 n. 1 (D. Nev. June 29, 2017) (finding that the defendant "asserted the defense that BANA failed to state a claim in its Answer ... and thus, did not waive that defense by filing its Answer before filing the Motion to Dismiss.").

In their separate answers to Chocolate Magic's amended complaint, Wix-Ingling and Ford asserted the affirmative defense of failure to state a claim. ECF Nos. 66 at 23 and 67 at 20. By doing this, both Wix-Ingling and Ford preserved the right to move to dismiss on that ground after their responsive pleadings.

Even if the defendants had failed to raise the Rule 12(b)(6) defense in their answers, I could treat their motion as a 12(c) motion for judgment on the pleadings. See Elvig v. Calvin Presbyterian Church , 375 F.3d 951, 954 (9th Cir. 2004) ("Here, the Defendants filed their motion to dismiss after filing their answer. Thus, the motion should have been treated as a motion for judgment on the pleadings, pursuant to Rule 12(c) or 12(h)(2)." (emphasis in original) ). Because Rule 12(c) and 12(b)(6) motions are "functionally identical," treating the defendants' 12(b)(6) motion to dismiss as such would not change my analysis of the issues. Dworkin v. Hustler Magazine Inc.

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337 F. Supp. 3d 950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chocolate-magic-las-vegas-llc-v-ford-nvd-2018.