Pyankovska v. Abid

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 LYUDMYLA PYANKOVSKA, Case No. 2:16-CV-2942 JCM (DJA)

8 Plaintiff(s), ORDER

9 v.

10 SEAN ABID, et al.,

11 Defendant(s).

12 13 Presently before the court is defendant John Jones’s motion to dismiss. (ECF No. 183). 14 Plaintiff Lyudmyla Pyankovska filed a response (ECF No. 184), to which defendant replied. (ECF 15 No. 185). 16 Also before the court is defendant’s motion to take judicial notice. (ECF No. 186). 17 Plaintiff filed a response (ECF No. 187), to which defendant replied. (ECF No. 189). 18 19 I. Background 20 This action arises out a custody battle between plaintiff and defendant Sean Abid. The 21 following allegations derive from plaintiff’s second amended complaint (“SAC”). Plaintiff and 22 defendant Abid are former spouses who got divorced on February 17, 2010. (See ECF No. 181). 23 Pursuant to the divorce decree, the parties agreed to joint legal and physical custody of their minor 24 25 child, “S.” (Id.). 26 27 28 1 On or about January 9, 2015, plaintiff filed a motion for contempt of court against 2 defendant Abid.1 (Id.). Sometime thereafter, defendant Abid inserted a recording device into the 3 child’s school backpack with the intent of intercepting communications between him, plaintiff, 4 and plaintiff’s husband. (Id.). 5 6 The device recorded multiple conversations between the child and plaintiff. (Id.). 7 Defendant Abid brought digital copies of these conversations to his lawyer, defendant Jones, as 8 well as transcribed portions of the recordings in typewritten form. (Id.). Plaintiff first discovered 9 the existence of the recordings on February 4, 2015, when defendant Jones introduced them as 10 exhibits to a countermotion to modify primary custody. (Id.). 11 12 Throughout the course of litigation, plaintiff discovered that defendant Abid had deleted 13 portions of the recordings and erased the software that he used to edit the recordings. (Id.). The 14 court subsequently authorized defendants to give copies of the recordings and transcripts to expert 15 witness Dr. Holland to prepare for an interview of the child. (Id.). 16 The court ultimately ruled that the introduction of the recordings as independent evidence 17 18 would violate NRS 200.650, as defendant Abid’s procurement of such recordings did not meet the 19 requirements for the “vicarious consent doctrine.” (Id.). However, the court ruled the recordings 20 admissible as a basis for the testimony and report of Dr. Holland. (Id.). 21 After years of litigation and an appeal to the Ninth Circuit, plaintiff filed a second amended 22 complaint against both defendants. (Id.). Defendant Jones now moves to dismiss plaintiff’s state 23 24 law claims against him. (ECF No. 183). The state law claims include (1) violations of NRS 25 26 27 28 1 The motion sought to modify the custody order and appoint a parenting coordinator to compel production of the child’s passport. (See ECF No. 181). 1 §200.650, (2) public disclosure of private facts, (3) intentional infliction of emotional distress, (4) 2 negligent infliction of emotional distress, and (5) negligence. (See ECF No. 181). 3 II. Legal Standard 4 A court may dismiss a complaint for “failure to state a claim upon which relief can be 5 6 granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain 7 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed 9 factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 10 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 11 12 “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 13 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual 14 matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation 15 omitted). 16 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 17 18 when considering motions to dismiss. First, the court must accept as true all well-pled factual 19 allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. 20 Id. at 678–79. Mere recitals of the elements of a cause of action, supported only by conclusory 21 statements, do not suffice. Id. at 678. 22 Second, the court must consider whether the factual allegations in the complaint allege a 23 24 plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint 25 alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the 26 alleged misconduct. Id. at 678. 27 28 1 Where the complaint does not permit the court to infer more than the mere possibility of 2 misconduct, the complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. 3 (internal quotation marks omitted). When the allegations in a complaint have not crossed the line 4 from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570. 5 6 The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 7 1216 (9th Cir. 2011). The Starr court stated, in relevant part: 8 First, to be entitled to the presumption of truth, allegations in a complaint or 9 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 10 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 11 unfair to require the opposing party to be subjected to the expense of discovery and 12 continued litigation.

13 Id. District courts apply federal pleading standards to state law claims in federal court. See 14 Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1021 (9th Cir. 2013) (applying federal pleading 15 standards to action removed from state court). 16 The court, on a motion to dismiss, is limited to the allegations contained in the complaint. 17 18 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). “A court may, however, consider 19 certain materials—documents attached to the complaint, documents incorporated by reference in 20 the complaint, or matters of judicial notice—without converting the motion to dismiss into a 21 motion for summary judgment.” Ritchie, 342 F.3d at 908. 22 III. Discussion 23 24 As an initial matter, defendant requests that this court take judicial notice of certain Nevada 25 Supreme Court filings. (ECF No. 186). Plaintiff’s opposition argues that the request is irrelevant. 26 (ECF No. 187). Under Federal Rule of Evidence 201, a “court may judicially notice a fact that is 27 not subject to reasonable dispute.” Fed. R. Evid. 201(b). Because plaintiff fails to meaningfully 28 1 oppose defendant’s request, the court grants his motion and finds that the facts are not subject to 2 reasonable dispute. (See ECF No. 187). 3 Defendant Jones’s motion to dismiss sets forth one argument: the state law claims must be 4 dismissed because they are barred by the Nevada litigation privilege. (See ECF No. 183). 5 6 Alternatively, he argues that if this court is uncertain as the litigation privilege’s applicability, it 7 should certify the question to the Nevada Supreme Court. (Id.). 8 The Wiretap Act prohibits the interception, disclosure, or use in court of oral 9 communications obtained in violation of the Act. See 18 U.S.C. § 2511(1)(c)-(d). The 10 prohibitions in the Nevada Wiretap Act mirror the Federal Act. See Nev. Rev. Stat. §§ 200.620- 11 12 .690. 13 Here, defendant Jones “used and disclosed those illegally obtained, selectively edited 14 communications by attaching them as exhibits to a motion in state court.” Pyankovska v. Abid, 65 15 F.4th 1067, 1078 (9th Cir. 2023). 16 The Nevada Supreme Court has recognized “the long-standing common law rule that 17 18 communications uttered or published in the course of judicial proceedings are absolutely 19 privileged,” and an attorney who made the communications is immune from civil liability. Fink 20 v. Oshins, 49 P.3d 640, 643 (2002) (quoting Circus Circus Hotels v. Witherspoon, 657 P.2d 101, 21 104 (1983)). The “courts should apply the absolute privilege standard liberally, resolving any 22 doubt in favor of its relevancy or pertinency.” Fink v. Oshins, 49 P.3d 640, 644 (Nev. 2002). 23 24 “The policy behind the [litigation] privilege, as it applies to attorneys participating in 25 judicial proceedings, is to grant them ‘as officers of the court the utmost freedom in their efforts 26 to obtain justice for their clients.’” Id. at 433, 49 P.3d at 643 (quoting Bull v. McCuskey, 615 P.2d 27 28 1 957, 961 (1980) abrogated on other grounds by Ace Truck & Equip. Rentals, Inc. v. Kahn, 746 2 P.2d 132 (1987), abrogated by Bongiovi v. Sullivan, 122 Nev. 556, 138 P.3d 433 (2006)). 3 Defendant Jones argues that all allegations based on state law set forth in plaintiff’s second 4 amended complaint against him are barred by Nevada’s litigation privilege. (ECF No. 183 at 9). 5 6 Plaintiff opposes, arguing that the litigation privilege does not apply here because it does not apply 7 to attorney malfeasance, attorney malpractice, and collusive conduct depriving an expert of his 8 fee. (ECF No. 184 at 6). 9 Moreover, plaintiff argues the Ninth Circuit’s holding that defendant Jones’s conduct 10 violated federal law and NRS § 200.650, the litigation privilege does not apply. (Id.). Finally, 11 12 plaintiff argues that 18 U.S.C. § 2515’s preemptive language prevents Nevada’s litigation privilege 13 from applying. (Id. at 7-9). 14 As an initial matter, the Ninth Circuit found that any state litigation privilege did not trump 15 Jones’s federal obligations under the federal Wiretap Act. See Pyankovska, 65 F.4th at 1067. 16 However, the Nevada litigation privilege still applies to the Nevada state law claims. 17 18 All of plaintiff’s arguments are unavailing. She argues that the litigation privilege does not 19 apply to attorney malfeasance, attorney malpractice, and collusive conduct depriving an expert of 20 his fee (ECF No. 184 at 6), yet never argues that any such circumstances apply to the instant matter. 21 Moreover, even if the Ninth Circuit found that defendant Jones’s conduct violated the federal 22 Wiretap Act and NRS § 200.650, plaintiff still fails to show why the litigation privilege does not 23 24 apply here. 25 Defendant Jones “used and disclosed those illegally obtained, selectively edited 26 communications by attaching them as exhibits to a motion in state court.” Pyankovska, 65 F.4th 27 at 1078. However, such communications in state court were privileged. See Fink, 49 P.3d at 643. 28 1 Thus, the court finds that defendant Jones’s in court conduct is protected by the Nevada litigation 2 privilege. All state law claims against defendant Jones are dismissed with prejudice. 3 IV. Conclusion 4 Accordingly, 5 6 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant’s motion to 7 dismiss (ECF No. 183) be, and the same hereby is, GRANTED. 8 IT IS FURTHER ORDERED that defendant’s motion for judicial notice (ECF No. 186) 9 be, and the same hereby is, GRANTED. 10 IT IS FURTHER ORDERED that state law causes of action against defendant Jones are 11 12 DISMISSED with prejudice. The case proceeds on all remaining claims. 13 DATED August 19, 2025. 14 __________________________________________ 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28