Whittemore v. Anderson Financial Services, LLC

• Court: District Court, D. Nevada
• Decided: March 20, 2020
• Docket: 2:19-cv-01951
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 KATELYN WHITTEMORE, Case No. 2:19-cv-01951-GMN-EJY

5 Plaintiff, ORDER 6 v.

7 ANDERSON FINANCIAL SERVICES, LLC, doing business as a foreign Washington limited 8 liability company; VAST HOLDINGS GROUP, LLC, doing business as a Nevada 9 limited liability company; DOE 1-100, inclusive 10 Defendants. 11 12 Before the Court is Defendant Anderson Financial Services, LLC’s Motion to Stay Discovery 13 Pending Disposition of Defendant Anderson Financial Services, LLC’s Motion to Dismiss Plaintiff’s 14 Verified First Amended Complaint. ECF No. 27. No response to this Motion was filed by any of 15 the parties appearing in this matter. 16 DISCUSSION 17 Generally, a dispositive motion does not warrant a stay of discovery. Tradebay, LLC v. eBay, 18 Inc., 278 F.R.D. 597, 601 (D. Nev. 2011). However, a court may limit discovery for good cause and 19 continue to stay discovery when it is convinced that the plaintiff will be unable to state a claim for 20 relief. Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981) (citing B.R.S. Land Investors v. United 21 States, 596 F.2d 353 (9th Cir. 1978)). Under certain circumstances it is an abuse of discretion to 22 deny discovery while a dispositive motion is pending (Tradebay, 278 F.R.D. at 602) and, for this 23 reason, a party seeking a stay of discovery carries the heavy burden of making a strong showing why 24 the discovery process should be halted. Turner Broadcasting System, Inc. v. Tracinda Corp., 175 25 F.R.D. 554, 556 (D. Nev. 1997). When deciding whether to issue a stay, a court must take a 26 “preliminary peek” at the merits of the dispositive motion pending in the case. Buckwalter v. Nevada 27 Bd. of Medical Examiners, No. 2:10-cv-02034-KJD-GWF, 2011 WL 841391, at *1 (D. Nev. March 1 7, 2011). In doing so, the court must consider whether the pending motion is potentially dispositive 2 of the entire case, and whether that motion can be decided without additional discovery. Tradebay, 3 278 F.R.D. at 602. 4 Moreover, the Court adopts a standard when reviewing the merits of the motion to dismiss 5 that best effectuates Fed. R. Civ. P. 1 goals for the “just, speedy, and inexpensive” determination of 6 actions. Id. at 602-03. Even if discovery will involve inconvenience and expense, this is insufficient, 7 without more, to support a stay of discovery. Turner Broadcasting, 175 F.R.D. at 556. Further, 8 motions to dismiss are frequently part of federal practice and “[a]n overly lenient standard for 9 granting motions to stay all discovery is likely to result in unnecessary discovery delay in many 10 cases.” Trzaska v. Int’l Game Tech., Case No. 2:10-cv-02268-JCM-GWF, 2011 WL 1233298, at *4 11 (D. Nev. Mar. 29, 2011). For this reason, courts in the U.S. District of Nevada hold that “[a] stay of 12 all discovery should only be ordered if the court is ‘convinced’ that a plaintiff will be unable to state 13 a claim for relief.” Tradebay, 278 F.R.D. at 603 (discussing holdings of Twin City Fire Ins. v. 14 Employers of Wausau, 124 F.R.D. 652 (D. Nev. 1989), and Turner Broadcasting, 175 F.R.D. 554). 15 The First Amended Complaint (“FAC”) in this matter alleges 11 causes of action. After 16 taking a preliminary peek at the pending motions to dismiss, the opposition, and the reply, the Court 17 grants the Motion to Stay. 18 1. Civil RICO 19 Civil RICO claims are defined in Nevada Revised Statute at NRS 207.470, which states, in 20 pertinent part, that “[a]ny person who is injured in his or her business or property by reason of any 21 violation of NRS 207.400 has a cause of action against a person causing such injury for three times 22 the actual damages sustained.” In turn, NRS 207.400 defines a host of acts that may form the 23 predicate for a civil RICO claim. In Siragusa v. Brown, 971 P.2d 801, 809 (Nev. 1999), the Nevada 24 Supreme Court further stated that “[a] civil RICO pleading must, in that portion of the pleading 25 which describes the criminal acts that the defendant is charged to have committed, contain a 26 sufficiently ‘plain, concise and definite’ statement of the essential facts such that it would provide a 27 person of ordinary understanding with notice of the charges.” (Citation omitted.) In Allum v. Valley 1 standing as a RICO plaintiff, one’s injury must flow from the violation of a predicate RICO act.” 2 (Citation omitted.) Further, “[w]rongful termination . . . is not a predicate Nevada RICO act.” Id. 3 at 300 (citation omitted). 4 Plaintiff cites to two predicate acts in her FAC including “obtaining money under false 5 pretenses” and “the unauthorized practice of law” (ECF No. 18 at ¶¶ 46 and 47), and later discusses 6 bank fraud, mail fraud, and insurance fraud. Id. ¶¶ 108-110. However, Plaintiff does not appear to 7 claim any personal injury arising from these acts except her termination. Id. ¶ 118. Therefore, it 8 appears likely that Plaintiff’s civil RICO claim will be dismissed. 9 2. Retaliation 10 Plaintiff’s Second, Third, and Fourth Causes of Action allege retaliation under NRS 613.330, 11 Title VII of the 1964 Civil Rights Act, and the Age Discrimination in Employment Act. Id. ¶¶ 127- 12 158. However, Plaintiff’s original Charges of Discrimination do not name Anderson Financial 13 Services, LLC as her employer. Nevertheless, Plaintiff argues, inter alia, that one of the Right to 14 Sue notices attached to Plaintiff’s FAC was sent to Vast Holdings Group in care of Anderson 15 Financial Services. ECF No. 18-2 at 2. Plaintiff also attaches documents to her opposition to the 16 motion to stay indicating she recently filed a charge against Anderson Financial Services, LLC. ECF 17 No. 24 at ¶ 157. 18 Unlike other federal discrimination statutes, the ADEA does not require that a plaintiff 19 receive a right to sue letter before initiating suit. Donahue v. Asia TV USA Ltd., 208 F.Supp.3d 505, 20 520 (S.D.N.Y. 2016). However, under Title VII, upon receipt of a right to sue letter, “a civil action 21 may be brought against the respondent named in the charge.” 42 U.S.C. § 2000e-5(f)(1). Likewise, 22 the ADEA requires that “[a] charge … be in writing and … name the prospective respondent and 23 shall generally allege the discriminatory act(s).” 29 C.F.R. § 1626.6. Thus, it appears as currently 24 pled, that Plaintiff’s Second, Third, and Fourth Causes of Action fail to state claims against Anderson 25 Financial Services, LLC, and that these claims will be dismissed. 26 3. Intentional Interference with Prospective Economic Advantage 27 Plaintiff’s Fifth Cause of Action, for Interference with Prospective Business Advantage, 1 not to hire Plaintiff. ECF No. 18 at ¶ 160. For an assessment of this claim, the Court is likely to 2 apply the pleading requirements established in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. 3 Corp. v. Twombly, 550 U.S. 544 (2007). 4 The 8(a)(2) pleading standard does not require detailed factual allegations, but a pleading 5 that offers “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” 6 is insufficient. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). To satisfy the plausibility 7 standard of the law, federal court requires a complaint to “contain sufficient factual matter, accepted 8 as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 9 570). A claim has facial plausibility when the pleaded factual content allows the Court to draw the 10 reasonable inference, based on the Court’s “judicial experience and common sense,” that the 11 defendant is liable for the misconduct alleged. Id. at 678-79. The plausibility standard “is not akin 12 to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted 13 unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it 14 stops short of the line between possibility and plausibility of entitlement to relief.” Id. at 678 15 (internal quotation marks omitted). “[B]are assertions ... amount[ing] to nothing more than a 16 formulaic recitation of the elements of a ... claim ... are not entitled to an assumption of truth.” Moss 17 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (citing Iqbal, 556 U.S. at 681) (bracket at 18 “amounting” in original) (internal quotation marks omitted). The Court discounts these allegations 19 because “they do nothing more than state a legal conclusion-even if that conclusion is cast in the 20 form of a factual allegation.” Id. (citing Iqbal, 556 U.S. at 681). “In sum, for a complaint to survive 21 a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that 22 content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id. 23 To state a claim for intentional interference with prospective business advantage, a plaintiff 24 must show (1) a prospective contractual relationship exists or existed between her and a third party; 25 (2) defendants knew of the prospective contractual relationship; (3) defendants committed 26 intentionally wrongful acts intended or designed to disrupt or prevent the contractual relationship; 27 (4) defendants had no privilege or justification; and (5) plaintiff sustained actual damages as a result. 1 (citation omitted). The only potential facts that Plaintiff pleads in this case that would support such 2 a claim appear in paragraph 160 of her FAC. The Court finds this single allegation creates substantial 3 question regarding whether Plaintiff has sufficiently stated this claim. 4 4. Negligence Per Se 5 Plaintiff’s Sixth and Seventh Causes of Action are brought as “negligence per se claims in 6 violation of NRS 613.200” and “613.210” claims, respectively. ECF No. 18 ¶¶ 164, 167. However, 7 as stated in Shoemaker v. Northrup Grumman Corporation, Case No. 2:08-cv-01793-RLH-RJJ; 8 2011 WL 6026122, at *3 (D. Nev. Dec. 2, 2011), there appears to be no private right of action for a 9 violation of blacklisting statutes. There is also no negligence claim for a violation of NRS 613.340. 10 In fact, Nevada has been specific in limiting alternative or secondary claims based on violations of 11 its anti-discrimination statutes. Cf Sands v. Wynn las Vegas, LLC, Case No. 2:10-cv-297-RLH-PAL, 12 2010 WL 2348633, at *2 (D. Nev. June 9, 2010) (Plaintiff “alleges he suffered emotional distress 13 because Wynn terminated his employment for taking a personal call at work. This assertion, even 14 if true, does not state a claim based on a theory of negligence. Because Sands alleges Wynn 15 intentionally discriminated against him by terminating his employment, his claim for negligent 16 infliction of emotional distress is improper and hereby dismissed”); D’Angelo v. Gardner, 819 F.2d 17 206. 218 (Nev. 1991) (“where no comprehensive statutory remedy exists, th[e] … courts have been 18 willing to create public policy tort liability”) (citation omitted); Folk v. Petco Animal Supply Stores, 19 Inc., Case No. 2:13-cv-124-BLW, 2013 WL 3322636, at *7 (D. Id. July 1, 2013) (a court cannot use 20 a statute that itself grants a plaintiff a right to recover damages as the basis of a negligence per se 21 claim) (citations omitted). For these reasons, the Court finds Plaintiff’s Sixth and Seventh Causes 22 of Action are likely to be dismissed. 23 5. Whistleblower 24 Plaintiff’s whistleblower claim will likely fail for the same reason Plaintiff’s negligence per 25 se claims fail. That is, when a statutory scheme provides a full panoply of rights, Nevada does not 26 recognize a second, separate cause of action. CF De Luna v. Sunrise Hospital and Medical Center, 27 LLC, Case No. 2:17-cv-1502, 2018 WL 4053323, at *4 (D. Nev. Aug. 24, 2018) (“Nevada law 1 comprehensive statutory remedies already exist”). Here, Plaintiff’s whistleblower claim is based 2 entirely on her contact with the EEOC as she states she “was terminated for filing an EEOC Charge.” 3 ECF No. 18 ¶ 179. Therefore, this claim is duplicative of Plaintiff’s retaliation claims and is likely 4 barred by Nevada law. 5 6. Fair Labor Standards Act, Negligent/Intentional Infliction of Emotional Distress 6 Plaintiff’s Tenth Cause of Action for an alleged violation of the Fair Labor Standards Act 7 based upon her failure to be paid overtime, will likely fail under the Iqbal/Twombly standard 8 discussed above. See full discussion in Levert v. Trump Ruffin Tower I, LLC, Case No. 2:14-cv- 9 01009-RCJ-CHW, 2015 WL 133792, at *3-4 (D. Nev. Jan. 9, 2015). 10 Plaintiff’s negligent infliction of emotional distress claim will likely fail for the reasons stated 11 in Sands v. Wynn Las Vegas, LLC, Case No. 2:10-cv-00297-RLH-PAL, 2010 WL 2348633, at *2. 12 Finally, Plaintiff’s Intentional Infliction of Emotional Distress (“IIED”) claim is based entirely on 13 alleged hostile work environment and retaliatory act, which are generally insufficient to state an 14 IIED claim. Alam v. Reno Hilton Corp., 819 F.Supp. 905, 911–12 (D. Nev. 1993). 15 ORDER 16 Accordingly, IT IS HEREBY ORDERED that Defendant Anderson Financial Services, 17 LLC’s Motion to Stay Discovery Pending Disposition of Defendant Anderson Financial Services, 18 LLC’s Motion to Dismiss Plaintiff’s Verified First Amended Complaint (ECF No. 27), which was 19 unopposed, is GRANTED. 20 DATED: March 20, 2020 21

23 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 24

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