Quinn v. James Thomas et al
Filing
133
ORDER Granting 118 Motion for Summary Judgment. Signed by Judge Kent J. Dawson on 8/8/11. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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STEPHEN P. QUINN,
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Plaintiff,
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v.
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JAMES THOMAS, et al.,
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Case No. 2:09-CV-00588-KJD-RJJ
Defendants.
ORDER
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Presently before the Court is Defendant Kai Degner’s Motion for Summary Judgment (#118).
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Plaintiff filed an Opposition (#126) to which Defendant filed a Reply (#127).
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I. Background
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Plaintiff Stephen P. Quinn (“Quinn”) brought the present action against Defendant Kai
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Degner in state court. Las Vegas Metropolitan Police Department (“LVMPD”), a previous
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Co-Defendant, subsequently filed a petition to remove the case on March 30, 2009. Plaintiff’s
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Amended Complaint brings a 42 U.S.C. § 1983 claim against Defendant for an alleged violation of
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his constitutional right to privacy. Additionally, the complaint brings state law claims for tortious
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invasion of privacy, intentional infliction of emotional distress, and punitive damages.
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The allegations in the complaint center around the private investigation of Plaintiff, which
was performed by Co-Defendant James Thomas (“Thomas”). Plaintiff learned of Thomas’s
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investigation through discovery in a separate, state court lawsuit in the Eighth Judicial District Court,
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Case Number A519586. Plaintiff brought that lawsuit against Jeffrey Guinn (“Guinn”) for
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defamation. During the course of the defamation lawsuit, Guinn had requested that Thomas perform
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the investigation of Plaintiff.
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Plaintiff’s present complaint raises issue with several methods employed by Thomas in the
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investigation, but the only issue relevant to the present motion is Thomas and Guinn’s obtaining of
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Plaintiff’s personal information. Thomas, a retired LVMPD officer, averred in his deposition that he
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obtained confidential criminal history and other personal information about Plaintiff from a friend
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working at LVMPD. Using this and other information he gathered personally, Thomas compiled and
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submitted investigative reports to Guinn. These reports included Plaintiff’s social security number
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and a summary of Plaintiff’s criminal history.
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LVMPD’s Office of Internal Affairs performed an internal investigation showing that Officer
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Paul Osuch had provided private “SCOPE” information1 to a private investigator. Defendant, an
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officer employed by LVMPD, also admittedly ran a SCOPE report on Plaintiff on October 2, 2006,
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during which time an open investigation on Plaintiff did not exist. Plaintiff alleges that Defendant
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was involved in the improper investigation of Plaintiff and disseminated private SCOPE information
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about Plaintiff to Guinn and potentially others.
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II. Standard for Summary Judgment
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Summary judgment may be granted if the pleadings, depositions, answers to interrogatories,
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and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
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material fact and that the moving party is entitled to a judgment as a matter of law. See, Fed. R. Civ.
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P. 56(c); see also, Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the
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initial burden of showing the absence of a genuine issue of material fact. See, Celotex, 477 U.S. at
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323.
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SCOPE reports are private records, generally used by law enforcement, of an individual’s personal information,
including birth date, social security number, and criminal history.
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The burden then shifts to the nonmoving party to set forth specific facts demonstrating a
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genuine factual issue for trial. See, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
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587 (1986); Fed. R. Civ. P. 56(e). “[U]ncorroborated and self-serving testimony,” without more, will
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not create a “genuine issue” of material fact precluding summary judgment. Villiarimo v. Aloha
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Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). Summary judgment shall be entered “against a
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party who fails to make a showing sufficient to establish the existence of an element essential to that
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party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
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III. Analysis
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A. 42 U.S.C. § 1983 Claim
A section 1983 individual capacity claim seeks to hold a state or municipal officer liable for
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actions he/she takes under color of state law. See Kentucky v. Graham, 473 U.S. 159, 165 (1985).
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Section 1983 is not itself a source of substantive rights, but merely the procedural vehicle by which
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to vindicate federal rights elsewhere conferred. See Albright v. Oliver, 510 U.S. 266, 273 (1994).
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To survive summary judgment under § 1983, a plaintiff must show that the defendant: (1) acted
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under color of state law, and (2) deprived the plaintiff of a federal or constitutional right. See
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McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000). “The purpose of § 1983 is to deter state
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actors from using the badge of their authority to deprive individuals of their federally guaranteed
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rights.” Id.
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In the present case, Plaintiff alleges that Defendant violated his constitutional right to privacy
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by obtaining and publicly disclosing Plaintiff’s private information, specifically his social security
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number. A person has a privacy interest in avoiding the public disclosure of personal matters. See In
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re Crawford, 194 F.3d 954, 948-49 (9th Cir. 1999) (holding that “the indiscriminate public
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disclosure of SSN’s, especially when accompanied by names and addresses, may implicate the
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constitutional right of informational privacy”) (emphasis added). However, courts have expressed
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“‘grave doubts as to the existence of a constitutional right of privacy in the nondisclosure of personal
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information,’ especially where ‘the information is collected by the Government but not disseminated
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publically.’” Arakawa v. Sakata, 133 F.Supp. 2d 1223, 1228 (D. Haw. 2001) (quoting American
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Federation of Govt. Employees v. Dept. of Housing and Urban Development, 118 F.3d 786, 791
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(D.C.Cir 1997)); see also Nelson v. Nat. Aeronautics and Space Admin., 568 F.3d 1028, 1048 (9th
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Cir. 2009) (quoting American Federation of Govt. Employees in noting that there is no known case
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“in which a court has found a violation of the constitutional right to privacy where the government
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has collected, but not disseminated, the information”).
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Here, neither party disputes that Plaintiff has a privacy interest in avoiding the public
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disclosure of his private information. However, Plaintiff’s § 1983 claim must fail as a matter of law
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because Plaintiff has provided no evidence supporting that Defendant disclosed Plaintiff’s private
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information to anyone, let alone to the public. After multiple discovery extensions, Plaintiff has
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failed to submit affidavits or any other type of evidence supporting the assertion that Defendant
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disseminated any private information obtained in the SCOPE report. In contrast, Defendant has
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submitted affidavits supporting the following factual contentions: (1) Guinn never requested that
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Defendant investigate or run Plaintiff’s private information (#119, Guinn Dep. 24:20-25, 26:2-4,
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32:5-18, 36:2-12), (2) Defendant never provided Guinn with any special treatment or disclosed
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Plaintiff’s personal information to anyone, including to Guinn and Thomas (#119, Degner Dep.
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95:21-96:12, 95:12-20; Thomas Dep. 4:21-5:14), and (3) a LVMPD internal affairs investigation
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found that Defendant did not disseminate any of Plaintiff’s private information (#119, McMahill
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Dep. 52:4-5; Degner Dep. 54:4-18). Plaintiff’s unsubstantiated allegations are not sufficient to
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establish a genuine issue of material fact and therefore, Plaintiff’s § 1983 claim fails as a matter of
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law. See Forrestberg v. Pacific Northwest Bell, Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988)
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(holding that pure conclusory allegations with no concrete particulars or evidence are insufficient to
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avoid summary judgment).
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B. Tortious Invasion of Privacy
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The Supreme Court of Nevada recognizes four branches of the tort of invasion of privacy,
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which are: “(1) unreasonable intrusion upon the seclusion of another; (2) appropriation of the name
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or likeness of another; (3) unreasonable publicity given to private facts; and (4) publicity
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unreasonably placing another in false light before the public.” People for the Ethical Treatment of
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Animals (PETA) v. Berosini, 110 Nev. 78, 867 P.2d 1121, 1130 (1994). Here Plaintiff alleges causes
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of action under both intrusion upon the seclusion of another and public disclosure of private facts.
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1. Intrusion upon the Seclusion of Another
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Plaintiff’s intrusion of seclusion claim fails as a matter of law. To recover for the tort of
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intrusion, a plaintiff must demonstrate the following: “1) an intentional intrusion (physical or
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otherwise); 2) on the solitude or seclusion of another; 3) that would be highly offensive to a
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reasonable person.” Id. at 1279. Not every invasion of a plaintiff’s personal space will permit
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recovery. “In order to have an interest in seclusion or solitude which the law will protect, a plaintiff
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must show that he or she had an actual expectation of seclusion or solitude and that that expectation
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was objectively reasonable.” Id.
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Here, Plaintiff has alleged that Defendants, including Defendant Degner, intruded upon
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Plaintiff’s seclusion by conducting surveillance of Plaintiff and his family and acquaintances, and
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that Defendant Degner unreasonably disclosed private information about Plaintiff. Plaintiff’s
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intrusion of seclusion claim fails as a matter of law as Plaintiff fails to provide the Court with any
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evidence of Defendant’s involvement in either of these acts. While Plaintiff’s complaint and
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opposition are rife with allegations of improper surveillance and dissemination of private information
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involving Defendant, Plaintiff again relies purely on allegations and leaps in logic to establish that
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Defendant engaged in these illegalities. As there is no evidentiary basis to support this cause of
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action, the Court need not examine whether or not the purported violations are “highly intrusive to a
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reasonable person” or “intentional.” The Court finds that Plaintiff has failed to establish a genuine
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issue of material fact with respect to his intrusion claim and therefore, the claim must fail as a matter
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of law.
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2. Public Disclosure of Private Facts
“To maintain a cause of action for public disclosure of private facts one must prove that a
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public disclosure of private facts has occurred which would be offensive and objectionable to a
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reasonable person of ordinary sensibilities.” Montesano v. Donrey Media Group, 668 P.2d 1081,
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1084 (Nev. 1983). To make a public disclosure, one must do more than communicate private
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information to a single person or a small group of individuals. Kuhn v. Account Control Tech., Inc.,
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865 F.Supp 1443, 1448 (D.Nev. 1994) (quoting Restatement 2d (Second) of Torts §652D (1977)).
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Therefore, because the invasion of privacy tort protects against public disclosure, the person making
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the disclosure must do so through public means. According to Restatement 2d of Torts §652, “One
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who gives publicity to a matter concerning the private life of another is subject to liability to the
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other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly
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offensive to a reasonable person, and (b) is not of legitimate concern to the public.”
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Here, Plaintiff again fails to establish that his private information was publicly disclosed by
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any of the Defendants, let alone by Defendant Degner. Plaintiff provides no evidentiary basis to
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support that Defendant disseminated any of Plaintiff’s private information to anyone. As mere
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allegations and speculations are insufficient to overcome summary judgment, the Court finds that
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Plaintiff’s public disclosure of private facts claim fails as a matter of law.
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C. Intentional Infliction of Emotional Distress
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A plaintiff who seeks to make an intentional infliction of emotional distress (IIED) claim
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must establish “(1) extreme and outrageous conduct with either the intention of, or reckless disregard
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for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional
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distress and (3) actual or proximate causation.” Star v. Rabello, 625 P.2d 90, 92 (Nev. 1981).
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Nevada courts look to the Restatement 2d (second) of Torts for guidance in interpreting IIED claims.
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See, e.g., Id. at 92; Olivero v. Lowe, 995 P.2d 1023, 1027 (Nev. 2000). According to Restatement 2d
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(second) of Torts § 46, cmt. d, behavior that is “tortious or even criminal” is not necessarily extreme
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and outrageous. “Liability has been found only where the conduct has been so outrageous in
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character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
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regarded as atrocious, and utterly intolerable in a civilized community.” Id.
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Here, Plaintiff again alleges that Defendant disseminated Plaintiff’s private information and
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participated in the surveillance of Plaintiff. This claims fails to establish any of the requisite
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elements for an IIED claim. First, Plaintiff does not establish that Defendant participated in any of
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the alleged violations. Without having participated in the conduct that forms the basis of Plaintiff’s
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IIED claim, Defendant’s non-existent conduct cannot be considered extreme or outrageous.
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Second, even assuming arguendo that Plaintiff did establish that Defendant participated in
the surveillance of Plaintiff, Plaintiff was not aware of the surveillance activities when they took
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place (#88, p. 7, ¶31). It was only afterwards that Plaintiff learned about Defendant Thomas’s
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surveillance. In the court decisions that have held defendants liable for IIED, the plaintiff was
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cognizant of the extreme and outrageous behavior while it was taking place. See e.g., Star, 625 P.2d
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at 92; Branda v. Stanford, 637 P.2d 1223, 1224-25 (Nev. 1981). In the instant action, however,
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Plaintiff was not contemporaneously aware of any surveillance activities of any of the Defendants.
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Third, Plaintiff has not sufficiently established that he has suffered severe emotional
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distress. “[T]he less extreme the outrage the more appropriate it is to require evidence of physical
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injury or illness from the emotional distress.” Alam v. Reno Hilton Corp., 819 F.Supp. 905, 911
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(D.Nev. 1993). Plaintiff needed to submit evidence of physical injury or illness. The only piece of
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evidence submitted with respect to Plaintiff’s emotional distress is an affidavit, wherein Plaintiff
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avers that he has experienced “extreme anxiety, constant fear for [his] family’s safety, paranoia, and
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depression.” (#38, Exhibit 5, ¶9). The Nevada Supreme Court rejected a similar claim where the
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plaintiff did not seek medical or psychiatric help and did not provide objectively verifiable evidence
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of emotional distress. Miller v. Jones, 970 P.2d 571, 577 (Nev. 1998). The Miller court held that the
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district court properly granted summary judgment because of this lack of evidence. Id. Here, like the
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plaintiff in Miller, Plaintiff did not seek medical or psychiatric help, nor did he provide objectively
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verifiable evidence of his emotional distress.
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Finally, even if Plaintiff had properly established that Defendant participated in the
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surveillance of Plaintiff and dissemination of Plaintiff’s private information, as the Court stated in its
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previous Order (#101), this alleged conduct would not cross the necessary threshold to extreme and
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outrageous behavior. The Court finds that Plaintiff failed to establish any requisite elements of IIED
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and therefore, Plaintiff’s IIED claim fails as a matter of law.
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D. Punitive Damages
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In Nevada, punitive damages may be awarded “where it is proven by clear and convincing
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evidence that the defendant has been guilty of oppression, fraud or malice, express or implied.”
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N.R.S. 42.005. The language of N.R.S. 42.005 “plainly requires that a defendant act with a culpable
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state of mind . . . .” Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243, 255 (Nev. 2008).
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Therefore, the conduct, “at a minimum, must exceed mere recklessness or gross negligence.” Id.
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Here Plaintiff has offered no evidence of oppression, fraud, or malice to support a finding for
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punitive damages. Plaintiff has not sufficiently established that Defendant even engaged in any
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improper or illegal activity, let alone established by clear and convincing evidence that he engaged in
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these activities with a sufficiently culpable state of mind. Because Plaintiff has not demonstrated
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with clear and convincing evidence that Defendant was guilty of oppression, fraud, or malice, the
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Court finds that Plaintiff’s claim for punitive damage fails as a matter of law.
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IV. Conclusion
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Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment
(#118) is GRANTED.
DATED this 8th day of August 2011.
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_____________________________
Kent J. Dawson
United States District Judge
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