Worthen v. Aftermath, Inc.

Filing 41

ORDER Granting 34 Motion to Dismiss Plaintiff's Fourth and Seventh Cause of Action Contained in Plaintiff's Amended Complaint. Signed by Judge Roger L. Hunt on 2/6/12. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SHAROD J. WORTHEN,

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Plaintiff(s),
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vs.
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AFTERMATH, INC.,
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Defendant(s).
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____________________________________)

Case No. 2:11-cv-344-RLH-CWH
ORDER
(Motion to Dismiss–#34)

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Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Fourth and Seventh

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Cause of Action Contained in Plaintiff’s Amended Complaint (#34, filed December 12, 2011).

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No opposition was filed.

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Local Rule 7-2(d) provides that failure to file points and authorities in opposition to a

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motion constitutes a consent that the motion be granted. Abbott v. United Venture Capitol, Inc. 718

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F.Supp. 828, 831 (D. Nev. 1989). It has been said these local rules, no less than the federal rules or

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acts of Congress, have the force of law. United States v. Hvass, 355 U.S. 570, 574-575 (1958); Weil

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v. Neary, 278 U.S. 160, 169 (1929); Marshall v. Gates, 44 F.3d 722, 723 (9th Cir. 1995). The United

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States Supreme Court itself has upheld the dismissal of a matter for failure to respond under the local

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court rules. Black Unity League of Kentucky v. Miller, 394 U.S. 100, 89 S. Ct. 766 (1969).

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Accordingly, the Motion may be granted on the foregoing basis. However, the Motion
will also be granted on its merits.
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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). While

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a pleading generally need not contain detailed allegations, it must allege sufficient facts to raise a

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right to relief above the speculative level. Id.; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007). A complaint does not allege sufficient facts to raise a right to relief above the speculative

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level if it contains nothing more than “labels and conclusions” or a “formulaic recitation of the

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elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Papasan v.

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Allain, 478 U.S. 265, 286 (1986).) Instead, in order to survive a motion to dismiss, a complaint must

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contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 129 S.

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Ct. At 1949 (internal citations omitted).
In Ashcroft v. Iqbal, the Supreme Court provided a two-step approach for district

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courts to apply when considering motions to dismiss. First, the court must accept as true all factual

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allegations in the complaint. Id. at 1950. A court does not, however, assume the truth of legal

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conclusions merely because the plaintiff casts them in the form of factual allegations. Id. At 1950;

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Warren W. Fox Family Worldwide, Inc. 328 F.3d 1136, 1139 (9th Cir. 2003). Mere recitals of the

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elements of a cause of action, supported only by conclusory statements also do not suffice. Iqbal, 129

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S. Ct. 15 1949. Second, the court must consider whether the factual allegations in the complaint

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allege a plausible claim for relief. Id. at 1950. “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw a reasonable inference that the defendant is liable

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for the alleged misconduct.” Id. at 1949. Thus, where the complaint does not permit the court to

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infer more than the mere possibility of misconduct, the complaint has “alleged–but not shown–that

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the pleader is entitled to relief.” Id. (internal quotation marks omitted). When the claims in a

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complaint have not crossed the line from conceivable to plausible, plaintiff’s complaint must be

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dismissed. Twombly, 550 U.S. at 570.

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As noted in Defendant’s Motion, Plaintiff’s Fourth Cause of Action, for unpaid wages

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under N.R.S. 608.030, does not assert a claim upon which relief can be granted. There is no private

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right of action under N.R.S. 608.005-N.R.S. 608.195. See Baldonado v. Wynn Las Vegas, LLC, 194

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P.3d 96, 102 (Nev. 2008).

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The Seventh Cause of Action alleges constructive discharge. That is not a cognizable

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legal theory upon which a free-standing cause of action lies. Rather, it is simply an adverse employ-

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ment action which is part of, and subsumed in, Plaintiff’s claim for discrimination. It is an outgrowth

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of the allegations of the effect of, for example, hostile working conditions. Accordingly, it does lie as

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an independent cause of action and must be dismissed.

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IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Fourth
and Seventh Cause of Action Contained in Plaintiff’s Amended Complaint (#34) is GRANTED.
Dated: February 6, 2012.

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____________________________________
Roger L. Hunt
United States District Judge

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