Crain v. Petrushkin et al

Filing 23

ORDER Granting 11 Motion to Dismiss. Signed by Judge James C. Mahan on 11/25/2014. (Copies have been distributed pursuant to the NEF - SLR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 STEVEN CRAIN, 8 Plaintiff(s), 9 10 Case No. 2:13-CV-1732 JCM (CWH) ORDER v. ANDREY PETRUSHKIN, et al., 11 Defendant(s). 12 13 Presently before the court is defendants Andrey Petrushkin’s and Advanced Home 14 Services’ motion to dismiss plaintiff’s amended complaint. (Doc. # 11). Pro se plaintiff Steven 15 Crain filed a response (doc. # 14) and defendants filed a response (doc. # 15). 16 I. Background 17 This case arises from a termination of an employment relationship between plaintiff and 18 defendant Advanced Home Services (“AHS”). Plaintiff is a former employee of AHS who was 19 employed by AHS for three weeks, and subsequently terminated. 20 On June 4, 2013, plaintiff, while employed by AHS and driving an AHS vehicle, received 21 a traffic citation. According to plaintiff, the citation was for operating an unregistered vehicle in 22 violation of Nevada Revised Statute 482.545(1). Plaintiff asserts that the officer, while speaking 23 with him, called the Nevada DMV and found that the vehicle was not registered. 1 Plaintiff 24 25 26 27 28 James C. Mahan U.S. District Judge 1 Defendant asserts that plaintiff received the citation because he could not find the proof of insurance. Defendant further asserts that exhibits attached to plaintiff’s amended complaint prove that the vehicle was insured at the time of the citation. NRS 482.545, cited by plaintiff, however, references unregistered vehicles, not uninsured vehicles. There is no proof of registration on the date of the citation, as plaintiff’s exhibits show proof of registration beginning June 5, 2013, and the incident took place the day before on June 4, 2013. 1 informed the officer that the vehicle did not belong to him but belonged to his employer, AHS. 2 Still, plaintiff received a citation. 3 Plaintiff was terminated on June 5, 2013. Plaintiff’s amended complaint identifies three 4 causes of action: federal law claims under 42 U.S.C. § 1985(3) – conspiracy to interfere with 5 civil rights, and 18 U.S.C. § 1513(e) – retaliating against a witness, victim, or an informant, and 6 a state law claim for intentional infliction of emotional distress. (See doc. # 9). The court will 7 address each of plaintiff’s claims in turn. 8 II. Legal Standard 9 A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief 10 can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short 11 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 12 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not 13 require detailed factual allegations, it demands “more than labels and conclusions” or a 14 “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 15 1949 (2009) (citation omitted). 16 speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint 17 must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” 18 Iqbal, 129 S.Ct. at 1949 (citation omitted). “Factual allegations must be enough to rise above the 19 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 20 when considering motions to dismiss. First, the court must accept as true all well-pled factual 21 allegations in the complaint; however, legal conclusions are not entitled to the assumption of 22 truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only by 23 conclusory statements, do not suffice. Id. at 1949. Second, the court must consider whether the 24 factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is 25 facially plausible when the plaintiff's complaint alleges facts that allows the court to draw a 26 reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. 27 ... 28 ... James C. Mahan U.S. District Judge -2- 1 Where the complaint does not “permit the court to infer more than the mere possibility of 2 misconduct, the complaint has alleged, but it has not shown, that the pleader is entitled to relief.” 3 Id. (internal quotations and alterations omitted). When the allegations in a complaint have not 4 crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 5 550 U.S. at 570. 6 The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 7 1202, 1216 (9th Cir. 2011). The Starr court stated, “First, to be entitled to the presumption of 8 truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of 9 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 11 true must plausibly suggest an entitlement to relief, such that it is not unfair to require the 12 opposing party to be subjected to the expense of discovery and continued litigation.” Id. 13 III. Discussion 14 A. 42 U.S.C. § 1985(3) – conspiracy to interfere with civil rights 15 Under § 1985(3), the federal statute prohibiting conspiracies to interfere with civil rights, 16 a plaintiff must allege that defendants conspired for the purpose of depriving, either directly or 17 indirectly, any person of equal protection of laws or equal privileges and immunities under the 18 law. Griffin v. Breckenridge, 403 U.S. 88, 103 (1971). Additionally, the complaint must allege 19 that the conspirators acted in furtherance of the conspiracy where an individual was injured or 20 deprived of a right or privilege. Id. An indispensable element of a claim under 42 U.S.C. § 21 1985(3) is “some racial, or perhaps otherwise class-based, invidiously discriminatory animus 22 behind the conspirators’ action.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 23 2000) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, (1971)). 24 Here, plaintiff has not properly alleged facts that support his claim that a conspiracy of 25 intentional discrimination existed and that defendants took steps in furtherance of that 26 conspiracy. Plaintiff’s amended complaint is also lacking in any allegations of racial or class- 27 based discriminatory animus on behalf of defendants. Accordingly, plaintiff’s § 1985 claim will 28 be dismissed. James C. Mahan U.S. District Judge -3- 1 B. 18 U.S.C. § 1513(e) – retaliating against a witness, victim, or an informant 2 § 1513 provides protection for any witness, victim, or informant who is retaliated against 3 “for providing to a law enforcement officer any truthful information relating to the commission 4 or possible commission of any [f]ederal offense . . . .” 18 U.S.C. § 1513(e) (emphasis added). 5 Here, plaintiff claims defendants retaliated against him for providing information relating to the 6 Nevada state offense of operating an unregistered vehicle, a violation of Nev. Rev. Stat. § 7 482.545(1). 8 Accordingly, plaintiff’s § 1513(e) claim will be dismissed. C. Intentional infliction of emotional distress 9 Finally, plaintiff’s amended complaint contains a claim for intentional infliction of 10 11 Plaintiff cannot fulfil the requirements to state a claim under § 1513(e). emotional distress. Intentional infliction of emotional distress is a state law claim. 12 This court has the discretion to decline to hear supplemental state law claims once it has 13 dismissed all federal claims. San Pedro Hotel Co., Inc v. City of Los Angeles, 159 F.3d 470, 478 14 (9th Cir. 1998); 28 U.S.C. § 1367(c) (a district court may decline to exercise supplemental 15 jurisdiction if it has dismissed all claims over which it has original jurisdiction). “In the usual 16 case in which all federal-law claims are eliminated before trial, the balance of factors will point 17 toward declining to exercise jurisdiction over the remaining state-law claims.” Acri v. Varian 18 Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (ellipses omitted) (quoting Carnegie-Mellon 19 Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)). 20 The issue of whether the defendant is liable on the remaining tort claim is best resolved 21 by Nevada state courts interpreting Nevada law. Therefore, the court declines to exercise 22 jurisdiction over plaintiff’s IIED claim. 23 prejudice. 24 ... 25 ... 26 ... 27 ... 28 ... James C. Mahan U.S. District Judge Plaintiff’s IIED claim will be dismissed without -4- 1 Accordingly, 2 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion to 3 dismiss (doc. # 11) be, and the same hereby is, GRANTED. The clerk shall enter judgment 4 accordingly and close the case. 5 DATED November 25, 2014. 6 7 8 __________________________________________ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -5-

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