Ademiluyi v. Phillips

Filing 150

ORDER Denying 42 Motion to Dismiss and Denying As Moot 56 Motion to Strike. Signed by Judge Miranda M. Du on 3/11/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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APRIL ADEMILUYI,

Case No. 2:14-cv-00507-MMD-CWH
Plaintiff,

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v.

ORDER
(Def’s Motion to Dismiss – dkt. no. 42; Plf’s
Motion to Strike – dkt. no. 56)

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DAVID PHILLIPS,
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Defendant.
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I.

SUMMARY

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Before the Court is Defendant David Lee Phillips’ Motion to Dismiss (dkt. no. 42)

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and Plaintiff April Ademiluyi’s Motion to Strike (dkt. no. 56). For the reasons set out

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below, the Motion to Dismiss is denied. The Motion to Strike denied as moot.

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II.

BACKGROUND

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This action arises from an alleged date rape on April 20, 2012, perpetrated

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against Plaintiff April Ademiluyi by Defendant David Phillips while they were attending an

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evening event in the hotel suite of Daryl Parks, President of the National Bar Association

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(“NBA”). (Dkt. no. 11.) Plaintiff and Defendant are attorneys and were attending the

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NBA’s mid-year conference. (Id.) Plaintiff also alleges that Defendant initiated a civil

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proceeding against Plaintiff in Las Vegas, in which Defendant sought a protection order

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against Plaintiff. (Id.)

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The Amended Complaint asserts two counts of sexual battery in connection with

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the alleged date rape. (Id.) It also alleges one count of malicious prosecution, one count

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of intentional infliction of emotional distress, one count of gross negligence, and one

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count of negligence in connection with the litigation proceedings in Las Vegas. (Id.)

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III.

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DISCUSSION
A.

Motion to Dismiss
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Legal Standard

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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

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“a short and plain statement of the claim showing that the pleader is entitled to relief.”

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Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Rule 8

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notice pleading standard requires Plaintiff to “give the defendant fair notice of what the . .

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. claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. (internal

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quotation marks and citation omitted). While Rule 8 does not require detailed factual

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allegations, it demands more than “labels and conclusions” or a “formulaic recitation of

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the elements of a cause of action.” Ashcroft v. Iqbal, 556 US 662, 678 (2009) (citing

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Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to

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rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to

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dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that

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is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citation omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pled factual allegations in the complaint; however, legal conclusions are not entitled

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to the assumption of truth. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a

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cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

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Second, a district court must consider whether the factual allegations in the complaint

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allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the

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plaintiff’s complaint alleges facts that allow a court to draw a reasonable inference that

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the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does

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not permit the court to infer more than the mere possibility of misconduct, the complaint
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has “alleged ― but not shown ― that the pleader is entitled to relief.” Id. at 679 (internal

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quotation marks omitted). When the claims in a complaint have not crossed the line from

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conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.

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A complaint must contain either direct or inferential allegations concerning “all the

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material elements necessary to sustain recovery under some viable legal theory.”

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Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,

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1106 (7th Cir. 1989) (emphasis in original)).
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Analysis

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The Motion to Dismiss is two paragraphs long. (Dkt. no. 42.) It sets out the Iqbal

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and Twombly standard in the first paragraph and asserts in the second paragraph that

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“Defendant respectfully submits that the fact that Plaintiff has failed to name any other

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individual to this action, compounded with the inconceivable allegations against

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members of the bar and law enforcement, and the disjointed nature of the allegations in

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the Amended Complaint demonstrate that Plaintiff’s claims fail to satisfy the plausibility

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standard articulated by Twombly and Iqbal.” (Id.)

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Defendant does not point to any specific examples of allegations in the Amended

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Complaint that he believes to be implausible, or even identify the claims that he believes

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are unsupported. The Court will not analyze the Amended Complaint on Defendant’s

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behalf and determine the plausibility of its claims without any argument from Defendant.

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Broadly speaking, Plaintiff is the master of her complaint and can bring her action

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against the parties that she chooses. She does not need to name every relevant party as

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a defendant. The Court fails to understand why Defendant believes that Plaintiff’s

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allegations about being sexually battered and the authorities’ refusal to fairly investigate

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her case are “inconceivable.” To the extent that Defendant finds other aspects of the

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Amended Complaint to be “inconceivable,” he does not specify. Nor does the Court

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understand why Defendant believes the Amended Complaint is “disjointed.” The

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Amended Complaint sets out facts chronologically and then asserts claims for relief.

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The Court will not supply Defendant’s arguments for him. While Defendant does

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make some specific arguments as to Plaintiff’s claims in his reply, such arguments are

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procedurally improper as Plaintiff was denied an opportunity to address them.

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The Motion to Dismiss completely fails to set out the alleged deficiencies in the

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Amended Complaint and it is therefore denied. Plaintiff’s Motion to Strike is denied as

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moot.

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IV.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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Motion.

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It is hereby ordered that Defendant’s Motion to Dismiss (dkt. no. 42) is denied.
Plaintiff’s Motion to Strike (dkt. no. 56) is denied as moot.
DATED THIS 11th day of March 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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