Yax v. Caesars Operating Company, Inc., Harrah's Las Vegas

Filing 21

ORDER granting 10 Motion to Amend/Correct Complaint; granting in part as to the claim of Intentional Infliction of Emotional Distress and the federal claim of Retaliation and denying in part as to all remaining claims Defendants' 8 Motion to Dismiss. The Court is willing to entertain a second motion to amend Plaintiffs complaint. However, such a motion must be properly filed within one week of the entry of this order. Signed by Judge Kent J. Dawson on 12/18/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ERIC YAX,

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Case No. 2:14-CV-1503-KJD-GWF
Plaintiff,

v.
ORDER
CAESARS OPERATING COMPANY, INC.,
HARRAHS LAS VEGAS, et al.,
Defendants.

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Before the Court is Plaintiff’s Motion to Amend Complaint (#10), to which Defendants

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responded (#16) and the time has long expired for Plaintiff to reply. Also before the Court is

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Defendants’ Motion for Partial Dismissal of Plaintiff’s Complaint (#8). Plaintiff responded (#9)

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and Defendants replied (#14).

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I. Motion to Amend

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Plaintiff seeks to amend his complaint to replace ROE 1 with “Caesars Operating

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Company, Inc. Agent for Harrah’s Las Vegas,” as a defendant in this matter. Plaintiff has already

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named Caesars Operating Company, Inc., Harrahs Las Vegas as a defendant. Defendant Harrah’s

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Las Vegas, LLC asserts that it is the only proper defendant, and that Plaintiff has incorrectly

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identified it.

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A. Legal Standard

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Plaintiff moves to amend under Federal Rule of Civil Procedure 15(a) which states that

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“[t]he court should freely give leave when justice so requires.” Typically, amendment is

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permitted “unless amendment would cause prejudice to the opposing party, is sought in bad faith,

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is futile, or creates undue delay.” Yakama Indian Nation v. State of Wash. Dep't of Revenue, 176

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F.3d 1241, 1246 (9th Cir. 1999) (internal quotation omitted).

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B. Analysis

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Defendants argue that Plaintiff’s motion is futile because some—but not all—of

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Plaintiff’s claims are subject to a meritorious motion to dismiss. Regardless of whether the

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motion to dismiss has merit, the existence of claims unaffected by the motion to dismiss

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eviscerates this argument. The amendment would clearly not be futile as to the remaining claims.

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Defendants also argue that amendment is improper under Rule 15(c)(1)(C). However, Rule 15(c)

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deals with the relation back of amendments. Whether the amendment relates back is not an issue

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currently before the Court, making Defendants’ argument irrelevant. At bottom, despite the

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Court’s misgivings that the amendment will ultimately be futile, the Court finds that justice

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requires that Plaintiff be given leave to amend.

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II. Motion to Dismiss

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Both of the parties represent to the Court that the only change in what is now the First

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Amended Complaint is the adding of a named defendant. Accordingly, as the substance of the

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complaint has not changed, the Court will consider Defendants’ Motion to Dismiss (#8) as a

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motion to dismiss the First Amended Complaint.

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A. Legal Standard

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief

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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)(2);

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require

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detailed factual allegations, it demands more than “labels and conclusions or a formulaic

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citations omitted). “Factual allegations must be enough to raise a right to relief above the

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speculative level.” Twombly, 550 U.S. at 555. Thus, “[t]o survive a motion to dismiss, a

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complaint must contain sufficient factual matter to ‘state a claim for relief that is plausible on its

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face.’” Iqbal, 556 U.S. at 678 (citation omitted).

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

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

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factual allegations in the complaint; however, legal conclusions or mere recitals of the elements

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of a cause of action, supported only by conclusory statements, are not entitled to the assumption

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of truth. Id. at 678. Second, a district court must consider whether the factual allegations in the

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complaint 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 the court to draw a reasonable inference that the

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defendant is liable for the alleged misconduct. Id. at 678. Further, where the complaint does not

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permit the court to infer more than the mere possibility of misconduct, the complaint has

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“alleged—but it has not show[n]—that the pleader is entitled to relief.” Id. at 679 (internal

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quotation marks omitted). Thus, 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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Moreover, “[a]ll allegations of material fact in the complaint are taken as true and construed in

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the light most favorable to the non-moving party.” In re Stac Elecs. Sec. Litig., 89 F.3d 1399,

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1403 (9th Circ. 1996) (citation omitted).

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B. Analysis

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i. State Law Claims of Disability Discrimination and Retaliation

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These claims are brought under NRS 613.310 et seq., making them subject to NRS

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613.430, a statute of limitation which requires that such claims be brought within “180 days after

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the date of the act complained of.” However, the statute is tolled during the pendency of the

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complaint before the Nevada Equal Rights Commission. NRS 613.430.

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Here, the last act complained of occurred on February 23, 2013, the date Defendants

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terminated Plaintiff. Accordingly, Plaintiff had until August 23, 2013 to file his state actions

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authorized under NRS 613.310 through 613.435. However, on August 19, 2013, Plaintiff filed a

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charge with the Nevada Equal Rights Commission (NERC), which tolls the period.

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Unfortunately, neither party has provided evidence regarding when the NERC terminated the

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complaint. Nor have Defendants provided any authority for their assumption that issuance of a

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right-to-sue letter by the Equal Employment Opportunity Commission (EEOC) is synonymous

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under NRS 613.420 with NERC failing to conclude that an unfair employment practice occurred.

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Accordingly, the Court is unable to determine whether Plaintiff’s state law claims are timely

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filed.
ii. Federal Claim for Retaliation

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This claim is brought under 42 U.S.C. § 2000e et seq., which requires that upon the

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EEOC’s failure to file a civil action (including by dismissing the charge), the EEOC shall notify

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the aggrieved person that they have ninety days from the date of notice to bring a civil action

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against the respondent named in the charge. 42 U.S.C. § 2000e-5(f)(1). This ninety-day period is

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a statute of limitations, and failure to file within the period bars a plaintiff’s action. Scholar v.

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Pac. Bell, 963 F.2d 264, 267 (9th Cir. 1992).

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Here, Plaintiff filed a charge of retaliation with the EEOC on March 1, 2013. The EEOC

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issued a dismissal and right-to-sue letter on April 12, 2013, triggering Plaintiff’s ninety-day

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window to bring a civil action. Thus, Plaintiff had until July 12, 2013 to file his claim. However,

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suit was not filed until September of 2014, more than a year after the statute of limitations had

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expired.

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Plaintiff also filed a second charge which included both disability discrimination and

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retaliation on August 12, 2013, stemming from precisely the same conduct originally charged,.

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However, that second charge is irrelevant to this Court’s analysis of the timeliness of Plaintiff’s

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retaliation claim. The Ninth Circuit has bluntly stated “To accept the EEOC's action in issuing

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[a] second letter as proper would vitiate the congressionally mandated period of limitation in

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favor of a hodgepodge of ad hoc determinations by the EEOC.” Cleveland v. Douglas Aircraft

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Co., 509 F.2d 1027, 1030 (9th Cir. 1975) overruled on other grounds. At bottom, “[t]he EEOC

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ha[s] no authority to issue such a letter” meaning that the statutory period runs “from the

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issuance of the first letter.” Id. at 1030. Nor is the Ninth Circuit alone in this conclusion;

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calculating the ninety-day period from any date other than the initial right-to-sue letter would

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render the statutory limitation “meaningless, because potential Title VII plaintiffs could evade

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those requirements simply by seeking additional Notices of Right to Sue whenever they

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pleased.” Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2d Cir. 1986).

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iii. Intentional Infliction of Emotional Distress
Plaintiff has failed to meet his burden. Not only has Plaintiff failed to plead sufficient

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facts to move the claim from the speculative to the plausible, but Plaintiff has entirely failed to

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plead some elements of the claim, such as a physical manifestation of emotional distress. See

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Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998). Accordingly, Plaintiff has failed

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to state a claim upon which relief can be granted.

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III. Conclusion

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Accordingly, Plaintiff’s Motion to Amend Complaint (#10) is HEREBY GRANTED.

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The Clerk shall file Exhibit #1 to the Motion (#10) as the First Amended Complaint. Further,

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Defendants’ Motion to Dismiss (#8) is HEREBY GRANTED in part as to the claim of

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Intentional Infliction of Emotional Distress and the federal claim of Retaliation. Defendants’

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Motion (#8) is DENIED in part as to all remaining claims. Because it appears to the Court that

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Plaintiff may be able to correct the deficiencies of the First Amended Complaint with regard to

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the claim of Intentional Infliction of Emotional Distress, the Court is willing to entertain a

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second motion to amend Plaintiff’s complaint. However, such a motion must be properly filed

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within one week of the entry of this order.

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DATED this 18th day of December 2014.

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_____________________________
Kent J. Dawson
United States District Judge

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