McCourt v. Gatski Commercial Real Estate Services et al

Filing 25

ORDER that 7 Motion for Partial Dismissal or, in the alternative, Motion for a More Definite Statement, is DENIED. Signed by Judge James C. Mahan on 5/5/15. (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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PATRICIA MCCOURT,

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Plaintiff(s),

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Case No. 2:14-CV-1911 JCM (PAL)
ORDER

v.
GATSKI COMMERICAL REAL ESTATE
SERVICES, et al.,
Defendant(s).

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Presently before the court is defendant Gatski Commercial Real Estate Services’ (“Gatski”)

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motion for partial dismissal or, in the alternative, motion for a more definite statement. (Doc. #
7). Plaintiff Patricia McCourt filed a response (doc. # 9) and defendant filed a reply (doc. # 12).
I.

Background
This matter is a civil rights employment case based upon Title VII. (Doc. # 1 at 1). Plaintiff

worked for defendant Gatski, a commercial real estate business, as a leasing administrative
assistant from August 2011 through March 2013. (Id. at 1-2).

Defendant Accord Human

Resources, Inc. (“Accord”) is an employee leasing company.1 (Doc. # 1 at 2). Accord employed
plaintiff at the time of the incident, though plaintiff was “leased” to Gatski. (Id.).
Plaintiff alleges that, while working for Gatski in January 2013, a supervisor, Chris Beets,
sexually harassed her. (Id.). Plaintiff further alleges that she was terminated on March 1, 2013,
in retaliation for reporting the harassment.2 (Id. at 2).

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James C. Mahan
U.S. District Judge

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Defendant Accord Human Resources, Inc. (“Accord”) filed an answer to plaintiff’s
complaint on March 25, 2015, and is not a party to Gatski’s motion to dismiss.
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Defendant Gatski asserts that plaintiff voluntarily quit. (Doc. # 7 at 2 n.1).

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Plaintiff filed charges of discrimination with the Equal Employment Opportunity

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Commission (“EEOC”) against Gatski and Accord and received right to sue letters. (Id. at 2).

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Plaintiff cites sex as the protected class for both charges. (Id. at 4).

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On November 16, 2014, plaintiff filed the instant lawsuit alleging two causes of action: (1)

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sexual harassment and retaliation in violation of Title VII; and (2) intentional infliction of

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emotional distress. (Id. at 1-3).

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Gatski asks that plaintiff’s state law claim for intentional infliction of emotional distress be

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dismissed or, in the alternative, that the court require plaintiff to submit a more definite statement.

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(Doc. # 7).

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II.

Legal Standards

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A. Motion to Dismiss

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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 detailed

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factual allegations, it demands “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) (citation omitted).

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“Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at

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555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to

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“state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (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, the court must accept as true all well-pled factual

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allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth.

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Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory

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statements, do not suffice. Id. at 1949. Second, the court must consider whether the factual

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allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially

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plausible when the plaintiff's complaint alleges facts that allows the court to draw a reasonable

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inference that the defendant is liable for the alleged misconduct. Id. at 1949.

James C. Mahan
U.S. District Judge

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Where the complaint does not “permit the court to infer more than the mere possibility of

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misconduct, the complaint has alleged, but it has not shown, that the pleader is entitled to relief.”

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Id. (internal quotations and alterations omitted). When the allegations in a complaint have not

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crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550

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U.S. at 570.

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The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202,

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1216 (9th Cir. 2011). The Starr court stated, “First, to be entitled to the presumption of truth,

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allegations in a complaint or counterclaim may not simply recite the elements of a cause of action,

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but must contain sufficient allegations of underlying facts to give fair notice and to enable the

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opposing party to defend itself effectively. Second, the factual allegations that are taken as true

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must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing

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party to be subjected to the expense of discovery and continued litigation.” Id.

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B. Motion for a More Definite Statement

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A motion for a more definite statement is made pursuant to Rule 12(e), which requires the

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filing of an amended pleading where the initial pleading is “so vague or ambiguous that the party

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cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). “Rule 12(e) is designed to strike at

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unintelligibility, rather than want of detail.” Woods v. Reno Commodities, Inc., 600 F. Supp. 574,

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580 (D. Nev. 1984). Motions for a more definite statement are disfavored and rarely granted. See

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Millenium Drilling Co. v. Beverly House–Meyers Revocable Trust, 2013 U.S. Dist. Lexis 69716,

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*8, 2013 WL 2152756 (D. Nev. May 16, 2013) (quoting Sagan v. Apple Computer, 874 F. Supp.

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1072, 1077 (C.D. Cal.1994)).

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III.

Discussion

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To assert a claim of intentional infliction of emotional distress, a plaintiff must prove that:

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(1) defendant engaged in extreme and outrageous conduct with the intention of causing emotional

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distress or acted with reckless disregard for plaintiff’s emotional distress; (2) plaintiff suffered

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severe or extreme emotional distress as a result; and (3) defendant’s actions were the proximate

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cause of plaintiff’s emotional distress. See Jordan v. State, 110 P.3d 30, 52 (Nev. 2005); Byrd v.

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Meridian Foreclosure Serv., No. 2:11-cv-00096-KJD-PAL, 2011 WL 1362135, at * 2 (D. Nev.

James C. Mahan
U.S. District Judge

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April 8, 2011). Extreme and outrageous conduct falls “outside all possible bounds of decency and

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is regarded as utterly intolerable in a civilized community.” Maduike v. Agency Rent–A–Car, 953

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P.2d 24, 26 (Nev. 1998).

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Defendant asserts that plaintiff’s complaint falls “woefully short” of the pleading

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requirement established for Rule 8. (Doc. # 7 at 4). Defendant asserts that plaintiff simply states

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she suffered “extreme emotional distress” and offers no factual allegation to support the severity

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of the alleged distress. (Id.).

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Plaintiff asserts that, under Federal Rule of Civil Procedure 10(c), statements in exhibits

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attached to a complaint are adopted by reference. (Doc. # 9 at 2). Therefore, plaintiff asserts that

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the contents of the exhibits allow her complaint to meet the Rule 8 standard. (Id. at 2-3).

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Rule 10(c) provides that, “[a] statement in a pleading may be adopted by reference

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elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument

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that is an exhibit to a pleading is a part of the pleading for all purposes.” Fed. R. Civ. P. 10(c).

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Rule 10(c) “pertains principally to assessing the legal sufficiency of the claims in the complaint.”

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United States v. Erie Cnty., 724 F. Supp. 2d 357, 367 (W.D.N.Y.2010); see, e.g., Hartmann v. Cal.

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Dept. of Corrs. & Rehab., 707 F.3d 1114, 1124 (9th Cir. 2013) (citing Rule 10(c) in considering

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whether claims could survive a Rule 12(b)(6) motion to dismiss based on facts alleged in a

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complaint’s exhibits). Accordingly, plaintiff’s exhibits are considered a part of her pleading and

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will be considered in assessing whether plaintiff’s complaint meets the pleading requirement of

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Rule 8.

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Here, plaintiff’s exhibits include her EEOC statement, which gives a six-page account of

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the alleged sexual harassment and company response. (Doc. # 1 at 6-11). Plaintiff alleges that on

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January 14, 2013, as she sat at her desk, Chris Beets approached her and told her that she was

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“bangin’.” (Id. at 6). When she asked what he meant, Beets allegedly told her she was “fuckable.”

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(Id.). Plaintiff alleges she promptly told Beets that this comment was inappropriate and that he

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just walked away. (Id.).

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Plaintiff further alleges that, on the same day as the incident, she reported Beets’ actions to

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her supervisor, Mary Ann Guanlao. (Id. at 7). Plaintiff requested a formal meeting with human

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U.S. District Judge

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resources manager Vanessa Reinhart and Guanlao to officially report and discuss Beets’

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inappropriate behavior. (Id.). Plaintiff also told Ms. Guanlao that she wanted to bring the issues

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to the attention of Mr. Gatski, the owner of the business. (Id.). Guanlao allegedly told plaintiff

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that going to Mr. Gatski was forbidden and that she would be considered insubordinate if she

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attempted to discuss the incident with Mr. Gatski. (Id.).

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On January 18, 2013, Beets approached plaintiff again and commented that he “wanted to

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know what [her] panties smell[ed] like.” (Id.). Plaintiff reported Beets’ comments to Guanlao

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again. (Id.). Guanlao allegedly promised to set a time for plaintiff to lodge a formal complaint

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with the human resources manager. (Id.).

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Beets’ sexually-charged comments continued in February. (Id.). Beets allegedly told

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plaintiff that she was a “MILF” (Mother I’d Like to Fuck.) (Id.). Plaintiff alleges that on February

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5, 2013, she had still not had a meeting with human resources. When she contacted Guanlao again

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Guanlao said she would “make it happen.” (Id.).

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On February 8, 2013, Gatski terminated the human resources manager. (Id.). With no

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human resources staff to meet with, plaintiff continued to email Guanlao. (Id.). On February 13,

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2013, nearly a month after the initial complaint of sexual harassment, Guanlao allegedly sent

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plaintiff an email response stating, “I know that you think he is making sexual comments towards

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you but I disagree. Because he referenced your panties and what they smell like is just weird and

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not offensive. Because he says you’re fuckable is not really offensive either. He’s a guy and you

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work with guys. Ignore it and smile.” (Id. at 8).

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Plaintiff continues to detail in her EEOC complaint Beets’ ongoing verbal and physical

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harassment. Alleged interactions include Beets grabbing plaintiff’s rear end, sending suggestive

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and aggressive emails, putting his hand down the back of her shirt to feel her bra strap, and inviting

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plaintiff to go home with him for a “quickie” at lunch time. (Id. at 8-9).

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Plaintiff further alleges that, when she continued to complain to Guanlao that Guanlao

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threatened her job in an email by stating, “Your position is easily replaced. [Beets] makes the

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company money! Don’t you need insurance for your son? Think about it!” (Id. at 9). Plaintiff

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James C. Mahan
U.S. District Judge

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asserts that soon after receiving this threatening email from Guanlao, Guanlao terminated her by

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email.

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Plaintiff asserts that she is experiencing severe emotional distress because of “Mr. Beets’

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sexual harassment and Gatski’s ratification of his outrageous behavior . . . .” (Id. at 11). She

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asserts that in mid-February she noticed an inflamed rash behind her neck, ears, chest, and throat.

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(Id.). After seeking treatment from a doctor, the doctor informed her that the rash was likely

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brought on by severe stress. (Id.).

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Plaintiff further asserts that she sought treatment from a psychologist about mental and

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physical distress she suffered as a result of Beets’ and Gatski’s actions. (Id.). She is being treated

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by a therapist who specializes in adult sexual harassment treatment. (Id.).

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The court finds that plaintiff’s complaint, including her exhibits which are incorporated by

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reference, undoubtedly meet the standard required for Rule 8 pleadings. Plaintiff satisfies all

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elements of a claim for intentional infliction of emotional distress.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Gatski

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Commercial Real Estate Services’ motion for partial dismissal or, in the alternative, motion for a

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more definite statement (doc. # 7) be, and the same hereby is, DENIED.

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DATED May 5, 2015.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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