Burch v. Bellagio Hotel and Casino et al

Filing 34

ORDER Granting 10 Motion to Dismiss and 18 Motion to Dismiss. Accordingly, Plaintiff's Complaint is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly and thereafter close this case. Signed by Chief Judge Gloria M. Navarro on 10/28/15. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ADRIENNE A. BURCH,
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Plaintiff,

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vs.

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BELLAGIO HOTEL AND CASINO, et al.,
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Defendants.

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Case No.: 2:15-cv-00928-GMN-CWH
ORDER

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Pending before the Court is the Motion to Dismiss (ECF No. 10) filed by Defendants

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Robert Ferris, Jennifer Murphy, Juan Bautista, and Nazario Perales. Also pending before the

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Court is the Motion to Dismiss (ECF No. 18) filed by Defendants Bellagio, LLC (“Bellagio”),

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Sean Griffin, Karina Rizo, Burt Coats, and Pedro Ochoa.1 Both motions have been fully

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briefed.

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I.

BACKGROUND
This case arises out of Plaintiff’s employment with Bellagio that began in 2004. (Compl.

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7:5–8, ECF No. 1). Plaintiff alleges, inter alia, that Defendants created a hostile and highly

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offensive work environment. (Id. 8:4–5). Previously, Plaintiff had filed another action in this

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district (“Prior Action”) regarding her employment with Bellagio, which was subsequently

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dismissed with prejudice. See Burch v. Bellagio Hotel and Casino, No. 2:14-cv-01141-JAD-

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PAL (D. Nev. Dec. 8, 2014). In that action, Plaintiff filed suit on July 11, 2014, against

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Bellagio, LLC for: (1) violation of Equal Pay Act of 1963 and (2) violations of Title VII of the

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Civil Rights Act of 1964. Id. Plaintiff subsequently amended her Complaint. Id. Plaintiff’s

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Plaintiff Adrienne A. Burch (“Plaintiff”) erroneously sued Defendants Bellagio, LLC and Burt Coates as

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Bellagio Hotel and Casino and Burt Coates, respectively.

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Amended Complaint was dismissed with prejudice on December 8, 2014, for failure to state

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claim for which relief can be granted. Id.

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Now, more than five months after the previous action was dismissed, Plaintiff alleges

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the following causes of action against Bellagio, LLC and its various employees: (1) negligent

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failure to warn; (2) negligent retention; (3) negligent supervision; (4) negligent hiring; (5)

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intentional infliction of emotional harm; (6) negligence per se; and (7) violations of Title VII of

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the Civil Rights Act of 1964. (Compl. 23:24–93:4). Defendants filed the instant motions to

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dismiss, asserting that Plaintiff’s Complaint is barred by claim preclusion. (Mot. Dismiss 6:26–

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8:24, ECF No. 10; Mot. Dismiss 8:21–11:6, ECF No. 18).

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II.

LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon

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which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on

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which it rests, and although a court must take all factual allegations as true, legal conclusions

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couched as a factual allegation are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule

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12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements

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of a cause of action will not do.” Id.

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Id. This standard “asks for more than a

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sheer possibility that a defendant has acted unlawfully.” Id.

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“Generally, a district court may not consider any material beyond the pleadings in ruling
on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542,
1555 n.19 (9th Cir. 1990). “However, material which is properly submitted as part of the
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complaint may be considered.” Id. Similarly, “documents whose contents are alleged in a

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complaint and whose authenticity no party questions, but which are not physically attached to

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the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without

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converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14

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F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of

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“matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986).

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Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is

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converted into a motion for summary judgment. Fed. R. Civ. P. 12(d).

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If the court grants a motion to dismiss for failure to state a claim, leave to amend should

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be granted unless it is clear that the deficiencies of the complaint cannot be cured by

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amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant

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to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in

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the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the

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movant, repeated failure to cure deficiencies by amendments previously allowed, undue

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prejudice to the opposing party by virtue of allowance of the amendment, futility of the

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amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

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III.

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DISCUSSION
For the reasons stated in Defendants’ motions to dismiss, and for the reasons discussed

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below, the Court finds that each of Plaintiff’s causes of action are barred by res judicata, and

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must therefore be dismissed. Because Plaintiff has filed suit before on these and similar causes

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of action, and because any amendment would be futile, the Court finds no basis on which to

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grant leave to amend.

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Claim preclusion under the doctrine of res judicata applies when “a final judgment on

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the merits bars further claims by the same parties or their privies based on the same cause of

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action.” Montana v. United States, 440 U.S. 147, 153 (1979); accord Tahoe–Sierra Pres.

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Council v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). It prohibits the

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re-litigation of any claims that were raised or could have been raised in a prior action. Western

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Radio Servs. Co., Inc. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997). The purpose of the

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doctrine is to “relieve parties of the cost and vexation of multiple law suits, conserve judicial

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resources and, by preventing inconsistent decisions, encourage reliance on adjudication.” Mar

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in v. HEW, Health Care Fin. Agency, 769 F.2d 590, 594 (9th Cir. 1985) (quoting Allen v.

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McCurry, 449 U.S. 90, 94 (1980)).

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Here, Plaintiff does not contest that her current action is against the same party or its
privies as the Prior Action. Moreover, Plaintiff does not contest that the prior action resulted in

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a final judgment on the merits. Furthermore, Plaintiff’s current claims appear to have accrued

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at the time of Plaintiff’s Prior Action, and therefore could have been raised in that Prior Action.

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Additionally, the factual allegations, while more detailed in Plaintiff’s Complaint in the current

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action, are nearly identical to those alleged in the Prior Action. Accordingly, Plaintiff is barred

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from relitigating these claims.

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IV.

CONCLUSION

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IT IS HEREBY ORDERED that both the Motion Dismiss (ECF No. 10) and the

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Motion to Dismiss (ECF No. 18) are GRANTED. Accordingly, Plaintiff’s Complaint is

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dismissed with prejudice.

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The Clerk of the Court shall enter judgment accordingly and thereafter close this case.

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DATED this _____ day of October, 2015.
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___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge
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