Ponder v. Wild

Filing 33

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that 28 plaintiff's motion for leave to file an amended complaint be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that 26 plaintiff's motion to re-open the case be, and the same hereby is, DENIED. Signed by Judge James C. Mahan on 1/18/2018. (Copies have been distributed pursuant to the NEF - MR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

MICHAEL H. PONDER,

8

Plaintiff(s),

9
10

Case No. 2:16-CV-2305 JCM (PAL)
ORDER

v.
DR. HANS-PETER WILD,

11

Defendant(s).

12
13

Presently before the court is plaintiff Michael Ponder’s motion for leave to file an amended

14

complaint. (ECF No. 28). Defendant Hans-Peter Wild filed a response (ECF No. 29), to which

15

plaintiff replied (ECF No. 32).

16

Also before the court is plaintiff’s motion to reopen the case. (ECF No. 26). Defendant

17

filed a response (ECF No. 29), to which plaintiff replied (ECF No. 32).

18

I.

19

Background
This action arises out of an alleged oral agreement between plaintiff and defendant.

20

Defendant, a resident of Switzerland, has or had an ownership or managerial interest in various

21

corporations, including Wild Flavors, Inc. (“WFI”), Wild Affiliated Holdings, Inc. (“WAH”),

22

and WILD Flavors GmbH (the “company”). (ECF No. 1 at 2).

23

In June 1998, plaintiff, a Nevada resident, joined WFI as the president and CEO, and

24

reported directly to defendant. Id. In August 2005, WFI became a subsidiary of WAH, and

25

plaintiff became president and CEO of WAH. Id. In 2010, plaintiff became CEO of the

26

company, which is headquartered in Switzerland. Id.

27

Allegedly, during a dinner at defendant’s house in Zug, Switzerland, defendant told

28

plaintiff that plaintiff “needs to lead the effort to complete the sale of the [c]ompany, which

James C. Mahan
U.S. District Judge

1

included WFI and WAH.” Id. at 3. Plaintiff maintains that in return for his participation in the

2

sale of the company, defendant promised “an additional $3 million over and above whatever

3

compensation the management team received from the sale.” Id.

4

Plaintiff claims that he led all of the management meetings, presentations, discussions

5

with potential buyers, and was available for travel during the sale process. Id. at 4. Based on

6

plaintiff’s alleged performance, he had grown WFI “to more than $300 million in revenue and

7

had an operating profit of more than 30%.” Id. at 6. Plaintiff argues that at the time of the sale

8

of the company in 2014, WFI was the company’s “crown jewel,” allowing him to demand the

9

significant premium for the business that defendant required. Id.

10

In October 2014, after the sale of the company, plaintiff allegedly asked defendant who

11

he should send the wiring instructions to for his $3 million payment. Id. Plaintiff maintains that

12

defendant responded by claiming that the management payment after the sale was enough and

13

that defendant was not going to pay plaintiff the allegedly agreed-upon $3 million sum. Id.

14

Plaintiff claims that in April 2016, defendant stated he would pay plaintiff $25,000 to

15

handle a matter with the German government. Id. at 7. Defendant allegedly only paid plaintiff

16

$10,000 because, as defendant stated, $10,000 was “enough.” Id.

17

Plaintiff also claims to have provided bodyguard services to defendant for which he was

18

never paid—estimated at $100,000 per year. Id. at 8. Plaintiff maintains that when he began

19

requesting payment for his various services, defendant began “engaging in defamation of

20

[plaintiff]’s character and work ethic.”1 Id.

21

This alleged defamation consisted of sending correspondence to “third-parties, including,

22

but not limited to, [plaintiff]’s former employer” that consisted of false statements in an effort to

23

“discredit” and “tarnish” plaintiff’s reputation. Id.

24

Plaintiff also claims to have been removed as “director of a company” because he refused

25

to join defendant’s plan to cover up an attack of a female colleague. Id. at 9. Defendant

26

allegedly never compensated plaintiff for his services as director of this company, estimated at

27

$250,000 per year. Id.

28
1

James C. Mahan
U.S. District Judge

The defamation claims are the subject of the instant motions.
-2-

On October 1, 2016, plaintiff filed the underlying complaint alleging (1) breach of oral

1
2

contract, (2) breach of implied covenant of good faith and fair dealing, (3) unjust enrichment, (4)

3

fraudulent or intentional misrepresentation, (5) conversion, (6) defamation, and (7) punitive

4

damages. (ECF No. 1).

5

On April 26, 2017, the court granted defendant’s motion to dismiss plaintiff’s complaint

6

for lack of jurisdiction. (ECF No. 24). Thereafter, plaintiff filed the instant motions. Plaintiff’s

7

proposed amended complaint, attached to his motion for leave to amend, contains three causes of

8

action (1) defamation; (2) defamation per se; and (3) punitive damages). (ECF No. 28-1).

9

II.

Legal Standard

10

Federal Rule of Civil Procedure 15(a) provides that “[t]he court should freely give leave

11

[to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court

12

has interpreted Rule 15(a) and confirmed the liberal standard district courts must apply when

13

granting such leave. Foman v. Davis, 371 U.S. 178, 182 (1962). Specifically, the Supreme Court

14

explained:

15

In the absence of any apparent or declared reason—such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of the amendment, etc.—the leave sought
should, as the rules require, be “freely given.”

16
17
18

Foman, 371 U.S. at 182.

19

III.

Discussion

20

a. Motion for leave to amend the complaint

21

Plaintiff argues that the court should grant leave to amend his complaint because it

22

“specifically plead[s] the facts needed to maintain a defamation claim.” (ECF No. 28). Defendant

23

responds that the allegations in the amended complaint fail to state a claim upon which relief can

24

be granted and fail to support the exercise of personal jurisdiction. (ECF No. 29).

25

Here, the court agrees that plaintiff’s proposed amendments are futile. First, plaintiff’s

26

complaint does not adequately plead a cause of action for defamation, as it fails to adequately

27

plead the requirements of defamation in Nevada.

28

demonstrate a prima facie case for the exercise of personal jurisdiction by a Nevada court.

James C. Mahan
U.S. District Judge

-3-

Second, plaintiff’s complaint does not

1

In Nevada, a claim for defamation requires four elements: “(1) a false and defamatory

2

statement of fact by the defendant concerning the plaintiff; (2) an unprivileged publication to a

3

third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages.”

4

Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005).

5

A statement is defamatory when, “[u]nder any reasonable definition[,] such charges would

6

tend to lower the subject in the estimation of the community and to excite derogatory opinions

7

against him and to hold him up to contempt.” Las Vegas Sun v. Franklin, 329 P.2d 867, 869 (Nev.

8

1958). “A defamatory statement is actionable only if it has been published.” M&R Investment

9

Co. v. Mandarino, 748 P.2d 488, 491 (Nev. 1987). “Publication . . . is the communication of the

10

defamatory matter to some third person.” Jones v. Golden Spike Corp., 623 P.2d 970, 971 (Nev.

11

1981).

12

To properly plead defamation, “[a] plaintiff must plead [its elements] with factual

13

specificity.” Persaud v. Universal Health Servs., Inc., Case No. 2:10-cv-02206-ECR, 2011 WL

14

1743852, at *4 (D. Nev. May 5, 2011). Pleading a defamation claim with factual specificity

15

requires a plaintiff to identify what the alleged defamatory statements consisted of, who made the

16

alleged defamatory statements, to whom the statements were made, and when the statements were

17

made. See Blank v. Hager, 360 F. Supp.2d 1137, 1160 (D. Nev. 2005).

18

Here, plaintiff’s complaint contains vague and conclusory allegations which do not satisfy

19

the federal pleading requirements for stating a defamation claim under Nevada law. None of

20

plaintiff’s allegations regarding defamation (contained in paragraphs 29 to 40 of his complaint),

21

describe a defamatory statement that was made, who it was made by, to whom it was made, and

22

when the statement was made. Therefore, as plaintiff does not adequately plead a cause of action

23

for defamation in his proposed amended complaint, see Blank, 360 F. Supp. 2d at 1160,

24

amendment would be futile.

25

Further, the amended complaint does not clearly demonstrate a prima facie case of personal

26

jurisdiction over defendant for the causes of action in the complaint. Almost all of the amended

27

complaint is vague and/or conclusory. Two allegations within the amended complaint appear to

28
James C. Mahan
U.S. District Judge

-4-

1

reference Nevada-related defamatory conduct indirectly (paragraphs 39 and 40).2 However,

2

neither allegation specifically references where the alleged slander took place. Further, all of the

3

other allegedly defamatory conduct appears to have occurred outside the state of Nevada.

4

Therefore, in addition to the concerns raised above regarding plaintiff’s failure to state a claim, the

5

complaint does not demonstrate a prima facie case supporting the exercise of personal jurisdiction

6

in Nevada.

7

b. Motion to re-open the case

8

At the core of plaintiff’s motion to re-open the case is plaintiff’s motion for leave to amend.

9

As the court will deny plaintiff’s leave to amend, the court will also deny plaintiff’s motion to re-

10

open the case.

11

IV.

Conclusion

12

Accordingly,

13

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s motion for

14
15

leave to file an amended complaint (ECF No. 28) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to re-open the case (ECF No. 26) be,

16

and the same hereby is, DENIED.

17

DATED January 18, 2018.

18

__________________________________________
UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
2

James C. Mahan
U.S. District Judge

Notably, these allegations were not in plaintiff’s original complaint
-5-