Sunshine v. Funxional Behavior Analysis LLC

Filing 8

ORDER granting #6 Motion to Dismiss. Amended Complaint deadline: 5/28/2024. Signed by Judge Andrew P. Gordon on 5/7/2024. (Copies have been distributed pursuant to the NEF - DLS)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ANGELA SUNSHINE, 4 Plaintiff 5 v. 6 FUNXIONAL BEHAVIOR ANALYSIS LLC, 7 Defendant 8 9 Case No.: 2:24-cv-00558-APG-EJY Order (1) Granting Motion to Dismiss Federal Claims and (2) Remanding State Law Claims [ECF No. 6] Plaintiff Angela Sunshine sued her former employer, defendant Funxional Behavior 10 Analysis LLC, in state court. She asserts claims for (1) disability discrimination under state and 11 federal law; (2) violation of the Family Medical Leave Act (FMLA); (3) tortious discharge under 12 state law; (4) retaliation under state and federal law; and (5) negligent hiring, training, and 13 supervision under state law. Funxional removed the case to this court based on federal question 14 jurisdiction. ECF No. 1. 15 Funxional moves to dismiss or for summary judgment, arguing that Sunshine’s claims 16 under the Americans with Disabilities Act (ADA) fail because Funxional had fewer than 15 17 employees at all relevant times, so it was not covered by the ADA. Similarly, it argues that it did 18 not have enough employees and Sunshine did not work enough hours to fall within the FMLA’s 19 coverage. Funxional contends that the tortious discharge claim fails because Sunshine has an 20 adequate statutory remedy. Finally, Funxional argues that the negligent hiring, training, and 21 supervision claim is inadequately pleaded. Sunshine did not respond. 22 Because Sunshine did not respond to Funxional’s motion to dismiss, I grant it as 23 unopposed. LR 7-2(d). However, because it is possible that Sunshine could plausibly allege her 1 claims, I grant her leave to do so. See Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma Cnty., 2 708 F.3d 1109, 1118 (9th Cir. 2013) (“As a general rule, dismissal without leave to amend is 3 improper unless it is clear that the complaint could not be saved by any amendment.” 4 (simplified)). In amending, Sunshine must address the issues regarding the federal claims that 5 Funxional raises in its motion. I advise the parties that if Sunshine does not plausibly allege a 6 federal claim in the amended complaint, I will decline to exercise supplemental jurisdiction over 7 any state law claims and will remand those claims to state court. If Sunshine does not file an 8 amended complaint, then I will dismiss her original complaint without prejudice and close this 9 case. 10 I THEREFORE ORDER that defendant Funxional Behavior Analysis LLC’s motion to 11 dismiss (ECF No. 6) is GRANTED as unopposed. 12 I FURTHER ORDER that plaintiff Angela Sunshine may file an amended complaint by 13 May 28, 2024. Failure to file an amended complaint by that date will result in dismissal of the 14 original complaint without prejudice and this case will be closed. 15 DATED this 7th day of May, 2024. 16 17 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 2

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