Wisniewski v. Vitus Group, Inc., et al.

Filing 7

ORDER. IT IS THEREFORE ORDERED that the Magistrate Judges Report and Recommendation 6 is ADOPTED AND ACCEPTED as follows: (1) Plaintiffs requests to proceed in forma pauperis 1 is GRANTED. The Clerk ofthe Court is instructed to FILE the First A mended Complaint 5 . (2) Plaintiff is allowed to proceed with her claim under the FHAA, 42 U.S.C. § 3604(f)(3), against Defendants Vitus, Washoe Mill Partners, L.P., Washoe Mill Management, LLC, and EPMI; (3) Plaintiffs claim that Defendant Pr ecision violated the FHAA, 42 U.S.C. § 3604(f)(3), is DISMISSED WITH PREJUDICE; (4) Plaintiff is allowed to proceed with the claim of violation of the RA, 29 U.S.C. § 794(a), against Defendants Vitus, Washoe Mill Partners, L.P.,Washoe Mill Management, LLC, EPMI, and Precision; (5) Plaintiffs claim for violation of 24 C.F.R. § 50.3(i)(1)is DISMISSED WITHOUT PREJUDICE. Plaintiff is given leave to amend to the extent she can allege a colorable claim under a statute that provides a pr ivate right of action under these facts; (6) Plaintiffs claim for violation of 24 C.F.R. § 5.703 is DISMISSED WITHOUT PREJUDICE. To the extent Plaintiff can allege a colorable violation of a statute conferring a private right of action under the se facts, Plaintiff is given leave to amend;(7) To the extent Plaintiff asserts a claim under the ADA, it is DISMISSED WITHPREJUDICE; (8) Insofar as Plaintiff asserts a violation of a regulatory agreement, this claim is DISMISSED WITHOUT PREJUDICE; ( 9) Plaintiffs claim that Defendants violated 24 C.F.R. § 3280.309 is DISMISSED WITH PREJUDICE; (10) Plaintiffs claim that Defendants violated 29 C.F.R. § 1926.1101is DISMISSED WITH PREJUDICE; (11) Plaintiff is allowed to proceed with her cl aim for strict products liability design defect and failure to warn regarding the cabinets as to Defendants Lanz and Rosebud. This claim is DISMISSED WITH PREJUDICE as to Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management, LLC, EPMI, and Precision; (12) Plaintiffs claim of strict liability regarding the carpet installation is DISMISSED WITHOUT PREJUDICE;(13) Plaintiff is allowed to proceed with her claim for negligence (formaldehyde) against Defendants Vitus, Washoe Mill Partners , LP, Washoe Mill Management, LLC, EPMI, Precision, Lanz and Rosebud; (14) Plaintiffs claim for negligence related to asbestos removal is DISMISSED WITHOUT PREJUDICE; (15) Plaintiffs claim for fraudulent concealment of the formaldehyde in the cabinet s is allowed to proceed against Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management, LLC, EPMI, and Precision; (16) Plaintiffs claim for fraudulent concealment of the asbestos removal is DISMISSED WITHOUT PREJUDICE; (17) To the extent Plaintiff asserts a bystander theory of negligent infliction of emotional distress, this claim is DISMISSED WITH PREJUDICE; (18) To the extent Plaintiff asserts a direct theory of negligent infliction of emotional distress, this claim is allowed to p roceed against Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management, LLC, EPMI, and Precision; (19) Plaintiff is allowed to proceed with her claim for violation of NRS 118A.510 against Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management, LLC, and EPMI; (20) Plaintiff is allowed to proceed with her claim for violation of NRS 118A.500 against Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management, LLC, EPMI, and Precision;(21) Plaintiff is allowed to procee d with her claim of breach of the implied warranty of habitability under NRS 118A.355 and NRS 118A.360 against Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management, LLC, and EPMI; (22) Plaintiffs claim based on alleged violation of the Nevada Rules of Professional Conduct by Fahrendorf, Viloria, Oliphant, & Oster, L.L.P., and attorney Roger Doyle, is DISMISSED WITH PREJUDICE; (23) Plaintiffs claims of criminal conduct are DISMISSED WITH PREJUDICE; (24) Failing to state any claim up on which relief may be granted as to Fahrendorf, Viloria, Oliphant, & Oster, L.L.P., and attorney Roger Doyle, these defendants are DISMISSED WITHOUTPREJUDICE; (25) Plaintiff is advised that if she chooses to file a secondamended complaint, it shall be complete in itself without reference to any previous complaint. Plaintiff is given thirty (30) days from the date of the order adopting the Report and Recommendation within which to file a second amended complaint remedying, if possible, the d efects in the First AmendedComplaint explained above. Any allegations, parties, or requests for relief from prior papers that are not carried forward in the second amended complaint will no longer be before the court. Plaintiff is cautioned that if she fails to file a second amended complaint within the time period specified above, the action will proceed on the First Amended Complaint, and only with respect to those claims which the court allows to proceed. IT IS SO ORDERED. (Copy of First Amended Complaint 5 sent to plaintiff). (Amended Complaint deadline: 12/21/2011.) Signed by Judge Larry R. Hicks on 11/17/2011. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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*****

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JUNE WISNIEWSKI,

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Plaintiff,
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v.
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VITUS GROUP, INC., et al.,
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Defendants.
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_____________________________________ )

3:11-cv-00621-LRH-WGC
ORDER

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Before this Court is the Report and Recommendation of U.S. Magistrate Judge William G.

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Cobb (#61) entered on November 2, 2011, recommending granting Plaintiff’s request to proceed in

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forma pauperis (#1) and reviewing Plaintiff’s First Amended Complaint (#5). No objection to the

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Report and Recommendation has been filed. The action was referred to the Magistrate Judge pursuant

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to 28 U.S.C. § 636(b)(1)B and Local Rule 1B 1-4 of the Rules of Practice of the United States District

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Court for the District of Nevada.

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The Court has conducted its de novo review in this case, has fully considered the pleadings and

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memoranda of the parties and other relevant matters of record pursuant to 28 U.S.C. § 636 (b) (1) (B)

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and Local Rule IB 3-2. The Court determines that the Magistrate Judge’s Report and Recommendation

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(#6) entered on November, 2011, should be adopted and accepted.

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Refers to court’s docket number.

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IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and Recommendation (#6)
entered on November 2, 2011, is adopted and accepted as follows:

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(1) Plaintiff’s requests to proceed in forma pauperis (Doc. # 1) is GRANTED. The Clerk of

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the Court is instructed to FILE the First Amended Complaint (Doc. # 5). The movant herein is

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permitted to maintain this action to conclusion without the necessity of prepayment of fees or costs or

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the giving of security therefor. The order granting in forma pauperis status does not extend to the

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issuance of subpoenas at government expense;

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(2) Plaintiff is allowed to proceed with her claim under the FHAA, 42 U.S.C. § 3604(f)(3),

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against Defendants Vitus, Washoe Mill Partners, L.P., Washoe Mill Management, LLC, and EPMI;

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(3) Plaintiff’s claim that Defendant Precision violated the FHAA, 42 U.S.C. § 3604(f)(3), is

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DISMISSED WITH PREJUDICE;

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(4) Plaintiff is allowed to proceed with the claim of violation of the RA, 29 U.S.C. § 794(a),

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against Defendants Vitus, Washoe Mill Partners, L.P.,Washoe Mill Management, LLC, EPMI, and

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Precision;

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(5) Plaintiff’s claim for violation of 24 C.F.R. § 50.3(i)(1)is DISMISSED WITHOUT

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PREJUDICE. Plaintiff is given leave to amend to the extent she can allege a colorable claim under

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a statute that provides a private right of action under these facts;

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(6) Plaintiff’s claim for violation of 24 C.F.R. § 5.703 is DISMISSED WITHOUT

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PREJUDICE. To the extent Plaintiff can allege a colorable violation of a statute conferring a private

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right of action under these facts, Plaintiff is given leave to amend;

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(7) To the extent Plaintiff asserts a claim under the ADA, it is DISMISSED WITH
PREJUDICE;
(8) Insofar as Plaintiff asserts a violation of a regulatory agreement, this claim is DISMISSED
WITHOUT PREJUDICE;
(9) Plaintiff’s claim that Defendants violated 24 C.F.R. § 3280.309 is DISMISSED WITH
PREJUDICE;
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(10) Plaintiff’s claim that Defendants violated 29 C.F.R. § 1926.1101is DISMISSED WITH
PREJUDICE;

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(11) Plaintiff is allowed to proceed with her claim for strict products liability design defect and

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failure to warn regarding the cabinets as to Defendants Lanz and Rosebud. This claim is DISMISSED

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WITH PREJUDICE as to Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management,

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LLC, EPMI, and Precision;

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(12) Plaintiff’s claim of strict liability regarding the carpet installation is DISMISSED
WITHOUT PREJUDICE;

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(13) Plaintiff is allowed to proceed with her claim for negligence (formaldehyde) against

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Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management, LLC, EPMI, Precision, Lanz

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and Rosebud;

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(14) Plaintiff’s claim for negligence related to asbestos removal is DISMISSED WITHOUT
PREJUDICE;

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(15) Plaintiff’s claim for fraudulent concealment of the formaldehyde in the cabinets is allowed

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to proceed against Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management, LLC,

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EPMI, and Precision;

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(16) Plaintiff’s claim for fraudulent concealment of the asbestos removal is DISMISSED
WITHOUT PREJUDICE;
(17) To the extent Plaintiff asserts a bystander theory of negligent infliction of emotional
distress, this claim is DISMISSED WITH PREJUDICE;

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(18) To the extent Plaintiff asserts a direct theory of negligent infliction of emotional distress,

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this claim is allowed to proceed against Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill

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Management, LLC, EPMI, and Precision;

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(19) Plaintiff is allowed to proceed with her claim for violation of NRS 118A.510 against
Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management, LLC, and EPMI;
(20) Plaintiff is allowed to proceed with her claim for violation of NRS 118A.500 against
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Defendants Vitus, Washoe Mill Partners, LP, Washoe Mill Management, LLC, EPMI, and Precision;

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(21) Plaintiff is allowed to proceed with her claim of breach of the implied warranty of

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habitability under NRS 118A.355 and NRS 118A.360 against Defendants Vitus, Washoe Mill Partners,

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LP, Washoe Mill Management, LLC, and EPMI;

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(22) Plaintiff’s claim based on alleged violation of the Nevada Rules of Professional Conduct

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by Fahrendorf, Viloria, Oliphant, & Oster, L.L.P., and attorney Roger Doyle, is DISMISSED WITH

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PREJUDICE;

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(23) Plaintiff’s claims of criminal conduct are DISMISSED WITH PREJUDICE;

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(24) Failing to state any claim upon which relief may be granted as to Fahrendorf, Viloria,

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Oliphant, & Oster, L.L.P., and attorney Roger Doyle, these defendants are DISMISSED WITHOUT

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PREJUDICE;

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(25) Plaintiff is advised that pursuant to Local Rule 15-1, if she chooses to file a second

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amended complaint, it shall be complete in itself without reference to any previous complaint. Plaintiff

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is given thirty (30) days from the date of the order adopting the Report and Recommendation within

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which to file a second amended complaint remedying, if possible, the defects in the First Amended

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Complaint explained above. Any allegations, parties, or requests for relief from prior papers that are

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not carried forward in the second amended complaint will no longer be before the court. Plaintiff is

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cautioned that if she fails to file a second amended complaint within the time period specified above,

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the action will proceed on the First Amended Complaint, and only with respect to those claims which

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the court allows to proceed. Plaintiff shall clearly title the second amended complaint as such by

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placing the words “SECOND AMENDED COMPLAINT” on page 1 in the caption, and plaintiff shall

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place the case number, 3:11-CV-00621-LRH-WGC, above the words “SECOND AMENDED

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COMPLAINT”in the space for “Case No.”

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IT IS SO ORDERED.

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DATED this 17th day of November, 2011.

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_______________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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