Herron v. Peri & Sons Farms, Inc.

Filing 11

ORDER - Plaintiff is granted leave to file an amended complaint on or before September 16, 2013. Should plaintiff fail to file an amended complaint, the defendant's 3 Motion to dismiss will be granted. Signed by Judge Howard D. McKibben on 8/27/2013. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIAM HERRON,

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Plaintiff,
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vs.
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PERI & SON’S FARMS, INC.,
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Defendant.
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_________________________________ )

3:13-cv-00075-HDM-VPC
ORDER

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Defendant Peri & Son’s Farms (“defendant”) has filed a motion
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to dismiss plaintiff William Herron’s (“plaintiff”) complaint for
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failure to state a claim.

Plaintiff’s complaint, filed on February

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14, 2013, asserts wrongful termination and a failure to reasonably
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accommodate under the Americans with Disabilities Act (“ADA”).
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Defendant moves to dismiss plaintiff’s complaint on the grounds
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that: (1) it does not identify plaintiff’s alleged disability or
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allege how he is disabled within the meaning of the ADA; (2) it
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does not state facts showing plaintiff was qualified for his
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position, what the normal job duties of his position were, or what
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defendant asked him to do outside those duties; (3) it does not
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allege any facts connecting plaintiff’s termination to his alleged
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disability; and (4) it does not identify what reasonable

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accommodations plaintiff requested or how defendant failed to

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accommodate them.

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believes his complaint is sufficiently pled, he also requests leave

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to amend his complaint to the extent it is deficient.

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While plaintiff opposes defendant’s motion and

In considering a motion to dismiss under Rule 12(b)(6), the

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court must accept as true all material allegations in the complaint

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as well as all reasonable inferences that may be drawn from such

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allegations.

LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir.

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2000).

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the light most favorable to the nonmoving party.

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States, 234 F.3d 428, 435 (9th Cir. 2000).

The allegations of the complaint also must be construed in
Shwarz v. United

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“Under the notice pleading standard of the Federal Rules,

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plaintiffs are only required to give a ‘short and plain statement’

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of their claims in the complaint.”

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1061, 1071 (9th Cir. 2009) (quoting Diaz v. Int’l Longshore &

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Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)).

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While this rule “does not require ‘detailed factual allegations,’ .

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. . it demands more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.”

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Thus, a complaint “must contain sufficient factual matter . . . to

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state a claim to relief that is plausible on its face.”

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claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.”

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plausibility standard demands “more than a sheer possibility that a

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defendant has acted unlawfully.”

Paulsen v. CNF, Inc., 559 F.3d

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

Id.
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Id.

Id.

“A

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A pleading is insufficient

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if it offers only labels and conclusions, a formulaic recitation of

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the elements of a cause of action, or “naked assertions devoid of

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further factual enhancement.”

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Id. (internal punctuation omitted).

Plaintiff’s bare and conclusory assertion of disability does

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not contain even minimal factual detail to suggest that he has a

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disability that is plausible on its face and falls within the

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protection of the ADA.

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reasonable accommodation he requested, making it impossible to

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determine the plausibility of this claim.

Further, plaintiff does not identify what

Accordingly, the

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plaintiff is granted leave to file an amended complaint on or

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before September 16, 2013.

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amended complaint, the defendant’s motion to dismiss shall be

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granted.

Should plaintiff fail to file an

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IT IS SO ORDERED.

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DATED: This 27th day of August, 2013.

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____________________________
UNITED STATES DISTRICT JUDGE

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