Herron v. Peri & Sons Farms, Inc.

Filing 27

ORDER denying 16 and 22 Motions to Dismiss. Plaintiff's retaliation claim is stricken. Signed by Judge Howard D. McKibben on 12/12/13. (Copies have been distributed pursuant to the NEF - JC)

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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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Before the court is the defendant Peri & Son’s Farms
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(“defendant”) motion to dismiss plaintiff William Herron’s
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(“plaintiff”) first amended complaint for failure to state a claim
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(#16).

Plaintiff has responded (#20), and defendant has replied

(#23).

Also before the court is the defendant’s motion to dismiss

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for failure to exhaust administrative remedies (#22).
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has responded (#25), and defendant has replied (#26).
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Plaintiff

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On March 12, 2013, defendant moved to dismiss plaintiff’s

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original complaint, filed on February 14, 2013, for failure to

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state a claim.

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granted plaintiff leave to file an amended complaint to cure

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certain deficiencies in his complaint.

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complaint on September 5, 2013.

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defendant’s first motion to dismiss as moot.

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Before deciding the motion to dismiss, the court

Plaintiff filed an amended

The court therefore denied the

Defendant has now moved to dismiss plaintiff’s first amended
complaint, which purports to assert claims of discrimination,

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failure to accommodate, and retaliation under the Americans with

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Disabilities Act (“ADA”).

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In its motion to dismiss filed on September 20, 2013 (#16),

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defendant argues that plaintiff’s complaint fails to state a claim

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because it does not allege any facts demonstrating that plaintiff:

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(1) is disabled within the meaning of the ADA; (2) is a qualified

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individual who could perform the essential functions of the job

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with or without reasonable accommodation; or (3) was terminated

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because of his disability.

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has not sufficiently alleged how defendant denied him a reasonable

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accommodation.

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Defendant further argues that plaintiff

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.

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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).

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

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

“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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The rule “does not require ‘detailed factual allegations.’”

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

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

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require that a complaint “contain sufficient factual matter . . .

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

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

It does, however,

Id.

“A

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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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pleading is insufficient if it offers only labels and conclusions,

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a formulaic recitation of the elements of a cause of action, or

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“naked assertions devoid of further factual enhancement.”

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(internal punctuation omitted).

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Id.

A

Id.

Plaintiff’s complaint states a plausible claim of disability

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discrimination and failure to accommodate.

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to dismiss those claims for failure to state a claim is DENIED.

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so deciding, the court notes that defendant’s motion largely seeks

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detailed factual allegations that are not required by Twombly or

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Iqbal.

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to suggest plaintiff’s complaint is insufficiently pled are

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materially distinguishable.

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the defendant’s arguments take issue with the facts as alleged by

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plaintiff; factual disagreements are not a proper basis for

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dismissal.

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Accordingly, the motion
In

The court further notes that the cases cited by defendant

Finally, the court notes that many of

Defendant also argues that plaintiff’s retaliation claim is
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insufficiently pled.

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Plaintiff’s original complaint did not assert a claim of

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retaliation under the ADA.

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15(a)(1), the plaintiff may file an amended complaint once as a

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matter of course within 21 days of serving the complaint or within

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21 days after service of a motion under Rule 12(b).

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complaint may be amended only with leave of court or consent of the

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opposing party.

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was not filed as a matter of course under Rule 15(a)(1).

The court does not reach that issue.

Under Federal Rule of Civil Procedure

Fed. R. Civ. P. 15(a)(2).

Otherwise, a

Plaintiff’s complaint
Rather,

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it was filed pursuant to leave of court.

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granted plaintiff leave to cure the deficiencies in the original

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complaint.

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claims.

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claim of retaliation in his complaint, the retaliation claim is

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hereby STRICKEN.

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defendant’s remaining arguments, in both motions, with respect to

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plaintiff’s retaliation claim, as all such arguments are moot.

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Importantly, the court

It did not grant plaintiff leave to add additional

Because plaintiff has not been granted leave to include a

The court therefore declines to address the

Finally, in its motion to dismiss filed on October 18, 2013

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(#22), defendant argues that plaintiff failed to exhaust his

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reasonable accommodation claim.

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accommodation claim is “like or reasonably related” to the

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allegations in plaintiff’s NERC charge or “within the scope of [a

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NERC] investigation that reasonably could be expected to grow out

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of the allegations,” Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir.

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2003), is a close question.

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reasonable accommodation claim for failure to exhaust is therefore

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denied without prejudice to renew in a motion for summary judgment.

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Whether the reasonable

Defendant’s motion to dismiss the

In accordance with the foregoing, defendant’s motion to
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dismiss for failure to state a claim (#16) is DENIED, the

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plaintiff’s retaliation claim is STRICKEN, and defendant’s motion

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to dismiss for failure to exhaust (#22) is DENIED WITHOUT PREJUDICE

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to renew in relevant part in a motion for summary judgment.

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IT IS SO ORDERED.

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DATED: This 12th day of December, 2013.

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____________________________
UNITED STATES DISTRICT JUDGE

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