Lampros v. Baker
Filing
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ORDER granting 6 Motion to Dismiss. The case is remanded, and Clerk shall close case. Signed by Judge Robert C. Jones on 4/17/14. (Copies have been distributed pursuant to the NEF; certified copy of order and docket sheet mailed to Seventh Judicial District Court - JC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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______________________________________
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JOHN S. LAMPROS,
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Plaintiff,
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vs.
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NANCY L. BAKER,
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Defendant.
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Case No.: 3:14-cv-00026-RCJ-VPC
ORDER
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This is a defamation case removed based upon a counterclaim and third-party complaint
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alleging unconstitutional retaliation in violation of the First and Fourteenth Amendments. A
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Third-Party Defendant has moved to dismiss the federal counterclaim and third-party claim. For
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the reasons given herein, the Court grants that motion and remands the remainder of the case to
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state court.
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I.
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FACTS AND PROCEDURAL HISTORY
On or about July 13, 2013, Defendant Nancy L. Baker published unprivileged,
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defamatory statements concerning Plaintiff John S. Lampros. (Compl. ¶ 8, Sept. 13, 2013, ECF
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No. 1, at 5). Specifically, she posted to the “White Pine & Ely Politics” page of the Facebook
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website that Lampros was a “bully or an alcoholic.” (Id. ¶ 10). Lampros sued Baker in state
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court for defamation. Baker filed a Counterclaim and Third-Party Complaint against Lampros
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and White Pine County (the “County”) for: (1) unlawful retaliation under the First and
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Fourteenth Amendments pursuant to 42 U.S.C. § 1983; and (2) abuse of process. (See Answer &
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Countercl. 3–4, Oct. 17, 2013, ECF No. 1, at 13). The County has moved to dismiss the Third-
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Party Complaint for failure to state a claim.
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II.
LEGAL STANDARDS
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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
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claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of
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what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47
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(1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action
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that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule
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12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720
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F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for
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failure to state a claim, dismissal is appropriate only when the complaint does not give the
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defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell
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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is
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sufficient to state a claim, the court will take all material allegations as true and construe them in
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the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th
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Cir. 1986). The court, however, is not required to accept as true allegations that are merely
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conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden
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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action
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with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own
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case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677–79
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(2009) (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff
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pleads factual content that allows the court to draw the reasonable inference that the defendant is
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liable for the misconduct alleged.”). In other words, under the modern interpretation of Rule
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8(a), a plaintiff must not only specify or imply a cognizable legal theory (Conley review), but
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also must plead the facts of his own case so that the court can determine whether the plaintiff has
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any plausible basis for relief under the legal theory he has specified or implied, assuming the
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facts are as he alleges (Twombly-Iqbal review).
“Generally, a district court may not consider any material beyond the pleadings in ruling
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on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the
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complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner
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& Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents
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whose contents are alleged in a complaint and whose authenticity no party questions, but which
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are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)
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motion to dismiss” without converting the motion to dismiss into a motion for summary
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judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule
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of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay
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Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court
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considers materials outside of the pleadings, the motion to dismiss is converted into a motion for
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summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.
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2001).
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III.
ANALYSIS
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The County argues that Defendant’s Third-Party Complaint should be dismissed, because
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Lampros did not act as an agent of the County when he allegedly retaliated against Plaintiff. The
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Court agrees. Defendant identifies only Lampros’s filing of the present lawsuit as the basis of
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the retaliation claim, (see Answer & Countercl. ¶ 4, at 3), and it is clear from the docket that
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Lampros filed the present lawsuit as an individual. The Court therefore dismisses the § 1983
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claim as against the County. It makes no difference, as Baker argues in response, that Baker’s
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allegedly defamatory statements were directed to the “reputation [Lampros] has achieved
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through color of office.” The question is whether Lampros’s filing of the present suit was done
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on behalf of the County. There is no such allegation in the Counterclaim, and the record
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definitively refutes such a notion.
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Because it is clear from documents of which the Court may take judicial notice (the
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Court’s own docket) that Lampros filed the present Complaint not as a state actor, but as an
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individual, the Court also dismisses the § 1983 claim as against Lampros himself, and the Court
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need not turn the present motion into a motion for summary judgment to do so. The only claims
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remaining being those for defamation and abuse of process under state law, and there being no
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diversity, the Court remands the case to the Seventh Judicial District Court. See 28 U.S.C.
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§ 1367(c)(3).
CONCLUSION
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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 6) is GRANTED.
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IT IS FURTHER ORDERED that the case is REMANDED, and the Clerk shall close the
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case.
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IT IS SO ORDERED.
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Dated this 17th day of April, 2014.
Dated this 27th day of March, 2014.
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_____________________________________
ROBERT C. JONES
United States District Judge
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