The opinion of the court was delivered by: Robert C. Jones, District Judge.
This case arises out of the termination of a construction manager. Pending before the Court are Plaintiff's motion to remand and Defendants' motion to dismiss. For the reasons given herein, the Court denies the motion to remand and grants the motion to dismiss, with leave to amend.
I. FACTS AND PROCEDURAL HISTORY
Defendants Multipoint Wireless, LLC and Ericsson, Inc. offered Plaintiff Tyce Heldenbrand a position in Las Vegas as a cell tower construction manager at a salary of $100,000 per year. (Compl.¶ 10). Plaintiff moved from Kentucky to Las Vegas, Nevada to begin work in the summer of 2011, but upon arriving in Las Vegas, Defendants informed him for the first time that he would be working the "graveyard" shift from 7:00 p.m. to 8:00 a.m. ( Id. ¶¶ 9–11). Plaintiff complained immediately and was unable to complete night shifts without sleep, but when the "recruiter" notified "upper management" on Plaintiff's behalf, upper management refused to allow Plaintiff to work days. ( Id. ¶ 14–15). Plaintiff also discovered violations of local permitting requirements, and the day after he reported some violations, Defendants fired him. ( Id. ¶¶ 16–19).
Plaintiff sued Defendants in state court on six causes of action: (1) violation of NRS section 613.010; (2) promissory estoppel; (3) promissory fraud; (4) negligent misrepresentation; and (5)-(6) retaliatory discharge. Defendants removed based upon diversity. Plaintiff has moved to remand for failure to satisfy the amount-in-controversy requirement.
Assuming complete diversity, federal courts have jurisdiction over state claw claims where the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a). Where a complaint specifies no precise amount of damages, a removing defendant bears the burden of showing by a preponderance of the evidence that the amount in controversy exceeds $75,000. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403–04 (9th Cir.1996).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."). In other words, under the modern interpretation of Rule 8(a), a plaintiff must do more than specify the legal theory under which he seeks to hold a defendant liable; he also must identify the theory of his own case so that the court can properly determine not only whether any such legal theory exists ( Conley review), but also whether he has any basis for relief under such a theory even assuming the facts are as he alleges ( Twombly–Iqbal review).
"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990) (citation omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994). Moreover, under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001).
Plaintiff argues that compensatory damages are only $8333, or one month's pay. He also argues that although he has asked for emotional distress damages, punitive damages, and attorney's fees, there is no evidence as to what these damages should be.*fn1 Defendants respond that Plaintiff has alleged a salary of over $100,000 per year and that he was seeking ...