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Hornsby v. Goldman Sachs & Co.

United States District Court, D. Nevada

April 1, 2014

HOWARD HORNSBY, Plaintiff,
v.
GOLDMAN SACHS & CO., a Foreign Limited Partnership, GRAMERCY CAPITAL CORP., a Foreign Corporation (formerly known as The LVH-Las Vegas Hotel & Casino and formerly known as The Las Vegas Hilton and NAVEGANTE GROUP, INC. a Nevada Domestic Corporation and DOES and ROES I through X, inclusive, Defendants.

ORDER

GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is the Report & Recommendation (ECF No. 26) of United States Magistrate Judge Peggy A. Leen, entered on June 18, 2013 and recommending dismissal of the case. Plaintiff Howard Hornsby ("Plaintiff") filed his Objection to the Report and Recommendation (ECF No. 28) on June 28, 2013.

Also pending before the Court is the Motion to Dismiss (ECF No. 36) filed by Defendants Goldman Sachs & Co. ("Goldman Sachs"), Gramercy Capital Corp. ("Gramercy"), and Navegante Group, Inc. ("Navegante") on January 14, 2014. Plaintiff filed his Response (ECF No. 38) on January 24, 2014, and Defendants filed their Reply (ECF No. 40) on February 3, 2014. For the reasons stated below, the Court will GRANT Defendants' Motion to Dismiss (ECF No. 36), which renders the Report and Recommendation (ECF No. 26) moot.

I. BACKGROUND

This case has a long procedural history. Plaintiff initiated this case by filing an Application to Proceed In Forma Pauperis (ECF No. 1) on October 28, 2011. On November 3, 2011, the Court denied the Application without prejudice because it was incomplete and allowed Plaintiff to file a new Application before December 1, 2011. (Order, ECF No. 2.) Plaintiff complied and filed a new Application (ECF No. 5) on December 1, 2011. In an Order (ECF No. 6) entered on December 8, 2011, the Court approved Plaintiff's Application and screened the Complaint (ECF No. 7) pursuant to 28 U.S.C. ยง 1915. The Complaint alleges that "Defendant Hilton Resorts and Casino" terminated Plaintiff's employment with them in violation of the Civil Rights Act of 1964, the Age Discrimination and Employment Act ("ADEA") and Nevada state law on account of his age.[1] ( Id. ) The Court directed the Clerk of Court to issue summons and directed service by the U.S. Marshal's Service. (Order, ECF No. 6.)

Six months later on June 13, 2012, the Clerk of Court issued a Notice of Intent to Dismiss (ECF No. 12) for Plaintiff's failure to file proof of service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Plaintiff sent a Letter (ECF No. 14) on June 25, 2012, explaining his failure to serve Defendant based on his inexperience with court procedures and failure to obtain legal counsel. On July 20, 2012, the Court entered an Order (ECF No. 15) allowing Plaintiff until September 14, 2012 to file proof of service.

On September 13, 2012, Plaintiff filed a second request to extend time (ECF No. 18) to serve Defendant. He explained that Defendant had changed its name to LVH - Las Vegas Hotel & Casino ("LVH"), and it refused to accept the summons issued to the "Las Vegas Hilton" by the Clerk of Court. Id. The Court provided Plaintiff an additional forty-five days to amend the Complaint to reflect the Defendant's new name and to serve the new Defendant. (Order ECF No. 19.) Plaintiff complied and filed an Amended Complaint (ECF No. 21) on October 30, 2012. The Clerk of Court issued new Summons (ECF No. 22) to The LVH - Las Vegas Hotel & Casino. This Summons was returned unexecuted on November 26, 2013. (ECF No. 23.)

Five months later on April 12, 2013, the Clerk of Court issued a second Notice of Intent to Dismiss (ECF No. 24) for Plaintiff's failure to file proof of service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Then on May 6, 2013, Plaintiff filed a Motion to Extend Time to File an Amended Complaint (ECF No. 25), seeking an additional 45 days to file a second amended complaint because LVH had allegedly[2] been purchased at foreclosure by Goldman Sachs and Gramercy in November of 2012 and that Navegante was the new operator. ( Id. ) The Court denied Plaintiff's Motion by Order and Judge Leen recommended that Plaintiff's Amended Complaint be dismissed. (ECF No. 26.) Plaintiff then, without leave from the Court, filed a Second Amended Complaint naming Goldman Sachs, Gramercy, and Navegante as Defendants. (ECF No. 27.)

Subsequently, Defendants filed the pending Motion to Dismiss (ECF No. 36), alleging multiple grounds for dismissal pursuant to Federal Rules Civil Procedure 12(b)(1) and 12(b)(6), including that Defendants are not Plaintiff's former employer or their successor in liability.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See North Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). 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).

In order to survive a motion to dismiss, a complaint must allege "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). "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." Id.

If the court grants a motion to dismiss, it must then decide whether to grant leave to amend. Pursuant to Rule 15(a), the court should "freely" give leave to amend "when justice so requires, " and in the absence of a reason such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is ...


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