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Lo v. Verizon Wireless LLC

United States District Court, D. Nevada

May 27, 2014

ALFRED LO, Plaintiff(s),
v.
VERIZON WIRELESS LLC aka VERIZON COMMUNICATIONS, INC., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendant Cellco Partnership's (hereinafter "Verizon Wireless" or "defendant") motion to partially dismiss. (Doc. # 10). Plaintiff Alfred Lo (hereinafter "plaintiff") responded, (doc. # 11), and defendant replied, (doc. # 13).

I. Background

This action arises from the termination of the plaintiff's employment, which occurred when defendant refused to rescind plaintiff's resignation on August 19, 2011. On April, 24, 2012, 249 days after resigning, the plaintiff filed a "charge of discrimination" with the U.S. Equal Employment Opportunity Commission ("EEOC") alleging that the defendant discriminated against him based on age and national origin, and then "terminated" him in retaliation for voicing his concerns about disparate treatment, lack of adequate training and supervision, and harassing conduct prior to his resignation. The plaintiff alleges that the "termination" was facilitated through disparate treatment and encouragement by the plaintiff's immediate supervisor to resign. (Doc. # 13).

The defendant brings the instant motion on the basis that the claims are time barred by statute of limitations and fails to meet the standard set by Federal Rule of Civil Procedure 12(b)(6). (Doc. # 10).

II. Legal standard

A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted).

"Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 1949.

Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949.

Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged - but not shown - that the pleader is entitled to relief." Id. (internal quotations omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

The Ninth Circuit addressed post- Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, "First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id.

III. Discussion

A. The plaintiff's state law employment discrimination claims are time barred (claims one, two, ...


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