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Lerner v. O'Connor

United States District Court, D. Nevada

July 3, 2014

GLEN LERNER and COREY ESCHWEILER, Plaintiff(s),
v.
MICHAEL O'CONNOR, Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is a motion to dismiss filed by defendant Michael O'Connor. (Doc. # 6). Plaintiffs Glen Lerner and Corey Eschweiler have filed a response in opposition (doc. # 8) and defendant filed a reply (doc. # 12).

I. Background

Plaintiffs are attorneys with the firm Glen Lerner & Associates. (Doc. # 1 at p. 2).

Plaintiffs filed the instant action seeking declaratory relief relating to defendant having initiated arbitration against both plaintiffs in their individual capacities and against Glen Lerner & Associates. (Doc. # 1 at p. 8-9). Plaintiffs also allege abuse of process by defendant in initiating and "actively prosecut[ing]" the arbitration. (Doc. # 1 at p. 10).

Defendant initiated arbitration apparently stemming from a dispute regarding plaintiffs' representation of defendant in the acquisition of a sum of money left to him upon the death of his father. (Doc. # 1 at p. 3). Plaintiffs' firm and defendant had previously entered into a fee agreement which includes an arbitration clause. (Doc. # 1 at p. 3). The clause states:

Arbitration of Disputes. It is agreed that any and all disputes, claims or controversies arising out of or relating to this agreement or to our performance of legal services hereunder, including but not limited to those relating to our fees and the quality or appropriateness of our services, shall be resolved at the request of any party hereto by final and binding arbitration before the Judicial Arbitration and Mediation Service.

(Doc. # 1 at p. 16). Plaintiff Corey Eschweiler signed the agreement under the heading "Glen J. Lerner & Associates." (Doc. # 1 at p. 17).

Defendant now moves to dismiss the complaint based on the arbitration clause.

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, 556 U.S. 662, 678 (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, 556 U.S. at 678 (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. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. 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 678.

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 ...


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