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Rojas v. Lewis Brisbois Bisgaard & Smith Llp

United States District Court, D. Nevada

July 18, 2014

CAROL ROJAS, Plaintiff,
LEWIS BRISBOIS BISGAARD & SMITH LLP, a California corporation, Defendant.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is the Motion to Dismiss (ECF No. 8) filed by Defendant Lewis Brisbois Bisgaard & Smith LLP ("LBBS") on November 5, 2013. Plaintiff Carol Rojas ("Plaintiff") filed her Response (ECF No. 11) and Declaration in Support of Response (ECF No. 12) on November 18, 2013. LBBS filed its Reply (ECF No. 14) on November 28, 2013. For the reasons addressed below, the Court Grants LBBS's Motion to Dismiss.


Plaintiff began working for LBBS as a Legal Assistant on July 18, 2007. (Compl. ¶ 11, ECF No. 1.) On her first day of work, Plaintiff signed a "Mutual Agreement to Arbitrate Claims" (the "Agreement to Arbitrate"). (Exs. 3 and 7 to Plaintiff's Decl. in Supp., ECF No. 12); see also (Ex. A to Mot. to Dismiss, ECF No. 8.) Throughout her employment with LBBS, Plaintiff received positive reviews and regular pay increases and never received any kind of reprimand or disciplinary action. (Compl. ¶¶ 12-13, ECF No. 1.)

In February of 2009, Plaintiff was hospitalized twice for a medical condition that affected her vision and muscle coordination. ( Id. ¶ 14.) In May of 2009, LBBS's staff was informed that the firm's office at 400 S. Fourth Street (the "Downtown Location") would be moving to a new office at 6385 S. Rainbow Boulevard (the "Rainbow Location"). ( Id. ¶ 17.) When Plaintiff informed her supervisor that her ongoing medical conditions prevented her from driving to the Rainbow Location, she was reassigned to attorneys who were staying at the Downtown Location. ( Id. ¶ 18.) However, in May of 2010 Plaintiff was informed that the remaining attorneys, with the exception of the workers' compensation group, would be moving to the Rainbow Location. ( Id. ¶ 19.) Plaintiff then interviewed for a paralegal position with an attorney in the workers' compensation group, but she was told that she was not qualified for the position because she had not obtained certification as a paralegal. ( Id. ¶¶ 21-23.)

On July 9, 2010, Plaintiff resigned, citing medical reasons. ( Id. ¶ 25.) Sometime later, Plaintiff learned that LBBS filled the open paralegal position with a woman who is younger than Plaintiff and who also did not have a paralegal certificate. ( Id. ¶ 27.) Plaintiff then filed a timely Charge of Discrimination with the Equal Employment Opportunity Commission (the "EEOC") alleging that she was discriminated against based on her age and medical disability. ( Id. ¶ 4.) On April 25, 2013, Plaintiff received her Right to Sue from the EEOC and subsequently filed her Complaint. ( Id. ¶ 6.) The Complaint alleges five claims for relief against LBBS for discrimination based on age in violation of the Age Discrimination in Employment Act (the "ADEA") and the corresponding Nevada statute, for discrimination based on disability in violation of the Americans with Disabilities Act (the "ADA") and the corresponding Nevada statute, and for tortious discharge. ( Id. ¶¶ 31-62.)

In response to the Complaint, LBBS filed the pending Motion to Dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 8.) As grounds for dismissal, LBBS argues that all of Plaintiff's claims are covered by the Agreement to Arbitrate, which it asserts is valid and enforceable. ( Id. 4:1-3.)


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). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (emphasis added).

"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) (citations 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). Under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib., 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 Fed.R.Civ.P. 12(d); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).


The Federal Arbitration Act (the "FAA"), 9 U.S.C. § 1 et seq., "mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). "The court's role under the Act is therefore limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue." Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000) (citing 9 U.S.C. § 4). If a district court decides that an arbitration agreement is valid and enforceable, then it should either stay or dismiss the claims subject to arbitration. Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1276-77 (9th Cir. 2006).

Plaintiff makes no assertion that her claims are not encompassed by the Agreement to Arbitrate or that the Agreement to Arbitrate is not authentic. (Resp., ECF No. 11.) Instead, Plaintiff argues in her Response that LBBS's motion should be denied because (1) it was untimely filed, (2) LBBS waived their right to arbitrate, and (3) the Agreement to Arbitrate ...

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