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Crain v. Petrushkin

United States District Court, D. Nevada

August 5, 2014

STEVEN CRAIN, Plaintiff,
ANDREY PETRUSHKIN, et al., Defendants.


C. W. HOFFMAN, Jr., Magistrate Judge.

This matter is before the court on Plaintiff Steven Crain's Renewed Application to Proceed In Forma Pauperis (#3), filed October 21, 2013. His initial application (#1) was denied without prejudice because it was incomplete. Plaintiff was instructed to submit a renewed, completed application or pay the filing fee. He submitted the renewed application, which the undersigned has reviewed pursuant to 28 U.S.C. § 1915. The Court finds that Plaintiff is unable to pre-pay the filing fee and his request to proceed in forma pauperis is granted.


Plaintiff names two defendants in his complaint: (1) Defendant Andrey Petrushkin, an individual residing in Clark County, Nevada, and (2) Defendant Advance Home Services, LLC, also located in Clark County, Nevada. He alleges that he became employed by Advanced Home Services on or about the second week of May, 2013 as a journeyman plumber. On June 4, 2013, approximately one month after he began his employment, he was pulled over while driving a van owned by Defendant Advanced Home Services and ticketed for violation of Nevada Revised Statute 482.545(1).[1] The ticket imposed a fine of $1149.00. Plaintiff claims that he "whistle blew" on his employer by informing the ticketing officer that the vehicle was owned by his employer. The following day Plaintiff was terminated from his employment with Advanced Home Services. Prior to being terminated, Plaintiff alleges that he telephoned Defendant Petrushkin to inform him that he (Plaintiff) had received a ticket. Petrushkin allegedly told Plaintiff that he would have an attorney take care of the ticket but, after terminating Plaintiff, sent Plaintiff a check for $50.00. Plaintiff did not accept the check because it was not sufficient to cover the fine imposed. Plaintiff further alleges that the defendants committed acts of "bad faith" by promising him that he would have a "lengthy career" with Defendant Advanced Home Services only to terminate him after three weeks of employment, right after he received the ticket. He alleges that another employee had crashed a vehicle three separate times but was not terminated. He also alleges that another employee caused "many on-the-job floods and leaks" causing "several thousand[] dollars" in damages but was not terminated.

Based on these allegations, Plaintiff is seeking damages, including punitive damages, for (1) wrongful termination in violation of public policy, (2) wrongful termination - whistle blower, (3) bad faith, and (4) intentional infliction of emotional distress. Plaintiff's first two claims are really the same claim - wrongful termination in violation of public policy - based on Plaintiff's allegation that his telling the officer that the vehicle he was driving at the time he was ticketed did not belong to him was protected activity.


Because Plaintiff is proceeding in forma pauperis, the court must screen the complaint pursuant to 28 U.S.C. § 1915(e), which provides that "the court shall dismiss the case at any time if the court determines" the action or appeal is (1) frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Normally, when a court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). 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. Twombley, 550 U.S. 544, 555 (2007). Although 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) ( citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570.

1. Diversity Jurisdiction

Federal district courts have original jurisdiction over civil actions in diversity cases "where the matter in controversy exceeds the sum or value of $75, 000" and where the matter is between "citizens of different states." 28 U.S.C. § 1332. In his complaint, Plaintiff does not indicate that the matter in controversy exceeds $75, 000.00. He does, however, allege that both he and the named defendants are citizens of Nevada. Consequently, because the parties are citizens of the same state, Plaintiff has not established diversity of citizenship and the Court does not have jurisdiction under Section 1332.

2. Federal Question Jurisdiction

Pursuant to 28 U.S.C. § 1331, federal district courts have original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." "A case arises under' federal law either where federal law creates the cause of action or where the vindication of a right under state law necessarily turn[s] on some construction of federal law.'" Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). The presence or absence of federal-question jurisdiction is governed by the "well-pleaded complaint rule." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 963 L.Ed.2d. 318 (1987). Under the well-pleaded complaint rule, "federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Id.

Plaintiff's complaint, in its current form, does not adequately allege a claim arising under federal law or vindication of a right under state law that turns on an interpretation of federal law. Each of the causes of action alleged is based on state law. Plaintiff's primary claim is that he was terminated in violation of public policy, which is brought under Nevada common law. USEEOC v. Champion Chevrolet, 2008 WL 4167508 *3 (D. Nev.) (cause of action for wrongful termination in violation of public policy is based on Nevada common law). Plaintiff's claim for intentional infliction of emotional distress also rises under Nevada law. To state a claim for intentional infliction of emotional distress, a plaintiff must allege: "(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff having suffered severed or extreme emotional distress, and (3) actual or proximate causation." Scott v. Corizon Health, Inc., 2014 WL 1877431 (D. Nev.) (citing Starr v. Rabello, 97 Nev. 124, 125 (1981)). To be extreme and outrageous, conduct must be "outside all possible bounds of decency and is regarded as utterly intolerable in a civilized community." Kahn v. Morse & Mowbray, 117 P.3d 227, 237 n. 18 (Nev. 2005) (citations omitted). "[P]ersons must necessarily be hardened... to occasional acts that are definitely inconsiderate and unkind." Maduike v. Agency Rent-a-Car, 953 P.2d 24, 26 (Nev. 1988) (citation omitted).

Plaintiff's claim for "bad faith" is premised on the allegation that it was improper for Defendants to make statements regarding Plaintiff having a lengthy career with Defendant Advanced Home Services, LLC only to terminate him after three weeks. The implied covenant of good faith and fair dealing exists in all contracts. A.C. Shaw Const. v. Washoe County, 105 Nev. 913, 914 (1989). Breach of contract and bad faith discharge are not applicable to at-will employment. Martin v. Sears, Roebuck and Co., 111 Nev. 923, 929 (1995). "[A]ll employees in Nevada are presumed at-will employees." American Bank Stationery v. Farmer, 106 Nev. 698, 701 (1990). An employee can rebut this presumption by "proving by a preponderance of the evidence that there was an express or implied contract between his employer and himself that his employer would fire him only for cause." Id. However, general expressions of long term employment and subjective expectations of employment are insufficient to transform at-will employment to employment terminable only for cause." Martin, 111 Nev. at 929. To plead a claim for bad faith discharge in violation of the implied covenant of good faith and fair dealing, plaintiff must allege: (1) that an enforceable contract existed, (2) there was a special relationship between the tortfeasor and the tort victim, ...

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