United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
Pending before the Court are the Motion to Dismiss, (ECF No. 9), and the Motion to Remand, (ECF No. 10), filed by Plaintiff Scott Friedman on June 5, 2014. Defendants Las Vegas Metropolitan Police Department ("LVMPD") and Douglas Gillespie filed a Response to these Motions, (ECF No. 12), on June 11, 2014. For the reasons that follow, the Court will grant the Motions and remand this case for lack of subject matter jurisdiction.
Plaintiff was an employee of LVMPD from July 28, 1997, until August 8, 2012, when Plaintiff retired on medical grounds. (Compl. 2:7-9, Ex. A to Pet. for Removal, ECF No. 1). Plaintiff alleges that at the time of his retirement, he was not suspended or subject to any other disciplinary sanction by LVMPD. ( Id. at 2:10-18). Despite the fact that Plaintiff claims to have retired in good standing, LVMPD has refused to grant retirement credentials that would authorize him to carry a concealed weapon. ( Id. at 3:7-13). Plaintiff claims that the refusal to issue retirement credentials violated Nev. Rev. Stat. § 201.3678.
Plaintiff filed a Charge of Discrimination with the Nevada Equal Rights Commission ("NERC") on June 17, 2013. ( Id. at 4:15-18). On January 9, 2014, the NERC issued a right to sue letter stating that Plaintiff could file his claims in state or federal court. ( Id. at 4:19-23).
Based on these allegations, Plaintiff filed the Complaint on April 10, 2014, setting forth causes of action for (1) Declaratory Relief, (2) Injunctive relief, and (3) Discrimination and Retaliation in violation of Nev. Rev. Stat. § 613.345 and the Americans with Disabilities Act. ( Id. at 4:25-6:4). Defendants removed the action on May 22, 2014, citing this Court's federal question jurisdiction pursuant to 28 U.S.C. § 1331. (Pet. for Removal 1:19-25, ECF No. 1). In the instant Motions, Plaintiff requests that his claim under the Americans with Disabilities Act be dismissed and that this action be remanded to Clark County District Court.
II. LEGAL STANDARD
A. Failure to State a Claim Upon Which Relief Can Be Granted
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as a factual allegation are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
"To survive a motion to dismiss, a complaint must contain 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) (quoting Twombly, 550 U.S. at 555). "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. This standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). "However, material which is properly submitted as part of the complaint may be considered." Id. 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). On a motion to dismiss, a court may also take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. Fed.R.Civ.P. 12(d).
If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 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).
Federal courts are courts of limited jurisdiction, possessing only those powers granted by the Constitution and by statute. See United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008). For this reason, "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). A defendant may remove an action to federal court only if the district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). "Removal statutes are to be strictly construed' against removal jurisdiction. Nevada v. Bank of America Corp., 672 F.3d 661, 667 (9th Cir. 2012) (quoting Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002)). Specifically, federal courts must reject federal jurisdiction "if there is any doubt as to the right of removal in the first instance." Gaus v. ...