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Crain v. Petrushkin

United States District Court, D. Nevada

November 25, 2014

STEVEN CRAIN, Plaintiff(s),
v.
ANDREY PETRUSHKIN, et al., Defendant(s)

Steven Crain, Plaintiff, Pro se, Las Vegas, NV.

For Andrey Petrushkin, Advanced Home Services, LLC, Defendants: Jessica M. Goodey, LEAD ATTORNEY, Becker Goodey, Las Vegas, NV.

ORDER

James C. Mahan, UNITED STATES DISTRICT JUDGE.

Presently before the court is defendants Andrey Petrushkin's and Advanced Home Services' motion to dismiss plaintiff's amended complaint. (Doc. # 11). Pro se plaintiff Steven Crain filed a response (doc. # 14) and defendants filed a response (doc. # 15).

I. Background

This case arises from a termination of an employment relationship between plaintiff and defendant Advanced Home Services (" AHS"). Plaintiff is a former employee of AHS who was employed by AHS for three weeks, and subsequently terminated.

On June 4, 2013, plaintiff, while employed by AHS and driving an AHS vehicle, received a traffic citation. According to plaintiff, the citation was for operating an unregistered vehicle in violation of Nevada Revised Statute 482.545(1). Plaintiff asserts that the officer, while speaking with him, called the Nevada DMV and found that the vehicle was not registered.[1] Plaintiff informed the officer that the vehicle did not belong to him but belonged to his employer, AHS. Still, plaintiff received a citation.

Plaintiff was terminated on June 5, 2013. Plaintiff's amended complaint identifies three causes of action: federal law claims under 42 U.S.C. § 1985(3) -- conspiracy to interfere with civil rights, and 18 U.S.C. § 1513(e) -- retaliating against a witness, victim, or an informant, and a state law claim for intentional infliction of emotional distress. ( See doc. # 9). The court will address each of plaintiff's claims in turn.

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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (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 allows 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 it has not shown, that the pleader is entitled to relief." Id. (internal quotations and alterations 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 ...


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