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Belli v. Pritzler

United States District Court, D. Nevada

February 9, 2015

NORMAN M. BELLI, Plaintiff,
PENNY PRITZLER, Secretary, United States Department of Commerce, Defendants.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is a Motion to Dismiss (ECF No. 15) filed by Defendant Penny Pritzler ("Defendant"). Plaintiff Norman M. Belli ("Plaintiff") filed a Response (ECF No. 17), and Defendant filed a Reply (ECF No. 19). For the reasons discussed below, Defendant's Motion is GRANTED.


This case arises out of alleged age and disability discrimination. Plaintiff "was age 62 and a diabetic with serious complications" during the time he worked for the North Las Vegas Local Census Office ("NLVLCO"). (Compl. at 1, ECF No. 1). Plaintiff worked as a clerk for NLVLCO from January 18, 2010 to March 31, 2010. ( Id. at 10). Plaintiff alleges that Brigitte Williams ("Williams"), a twenty-two year old employee, was promoted to the position of Office Operations Supervisor ("OOS") on January 31, 2010, through a non-competitive process. ( Id. at 2). Moreover, Plaintiff alleges that he was better qualified for the position of OOS than Williams, due to his forty-years of relevant work experience and computer expertise. ( Id. ).

Plaintiff also alleges that Gina Clagg ("Clagg"), a forty-five year old employee, was promoted to Field Operations Supervisor ("FOS") on February 23, 2010, through a noncompetitive process. ( Id. ). Furthermore, Plaintiff alleges Clagg has no experience in the department, whereas Plaintiff had five weeks of experience and extensive prior work experience. ( Id. at 4).

Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), and the EEOC issued a right to sue letter on July 11, 2013. ( Id. at 1). Plaintiff timely filed the instant suit on October 8, 2013. ( Id. ).


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). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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 Twombly, 550 U.S. at 555) (emphasis added).

In order to survive a motion to dismiss, a complaint must allege "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) (internal quotation marks omitted). "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.

A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2) requires that a plaintiff's complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Prolix, confusing complaints" should be dismissed because "they impose unfair burdens on litigants and judges." McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). Mindful of the fact that the Supreme Court has "instructed the federal courts to liberally construe the inartful pleading' of pro se litigants, " Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987), the Court will view Plaintiff's pleadings with the appropriate degree of leniency.

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).


Defendant asserts that "Plaintiff's Complaint does not set forth any causes of action." (Mot. Dismiss 5:26-6:1, ECF No. 15). More specifically, Defendant asserts that Plaintiff's "Complaint does not allege legal violations, but rather presents conclusory allegations based on unsubstantiated hyperbole." ( Id. 6:5-6). Additionally, Defendant asserts that "[t]hroughout its ten pages, the Complaint is ...

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