United States District Court, D. Nevada
NAC FOUNDATION, LLC, a Nevada limited liability company, Plaintiff,
COREY JODOIN, Defendant.
M. Navarro, Chief Judge
before the Court is the Motion to Dismiss (ECF No. 20) filed
by Defendant Corey Jodoin (“Defendant”).
Plaintiff NAC Foundation, LLC (“Plaintiff”) filed
a Response. (ECF No. 21). Defendant did not file a Reply. For
the reasons discussed below, Defendant's Motion to
Dismiss is granted in part and denied in
dispute arises from two agreements allegedly executed between
Plaintiff and Defendant, including an agreement for Defendant
to purchase an interest in Plaintiff and a mutual
Non-Disclosure Agreement (“NDA”). (Compl.
¶¶ 9-10, ECF No. 1). Plaintiff is a Nevada company
that supports the research and creation of digital currency.
(Id. ¶ 6). In October 2015, Plaintiff allegedly
first entered into an oral agreement whereby it would give
Defendant five percent interest in Plaintiff in exchange for
Defendant's payment of $500, 000. (Id.
¶¶ 9, 13). Then, in November 2015, the parties
allegedly modified the oral agreement by handwriting
additional stipulations (the “Modified
Agreement”) to specify, inter alia, that
Defendant and his wife would be appointed to officer
positions in the company, would organize a conference on
Plaintiff's behalf, and would conduct business dealings
for Plaintiff. (Id. ¶ 13).
9, 2016, Plaintiff filed its Complaint in this Court,
alleging the following causes of action: (1) breach of
contract under two separate agreements, the Modified
Agreement and the NDA; (2) breach of the covenant of good
faith and fair dealing; (3) defamation; (4) intentional
interference with contractual relations; (5) intentional
interference with prospective economic advantage; and (6)
aiding and abetting. These claims center around
Plaintiff's allegations that Defendant failed to pay the
balance owed on the Modified Agreement, along with Defendant
and his wife defaming and disparaging Plaintiff to its
customers using confidential information. (Id.
¶¶ 17, 19).
filing its Complaint, Plaintiff moved for a Temporary
Restraining Order and Preliminary Injunction to prohibit
Defendant from using Plaintiff's confidential information
and contacting Plaintiff's customers and contractors for
any purpose. (See ECF Nos. 5, 6). The Court granted
both of Plaintiff's motions. (See ECF Nos. 7,
18). Defendant then filed the instant Motion to Dismiss,
arguing that claim three of defamation is insufficiently
pled, and all claims relying on it should be dismissed. (Mot.
to Dismiss 2:3-4, ECF No. 20). Defendant also contends that
claim one for breach of contract specifically relating to the
Modified Agreement should be dismissed because the Complaint
merely alleges the existence of a condition precedent rather
than a valid contract. (See Id . 6:10-11).
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 allegations 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 570). “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.”
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).
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).
Claims Allegedly Relying on Defamation
Defendant seeks dismissal of claims one, two, four, five, and
six because these claims “hinge[ ] entirely on whether
[Plaintiff] properly alleged a claim for defamation.”
(Mot. to Dismiss 4:10-12). Defendant gives no argument as to
any further deficiencies in the pleadings for these claims.
Plaintiff responds that “Defendant conflates the phrase
‘for the purposes of disparaging and defaming
[Plaintiff]' with a legal requirement that Plaintiff
‘establish a prima facie case of defamation' for
all six Claims for Relief set forth by Plaintiff in the
Complaint.” (Pl.'s Resp. 3:17-19, ECF No. 21).
the Court agrees with Plaintiff that most of its claims are
not dependent upon the sufficient pleading of defamation.
Defamation is not an underlying element of claim one, breach
of contract; claim two, breach of the covenant of good
faith and fair dealing; claim four, intentional interference with
contractual relations; or claim five, interference with
prospective economic advantage. While facts regarding defamation
may be relevant to these claims, the failure to properly
plead defamation does not ...