United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Joint Motion to Dismiss, (ECF No. 8),
filed by Defendants Sean Dicicco, Susan Wolfla, Shawn
Sanders, Ray Sanchez, Jeffrey Davis, and Richard Hoffmann
(collectively “the Individual Defendants”).
Plaintiff Aristide Nouchet
(“Plaintiff”) filed a Response, (ECF No. 13), and the
Individual Defendants filed a Reply, (ECF No.
For the reasons set forth herein, the Individual
Defendants' Joint Motion to Dismiss is GRANTED.
case concerns allegations of employment discrimination by
Plaintiff against his employer, Mandalay Bay Resort and
Casino (“Mandalay”), and six supervisory
employees named in their official capacities. (See
Compl, ECF No. 1). According to Plaintiff, Mandalay
repeatedly engaged in conduct in violation of Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e-2(a)(1) and 2000e-3. (Id.). On
March 31, 2016, Plaintiff filed his Complaint, asserting
claims of race discrimination, retaliation, and hostile work
environment. (Id.). On May 02, 2016, the Individual
Defendants filed the instant motion, arguing that Title VII
does not provide for liability against individual employees.
(Mot. to Dismiss 2:14-16, ECF No. 8).
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.
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.”
Id. “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.
court grants a motion to dismiss, it must then decide whether
to grant leave to amend. 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). Generally, leave to
amend is only denied when it is clear that the deficiencies
of the complaint cannot be cured by amendment. See DeSoto
v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th
Individual Defendants argue that Plaintiff's claims
against them should be dismissed because individuals are not
subject to liability under Title VII. (Mot. to Dismiss 3:9-
11). While the wording of Title VII suggests that agents of
employers may be held liable under the statute, the Ninth
Circuit has found that the purpose of this wording is merely
to “incorporate respondeat superior liability into the
statute.” Miller v. Maxwell's Intern,
Inc., 991 F.2d 583, 587 (9th Cir. 1993). Thus, it is
well settled that defendants may not be sued in their
individual capacities under Title VII. See id.;
see also Ortez v. Washington Cnty., 88 F.3d 804, 808
(9th Cir. 1996).
concedes that Title VII does not permit individual liability,
but asserts that this restriction is inapplicable because he
sued the Individual Defendants only in their official
capacities. (Pl.'s Response 2:31-3:3, ECF No. 13). In the
context of a public employer, the Ninth Circuit has found
that a plaintiff may recover under Title VII by naming either
the supervisory employees as agents of the employer or by
naming the employer directly. Ortez, 88 F.3d at 808.
A number of courts, however, have declined to extend official
capacity suits to cases involving private employers. See,
e.g., Ellibee v. Leonard, 226 F. App'x 351, 357 (5th
Cir. 2007) (stating that employees of private companies
“had no official capacities in which they could be
sued.”); Beck v. FedEx Ground, 2007 WL
2028581, at *2 (E.D. Cal. July 10, 2007) (“The concept
of ‘official and/or agency capacity' makes no sense
whatsoever in the context of [private employers].”);
DeRay v. Larson, 283 F.Supp.2d 706, 709-710 (D.
Conn. 2003) (“[I]t is unnecessary to allow a claim
against a defendant in his or her official capacity when the
entity of which he is an official is capable of being sued
the extent such official capacity suits are permissible,
these claims may also be dismissed as unnecessarily
repetitive. Hall v. High Desert Recycling, Inc.,
2011 WL 2600483, at *2 (D. Nev. June 29, 2011)
(“[O]fficial capacity claims under Title VII are
duplicative where the plaintiff has also brought a Title VII
claim against the alleged employer.”) (citing
Cooke-Seals v. D.C., 973 F.Supp. 184, 187 (D.D.C.
1997)); see also Ctr. For Bio-Ethical Reform, Inc. v. Los
Angeles Cty. Sheriff Dep't, 533 F.3d 780, 799 (9th
Cir. 2008) (finding that when both an officer and entity are
named, and the officer is only named in an official capacity,
“the court may dismiss the officer as a redundant
defendant.”); Gary v. Long, 59 F.3d 1391, 1399
(D.C. Cir. 1995) (applying the respondeat superior theory
under Miller and affirming the order to dismiss
employee in his official capacity where employer was also
Plaintiff's claims against the Individual Defendants in
their official capacities are the functional equivalent of
his claims against Mandalay. Thus, these claims are
duplicative and an inefficient use of judicial resources.
See Cooke-Seals, 973 F.Supp. at 187. As
Plaintiff's employer remains a defendant in this case,
Plaintiff suffers no prejudice by the Court dismissing his
official capacity claims against the Individual Defendants.
Accordingly, the Court grants the Individual Defendants'
Joint Motion to Dismiss.