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Rowe v. Clark County School District

United States District Court, D. Nevada

April 28, 2017

MICHAEL ROWE, Plaintiff(s),


         Presently before the court is plaintiff's countermotion for leave to amend its first amended complaint. (ECF No. 30). Defendant Clark County Education Association (“CCEA”) filed a response (ECF No. 40), as did defendants Clark County School District (“CCSD”) and Clark County School District Police Department (“CCSDPD”) (ECF No. 38). Plaintiff did not file corresponding replies.

         Also before the court are the motions to dismiss, submitted by CCEA, CCSD, and CCSDPD. (ECF Nos. 17, 19). Plaintiff filed responses to those motions (ECF Nos. 29, 32), and defendants filed replies (ECF Nos. 34, 35).

         I. Introduction

         This action allegedly stems from plaintiff's termination as an employee of CCSD for selling Kamagra Oral Jelly to an undercover officer of the Las Vegas Metropolitan Police Department. (ECF No. 1). Plaintiff states the jelly is not a controlled substance and that he had no reason to believe that its possession would be unlawful. (Id.).

         As a result of plaintiff's attempted sale, he was arrested on February 21, 2014. (Id.). Plaintiff alleges that one of the defendants either improperly provided or received the records of his criminal history identifying that arrest. (Id.). Thereafter, CCSD suspended, and later terminated, plaintiff for his use of the jelly “and a ‘pending' conviction for a felony.” (Id. at 11). The prosecution of plaintiff was eventually dismissed. (Id.).

         However, plaintiff was never reinstated with CCSD. (Id.). Plaintiff's action involves the alleged conduct of CCSD and CCSDPD in relation to his employment as well as CCEA's alleged failure to “adequately and properly grieve and defend [plaintiff] or his best interests in connection with CCSD's termination of [plaintiff] as required by the Collective Bargaining Agreement.” (Id. at 11). Additionally, plaintiff contests the propriety of the arbitration proceeding that occurred subsequent to plaintiff's termination. (Id.).

         Consequently, plaintiff alleges the following claims/forms of relief in his first amended complaint: (1) vacation of the arbitration award for “corruption, fraud and/or other undue means”; (2) breach of contract by wrongful termination against CCSD; (3) breach of contract against CCEA for failure to properly file grievances on plaintiff's behalf; (4) breach of fiduciary duty against CCEA for the same; (5) unlawful dissemination/obtention/use of records of criminal history against all defendants; (6) a claim under 42 U.S.C. § 1983 for violation of plaintiff's Fourth, Fifth, and Fourteenth Amendment rights under the United States and Nevada Constitutions against all defendants; (7) infliction of emotional distress against all defendants; (8) punitive damages against all defendants; and (9) declaratory relief against CCSD and CCEA with respect to the collective bargaining agreement. (ECF No. 1 at 14-23).

         II.Legal Standards

         a. Amending the complaint

         Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given when justice so requires.” The Supreme Court has interpreted rule 15(a) and confirmed the liberal standard district courts must apply when granting such leave. In Foman v. Davis, 371 U.S. 178 (1962), the Court explained:

In the absence of any apparent or declared 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.-the leave sought should, as the rules require, be “freely given.”

Id. at 182.

         Furthermore, “[a]s [the Ninth C]ircuit and others have held, it is the consideration of prejudice to the opposing party that carries the greatest weight. Prejudice is the touchstone of the inquiry under rule 15(a).” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (citation and quotation marks omitted).

         b. Motion to dismiss

         The 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). Although rule 8 does not require detailed factual allegations, it does require more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, a formulaic recitation of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citation omitted). Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 678-79. Further, Federal Rule of Civil Procedure 12(b)(1) allows a party to assert the defense of the court's lack of subject matter jurisdiction.

         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.” 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. When a complaint pleads facts that are merely consistent with a defendant's liability, and shows only a mere possibility of entitlement, the complaint does not meet the requirements to show plausibility of entitlement to relief. Id.

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering a motion to dismiss. Id. First, the court must accept as true all of the allegations contained in a complaint. However, this requirement is inapplicable to legal conclusions. Id. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged - but not shown - that the pleader is entitled to relief.” Id. at 679. 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 held:

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 relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.


         III. ...

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