United States District Court, D. Nevada
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.
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).
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.).
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.).
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.).
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).
Amending the complaint
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.
“[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).
Motion to dismiss
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
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.
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.
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