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Kirk-Hughes v. State Bar of Nevada

United States District Court, D. Nevada

June 8, 2017

STATE BAR OF NEVADA, et al., Defendant(s).


         Presently before the court is the State Bar of Nevada (“Bar”) and David A. Clark's (“Clark”) motion to dismiss. (ECF No. 20). Stanley Hunterton (“Hunterton”) joined the Bar and Clark's (collectively “defendants”) motion to dismiss on February 10, 2017. (EFC No. 25). Geraldine Kirk-Hughes (“plaintiff”) filed a response (ECF No. 28), to which defendants replied (ECF No. 29).

         I. Facts

         This case involves plaintiff's pending appeal to the Supreme Court of Nevada in response to the Southern Nevada Disciplinary Board's recommended six-year suspension, and her concurrent claims filed in federal court. (ECF Nos. 11, 20-4).

         On August 2, 2013, the Bar submitted an amended complaint against plaintiff, an attorney admitted to the Nevada Bar on December 3, 1987, for two alleged counts of misconduct that warranted the “imposition of professional discipline.” (ECF No. 20-1 at 2-3). The Bar's two counts against plaintiff claimed that: (1) plaintiff, up to December 1, 2010, “had stolen $598, 282 of [Joseph] Keane's money” placed in plaintiff's trust fund account for safekeeping; and (2) plaintiff had misappropriated $69, 355.38 of $121, 636.68 awarded to Charles Walker following a wrongful foreclosure action, which plaintiff held in trust. (Id. at 9-10).

         On August 14, 2013, the Bar submitted an additional complaint against plaintiff, which alleged that she had failed to pay four medical liens on behalf of Mark Jaget. (ECF No. 20-2). Summons for all three allegations were issued “in and about . . . May and June, 2015, ” and plaintiff's “[d]isciplinary [h]earing was concluded on July 25, 2015.” (ECF No. 11 at 12). The Southern Nevada Disciplinary Board's formal hearing panel recommended, based on the facts presented, that plaintiff's conduct “warranted at least a significant suspension, ” and “voted for a suspension of six (6) years” as an appropriate sanction. (ECF No. 20-3 at 36). The panel issued its findings of fact, conclusions of law and recommendation on January 14, 2016. (ECF No. 20-4).

         On appeal, plaintiff submitted an opening brief to the Supreme Court of Nevada on August 10, 2016, which claimed that the Bar had violated a number of constitutional rights in pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments, along with a “disparity of treatment” based on her race. (Id. at 51).

         On October 12, 2016, plaintiff filed her original complaint in this court (ECF No. 1), which was amended on January 6, 2017, (ECF No. 11). Plaintiff seeks claims of relief pursuant to: (1) equal protection and due process, specifically regarding the Fourth, Sixth, and Fourteenth Amendments; (2) 12 U.S.C. § 3405 as to obtaining financial records; (3) Nevada Revised Statute (“NRS”) § 239A as to disclosing financial records to government agencies; (4) 42 U.S.C. § 2000e (“Title VII”); (5) 18 U.S.C. § 1962(b) as to control of an enterprise engaged in a pattern of racketeering; (6) 18 U.S.C. § 1962(c) as to being employed by an enterprise engaged in a pattern of racketeering; (7) “intentional interference with prospective economic advantage”; (8) “intentional interference with contractual relations”; (9) negligence; and (10) “failure to adequately train, supervise, discipline, and/or screen.” (ECF No. 11 at 11-30). Plaintiff also seeks injunctive relief. (Id.).

         11. Legal Standard

         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.

         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 ...

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