United States District Court, D. Nevada
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.
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,
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).
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).
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).
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.
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.
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 ...