United States District Court, D. Nevada
ON DEMAND DIRECT RESPONSE, LLC, DISTRICT OF NEVADA AND ON DEMAND DIRECT RESPONSE III, LLC, Plaintiff,
SHANA LEE MCCART-POLLAK d/b/a LOL BUDDIES ENTERPRISES, Defendants. ALL RELATED ACTIONS
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
the Court is Third Party Defendant Kevin Harrington's
(“Harrington”) Motion to Dismiss Third-Party
Plaintiff Shana Lee McCart-Pollak's
(“Plaintiff”) Amended Third Party Complaint
(“Motion”). (ECF No. 233.) The Court has reviewed
Plaintiff's opposition (ECF No. 253) and Harrington's
reply (ECF No. 256). For the reasons discussed below, the
Motion is granted in part and denied in part.
completion of the briefing on the Motion, Plaintiff filed a
supplement to her opposition. (ECF No. 264.) In response,
Harrington moved to strike. (ECF No. 266.) The Court grants
Harrington's motion to strike because Plaintiff's
supplement was field without leave of court. See LR
7-2(g). As the Court previously observed, the issues raised
in the briefs relating to Plaintiff's third party claims
have been thoroughly briefed.
subsequently filed a motion to supplement. (ECF No. 271.)
Harrington filed a response (ECF No. 272) and Plaintiff has
replied (ECF No. 274). The Court denies Plaintiff's
motion to supplement because the Court reviews
Harrington's Motion based on the allegations in the
Amended Third Party Complaint (“ATPC”).
thorough discussion of the background facts appears in the
Court's Orders entered on September 30, 2016
(“Dismissal Order), and December 23, 2016
(“Reconsideration Order”). (ECF Nos. 191, 215.)
As relevant to the Motion, the Court previously dismissed
Plaintiff's claims against Third Party Defendants
asserted in a complaint attached to Plaintiff's First
Motion to Amend (“Draft Complaint”) (ECF No.
143), but the Court granted Plaintiff leave to amend two
claims for unjust enrichment and fraud against Harrington.
(ECF No. 191.) Plaintiff moved for reconsideration.
(ECF No. 194.) The Court denied her motion, but in doing so
considered the Proposed First Amended Third Party Complaint
(“FATPC”) attached to her Second Motion to Amend
(ECF No. 190). The Court found that the FATPC, as with the
Draft Complaint, fails to state a claim. (ECF No. 215 at
6-7.) However, the Court gave Plaintiff leave to amend two
claims against Harrington:
[Plaintiff] understandably did not have the benefit of the
Court's analysis in drafting the allegations relating to
her claims for unjust enrichment and fraud against
Harrington. The Court will therefore extend leave to amend to
cure the deficiencies of these two claims as identified in
the Dismissal Order.
(Id. at 7.)
then filed the ATPC which repeats the dismissed claims and
names Harrington as well as the other Third Party
Defendants. (ECF No. 231.) Harrington again moves for
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); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). While Rule 8 does not require detailed
factual allegations, it demands more than “labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555.) “Factual
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, 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.” Iqbal, 556
U.S. at 678 (internal citation omitted). Moreover, the notice
pleading requirements of Rule 8(a) can be violated not only
“when a pleading says too little, ” but
also “when a pleading says too much.”
Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013),
cert. denied, 135 S.Ct. 57 (Oct. 6, 2014); see
also McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th
Cir.1996) (affirming a dismissal under Rule 8, and
recognizing that “[p]rolix, confusing complaints such
as the ones plaintiffs filed in this case impose unfair
burdens on litigants and judges”).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pled factual allegations in the complaint;
however, legal conclusions are not entitled to the assumption
of truth. Id. at 678-79. Mere recitals of the
elements of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678. Second, a
district court must consider whether the factual allegations
in the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow a court to
draw a reasonable inference that the defendant is liable for
the alleged misconduct. 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 it has not show[n]-that the pleader is
entitled to relief.” Id. at 679 (internal
quotation marks omitted). When the claims in a complaint have
not crossed the line from conceivable to plausible, the
complaint must be dismissed. Twombly, 550 U.S. at
570. A complaint must contain either direct or inferential
allegations concerning “all the material elements
necessary to sustain recovery under some viable
legal theory.” Twombly, 550 U.S. at 562
(quoting Car Carriers, Inc. v. Ford Motor Co., 745
F.2d 1101, 1106 (7th Cir. 1989) (emphasis in original)).
of the fact that the Supreme Court has “instructed the
federal courts to liberally construe the ‘inartful
pleading' of pro se litigants, ”
Eldridge v. Block,832 F.2d 1132, 1137 (9th Cir.
1987), the Court will ...