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On Demand Direct Response, LLC v. McCart-Pollak

United States District Court, D. Nevada

August 4, 2017

ON DEMAND DIRECT RESPONSE, LLC, DISTRICT OF NEVADA AND ON DEMAND DIRECT RESPONSE III, LLC, Plaintiff,
v.
SHANA LEE MCCART-POLLAK d/b/a LOL BUDDIES ENTERPRISES, Defendants. ALL RELATED ACTIONS

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before 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.

         After 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.

         Plaintiff 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”).

         II. RELEVANT BACKGROUND

         A more 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.)

         Plaintiff then filed the ATPC which repeats the dismissed claims and names Harrington as well as the other Third Party Defendants.[1] (ECF No. 231.) Harrington again moves for dismissal.

         III. LEGAL STANDARD

         A 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); 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”).

         In 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)).

         Mindful 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 ...


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