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Zambrano v. Cardenas Markets, Inc.

United States District Court, D. Nevada

August 10, 2017

FELICITAS ZAMBRANO, Plaintiff,
v.
CARDENAS MARKETS, INC., d/b/a CARDENAS, Defendant.

          ORDER

          Gloria M. Navarro, Chief Judge.

         Pending before the Court is the Motion to Dismiss, (ECF No. 31), filed by Defendant Cardenas Markets, Inc. (“Defendant”). Plaintiff Felicitas Zambrano (“Plaintiff”) filed a Response, (ECF No. 35), and Defendant filed a Reply, (ECF No. 36). For the reasons discussed below, the Court GRANTS Defendant's Motion.

         I. BACKGROUND

         This action arises from an incident that occurred while Plaintiff was visiting Defendant's market on July 17, 2015. (Am. Compl. ¶¶ 1-6, ECF No. 30). During this visit, Plaintiff alleges that she stepped in a liquid substance and slipped, suffering injury. (Id.). Plaintiff alleges that there was no warning sign for the liquid substance or other caution in the area. (Id.).

         On December 6, 2016, Plaintiff filed her Amended Complaint alleging (1) negligence and (2) negligent hiring, training, supervision, and retention. (Id. ¶¶ 7-8). In the instant Motion, Defendant seeks to dismiss Plaintiff's second cause of action. (Mot. to Dismiss 2:1-24, 3:1-15).

         II. LEGAL STANDARD

         Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “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. This standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         If the Court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the court should “freely” give leave to amend “when justice so requires, ” and in the absence of a 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.” Foman v. Davis, 371 U.S. 178, 182 (1962).

         III. DISCUSSION

         Defendant asserts that the Court should dismiss Plaintiff's second cause of action alleging negligent hiring, supervision, training, and retention because Plaintiff fails to provide facts to support the claim. (Mot. to Dismiss 2:1-24, 3:1-15). Plaintiff contends that dismissal is improper because the facts supporting her negligence claim also tend to support her negligent hiring claim. (Resp. 5:4-19). Plaintiff also argues that dismissal is improper because her requests for discovery give Defendant sufficient notice as to the facts of her second cause of action. (Resp. 7:1-3). The Court will consider each of these arguments in turn.

         A. Negligent Hiring, Training, Supervision, and Retention

         In regards to hiring, Nevada employers “have a general duty to conduct a background check on any potential employee to ensure that their employees are fit for their positions.” Lambey v. Nevada ex rel. Dept. of Health & Human Services, No. 2:07-cv-1268-RLH-PAL, 2008 WL 2704191, at *3 (D. Nev. July 3, 2008). “An employer breaches this duty by hiring an employee even though the employer knew, or should have known, of that employee's dangerous propensities.” Id. (internal quotation marks omitted).

         In regards to negligent training, supervision, and retention, there are four elements: (1) a general duty on the employer to use reasonable care in the training, supervision, and retention of employees to ensure that they are fit for their positions; (2) breach; (3) injury; and (4) causation. Id. at *4.

         Here, Plaintiff does not allege that Defendant was negligent in conducting background checks, nor does Plaintiff allege that Defendant knew or should have known that employees working at the store may have had dangerous or negligent propensities. Plaintiff also provides no factual basis to support the claim that Defendant breached its duty to “use reasonable care in the training supervision, and retention of employees.” Id. In fact, Plaintiff's only reference to Defendant's employment practices states that Defendant was negligent because it “failed to hire responsible employees, failed to train their employees to keep the premises safe for customer use, failed to supervise its employees and retained employees that displayed unsafe practices.” (Am. Compl. ¶ 7). These allegations are legal conclusions couched as factual allegations and are therefore insufficient to support Plaintiff's second cause of action. See Twombly, 550 U.S. at 555. Furthermore, a rote allegation that Defendant's employees acted negligently is insufficient to establish Plaintiff's second ...


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