United States District Court, D. Nevada
M. Navarro, Chief Judge.
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
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.).
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
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.”
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).
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.
Negligent Hiring, Training, Supervision, and
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).
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.
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 ...