United States District Court, D. Nevada
before the court is defendant John Jones' motion to
dismiss. (ECF No. 29). Defendants Sean Abid and Angela Abid
filed joinders to defendant Jones' motion. (ECF Nos. 42,
43). Plaintiff Lyudmyla Pyankovska, who represents herself
pro se, filed a response (ECF No. 40), to which
defendant Jones replied (ECF No. 45).
before the court is plaintiff's motion for leave to file
an amended complaint. (ECF No. 41). Defendant Jones filed a
response (ECF No. 53), to which defendant Sean Abid joined
(ECF No. 55). Plaintiff thereafter filed a reply. (ECF No.
before the court is plaintiff's “motion to take
judicial notice.” (ECF No. 26). Defendants Sean Abid
and Angela Abid filed responses (ECF Nos. 27, 28), to which
plaintiff replied (ECF No. 35).
before the court is defendant Jones' “motion to
disregard.” (ECF No. 58). Plaintiff has not filed a
response, and the time for doing so has since passed.
and defendant Sean Abid are former spouses who got divorced
on February 17, 2010. (ECF No. 1). Pursuant to the divorce
decree, the parties agreed to joint legal and physical
custody of Aleksandr Abid (hereinafter “Sasha”),
their minor child. Id.
about January 9, 2015, plaintiff filed a motion for contempt
of court against defendant Sean Abid. Id. Sometime
thereafter, defendant Sean Abid inserted a recording device
into Sasha's school backpack with the intent of
intercepting communications between Sasha, plaintiff, and
plaintiff's husband. Id. The device recorded
multiple conversations between Sasha and plaintiff.
Id. Defendant Sean Abid brought digital copies of
these conversations to his lawyer, defendant Jones, as well
as transcribed portions of the recordings in typewritten
first discovered the existence of the recordings on February
4, 2015, when defendant Jones introduced them as exhibits to
a countermotion to modify primary custody. Id.
Throughout the course of litigation, plaintiff discovered
that defendant Sean Abid had deleted portions of the
recordings and erased the software that he used to edit the
recordings. Id. The court subsequently authorized
defendants to give copies of the recordings and transcripts
to expert witness Dr. Holland to prepare for an interview of
court ultimately ruled that the introduction of the
recordings as independent evidence would violate NRS 200.650,
as defendant Sean Abid's procurement of such recordings
did not meet the requirements for the “vicarious
consent doctrine.” Id. However, the court
ruled the recordings admissible as a basis for the testimony
and report of Dr. Holland. Id.
Motion to dismiss under 12(b)(6)
may dismiss a 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) (citation omitted).
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 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the 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.
the 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 the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
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. (internal quotation marks
omitted). 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 stated, in relevant
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 unfair to require the opposing party to be
subjected to the expense of discovery and continued
Motion for leave to file an amended complaint
Rule of Civil Procedure 15(a) provides that “[t]he
court should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). The United States
Supreme Court has interpreted Rule 15(a) and confirmed the
liberal standard district courts must ...