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Bustos v. Dennis

United States District Court, D. Nevada

March 20, 2018

ERNEST BUSTOS, Plaintiff,
v.
GREGG A. DENNIS, et al., Defendants.

          ORDER

          Kent J. Dawson United States District Judge

         Presently before the Court is Defendants' Motion to Dismiss (#25). Plaintiff filed a response in opposition (#33) to which Defendants replied (#34). Also before the Court is Plaintiff's Motion to Strike (#35). Defendants filed a response in opposition (#37) to which Plaintiff replied (#44). Having read and considered the motion to strike, and good cause being found it is granted in part. The affidavit attached to Defendants' reply in support of their motion to dismiss will be disregarded when resolving the motion to dismiss.

         Finally, after the court in the Western District of Texas in this action had granted the motion to transfer to the District of Nevada, Plaintiff filed a Motion to Amend Findings and Reconsider Ruling on Transfer (#19). The Western District court appropriately denied the motion finding that it lacked jurisdiction. To the extent that the motion is still pending before this Court, it is denied based on the “law of the case” doctrine. See Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)(a court is generally precluded from reconsidering an issue that has already been decided by the same court in the identical case).

         I. Background

          Taking the allegations of Plaintiff's complaint as true, on June 10, 2015, Bustos entered into a written contract with Southern Nevada Benefit Administrators, LLC d/b/a IIS Benefit Administrators (“Southern”) to sell and market a product called the IIS Benefits Administrators TRI-Funding Product (“Product”). Bustos had a concept of developing a distribution system of agents to market and sell the Product. Bustos shared his plans with Defendant Gregg Dennis (“Dennis”) including his marketing plan which consisted of a team that would set appointments for agents and monitor productivity. The team was to be comprised of, or led by, two individuals: Herman Munster, who had experience recruiting and supervising the appointment scheduling, and Richard Wilson, an in-house trainer. Neither man was a licensed insurance agent. Bustos had an agreement with both individuals, but no contract.

         The contract with Southern was signed by Dennis, as “President IIS Benefit Administrators.” Defendant Southern Nevada Benefit Administrators, LLC owns the name IIS Benefit Administrators and does business as Southern and IIS Benefit Administrators. Dennis is also the president of a Nevada corporation, Defendant Investment Insurance Services, Inc. (“Investment”) which Plaintiff alleges does business in Texas as IIS Benefit Administrators. Investment owns the name and does business as I.I.S. Benefits.

         Once the contract was signed, Plaintiff alleges that Dennis and IIS stopped communicating and ceased all contact with him. As a result, Bustos's ability to market and sell the product and develop a distribution system of agents was frustrated. Further, no on-site training of agents occurred. Bustos alleges that Dennis began “dealing” with Wilson and that was Wilson was going to be a trainer for Dennis, Investment, and Southern.

         Bustos then filed the present action alleging breach of contract, intentional interference with contract and interference with prospective economic advantage. After the action was transferred to the District of Nevada, Defendants filed the present motion to dismiss.

         II. Standard for a Motion to Dismiss

          In considering a motion to dismiss, “all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party.” Wyler Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Consequently, there is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted).

         “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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff has pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         The Iqbal evaluation illustrates a two prong analysis. First, the Court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 1949-51. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. If the allegations state plausible claims for relief, such claims survive the motion to dismiss. Id. at 1950.

         III. Analysis

         A. ...


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