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Belsher v. Pescio

United States District Court, D. Nevada

July 18, 2018

ISABELLE M. BELSHER, Plaintiff,
v.
JANET L. PESCIO; PERFORMANCE ATHLETIC CLUB LLC; JPIB LLC; and AVENUE GIFTS, LLC, Defendants.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         Before the court is defendants Janet L. Pescio (“Pescio”); Performance Athletic Club LLC (“PAC”); JPIB LLC (“JPIB”); and Avenue Gifts, LLC's (“Avenue Gifts”) (collectively “defendants”) motion to dismiss plaintiff Isabelle M. Belsher's (“Belsher”) first amended complaint (ECF No. 11). ECF No. 12. Belsher filed an opposition (ECF No. 15) to which defendants replied (ECF No. 16).

         I. Facts and Procedural Background

         This action arises from plaintiff Belsher's allegedly discriminatory termination from a retail establishment known as The Avenue in Elko, Nevada, owned by defendant JPIB.[1]Belsher alleges that she worked for The Avenue from its opening in February 2011, until she was terminated on January 26, 2016. After she was terminated, Belsher alleges that she was replaced by a younger, less qualified person.

         On September 22, 2017, Belsher filed a complaint against defendants for employment discrimination. ECF No. 1. On December 6, 2017, Belsher filed an amended complaint against defendants alleging four causes of action: (1) violation of the Americans with Disabilities Act (“ADA”); (2) violation of the Age Discrimination in Employment Act (“ADEA”); (3) promissory estoppel; and (4) breach of contract. ECF No. 11. Thereafter, defendants filed the present motion to dismiss. ECF No. 12.

         II. Legal Standing

         Defendants seek dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a legally cognizable cause of action. See Fed. R. Civ. P. 12(b)(6) (stating that a party may file a motion to dismiss for “failure to state a claim upon which relief can be granted[.]”). To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the notice pleading standard of Rule 8(a)(2) of the Federal Rules of Civil Procedure. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). Under Rule 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) does not require detailed factual allegations; however, a pleading that offers only “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” is insufficient and fails to meet this broad pleading standard. Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         To sufficiently allege a claim under Rule 8(a)(2), viewed within the context of a Rule 12(b)(6) 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.'” Id. (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's judicial experience and common sense, that the defendant is liable for the alleged misconduct. See Id. at 678-679 (stating that “[t]he plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.”) (internal quotation marks and citations omitted). Further, in reviewing a motion to dismiss, the court accepts the factual allegations in the complaint as true. Id. However, bare assertions in a complaint amounting “to nothing more than a formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 698) (internal quotation marks omitted). The court discounts these allegations because “they do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a factual allegation.” Id. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id.

         III. Discussion

         1. Defendant Avenue Gifts

         Initially, defendants seek dismissal of defendant Avenue Gifts on the basis that the company was not formed until May 17, 2016, nearly four months after Belsher was terminated from her employment. See ECF No. 12. In her opposition, Belsher concedes that she lacks standing to bring any claims against defendant Avenue Gifts. See ECF No. 15, p. 2. Accordingly, the court shall dismiss Avenue Gifts as a defendant in this action.

         2. ADA & ADEA Claims

         a. Defendant Pescio

         In their motion, defendants argue that Belsher's ADA and ADEA claims should be dismissed as to defendant Pescio because she was not ...


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