United States District Court, D. Nevada
J. DAWSON UNITED STATES DISTRICT JUDGE.
before the Court is Defendants' Motion to Dismiss
Plaintiff's Second Amended Complaint (#63). Plaintiff
filed a response in opposition (#67) to which Defendants
replied (#69). Also before the Court is Plaintiff's First
Motion for Reconsideration (#57). Defendants filed a response
in opposition (#58) to which Plaintiff replied
(#62). Finally before the Court is
Plaintiff's Motion to Strike Declaration (#68).
Defendants filed a response in opposition (#70). Generally,
motions to strike are disfavored. The issues raised by
Plaintiff are best served being presented in opposition to
the motion to dismiss. The Court is well aware of the
standards governing motions to dismiss. The Court is capable
of disregarding evidence outside the amended complaint
without an unnecessary round of briefing that delays the
consideration of the issues on their merits. The motion to
strike is denied.
BACKGROUND and ANALYSIS
March 20, 2018, the Court granted Defendants' motion to
dismiss but granted pro se Plaintiff the opportunity
to file an amended complaint. Plaintiff did so on April 9,
2018 (#56). Defendants have now moved to dismiss the second
amended complaint for virtually the identical reasons it
moved to dismiss the initial complaint. Having read and
considered the Second Amended Complaint (“SAC”)
(#56) and the briefing on the motion to dismiss the SAC, the
Court finds that the SAC cures the deficiencies of the
initial complaint and adequately alleges alter ego liability.
are construed from the written language of the document and
enforced as written. Ellison v. Cal. State Auto.
Ass'n, 797 P.2d 975, 977 (Nev. 1990). Nevada law
requires a plaintiff bringing a breach of contract action to
demonstrate “(1) the existence of a valid contract, (2)
a breach by the defendant, and (3) damage as a result of the
breach.” Saini v. Int'l Game Tech., 434
F.Supp.2d 913, 919-920 (D. Nev. 2006) (quoting Richardson
v. Jones, 1 Nev. 405 (Nev. 1865)). Specifically,
“failure to perform one's obligations within the
express terms of an agreement constitutes a literal breach of
contract.” Id. at 923. Plaintiff has
adequately alleged breach.
establish a claim for breach of the implied covenants of good
faith and fair dealing, a plaintiff must prove: (1) the
existence of a contract between the parties; (2) that
defendant breached its duty of good faith and fair dealing by
acting in a manner unfaithful to the purpose of the contract;
and (3) the plaintiff's justified expectations under the
contract were denied. See Perry v. Jordan, 900 P.2d
335, 338 (1995) (citing Hilton Hotels Corp. v. Butch
Lewis Prod. Inc., 808 P.2d 919, 922-23 (1991)). To the
extent that Plaintiff has alleged breach of the implied
covenant of good faith and fair dealing, he has alleged
factual allegations that meet the standard.
also seek to dismiss alleging that Plaintiff's alter ego
allegations are insufficient. In order to state a claim for
alter-ego liability in Nevada, a plaintiff must allege that:
(1) the corporation is influenced and governed by the person
asserted to be the alter ego; (2) there is such unity of
interest and ownership that one is inseparable from the
other; and (3) the facts are such that adherence to the
corporate fiction of a separate entity would, under the
circumstances, sanction fraud or promote injustice.
See Nev. Rev. Stat. § 78.747; see also
Polaris Industrial Corp. v. Kaplan, 747 P.2d 884, 886
(Nev. 1987). “The question of whether a stockholder,
director or officer acts as the alter ego of a corporation
must be determined by the court as a matter of law.”
NRS § 78.747. “There is no litmus test for
determining when the corporate fiction should be disregarded;
the result depends on the circumstances of each case.”
Polaris Industrial, 747 P.2d at 887. Plaintiffs
updated factual allegations meet the test to allege unity of
interest and ownership necessary to survive a motion to
dismiss. See Lorenz v. Beltio, Ltd., 114 Nev.795,
808, 963 P.2d 488, 497 (Nev. 1998).
the Court questions the ability of Plaintiff to prove the
existence of the alleged contracts at trial, his complaint
sufficiently alleges the facts necessary to raise intentional
interference with prospective economic advantage and
intentional interference with contract claims. See J.J.
Industries, LLC v. Bennett, 71 P.3d 1264, 1267 (Nev.
2003); Leavitt v. Lei sure Sports Incorporation, 734
P.2d 1221, 1225 (Nev. 1987).
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss
Plaintiffs Second Amended Complaint (#63) is
FURTHER ORDERED that Plaintiffs First Motion for
Reconsideration (#57) is DENIED;
FURTHER ORDERED that Motion to Strike Declaration (#68) is