United States District Court, D. Nevada
DANIEL P. KLAHN, SR., Plaintiff,
RICHARD MEYERSON, Defendant.
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE
before the court is pro se plaintiff Daniel Klahn's
amended complaint (ECF No. 5), which the court now screens as
required by as required by 28 U.S.C. § 1915(e)(2).
case arises out of a financial dispute between Klahn and
defendant Richard Meyerson, his former employer. Klahn's
original complaint alleged the requisite amount in
controversy to invoke the court's diversity jurisdiction
under 28 U.S.C. § 1332(a), but Klahn did not allege
facts indicating that he any Meyerson are citizens of
different states. As the party seeking to invoke the
court's jurisdiction, Klahn bears the burden of
establishing jurisdiction exists. See Naffe v. Frey,
789 F.3d 1030, 1040 (9th Cir. 2015). The court therefore
dismissed the complaint for lack of subject-matter
jurisdiction, with leave to amend. (Screening order (ECF No.
filed an amended complaint that alleges he is a citizen of
Nevada and Meyerson is a citizen of California. (Am. Compl.
(ECF No. 5) at 1.) He further alleges more than $75, 000 is
in dispute, thereby satisfying the amount in controversy.
(Id. at 7-8.) Having satisfied itself that the
requirements for diversity jurisdiction under § 1332(a)
have been met, the court will screen Klahn's amended
states that in 2005, Meyerson promised to increase his salary
by $1, 100 per month if certain conditions were met.
(Id. at 7.) Klahn alleges that he met the
conditions, but that Meyerson refused to pay the increased
salary for five years. (Id.) Klahn alleges that
Meyerson terminated Klahn's employment in April of 2012.
(Id. at 2.) Klahn states that August of 2012, he
requested transfer paperwork for his 401k account and was
instructed by Michelle Hogle, operations manager, to have
Meyerson sign the transfer paperwork because he was the
trustee of the 401k account. (Id.) Klahn states that
in September of 2012, he contacted Meyerson regarding the
transfer paperwork and did not receive a response.
(Id.) During October and November of 2012, Klahn
unsuccessfully attempted to transfer the funds by directly
contacting agents at John Hancock Investments and State Farm.
states that when he was preparing his taxes in February of
2013, he contacted John Hancock Investments because he had
not received a tax statement for his 401k account and was
informed the address on his statements had been changed by
Meyerson. (Id.) Klahn alleges that on November 13,
2013, Meyerson filed false paperwork stating that Klahn had
abandoned his 401k account after his termination.
(Id.) According to Klahn, he learned in November of
2014 that his 401k funds had been transferred to
Meyerson's 401k account on October 8, 2018,
that Klahn's 401k account was closed. (Id. at
3.) Klahn states that he sent a fraud report to the
Securities and Exchange Commission, and that during the
SEC's investigation of this incident, Meyerson convinced
the SEC's investigators that Klahn had embezzled money
from Meyerson during his employment. (Id.)
also alleges that during a telephone conference in May 2012,
Meyerson falsely stated Klahn stole money from him to
purchase a Quiznos franchise and that the franchise should
belong to Meyerson. (Id. at 4.) He also alleges
Meyerson made false statements about him to investigators,
but he does not specify when the statements were made. Klahn
states that Meyerson's false statements about him
resulted in Klahn being held in jail on a $500, 000 bond and
partially resulted in Klahn's conviction for theft of
$100, 000. (Id. at 5.) Klahn further states Meyerson
altered an email to make it appear that Klahn admitted to
stealing $180, 000. (Id. at 3-5.) Klahn now brings
claims against Meyerson for fraud and slander.
screening a complaint, a court must identify cognizable
claims and dismiss claims that are frivolous, malicious, file
to state a claim on which relief may be granted, or seek
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to
state a claim under § 1915(e)(2) incorporates the
standard for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). Watison v. Carter, 668
F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915
review, a complaint must “contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The court liberally construes pro
se complaints and may only dismiss them “if it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to
relief.” Nordstrom v. Ryan, 762 F.3d 903, 908
(9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
state a claim for fraud, Klahn must allege that (1) Meyerson
misrepresented a material fact, which he knew to be false;
(2) Meyerson intended that Klahn rely on the
misrepresentation; (3) Klahn detrimentally relied on the
misrepresentation; and (4) the misrepresentation proximately
caused damages. Chen v. Nevada State Gaming Control
Bd., 994 P.2d 1151, 1152 (Nev. 2000). Under Federal Rule
of Civil Procedure 9(b), fraud has a strict pleading
standard, which requires a plaintiff to “state with
particularity the circumstances constituting fraud.”
Fed.R.Civ.P. 9(b); see Ashcroft v. Iqbal, 556 U.S.
662, 686 (2009). Pleading fraud with particularity requires
“an account of the time, place, and specific content of
the false representations, as well as the identities of the
parties to the misrepresentations.” Swartz v. KPMG
LLP, 476 F.3d 756, 764 (9th Cir. 2007); see also
Morris v. Bank of Nev., 886 P.2d 454, 456, n.1 (Nev.
1994). Nevada's statute of limitations for fraud claims
is three years, “but the cause of action in such a case
shall be deemed to accrue upon the discovery by the aggrieved
party of the facts constituting the fraud or mistake.”
Nev. Rev. Stat. § 11.190(3)(d).
construing Klahn's allegations, the court finds there are
sufficient factual allegations for a claim of fraud related
to Meyerson's alleged transfer of the 401k funds.
Specifically, Klahn alleges that in November 2014, he learned
Meyerson filled out paperwork falsely stating that Klahn
abandoned his 401k account so that the account would be
closed and transferred to Meyerson, resulting in Klahn losing
the funds in the account. The court further finds the
allegations are made with particularity sufficient to satisfy
Federal Rule of Civil Procedure 9(b). The court therefore
will recommend that this fraud claim be allowed to proceed
Klahn's allegation that Meyerson committed fraud by
promising to increase his pay in 2005 but made various
excuses and failed to do so for five years, the court finds
those fraud allegations are barred by the statute of
limitations. Even liberally construing the allegations in the
complaint, Klahn knew about Meyerson's refusal to
increase his pay in 2005, which was approximately 11 years
before this case was ...