United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge.
before the Court are the Motions to Dismiss, (ECF Nos. 8,
15), filed by Defendant Kraft-Sussman Funeral Service, Inc.
(“Defendant”). Plaintiff Margaux Amie
(“Plaintiff”) filed Responses, (ECF Nos. 12, 19),
and Defendant filed Replies, (ECF Nos. 14, 21). For the reasons
stated herein, Defendant's Motions to Dismiss are
case arises out of Defendant's alleged mishandling of
Donald R. Cooley Jr.'s remains. According to the
Complaint, Donald R. Cooley Jr. (“Cooley”) passed
away on March 8, 2018. (Am. Compl. ¶ 7, ECF No. 5). At
the time of Cooley's death, Plaintiff alleges that she
had filed for divorce and was living separately in Los
Angeles, California, but was still legally married to Cooley.
about March 9, 2018, Plaintiff alleges that Cooley's
remains were delivered to Defendant for funeral services.
(See Id. ¶ 8). While on Defendant's
premises, Plaintiff claims that Cooley's family members
and business associates told Defendant that Plaintiff and
Cooley were divorced, which Defendant accepted as true
without further verification. (See Id. ¶ 9). As
a result, Plaintiff alleges that Defendant permitted
Cooley's family members and business associates to
arrange for the disposal of Cooley's remains.
(Id.). Defendant also allegedly issued a
“false and fraudulent” death certificate, which
indicated that Plaintiff and Cooley were legally divorced at
the time of his death. (Id.).
on the foregoing, Plaintiff claims that Defendant deprived
her the right to plan and implement final arrangements as
Cooley's widow. (Id. ¶ 10). Additionally,
Plaintiff claims that Defendant inhibited her ability to
settle Cooley's estate. (Id.). This conduct
allegedly caused Plaintiff severe emotional distress,
including loss of appetite, weight fluctuations, depression,
sleeplessness, anxiety, and migraine headaches. (Id.
¶ 11). In order to treat these symptoms, Plaintiff
alleges that she has had to seek the services of a
psychiatrist. (Id. ¶ 12).
November 6, 2018, Plaintiff initiated the instant action
against Defendant, raising claims for: (1) negligence; (2)
intentional infliction of emotional distress
('IIED”); and (3) negligent infliction of emotional
distress (“NIED”). (Id. ¶¶
13-26). Defendant now moves to dismiss Plaintiffs case for
failure to state a claim. (First Mot. to Dismiss, ECF No. 8).
12(b)(6) of the Federal Rules of Civil Procedure mandates
that a court dismiss a cause of action that fails to state a
claim upon which relief can be granted. See North Star
Int l v. Ariz. Corp. Comm 'n, 720 F.2d 578, 581 (9th
Cir. 1983). When considering a motion to dismiss under Rule
12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
Court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic
recitation of a cause of action with conclusory allegations
is not sufficient; a plaintiff must plead facts showing that
a violation is plausible, not just possible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555) (emphasis added). In order
to survive a motion to dismiss, a complaint must allege
“sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Id. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion . . . .
However, material which is properly submitted as part of the
complaint may be considered on a motion to dismiss.”
Hal Roach Studios, Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence
201, a court may take judicial notice of “matters of
public record.” Mack v. S. Bay Beer Distrib.,
798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the
district court considers materials outside of the pleadings,
the motion to dismiss is converted into a motion for summary
judgment. See Fed. R. Civ. P. 12(d); Arpin v.
Santa Clara Valley Transp. Agency, 261 F.3d 912, 925
(9th Cir. 2001).
court grants a motion to dismiss, it must then decide whether
to grant leave to amend. Pursuant to Rule 15(a), the court
should “freely” give leave to amend “when
justice so requires, ” and in the absence of a reason
such as “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of the amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962). Generally, leave to
amend is only denied when it is clear that the deficiencies
of the complaint cannot be cured by amendment. See DeSoto
v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th
argues that Plaintiff has failed to plausibly allege her
causes of action for the negligent handling of Cooley's
remains. (First Mot. to Dismiss 3:17-23). Defendant raises
three arguments in support of this assertion. First,
Defendant argues that the Amended Complaint does not state
the required elements to raise an emotional distress claim
under Nevada law. (Id. 5:20-8:14). Second, Defendant
argues that Plaintiff's claims are not cognizable because
Cooley's remains were not “desecrated” as
contemplated by Nevada law. (Id. 9:1-11:1). Lastly,
Defendant argues that Plaintiff's claims ...