United States District Court, D. Nevada
before the court is defendant Nye County School
District's (“defendant”) motion to dismiss.
(ECF No. 22). Plaintiff has not filed a response, and the
time to do so has passed.
instant action arises from defendant's alleged
discrimination against plaintiff. (ECF No. 1). Plaintiff
avers that defendant discriminated against him due to his
gender in violation of Title VII. Id. Plaintiff
applied for and was denied employment as either a fourth or
fifth grade teacher at Floyd Elementary School
(“Floyd”). Id. The purported reason that
plaintiff was not hired was that his wife also taught fourth
grade at Floyd, “and [Floyd] can't have married
couples working together in the same grade level at the
school.” Id. at 3.
plaintiff notes that “there is no policy in the school
district about married couples working in the same grade and
in fact a married couple both taught [second] grade at Floyd
. . . five years prior and currently there are other married
couples working at Floyd[, ]” including the
acting/interim principal and his wife. Id.
Allegedly, the acting/interim principal at Floyd “made
a comment to a teacher that ‘male teachers don't
belong in an elementary setting, they don't belong
there.'” Id. Plaintiff contends that Floyd
hired seven teachers between April and June of 2018, all of
whom were white women. Id. at 4.
filed the instant action on August 7, 2018. Id. An
early neutral evaluation (“ENE”) was scheduled
for February 1, 2019. (ECF No. 10). The parties were
instructed to file a stipulated discovery plan and scheduling
order by January 3, 2019. (ECF No. 11). Defendant attempted
to schedule plaintiff's deposition before the ENE, but
was unsuccessful. (ECF No. 22 at 2). During the parties'
Rule 26 conference, defense counsel volunteered to prepare
the discovery plan and scheduling order and reminded
plaintiff that she would notice plaintiff's deposition
for January 31, 2019. Id.
defendant offered to reschedule the deposition to a date
prior to the ENE, plaintiff simply said that he could not
take off work and would not make himself available for a
deposition prior to the ENE. (ECF No. 22 at 2-3). Despite
defendant's providing five dates prior to the discovery
deadline, plaintiff refused to arrange a deposition for
himself and his wife. Id. at 3. Finally, defendant
noticed plaintiff's and plaintiff's wife's
depositions for April 4 and 5, 2019, and the court granted a
stipulation to extend discovery deadlines to accommodate
those dates. Id.; (see also ECF No. 17).
deposition-scheduling problems continued when,
“[p]laintiff's counsel left a voice mail for
defense counsel informing her that [p]laintiff and his wife
would not appear for the April 4 and 5 depositions, but they
would agree to appear on April 19, 20 and 21, which were Good
Friday, a Saturday, and Easter Sunday.” (ECF No. 22 at
4). The Easter weekend dates were unacceptable to both
defendant and plaintiff's counsel. (ECF No. 18 at 2).
Plaintiff's counsel then had “insurmountable
problems communicating with his clients” and withdrew.
(ECF No. 22 at 4); (see also ECF No. 18).
April 4 and 5 depositions were vacated in light of the
withdrawal of plaintiff's counsel. (ECF No. 22 at 2).
Defendant tried to notice depositions of plaintiff and his
wife for May 21, 2019. Id. at 4-5. Notices sent to
plaintiff via certified mail were returned as unclaimed.
Id. Although plaintiff's wife received notice of
her deposition, she informed defendant that she would not
appear for her deposition. Id. at 5. Defendant had
plaintiff's wife served-after several attempts-on May 20,
counsel traveled to Pahrump, Nevada, on May 19, 2019, in
order to attend and conduct both depositions. Id.
“Defense counsel did not receive any communications
from [p]laintiff in any form.” Id. Plaintiff
did not appear for his deposition on May 20, nor did his wife
appear for her deposition on May 21. Id.
27, 2019, defendant Nye County School District
(“defendant”) filed a motion to dismiss for
failure to prosecute. (ECF No. 22). On July 16, 2019,
defendant filed a notice of plaintiff's failure to oppose
the motion to dismiss. (ECF No. 23). Defendant mailed the
notice to plaintiff, but defendant indicated in its August
12, 2019, addendum that the notice was returned as
undeliverable. (ECF No. 25).
may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A properly pled complaint must provide “[a]
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the ...