United States District Court, D. Nevada
before the court is defendant Walmart Inc.'s
(“Walmart”) motion to dismiss co-defendant W
& W Partnership (“W & W”). (ECF No.
Plaintiff Beatriz Huerta (“plaintiff”) filed a
response (ECF No. 8), to which defendant replied (ECF No.
before the court is plaintiff's motion to remand to state
court. (ECF No. 9). Walmart filed a response (ECF No. 12), to
which plaintiff replied (ECF No. 13).
instant action arises from a slip-and-fall incident. (ECF No.
1-2). On July 22, 2017, plaintiff was shopping at the
Walmart's store located at 3615 S. Rainbow Blvd, Las
Vegas, Nevada. Id. at 3. Walmart owns and operates
the store. Id. W & W is the landlord.
Id. Plaintiff slipped and fell on a “foreign
substance left unmarked and unattended on the floor” of
aisle #18. Id. As a result, plaintiff
“suffered injuries to her body” that required
medical treatment. Id. at 3-4. Plaintiff brought the
instant action against Walmart and W & W for negligence
and negligent hiring, training, retention, and supervision.
See generally id.
Motion to dismiss
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 elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged-but not shown-that the pleader is entitled to
relief.” Id. (internal quotation marks
omitted). When the allegations in a complaint have not
crossed the line from conceivable to plausible,
plaintiff's claim must be dismissed. Twombly,
550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court stated, in relevant
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not ...