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Huerta v. W & W Partnership

United States District Court, D. Nevada

November 19, 2019

BEATRIZ ALICIA MORLETT HUERTA, Plaintiffs,
v.
W & W PARTNERSHIP, et al., Defendants.

          ORDER

         Presently before the court is defendant Walmart Inc.'s (“Walmart”) motion to dismiss co-defendant W & W Partnership (“W & W”). (ECF No. 5).[1] Plaintiff Beatriz Huerta (“plaintiff”) filed a response (ECF No. 8), to which defendant replied (ECF No. 11).

         Also 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).

         I. Background

         The 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.

         II. Legal Standard

         A. Motion to dismiss

         A court 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).

         “Factual 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).

         In 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.

         Second, 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.

         Where 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.

         The 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 part:

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 ...

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