-VCF Conover v. Safeway Stores Inc, No. 2:2011cv01806 - Document 15 (D. Nev. 2012)
Court Description: ORDER Granting 4 Defendant's Motion to Dismiss. Plaintiffs first and second causes of action are DISMISSED with prejudice. Plaintiffs third, fourth,and fifth causes of action are DISMISSED without prejudice, with leave to amend if Plaintiff can allege additional facts sufficient to support these claims. Plaintiffs sixth cause of action is DISMISSED with prejudice. Signed by Judge Gloria M. Navarro on 09/25/2012. (Copies have been distributed pursuant to the NEF - AC)
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-VCF Conover v. Safeway Stores Inc Doc. 15 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 9 10 11 EMORY CONOVER, as executor of the estate of ) JUDY A. CONOVER and EMORY CONOVER, ) Individually, ) ) Plaintiffs, ) vs. ) ) VONS STORES, INC., aka VONS, INC., dba ) VONS; and DOES 1 through 10, inclusive; and ) ROES CORPORATIONS 1 through 10 inclusive, ) ) Defendants. ) ) Case No.: 2:11-cv-01806-GMN-VCF ORDER Pending before the Court is the Motion to Dismiss (ECF No. 4) filed by Defendant Vons 12 13 Companies, Inc. (“Defendant”). Plaintiff Emory Conover (“Plaintiff”) filed a Response (ECF 14 NO. 7) and Defendant filed a Reply (ECF No. 8). Plaintiff’s Complaint recites claims for 15 negligence, negligent infliction of emotional distress, defamation, wrongful death, and survival 16 actions arising from the death of Judy A. Conover. Because Plaintiff’s Complaint fails to 17 provide adequate facts to state a plausible claim, the Court grants the Defendant’s Motion to 18 Dismiss. 19 I. BACKGROUND Plaintiff Emory Conover filed this action against his wife’s former employer. Plaintiff 20 21 asserts claims both in his individual capacity, and in his capacity as executor of his wife’s estate. 22 Specifically, Plaintiff alleges that the actions of one of Defendant’s employees caused his wife’s 23 death. 24 25 The facts alleged in the complaint are tragic but somewhat scant. At the time of her death, Mrs. Conover was employed by Defendant. (Compl. ¶ 5, ECF No. 1-1.) The complaint alleges Page 1 of 8 Dockets.Justia.com 1 that on September 23, 2009, Mrs. Conover’s manager, Dean Wilhite, “while acting in the course 2 and scope as an employee of Vons,” “verbally berated” Mrs. Conover, “yelled at her,” “made 3 false and defamatory statements,” and “accused her of things that were not true in front of other 4 employees and customers.” (Id. at ¶¶ 6, 21.) At some point afterward, and as an apparent result 5 of this treatment, Mrs. Conover went into cardiac arrest and died shortly thereafter. (Id. at ¶ 7.) Plaintiff, Mrs. Conover’s husband, brought this suit against his wife’s former employer on 6 7 November 11, 2011. The suit was originally filed in state court, but Defendants removed the 8 action to this Court. Mr. Conover asserts six causes of action: (1) negligence, (2) negligent 9 infliction of emotional distress, (3) intentional infliction of emotional distress, (4) defamation, 10 (5) wrongful death, and (6) survival actions. Subsequently, Defendants filed this 12(b)(6) Motion 11 on November 16, 2011. Because the Court finds the alleged facts insufficient to make out a 12 plausible claim, the Court GRANTS Defendant’s Motion. 13 II. 14 LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 15 that fails to state a claim upon which relief can be granted. See North Star Int’l. v. Arizona Corp. 16 Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 17 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not 18 give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is 20 sufficient to state a claim, the Court will take all material allegations as true and construe them in 21 the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th 22 Cir. 1986). 23 The Court, however, is not required to accept as true allegations that are merely 24 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 25 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action Page 2 of 8 1 with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation 2 is plausible, not just possible.1 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 3 550 U.S. at 555) (emphasis added). 4 If the court grants a motion to dismiss, it must then decide whether to grant leave to 5 amend. The court should “freely give” leave to amend when there is no “undue delay, bad 6 faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party by 7 virtue of . . . the amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. 15(a); Foman v. 8 Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that 9 the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow Freight 10 Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 11 III. DISCUSSION In diversity actions, such as this, federal courts apply the substantive law of the state in 12 13 which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1983). Thus, the Court applies Nevada 14 substantive law to Plaintiff’s claims. A. 15 16 17 Plaintiff’s Claims for Negligence and Negligent Infliction of Emotional Distress fail because the Nevada Industrial Insurance Act provides the exclusive remedy for employees that are injured in the course of their employment. The Nevada Industrial Insurance Act (“NIIA”) sets out Nevada’s workers’ compensation 18 19 system. NRS 606-618. As such, the NIIA provides the exclusive remedies for employee injuries 20 that “aris[e] out of and in the course of the employment.” NRS 616A.02; see also Wood v. 21 Safeway, Inc., 121 P.3d 1026, 1032 (Nev. 2005). Anytime an injury falls within the scope of the 22 NIIA, the exclusive remedy provisions result in the employers receiving immunity from civil 23 suit. See Wood, 121 P.3d at 1032. 24 25 Discussing the legal standard for a motion to dismiss under FRCP 12(b)(6) in the Opposition, Plaintiff’s counsel erroneously cites to Nevada Law, and old Supreme Court precedent since abrogated by Twombly. The reliance on this non-controlling law is misplaced. 1 Page 3 of 8 1 In Wood, the Nevada Supreme Court expressly stated that the NIIA applies to those 2 injuries that meet each of two elements: (1) the injury arose out of the employment; and (2) the 3 injury occurred within the course of that employment. 121 P.3d at 1032. This first element is met 4 whenever “there is a causal connection between the employee’s injury and the nature of the work 5 or workplace.” Id. Additionally, injuries that result from co-worker assault “arise out of the 6 employment” whenever the victim’s sole contact with the assailant was through work, rather than 7 the assault resulting from the assailant’s private, personal motivations. Id. The second element is 8 satisfied when the injury occurred “at work, during working hours, and while the employee [was] 9 reasonably performing his or her duties.” Id. 10 Here, based on the Complaint, Mrs. Conover’s injuries arose out of her employment and, 11 thus, both her negligence claims are barred by the NIIA. First, Mr. Wilhite was Mrs. Conover’s 12 supervisor. (Compl. ¶ 6, ECF No. 1-1.) As such, it is not unexpected that Mr. Wilhite would 13 occasionally correct or reprimand his employee, Mrs. Conover. Accordingly, “there is a causal 14 connection between the employee’s injury and the nature of the . . . workplace.” See Wood, 121 15 P.3d at 1032. Moreover, Plaintiff has failed to allege any facts that suggest that Mrs. Conover 16 had any contact with Mr. Wilhite outside of work or that the verbal altercation resulted from Mr. 17 Wilhite’s private, personal motivations of Mr. Wilhite. To the contrary, Plaintiff specifically 18 alleges that Mr. Wilhite was, in fact, “acting in the course and scope as an employee of Vons.” 19 (Compl. ¶ 6, ECF No. 1-1.) Second, Mrs. Conover’s tragic death was within the course of her 20 employment because the verbal altercation took place while she was at work and there are no 21 other contrary facts alleged in the complaint. 22 Accordingly, Mrs. Conover’s injuries are covered by the NIIA and Defendants are 23 immune from any civil action, unless the action is based on an employer’s intentional 24 wrongdoing. Plaintiff’s exclusive remedy lies within the administrative processes of the NIIA. 25 For this reason, dismissal of Plaintiff’s claims that rely on negligence, Plaintiff’s first and second Page 4 of 8 1 cause of actions, are dismissed with prejudice. 2 B. 3 Plaintiff’s complaint lacks sufficient facts to satisfy the elements of intentional infliction Intentional Infliction of Emotional Distress 4 of emotional distress. Under Nevada law, Plaintiff must plead sufficient facts showing 5 “(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, 6 causing emotional distress; (2) the plaintiffs having suffered severe or extreme emotional 7 distress; and (3) actual or proximate causation.” Barmettler v. Reno Air, Inc., 956 P .2d 1382, 8 1386 (Nev. 1998) (quoting Star v. Rabello, 625 P.2d 90, 91-92 (Nev. 1981)). Conduct is 9 “extreme and outrageous” only if it is “outside all possible bounds of decency” and “utterly 10 intolerable in a civilized community.” See Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 11 (Nev. 1998). Although, the determination of extreme and outrageous conduct is generally a 12 question of fact, courts have held that screaming at, yelling at, criticizing, and threatening an 13 employee with termination is not extreme and outrageous conduct on the part of an employer. 14 See Schneider v. TRW, Inc., 938 F.2d 986, 992-93 (9th Cir. 1990). Conversely, courts have found 15 an employer’s abusive language to be extreme and outrageous conduct only when the language 16 involved racially charged insults. See e.g., Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 498- 17 99, n. 6 (1970). 18 Here, Plaintiff merely alleges that “Defendant's conduct of publicly berating [Mrs. 19 Conover] and accusing her of activities that were not true, was conduct that was extreme and 20 outrageous with the intention of, or reckless disregard for causing emotional distress to [Mrs. 21 Conover].” (Compl. ¶17, ECF No. 1-1.) The complaint simply lacks adequate factual allegations 22 that detail the content of the yelling. Specifically, the complaint fails to allege that the content of 23 the yelling was racially charged or how it was uniquely abusive such that the conduct rose to the 24 level of extreme and outrageous. As in Schneider, criticizing an employee in the manner alleged 25 does not rise to the level of extreme and outrageous conduct. See Schneider, 938 F.2d at 992-93. Page 5 of 8 1 Because Plaintiff has failed to plead sufficient facts to show the plausible existence of this first 2 element, Plaintiff’s intentional infliction of emotional distress claim fails. Thus, Defendant’s 3 Motion to Dismiss is granted without prejudice as to the third cause of action in the complaint; 4 however, Plaintiff is given leave to amend this claim to allege additional facts sufficient to 5 support the claim that this conduct was extreme and outrageous. 6 C. 7 Similarly, the facts of the complaint are insufficient to present a plausible defamation Defamation 8 claim. Under Nevada law, “[t]he general elements of a defamation claim require a plaintiff to 9 prove: ‘(1) a false and defamatory statement by a defendant concerning the plaintiff; (2) an 10 unprivileged publication to a third person; (3) fault, amounting to at least negligence, and 11 (4) actual or presumed damages.’” Pegasus v. Reno Newspapers. Inc., 57 P.3d 82, 90 (Nev. 12 2002) (citation omitted). 13 The complaint merely contains a bare recitation of the elements of defamation. Plaintiff 14 simply alleges that Mr. Wilhite “made false and defamatory statements concerning [Mrs. 15 Conover], that those statements “were heard by other employees and customers,” and that Mrs. 16 Conover sustained damages as a result. (Compl. ¶¶ 21-24, ECF No. 1-1.) The complaint fails to 17 explain or detail what Mr. Wilhite said, or in what way the statements were defamatory. After 18 Iqbal, the formulaic recitation of elements provided fails to meet the pleading standard, and 19 dismissal is proper. Therefore, Plaintiff’s defamation claim is dismissed without prejudice, and 20 Plaintiff is given leave to amend this fourth cause of action if he can allege additional facts 21 sufficient to support the claim. 22 D. Wrongful Death 23 Wrongful death actions in Nevada are purely creatures of statute. See NRS 41.085. Under 24 Nevada’s wrongful death statute, a wrongful death claim must be based on some negligence or 25 other wrongful act that causes the death of the decedent. See id. Similarly, the NIIA provides the Page 6 of 8 1 exclusive remedy for wrongful death claims based on employer negligence. See Lipps v. 2 Southern Nevada Paving, 998 P.2d 1183, 1186 (Nev. 2000). However, the NIIA does not apply 3 to injuries arising from intentional torts committed by an employer. See Fanders v. Riverside 4 Resort & Casino, Inc., 245 P.3d 1159, 1163 (Nev. 2010). Thus, the NIIA may not bar a party’s 5 wrongful death claim, if that claim resulted from an actionable intentional tort. Here, Plaintiff fails to specify whether the wrongful death claim relies on Defendant’s 6 7 alleged negligent conduct or Defendant’s intentional conduct. Regardless, Plaintiff’s claim fails. 8 However, it is important to note that if the wrongful death claim is based on Defendant’s alleged 9 negligent conduct, the wrongful death claim is barred; the NIIA provides Plaintiff’s exclusive 10 remedy. On the other hand, if Plaintiff’s wrongful death claim relies upon Defendant’s alleged 11 intentional conduct, the claim is tied to the survival of Plaintiff’s intentional infliction of 12 emotional distress claim. Thus, the failure of Plaintiff’s intentional infliction of emotional 13 distress claim, as discussed in Section III.B above, results in this fifth cause of action for 14 wrongful death also being dismissed without prejudice. To the extent that Plaintiff can plead 15 adequate facts curing the intentional infliction of emotional distress claim, the Court also grants 16 Plaintiff leave to amend this claim. Otherwise, the only remedy for Plaintiff’s wrongful death 17 claim is to seek relief under the processes outlined in the NIIA. 18 E. Survival Actions 19 Plaintiff’s final claim is entitled “Survival Actions.” Such a claim is not recognized by 20 Nevada law. In fact, in Defendant’s Motion to Dismiss, Defendant notes that “survival actions” 21 is a term used in Nevada Revised Statute 41.100 that permits Plaintiff to pursue any valid cause 22 of action on behalf of his deceased wife. In Plaintiff’s Reply (ECF No. 8), Plaintiff concedes this 23 point. Thus, Plaintiff’s sixth cause of action, the claim for survival actions is dismissed with 24 prejudice. 25 /// Page 7 of 8 1 2 IV. CONCLUSION IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss is GRANTED. 3 Because Plaintiff’s recourse for the first and second causes of action appears to lie in the 4 administrative remedies under the NIIA, Plaintiff’s Negligence and Negligent Infliction of 5 Emotional Distress Causes of Action are DISMISSED with prejudice. Plaintiff’s third, fourth, 6 and fifth causes of action for Intentional Infliction of Emotional Distress, Defamation and 7 Wrongful Death are DISMISSED without prejudice, with leave to amend if Plaintiff can allege 8 additional facts sufficient to support these claims. Plaintiff’s sixth cause of action for Survival 9 Actions is DISMISSED with prejudice. 10 DATED this 25th day of September, 2012. 11 12 ______________________________ Gloria M. Navarro United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 8 of 8
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