Doe No. 1 et al v. Wynn Resorts Limited et al, No. 2:2019cv01904 - Document 81 (D. Nev. 2020)
Court Description: ORDER granting 8 Motion to Dismiss and therefore DISMISSING Plaintiffs' Complaint without Prejudice. It is Further Ordered the 9 Motion for a more definite statement, 10 Motion to Dismiss, 29 Motion to file supplemental evidence and 67 Motion to Strike are DENIED as Moot. The 68 Motion for Sanctions and 69 Objection to Magistrate Judge's Order are DENIED. Signed by Judge James C. Mahan on 7/15/2020. (Copies have been distributed pursuant to the NEF - DRS)
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Doe No. 1 et al v. Wynn Resorts Limited et al Doc. 81 Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 1 of 12 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 JUDY DOE NO. 1, et al., Case No. 2:19-CV-1904 JCM (VCF) 8 9 10 11 Plaintiff(s), ORDER v. WYNN RESORTS, LIMITED, et al., Defendant(s). 12 13 Presently before the court is defendant Wynn Las Vegas, LLC’s (“WLV”) motion to 14 dismiss for failure to state a claim. (ECF No. 8). Defendant Wynn Resorts Limited (“WRL”) 15 joined in the motion. (ECF No. 11). Plaintiffs Judy Doe Nos. 1-9 (collectively, “plaintiffs”) 16 filed a response (ECF No. 30), to which both WLV and WRL (collectively, the “Wynn 17 defendants”) replied (ECF Nos. 40, 43). 18 Also before the court is WLV’s motion for a more definite statement. (ECF No. 9). 19 WRL joined in this motion. (ECF No. 12). Plaintiffs filed a response (ECF No. 30), to which 20 the Wynn defendants replied (ECF Nos. 41, 44). 21 22 Also before the court is WRL’s motion to dismiss for failure to state a claim. (ECF No. 10). Plaintiffs filed a response (ECF No. 29), to which WRL replied (ECF No. 42). 23 Also before the court is plaintiffs’ motion for leave to file supplemental evidence in 24 support of their response to WRL’s motion to dismiss for failure to state a claim. (ECF No. 29). 25 WRL filed a response (ECF No. 66). Plaintiffs did not respond, and the time to do so has passed. 26 Also before the court is WRL’s motion to strike. (ECF No. 67). Plaintiffs filed a 27 response (ECF No. 73), to which the Wynn defendants replied (ECF No. 78). 28 James C. Mahan U.S. District Judge Dockets.Justia.com Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 2 of 12 Also before the court is WRL’s motion for sanctions. (ECF No. 68). Plaintiffs filed a 1 2 response (ECF No. 74), to which the Wynn defendants replied (ECF No. 79). 3 Also before the court is Magistrate Judge Ferenbach’s order denying plaintiffs’ motion 4 for leave to proceed under fictitious names. (ECF No. 52). Plaintiffs filed an objection to the 5 order. (ECF No. 69). The Wynn defendants filed a response (ECF No. 75). Plaintiffs did not 6 respond, and the time to do so has passed. 7 I. Background 8 The present case arises from non-party Steve Wynn’s alleged misconduct. (See ECF No. 9 7-3). The nine plaintiffs are presently employed as either manicurists or make-up artists at the 10 Wynn defendants’ salon. Id. at 15. Plaintiffs allege that during the course of their employment, 11 “each suffered similar but individualized acts of sexual harassment and personal degradation by 12 Steve Wynn . . . at different times, with different durations[,] and under different (and unique) 13 circumstances. . . .” 14 misconduct by Steve Wynn. Id. at 16. Id. at 17. They also “saw, surmised, heard about and suspected” 15 Plaintiffs contend that the Wynn defendants failed to take reasonable steps to prevent the 16 hostile work environment caused by Steve Wynn’s sexual harassment of female employees. Id. 17 at 20. They allege that the Wynn defendants knew of Steve Wynn’s propensity of misconduct 18 towards female employees, failed to investigate, and covered-up any reported misconduct. Id. 19 In January 2018, the Wall Street Journal published an article that included allegations of 20 sexual harassment by Steve Wynn. Id. at 5. Following the publication, the Massachusetts 21 Gaming Commission (“MGC”) initiated an investigation into Wynn Resorts and released a 22 report on April 2, 2019. 23 executives, failed to appropriately respond to allegations against Steve Wynn. Id. at 14. 24 Id. at 13. The MGC found that Wynn Resorts, including certain Plaintiffs assert that the Wynn defendants discouraged them from expressing concerns 25 about discrimination. 26 memorandums, and events convened by the Wynn defendants, in which the Wynn defendants 27 showed support for Steve Wynn after the release of the Wall Street Journal article. Id. These 28 events included a February 1, 2018, birthday celebration, where some plaintiffs were told that James C. Mahan U.S. District Judge Id. at 24. Specifically, they were discouraged during meetings, -2- Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 3 of 12 1 they needed to go on camera to say “that Steve Wynn had not assaulted or abused them, and to 2 make complimentary statements about [him].” Id. at 9. 3 Plaintiffs filed formal charges of discrimination with the Equal Employment Opportunity 4 Commission (“EEOC”) in March 2018, and received right to sue notices on July 5, 2019. Id. at 5 6. 6 II. 7 8 9 Legal Standard a. Reconsidering a magistrate judge’s order A district judge may affirm, reverse, or modify, in whole or in part, a magistrate judge’s order, as well as remand with instructions. LR IB 3-1(b). 10 Magistrate judges are authorized to resolve pretrial matters subject to the district judge’s 11 review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); see 12 also Fed. R. Civ. P. 72(a); LR IB 3-1(a) (“A district judge may reconsider any pretrial matter 13 referred to a magistrate judge in a civil or criminal case under LR IB 1-3, when it has been 14 shown the magistrate judge’s order is clearly erroneous or contrary to law.”). The “clearly 15 erroneous” standard applies to a magistrate judge’s factual findings, whereas the “contrary to 16 law” standard applies to a magistrate judge’s legal conclusions. See, e.g., Grimes v. Cty. of San 17 Francisco, 951 F.2d 236, 240 (9th Cir. 1991). 18 A magistrate judge’s finding is “clearly erroneous” if the district judge has a “definite and 19 firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 20 364, 395 (1948). “[R]eview under the ‘clearly erroneous’ standard is significantly deferential.” 21 Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 22 623 (1993). “To be clearly erroneous, a decision must . . . strike [the court] as wrong with the 23 force of a five-week old, unrefrigerated dead fish.” Ocean Garden, Inc. v. Marktrade Co., 953 24 F.2d 500, 502 (9th Cir. 1991) (quoting Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 25 F.2d 228, 233 (7th Cir. 1988)). 26 “An order is contrary to law when it fails to apply or misapplies relevant statutes, case 27 law, or rules of procedure.” United States v. Desage, 2017 WL 77415, at *3, --- F. Supp. 3d ----, 28 ---- (D. Nev. Jan. 9, 2017) (quotation omitted); see also Grimes, 951 F.2d at 241 (finding that James C. Mahan U.S. District Judge -3- Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 4 of 12 1 under the contrary to law standard, the district judge reviews the magistrate judge’s legal 2 conclusions de novo). 3 b. Motion to dismiss for failure to state a claim 4 The court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 5 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] 6 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. 7 P. 8(a)(2). Although rule 8 does not require detailed factual allegations, it does require more 8 than labels and conclusions. 9 Furthermore, a formulaic recitation of the elements of a cause of action will not suffice. Ashcroft 10 v. Iqbal, 556 U.S. 662, 677 (2009) (citation omitted). Rule 8 does not unlock the doors of 11 discovery for a plaintiff armed with nothing more than conclusions. Id. at 678–79. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 12 To survive a motion to dismiss, a complaint must contain sufficient factual matter to 13 “state a claim to relief that is plausible on its face.” Id. A claim has facial plausibility when the 14 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 15 defendant is liable for the misconduct alleged. Id. When a complaint pleads facts that are 16 merely consistent with a defendant’s liability, and shows only a mere possibility of entitlement, 17 the complaint does not meet the requirements to show plausibility of entitlement to relief. Id. 18 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 19 when considering a motion to dismiss. Id. First, the court must accept as true all of the 20 allegations contained in a complaint. 21 conclusions. Id. Second, only a complaint that states a plausible claim for relief survives a 22 motion to dismiss. Id. at 678. Where the complaint does not permit the court to infer more than 23 the mere possibility of misconduct, the complaint has “alleged – but not shown – that the pleader 24 is entitled to relief.” Id. at 679. When the allegations in a complaint have not crossed the line 25 from conceivable to plausible, plaintiff’s claim must be dismissed. Twombly, 550 U.S. at 570. 26 27 28 James C. Mahan U.S. District Judge However, this requirement is inapplicable to legal The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court held: First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a -4- Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 5 of 12 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 unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. 1 2 3 4 5 Id. 6 c. Sanctions 7 Lawyers may be sanctioned for improper conduct pursuant to three primary sources of 8 authority: (1) Federal Rule of Civil Procedure 11; (2) 28 U.S.C. § 1927, which is aimed at 9 penalizing conduct that unreasonably and vexatiously multiplies the proceedings; and (3) the 10 court’s inherent power. Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001). 11 Federal Rule of Civil Procedure 11 “provides for the imposition of sanctions when a motion 12 is frivolous, legally unreasonable, or brought for an improper purpose.” Smith & Green Corp. v. 13 Trs. of Constr. Indus. & Laborers Health & Welfare Trust, 244 F. Supp. 2d 1098, 1102 (D. Nev. 14 2003); See Fed. R. Civ. P. 11(b); Conn v. Borjorquez, 967 F.2d 1418, 1420 (9th Cir. 1992). 15 Courts have inherent power to impose sanctions for bad faith conduct by litigants. Chambers v. 16 Nasco, Inc., 501 U.S. 32, 35 (1991) (affirming district court’s order imposing sanctions for bad 17 faith conduct). “A court considering a motion pursuant to Rule 11 must do two things: (1) 18 decide whether a Rule 11 violation has occurred, and (2) decide whether to impose sanctions.” 19 Id. 20 III. Discussion 21 Plaintiffs bring five claims: (1) sexual harassment under federal and state law, (2) 22 retaliation under federal and state law, (3) negligent hiring, training, supervision, and retention, 23 (4) intentional infliction of emotional distress (“IIED”), and (5) invasion of privacy. 24 a. Objection to denial of leave to proceed under fictious names 25 The court first reviews plaintiffs’ objection to Magistrate Judge Ferenbach’s order 26 denying leave to proceed under fictitious names. (ECF No. 69). The court will not disturb Judge 27 Ferenbach’s decision unless it is “clearly erroneous or contrary to law.” 28 § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); LR IB 3-1(a). James C. Mahan U.S. District Judge -5- See 28 U.S.C. Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 6 of 12 1 “Plaintiffs’ use of fictitious names runs afoul of the public’s common law right of access 2 to judicial proceedings.” Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th 3 Cir. 2000) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)). Further, Rule 4 10(a) commands that the title of every complaint “include the names of all the parties.” Fed. R. 5 Civ. P. 10(a). The Ninth Circuit allows “parties to use pseudonyms in the ‘unusual case’ when 6 nondisclosure of the party’s identity ‘is necessary . . . to protect a person from harassment, 7 injury, ridicule or personal embarrassment.’” Advanced Textile, 214 F.3d at 1067–68 (quoting 8 United States v. Doe, 655 F.2d 920, 922 n. 1 (9th Cir. 1981)). Courts must balance the need for 9 anonymity against the presumption that parties’ identities are public information and the risk of 10 unfairness to the opposing party. Id. 11 The Ninth Circuit has permitted plaintiffs to use pseudonyms in three situations: (1) when 12 identification creates a risk of retaliatory physical or mental harm, (2) when anonymity is 13 necessary to privacy in a matter of sensitive and highly personal nature, and (3) when the 14 anonymous party is compelled to admit his or her intention to engage in illegal conduct thereby 15 risking criminal prosecution. Id. at 1068. If the plaintiff’s motion to proceed anonymously is 16 based on fear of retaliation, the court evaluates the following factors: (1) the severity of the 17 threatened harm, (2) the reasonableness of the anonymous party’s fears, and (3) the anonymous 18 party’s vulnerability to such retaliation (4) the prejudice to the opposing party and (5) the public 19 interest. Doe v. Kamehameha School Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1042 20 (9th Cir. 2010). 21 In their initial motion, plaintiffs argued that the court should allow them to proceed under 22 fictitious names for three reasons: (1) their fear of retaliatory defamation suits by Steve Wynn, 23 (2) being ostracized and retaliated against in their workplace, and (3) the sensitive details of 24 sexual harassment that would upend their lives if released to the public. (See ECF No. 20.) 25 Judge Ferenbach relied on Doe v. JBC RAK LLC to assess the motion, which correctly articulates 26 the aforementioned tests provided by the Ninth Circuit to address motions to proceed under 27 fictitious names. (See ECF No. 64 at 10 (citing Doe v. JBF RAK LLC, No. 2:14-CV-00979- 28 RFBGWF, 2014 WL 5286512, at *1 (D. Nev. Oct. 15, 2014))). Judge Ferenbach found that the James C. Mahan U.S. District Judge -6- Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 7 of 12 1 plaintiffs had not “made a sufficient[,] even good cause showing” to persuade the court that 2 plaintiffs’ privacy interests outweighed the public’s right of access to the judicial proceedings, 3 and ultimately denied plaintiffs’ initial motion. (ECF No. 64 at 33). 4 The court finds that plaintiffs’ objection—though it contains more thorough analysis—is 5 an expansion of the arguments summarily raised in their initial motion. Plaintiffs do not contend 6 that Judge Ferenbach’s order was contrary to law or clearly erroneous. Rather, they dispute the 7 merits of his order. Moreover, the objection re-litigates many of the issues previously addressed 8 by Judge Ferenbach. At the hearing, Judge Ferenbach disagreed that plaintiffs were analogous to 9 sexual assault victims, stating that this is a “completely different situation . . . and the law is clear 10 . . . that those victims can stay anonymous.” (ECF No. 64 at 12). Additionally, Judge Ferenbach 11 was not convinced of the reasonableness of retaliation by Steve Wynn, specifically noting that he 12 was unpersuaded by the prospect of lawsuits initiated by Steve Wynn. (ECF No. 64 at 27). 13 Judge Ferenbach correctly identified and applied the law in adjudicating this motion. 14 Further, there is nothing within his analysis that demonstrates his decision was clearly erroneous. 15 Rather, Judge Ferenbach concluded that the plaintiffs did not make a good cause showing 16 sufficient to outweigh the public’s interest in their right to judicial proceedings. Thus, because 17 the court find that Judge Ferenbach’s order was neither clearly erroneous nor contrary to law, 18 plaintiffs’ objection is denied. 19 b. Documents referenced outside of the complaint 20 “Generally, district courts may not consider material outside the pleadings when 21 assessing the sufficiency of a complaint under Rule 12(b)(6).” Khoja v. Orexigen Therapeutics, 22 Inc., 899 F.3d 988, 998 (9th Cir. 2018), cert. denied sub nom. Hagan v. Khoja, 139 S. Ct. 2615 23 (2019) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). “A court may, 24 however, consider certain materials—documents attached to the complaint, documents 25 incorporated by reference in the complaint, or matters of judicial notice—without converting the 26 motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 27 908 (9th Cir. 2003). The incorporation-by-reference doctrine permits district courts to consider 28 documents referenced within the complaint that do not have disputed authenticity. Id. “Even if a James C. Mahan U.S. District Judge -7- Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 8 of 12 1 document is not attached to a complaint, it may be incorporated by reference into a complaint if 2 the plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s 3 claim.” Id. 4 Plaintiffs reference the EEOC charges and against the Wynn defendants throughout their 5 complaint. (See ECF No. 7-3). Plaintiffs contend that the court should consider the full text of 6 the EEOC charges. (ECF No. 30 at 12). The Wynn defendants argue that the court cannot 7 consider the EEOC charges because they have not been submitted to the court. (ECF No. 40 at 8 6). 9 The court can take into consideration the existence of the EEOC charges against the 10 Wynn defendants. However, it cannot take into consideration any facts contained therein 11 because it does not have access to the document. Therefore, the court cannot consider the factual 12 information contained in the EEOC charges against the Wynn defendants when assessing the 13 sufficiency of plaintiffs’ complaint, regardless of whether the Wynn defendants are “aware of the 14 massive weight of corroborative evidence proving them liable for [the claims] as asserted in the 15 EEOC process and in this lawsuit.” (ECF No. 7-3 at 18). 16 c. Sexual harassment claim 17 The Wynn defendants argue that dismissal of plaintiffs’ sexual harassment claim is 18 warranted because plaintiffs use impermissible collective pleading in their complaint. (ECF No. 19 8 at 10). Specifically, they contend that plaintiffs have failed to plead individual facts, which is 20 required to state a sexual harassment claim. Id. The Wynn defendants cite Bautista v. L.A. 21 Cnty., in which the Ninth Circuit held that individual facts must be pleaded in cases “where 22 multiple claims are asserted, where they arise out of separate transactions or occurrences, and 23 where separate statements will facilitate a clear presentation.” Bautista v. L.A. Cnty., 216 F.3d 24 837 (9th Circ. 2000). 25 In Bautista, fifty-one plaintiffs filed an employment discrimination suit. See id. The 26 complaint alleged that all plaintiffs collectively “performed their jobs satisfactorily and were 27 each qualified for positions with [defendant], that they applied for such positions and that they 28 were denied employment based on their race, age and disability.” Id. at 840. The court found James C. Mahan U.S. District Judge -8- Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 9 of 12 1 that the claims “were hybrids that qualify neither as class action allegations nor as statements of 2 individual claims” and affirmed the district court’s decision to dismiss the case on these grounds. 3 Plaintiffs contend that they used permissible collective pleading in their complaint, as, 4 unlike Bautista, there is no “separate transaction or occurrence” issue to analyze since plaintiffs 5 “are members of the same protected class of persons” and were “exposed to much of the same 6 corporate retaliatory and hostile work environment.” (ECF No. 30 at 13–14.) 7 In their complaint, plaintiffs contend that they “were subjected to offensive verbal or 8 physical conduct based on their gender, female.” (ECF No. 7-3 at 21). They further allege that 9 they suffered “individualized acts of sexual harassment and personal degradation by Steve Wynn 10 over a period of time, but at different times, with different durations and under different (and 11 unique) circumstances and consequences for each female plaintiff.” Id. at 17. 12 Plaintiffs argue that their sexual harassment claims arise out of the same transaction or 13 occurrence, yet they also allege that they suffered “individualized acts of sexual harassment.” Id. 14 Though plaintiffs all allege sexual harassment by Steve Wynn, the individualized acts of sexual 15 harassment, like Bautista, are separate transactions or occurrences that must be appropriately 16 pled in order to comply with rule 8. Therefore, plaintiffs’ use of collective pleading in their 17 sexual harassment claim is not sufficient, and accordingly, it is dismissed. 18 d. Retaliation, negligent hiring, IIED, and invasion of privacy claims 19 Plaintiffs seek to avoid the release of their identities. Although plaintiffs wish to preserve 20 their anonymity, this causes several deficiencies in their claims against the Wynn defendants. 21 Throughout their complaint, plaintiffs use generalized and vague statements without 22 individualized factual support for their allegations. (See generally ECF No. 7-3). The court 23 finds that these claims are not sufficiently pleaded. 24 For instance, plaintiffs’ retaliation claim alleges that they “engaged in protected conduct 25 when they accessed the EEOC process” in March 2018. 26 “cumulative effect of [the Wynn defendants’] actions [through meetings, memorandums, and 27 events designed to stifle workplace concerns] constitute[] illegal retaliation . . . .” Id. at 26. 28 Although plaintiffs assert that they engaged in a protected activity and suffered adverse James C. Mahan U.S. District Judge -9- Id. at 24. They posit that the Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 10 of 12 1 employment actions, they fail to establish that a causal link exists between the two. They 2 summarily assert that after they engaged in the EEOC process, “some plaintiffs . . . were then 3 questioned by Wynn Resorts HR personnel about their filings . . . .” Id. at 25. This is not 4 enough to establish a prima facie case of retaliation; plaintiffs must cogently allege a casual 5 connection between plaintiffs’ protected activity and the adverse employment actions taken 6 against them. 7 Additionally, plaintiffs allege that the Wynn defendants breached their duty of care to 8 plaintiffs by hiring “incompetent, unqualified, [and] poorly trained” executives and human 9 resources personnel who failed to investigate sexual harassment claims against Steve Wynn. Id. They contend that “as a direct and proximate result of [the Wynn defendants’] 10 at 26–27. 11 . . . negligent actions, [plaintiffs] have sustained injuries, including mental anguish . . . .” Id. at 12 29. Plaintiffs merely recite the elements of negligent hiring because the complaint is devoid of 13 allegations to support this claim, such as who the referenced personnel were, how they breached 14 their duty to plaintiffs, or when this occurred. 15 A similar deficiency is found in plaintiffs’ IIED claim. Although plaintiffs include 16 multiple instances of allegedly extreme and outrageous conduct in their complaint, (id. at 28–29), 17 they summarily state that the Wynn defendants “intended, or acted with reckless disregard” and 18 that plaintiffs suffered “severe or extreme emotional distress in a sum in excess of $15,000.” Id. 19 at 29. These are recitations of two required elements of IIED, not sufficient allegations of 20 underlying facts. 21 objectively verifiable indicia of the severity of their emotional distress. Additionally, without the requisite specificity, plaintiffs do not establish 22 Lastly, plaintiffs claim an invasion of privacy against the Wynn defendants. However, 23 they fail to allege any specific interaction in which all plaintiffs were impacted. They allege that 24 the Wynn defendants gave Steve Wynn access to private information about “employees” (id. at 25 31), but fail to establish whether this applies specifically to plaintiffs. The same deficiency is 26 found in the invasion of privacy alleged during the February 1, 2018, filming incident, which 27 they allege applies to “some employees” (id. at 32), but fail to specify whether this applies to all 28 plaintiffs. James C. Mahan U.S. District Judge - 10 - Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 11 of 12 1 Accordingly, plaintiffs’ retaliation, negligent hiring, IIED, and invasion of privacy 2 claims are dismissed. However, the court finds that the deficiencies in plaintiffs’ complaint may 3 be cured, and the complaint is dismissed without prejudice.1 4 e. Sanctions 5 The Wynn defendants argue that plaintiffs should be sanctioned for violating the 6 confidentiality of the early neutral evaluation (ENE) process. (ECF No. 68 at 14). Although 7 discovery was stayed by the court, the Wynn defendants nonetheless produced documents to 8 plaintiffs for the limited purpose of facilitating settlement discussions at the ENEs. Id. They 9 allege that plaintiffs, in bad faith, then submitted those documents to the court to support their 10 opposition of the Wynn defendants’ motion to dismiss, violating the confidentiality of the ENEs 11 referenced in LR16-6(h). Id. 12 The documents in question were available to plaintiffs as employees of the Wynn 13 defendants through their employer intranet, and thus, the ENE process was not the only method 14 plaintiffs could have used to obtain them. (ECF No. 74 at 12). Although plaintiffs submitted the 15 documents after the Wynn defendants produced them for the limited purpose of facilitating the 16 ENEs, the court does not find that plaintiffs acted in bad faith. Therefore, the Wynn defendants’ 17 motion for sanctions is denied. 18 IV. Conclusion 19 Accordingly, 20 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the Wynn defendants’ 21 22 23 24 25 motion to dismiss (ECF No. 8) be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that plaintiffs’ complaint be, and the same hereby is, DISMISSED without prejudice. IT IS FURTHER ORDERED that the Wynn defendants’ motion for a more definite statement (ECF No. 9) be, and the same hereby is, DENIED as moot. 26 1 27 28 James C. Mahan U.S. District Judge Under Title VII, plaintiffs are required to exhaust their administrative remedies by filing a timely charge with the EEOC or the appropriate state agency, thus allowing the agency an opportunity to investigate the charge. 42 U.S.C. § 20003-5(b). Plaintiffs failed to attach their right to sue letter from the EEOC to the complaint because of their desire to remain anonymous. (ECF No. 30 at 21). The court admonishes that if and when plaintiffs amend their complaint, they attach their right to sue letter. - 11 - Case 2:19-cv-01904-JCM-VCF Document 81 Filed 07/15/20 Page 12 of 12 1 2 3 4 5 6 7 8 IT IS FURTHER ORDERED that WRL’s motion to dismiss motion (ECF No. 10) be, and the same hereby is, DENIED as moot. IT IS FURTHER ORDERED that plaintiffs’ motion for leave to file supplemental evidence (ECF No. 29) be, and the same hereby is, DENIED as moot. IT IS FURTHER ORDERED that the WRL’s motion to strike (ECF No. 67) be, and the same hereby is, DENIED as moot. IT IS FURTHER ORDERED that WRL’s motion for sanctions (ECF No. 68) be, and the same hereby is, DENIED. 9 IT IS FURTHER ORDERED that plaintiffs’ objection to Magistrate Judge Ferenbach’s 10 order denying plaintiffs’ motion for leave to proceed under fictitious names (ECF No. 69) be, 11 and the same hereby is, DENIED. 12 13 14 DATED July 15, 2020. __________________________________________ UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge - 12 -
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