Preiss et al v. S & R Production Company et al, No. 2:2010cv01795 - Document 35 (D. Nev. 2011)
Court Description: ORDER Granting 12 Defendants' Motion to Dismiss. IT IS FURTHER ORDERED that 32 Plaintiff's Motion to Remand is DENIED. As no claims remain after 34 Plaintiff's Notice of Voluntary Dismissal, the Clerk of Court is directed to close this case. Signed by Chief Judge Roger L. Hunt on 3/17/11. (Copies have been distributed pursuant to the NEF - EDS)
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Preiss et al v. S & R Production Company et al Doc. 35 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 11 12 13 14 15 16 OLIVER PREISS, an individual; and BEATRICE PREISS, an individual, ) ) ) Plaintiffs, ) ) vs. ) ) S&R PRODUCTION COMPANY, a Nevada ) corporation; and ROY HORN AKA UWE ) LUDWIG HORN AKA ROY UWE HORN, an ) individual, ) ) Defendants. ) _______________________________________) Case No.: 2:10-cv-01795-RLH-RJJ ORDER (Motion to Dismiss–#12; Motion to Remand–#32) 17 Before the Court is Defendant S&R Production Company and Roy Horn’s Motion 18 19 to Dismiss (#12), filed October 22, 2010. The Court has also considered Plaintiffs Oliver Preiss 20 and Beatrice Preiss’1 Opposition (#17), filed November 8, 2010, and S&R’s Reply (#23), filed 21 November 18, 2010. Also before the Court is Plaintiffs’ Motion to Remand (#32), filed March 3, 2011. 22 23 The Court has also considered Defendants’ Opposition (#33), filed March 3, 2011. Plaintiffs did 24 not reply. 25 1 26 AO 72 (Rev. 8/82) W hen referring to ‘Preiss’ in the singular, the Court refers to Oliver Preiss. Otherwise, the Court will refer to Oliver and Beatrice Preiss collectively as ‘Plaintiffs.’ 1 Dockets.Justia.com 1 BACKGROUND 2 Unless otherwise noted, the following facts are as alleged by Plaintiffs. One day in 3 2008, Oliver Preiss met Siegfried Fischbacher. Fischbacher invited Priess to meet Roy Horn. 4 Soon thereafter, Preiss began to work as one of many personal assistants to Horn, who had lost 5 much of his ability to care for himself after having been attacked by one his white tigers. Preiss’ 6 duties included things like helping Horn get dressed in the morning and other daily tasks. Both 7 Fischbacher and Horn made sexual overtures to Preiss early in his employment, however 8 Fischbacher soon stopped. Horn, allegedly, did not. Over the course of two years, Horn 9 repeatedly made sexual requests and fondled and groped Priess. Horn also maintained a very 10 sexualized home, where Priess worked. Priess alleges that he made it clear to Horn that this 11 conduct was inappropriate and unwelcome. 12 Priess found this atmosphere very stressful and his anxiety disturbed his interaction 13 with his wife. Eventually Horn fired Priess after Priess continued to refuse Horn’s overtures. At 14 some point, Priess obtained video tape (it is unclear when or how) of the activities taking place in 15 Horn’s home. Priess apparently decided to show these videos to his wife, Beatrice. Since viewing 16 the videos, Plaintiffs’ marriage has suffered. 17 On June 1, 2010, Preiss filed a complaint with the Equal Employment Opportunity 18 Commission. The EEOC later issued a right to sue letter. Plaintiffs then filed a complaint with 19 the Eighth Judicial District Court of the State of Nevada alleging various Title VII claims 20 (pertaining to sexual harassment and retaliation), assault and battery, intentional infliction of 21 emotional distress (“IIED”), negligent infliction of emotional distress (“NIED”), and loss of 22 consortium. Defendants then removed the case to this Court based on the Title VII claims, which 23 Plaintiffs have since voluntarily dismissed. (Dkt. #31, Notice of Voluntary Dismissal.) For the 24 reasons discussed below, the Court grants Defendants’ motion and dismisses S&R from this case. 25 / 26 / AO 72 (Rev. 8/82) 2 1 2 DISCUSSION I. Motion to Remand 3 The Court will first address the Motion to Remand, for if the Court determines to 4 remand the case, there is no need to address the Motion to Dismiss. However, the Court concludes 5 that remand is improper under the relevant case law because the Court maintains jurisdiction over 6 the case despite Plaintiffs voluntary dismissal of their federal claims. 7 Supplemental jurisdiction over state law claims is determined at the time of 8 removal to federal court without regard to subsequent amendments. Sparta Surgical Corp. v. Nat’l 9 Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998). Plaintiffs may not destroy 10 subject matter jurisdiction by selectively giving up on the claims that formed the basis for removal. 11 See Albinga Versicherungs A.G. v. Schenker Intern. Inc., 344 F.3d 931, 938–39 (9th Cir. 2003) 12 (amended by Albinga Versicherungs A.G. v. Schenker Intern. Inc., 350 F.3d 916 (9th Cir. 2003) 13 (“Supplemental jurisdiction is not destroyed by elimination of the basis for original jurisdiction.”). 14 However, this is exactly what Plaintiffs seek to accomplish, remand by eliminating this Court’s 15 subject matter jurisdiction. The attempt fails. Jurisdiction was proper at the time of removal and 16 jurisdiction remains proper even after Plaintiffs voluntarily dismissed their federal claims. 17 Therefore, the Court denies the Motion and declines to remand. 18 II. 19 Motion to Dismiss A. Standard 20 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 21 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short 22 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 23 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require 24 detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic 25 recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) 26 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise AO 72 (Rev. 8/82) 3 1 above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a 2 complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its 3 face.” Iqbal, 129 S. Ct. at 1949 (internal citation omitted). In Iqbal, the Supreme Court recently clarified the two-step approach district courts 4 5 are to apply when considering motions to dismiss. First, a district court must accept as true all 6 well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the 7 assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only 8 by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider 9 whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A 10 claim is facially plausible when the plaintiff’s complaint alleges facts that allows the court to draw 11 a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where 12 the complaint does not permit the court to infer more than the mere possibility of misconduct, the 13 complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal 14 quotation marks omitted). When the claims in a complaint have not crossed the line from 15 conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570. 16 B. 17 Analysis The Court first reiterates that Plaintiffs voluntarily dismissed their Title VII claims 18 and therefore the Court will not address those claims beyond stating that the Title VII claims 19 would have fallen regardless due to Priess’ insufficient allegations regarding S&R being his 20 employer. The Court also notes that since Plaintiffs dismissed the Title VII claims, Defendants 21 currently only challenge the respondeat superior claims against S&R and the NIED claims. 22 Defendants do not contest the assault and battery, IIED, or loss of consortium claims in this 23 motion. After consideration, the Court grants Defendants’ motion, dismisses the challenged 24 claims, and consequently dismisses S&R from this case. The Court will address each claim in 25 turn. 26 / AO 72 (Rev. 8/82) 4 1 1. 2 The doctrine of respondeat superior allows plaintiffs to hold a company (or other Respondeat Superior 3 principle) liable for the acts of its agent committed in furtherance of the principle’s business. 4 Mullahon v. Union Pac. R.R., 64 F.3d 1358, 1362 (9th Cir. 1995). Here, Preiss does not allege any 5 facts allowing the Court to conclude that Horn’s acts could possibly have been in furtherance of 6 S&R’s business. Since Plaintiffs’ respondeat superior theory was the only theory of liability 7 remaining against S&R after Plaintiffs voluntarily dismissed their Title VII claims, the Court 8 dismisses S&R from this case. 9 2. 10 Plaintiffs misunderstand the requirements for an NIED claim. To bring an NIED NIED 11 claim, a bystander must have been “located near the scene,” “emotionally injured by the 12 contemporaneous sensory observance” of the acts, and “closely related to the victim.” Grotts v. 13 Zahner, 989 P.2d 415, 416 (Nev. 1999) (emphasis added). Beatrice Preiss claims that she 14 contemporaneously viewed the alleged sexual harassment when her husband brought home video 15 tapes showing the harassment and played them for her. This does not meet the requirements of 16 either contemporaneous observance nor physical presence. The playing of a video taped recording 17 hours, days, or weeks after an event is simply not contemporaneous in nature. Also, it is 18 incomprehensible to claim that video tape viewing of events somehow makes one physically 19 present at the event. Therefore, the Court dismisses Beatrice Preiss’ NIED claim. 20 Oliver Preiss also makes an NIED claim. However, as this Court has repeatedly 21 held before, direct victims may not bring NIED claims. See, e.g., Kennedy v. Carriage Cemetery 22 Serv., Inc., 727 F. Supp. 2d 925, 934–35 (D. Nev. 2010). Therefore, the Court also dismisses 23 Oliver Priess’ NIED claim. 24 III. 25 26 AO 72 (Rev. 8/82) Notice of Voluntary Dismissal Here, the Court notes that as it was preparing to issue this order, Plaintiffs filed a Notice of Voluntary Dismissal (Dkt. #34) as to each claim remaining after Plaintiffs first Notice of 5 1 Voluntary Dismissal (Dkt. #31). The Court, however, feels that it is proper to issue this order with 2 the accompanying analysis regardless. The Notice of Voluntary Dismissal only further supports 3 the Court’s conclusions. 4 CONCLUSION 5 Accordingly, and for good cause appearing, 6 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#12) is 7 8 GRANTED. IT IS FURTHER ORDERED that Plaintiffs’ Motion to Remand (#32) is DENIED. 9 As no claims remain after Plaintiffs’ Notice of Voluntary Dismissal (#34), the Clerk of the Court 10 is directed to close this case. 11 Dated: March 17, 2011. 12 13 ____________________________________ ROGER L. HUNT Chief United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev. 8/82) 6
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