Case Last Refreshed: 3 years ago
Barber, Misty, Barber, Lee, filed a(n) Intentional Misconduct case represented by Christopher D. Sullivan, against Markle, Josh, represented by Pro Se, in the jurisdiction of Clark County, NV, . Clark County, NV Superior Courts with Earley, Kerry presiding.
Case Number |
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Filing DateDecember 30, 2019 |
CategoryIntentional Misconduct |
Last RefreshedNovember 24, 2020 |
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Filing LocationClark County, NV |
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Case Outcome TypeOrder Of Dismissal With Prejudice |
| Date | Type | Description | |
|---|---|---|---|
| July 16, 2020 | Docket Event |
Arbitration Hearing Vacated |
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| July 15, 2020 | Docket Event | Stipulation And Order to Dismiss All Actions With Prejudice | |
| June 23, 2020 | Docket Event |
ADR - Action Required Action Required - settled |
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| June 23, 2020 | Docket Event |
ADR - Change of Status Change of Status |
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| June 17, 2020 | Docket Event | Clerk's Notice of Nonconforming Documents | |
| June 12, 2020 | Docket Event | Motion to Dismiss | |
| June 12, 2020 | Docket Event | Motion to dismiss | |
| May 15, 2020 | Docket Event |
Notice to Appear for Arbitration Hearing Amended Notice to Appear for Arbitration Hearing |
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| May 11, 2020 | Docket Event | Order Granting Motion | |
| April 28, 2020 | Docket Event |
Minute Order THIS MATTER came before the Court on Plaintiffs Motion to Dismiss filed on March 9, 2020; Defendants Opposition to Motion to Dismiss filed on March 23, 2020; and Plaintiffs Reply to Opposition to Motion to Dismiss filed on April 1, 2020. THE COURT having reviewed the matter, including all points and authorities, and exhibits, and good cause appearing, Plaintiffs Motion to Dismiss is hereby GRANTED IN PART and DENIED IN PART, based on the following: I. Defendants Counter Complaint A pleading must state as a counterclaim any claim the pleader has against the opposing party if the claim arises out of the same transaction or occurrence and does not require adding another party over whom the court cannot acquire jurisdiction. NRCP 13(a). A counterclaim is compulsory because it arose out of the same transaction or occurrence as the subject matter of the opposing complaint. Nevada State Bank v. Jamison Family P'ship, 106 Nev. 792, 797, 801 P.2d 1377, 1381 (1990). The definition of transaction or occurrence does not require an identity of factual backgrounds. Mendenhall v. Tassinari, 133 Nev. 614, 621, 403 P.3d 364, 370 (2017). [T]he relevant consideration is whether the pertinent facts of the different claims are so logically related that issues of judicial economy and fairness mandate that all issues be tried in one suit. Id. A party may amend its pleading once as a matter of course 21 days after serving it. NRCP 15(a)(1)(A). THE COURT NOTES that Defendants JOSHUA MARKLE and JESSICA MARKLE filed their Answer to Plaintiff s Complaint on January 7, 2020. Defendants filed a Counter Complaint on January 16, 2020. THE COURT FINDS that Defendants Counter Complaint was an amendment to Defendants Answer filed on January 16, 2020 pursuant to NRCP 15(a)(1) and asserted a compulsory counterclaim pursuant to NRCP 13(a). II. Plaintiffs Motion to Dismiss When deciding a Motion to Dismiss, the Court will recognize all factual allegations in the complaint as true and draw all inference in favor of the non-moving party. Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008). A complaint should be dismissed only if it appears beyond a doubt that it could prove no set of facts, which, if true, would entitle it to relief. Id. The court must accept a plaintiff's factual allegations as true, however, these allegations must be legally sufficient to constitute the elements of the claim asserted. Garcia v. Prudential Ins. Co. of Am., 129 Nev. 15, 19, 293 P.3d 869, 872 (2013) (internal quotations omitted). The fact that a party is proceeding in proper person does not excuse that party s failure to comply with applicable court rules. Allen v. Nelson, 126 Nev. 688, 367 P.3d 744 (2010). THE COURT NOTES that Defendants counterclaim alleges causes of action for 1) Breach of Good faith and fair dealing; 2) Defamation of character; 3) Loss of days of work due to extreme emotional distress; 4) Nuisance; 5) Deceptive trade practices; 6) Negligent Misrepresentation; 7) Fraud; 8) Perjury; 9) Promissory Estoppel; and 10) Money owed. (See e.g. Counter Complaint ). III. Defendants claims for Breach of Good faith and fair dealing and Money owed Basic contract principles require, for an enforceable contract, an offer and acceptance, meeting of the minds, and consideration. May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005) Breach of contract is the material failure to perform a duty arising under or imposed by agreement. State Dep't of Transportation v. Eighth Judicial Dist. Court in & for Cty. of Clark, 133 Nev. 549, 554, 402 P.3d 677, 682 (2017) citing Bernard v. Rockhill Dev. Co., 103 Nev. 132, 135, 734 P.2d 1238, 1240 (1987). It is well established that all contracts impose upon the parties an implied covenant of good faith and fair dealing, which prohibits arbitrary or unfair acts by one party that work to the disadvantage of the other. Nelson v. Heer, 123 Nev. 217, 226, 163 P.3d 420, 427 (2007). THE COURT FINDS that, taking the allegations in Defendants counterclaim in the light most favorable to Defendants, Defendants state that they had a contract with Plaintiffs to sell solar equipment. (Compl. p. 5). Plaintiffs Motion states that Sometime in September 2019, LEE hired Defendants JOSH and JESSICA as sales reps. (Motion p. 3). Plaintiffs Motion states that JOSH was to be compensated using a mathematical formula based on the number of kilowatt/system they sold from a base line of $2.65-3.25 per watt. (Compl. p. 4). THE COURT FINDS that Defendants have pled sufficient facts to support a claim for breach of contract and breach of the implied covenant of good faith and fair dealing, as Defendants have sufficiently alleged facts that Plaintiffs and Defendants entered into a contractual employment relationship and that Plaintiffs have breached the agreed upon terms of said relationship by terminating the employment relationship and failing to compensate Defendants as agreed upon. Therefore, THE COURT FINDS that Defendants claims for Breach of Good faith and fair dealing and Money owed are actually claims for breach of contract and breach of the implied covenant of good faith and fair dealing and hereby DENIES Plaintiffs Motion to Dismiss as to these claims. IV. Defendants claim for Defamation of character The elements of a defamation claim require a plaintiff to prove: (1) a false and defamatory statement by [a] defendant concerning the plaintiff; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages. Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 718, 57 P.3d 82, 90 (2002). The litigation privilege immunizes from civil liability communicative acts occurring in the course of judicial proceedings, even if those acts would otherwise be tortious. Greenberg Traurig v. Frias Holding Co., 130 Nev. 627, 628, 331 P.3d 901, 902 (2014) THE COURT FINDS that the facts alleged in Defendants counterclaim (see Counter Complaint pp. 7 8) do not support a claim for defamation because the statements alleged to be made by Plaintiffs were made directly to Defendants and not published to a third person. Moreover, regarding Defendants allegation that Plaintiffs statements obtained by a HIPPA[sic] violation. THE COURT NOTES that HIPAA provides for no private right of action. Webb v. Smart Document Sols., LLC, 499 F.3d 1078, 1080 (9th Cir. 2007). Therefore, THE COURT hereby GRANTS Plaintiffs Motion to Dismiss as to Defendants counterclaim for Defamation. V. Defendants claim for Loss of days of work due to extreme emotional distress A claim for lost wages is an element of damages. See e.g. Beales v. Hillhaven, Inc., 108 Nev. 96, 101, 825 P.2d 212, 215 (1992). Further, the Nevada Supreme Court has held that the economic loss doctrine shields a defendant from unlimited liability for all of the economic consequences of a negligent act, particularly in a commercial or professional setting, and thus to keep the risk of liability reasonably calculable. Local Joint Exec. Bd. of Las Vegas, Culinary Workers Union, Local No. 226 v. Stern, 98 Nev. 409, 411, 651 P.2d 637, 638 (1982). Therefore, the economic loss doctrine bars recovery in tort for economic losses by a party that has not suffered any physical injury. Terracon Consultants W., Inc. v. Mandalay Resort Grp., 125 Nev. 66, 74, 206 P.3d 81, 87 (2009). A purely economic loss, such as in a breach of contract action, is a loss resulting from the benefit of the party s bargain. Terracon Consultants W., Inc. v. Mandalay Resort Grp., 125 Nev. 66, 69, 206 P.3d 81, 83 (2009). However, the economic loss doctrine does not apply to intentional torts. Halcrow, Inc. v. Eighth Jud. Dist. Ct., 129 Nev. 394, 402, 302 P.3d 1148, 1154 (2013), as corrected (Aug. 14, 2013) Therefore, THE COURT FINDS that Loss of days of work due to extreme emotional distress is not a cognizable legal cause of action. THE COURT FURTHER FINDS that the economic loss doctrine bars any recovery for extreme emotional distress resulting from the breach of contract claims between Defendants and Plaintiffs. As such, THE COURT hereby GRANTS Plaintiffs Motion to Dismiss as to Defendants claim for Loss of days of work due to extreme emotional distress. VI. Defendants claim for Nuisance A claim of nuisance is based on anything which is injurious to health, or indecent and offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. NRS 40.140(1)(a). [C]ommon-law principles limit viable claims for private nuisance to substantial interferences with the use and enjoyment of real property. Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330, 130 P.3d 1280, 1288 (2006) THE COURT FINDS that this litigation involves an employment related contract dispute, and Defendants counterclaim fails to state any facts that would support a claim for Nuisance. Therefore, THE COURT hereby GRANTS Plaintiffs Motion to Dismiss as to Defendants claim for Nuisance. VII. Defendants claim for Deceptive trade practices NRS 598.0915 defines what acts constitute a deceptive trade practice. In order to plead a private cause of action for deceptive trade practices, a plaintiff must allege: (1) defendant violated the NDTPA, (2) causing plaintiff, (3) damages. Switch, Ltd. v. Uptime Inst., LLC, No. 219CV00631GMNNJK, 2019 WL 6499123, at *3 (D. Nev. Dec. 3, 2019) citing Picus v. Wal-Mart Stores, Inc., 256 F.R.D. 651, 657 58 (D. Nev. 2009) and NRS 41.600(2)(e). Moreover, to survive a motion to dismiss, the elements of an NDTPA claims must be pled with particularity. Id. THE COURT FINDS that Defendants counterclaim has failed to allege any facts that support a private cause of action for a violation of NRS 598.0915. Defendants were not Plaintiffs customers and this matter involves an employment related contract dispute. Therefore, THE COURT hereby GRANTS Plaintiffs Motion to Dismiss as to Defendants claim for Deceptive trade practices. VIII. Defendants claims for Negligent Misrepresentation and Fraud In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. NRCP 9(b). THE COURT FINDS that Defendants counterclaim fails to state sufficient facts with particularity to support a cause of action for fraud pursuant to NRCP 9. Nevada has adopted the Restatement (Second) of Torts 552 definition of negligent misrepresentation, as follows: (1) One who, in the course of his business, profession or employment, or in any other action in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Barmettler v. Reno Air, Inc., 114 Nev. 441, 449, 956 P.2d 1382, 1387 (1998). The Nevada Supreme Court has held that the tort of negligent misrepresentation applies only to business transactions and the economic loss doctrine bars claims of negligent misrepresentation. See e.g. Barmettler v. Reno Air, Inc., 114 Nev. 441, 956 P.2d 1382 (1998). THE COURT FINDS Defendants counterclaims for Negligent Misrepresentation are barred by the economic loss doctrine. Moreover, in the employment context, such as the instant case, an at-will employee can be dismissed with or without cause as long as the dismissal did not offend public policy. Barmettler v. Reno Air, Inc., 114 Nev. 441, 449, 956 P.2d 1382, 1387 (1998). THE COURT FINDS that there is no basis for the Court to find that the dismissal offends any public policy Therefore, THE COURT hereby GRANTS Plaintiffs Motion to Dismiss as to Defendants claims for Negligent Misrepresentation and Fraud. IX. Defendants claim for Perjury Perjury is a category D felony. NRS 199.120. There is no civil cause of action for perjury. See e.g. Jordan v. State ex rel. Dep't of Motor Vehicles & Pub. Safety, 121 Nev. 44, 110 P.3d 30 (2005), abrogated on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 181 P.3d 670 (2008). Therefore, THE COURT FINDS that Defendants claim for Perjury fails as there is no civil cause of action in Nevada for perjury and Plaintiffs Motion to Dismiss is hereby GRANTED as to this cause of action. X. Defendants claim for Promissory Estoppel The elements of promissory estoppel are (1) the party to be estopped must be apprised of the true facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting estoppel has the right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; (4) he must have relied to his detriment on the conduct of the party to be estopped. Torres v. Nev. Direct Ins. Co., 131 Nev. 531, 539, 353 P.3d 1203, 1209 (2015). Normally, a cause of action will not be supported by a mere promise of future conduct. Id. at 540. Although the doctrine of promissory estoppel is conceptually distinct from traditional contract principles, there is no rational reason for distinguishing the two situations in terms of the damages that may be recovered. Dynalectric Co. of Nevada v. Clark & Sullivan Constructors, Inc., 127 Nev. 480, 484 85, 255 P.3d 286, 289 (2011) (internal quotations omitted). THE COURT FINDS that Defendants counterclaim fails to state facts supporting a cause of action for promissory estoppel in Defendants allegations concerning when Plaintiffs hired Defendants as sales reps. THE FURTHER COURT FINDS that Defendants claims for promissory estoppel are subsumed by their claims for breach of contract and breach of the implied covenant of good faith and fair dealing as Defendants damages for these claims are one and the same. Therefore, THE COURT hereby GRANTS Plaintiffs Motion to Dismiss as to Defendants claim for Promissory Estoppel. IT IS HEREBY ORDERED that pursuant to NRCP 13 and NRCP 15, Defendants Counter Complaint is deemed to be Counterclaim filed as an amendment to Defendants Answer. IT IS HEREBY FURTHER ORDERED that Plaintiffs Motion to Dismiss is hereby GRANTED IN PART and DENIED IN PART. IT IS HEREBY FURTHER ORDERED that Defendants claims for Breach of Good faith and fair dealing and Money owed are deemed claims for Breach of Contract and Breach of The Implied Covenant of Good Faith and Fair Dealing. IT IS HEREBY FURTHER ORDERED that Plaintiffs Motion to Dismiss is DENIED as to Defendants counterclaims for Breach of Contract and Breach of The Implied Covenant of Good Faith and Fair Dealing. IT IS HEREBY FURTHER ORDERED Plaintiffs Motion to Dismiss is GRANTED as to Defendants claims for Defamation of character, Loss of days of work due to extreme emotional distress, Nuisance, Deceptive trade practices, Negligent Misrepresentation, Fraud, Perjury, and Promissory Estoppel. Plaintiffs counsel is to prepare the Order in accordance with this Minute Order pursuant to EDCR 7.21 and Administrative Order 20-13. CLERK'S NOTE: This minute order was distributed via e-mail. Judge: Earley, Kerry |
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