F I L E D

Electronically
09-18-2013:06:01:13 PM
Joey Orduna Hastings
Clerk of the Court
Transaction # 4006198
1 2100
JOSEPH P. GARIN, ESQ.
2 Nevada Bar No. 6653
SHANNON D. NORDSTROM, ESQ.
3 Nevada Bar No. 8211
LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C.
4 9080 West Post Road, Suite 100
Las Vegas, Nevada 89148
5 (702) 382-1500
(702) 382-1512 - fax
6 igarin@lipsonneilson.com
7 Attorneys for Defendants
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9
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IN THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA IN AND FOR THE
COUNTY OF WASHOE
o
11
12 ZACH COUGHLIN,
Plaintiff,
vs.
15 WASHOE LEGAL SERVICES, et al.
16
Defendants.
17
)
) CASE NO.: CV11-01896
) DEPT. NO.: 8

)
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DEFENDANTS' MOTION FOR
A MORE DEFINITE STATEMENT, OR
IN THE ALTERNATIVE, MOTION TO
DISMISS FOR FAILURE TO STATE A
CLAIM
18 DEFENDANTS' MOTION FOR A MORE DEFINITE STATEMENT, OR IN THE
ALTERNATIVE, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
19
20
Defendants Washoe Legal Services ("WLS"), a Nevada Corporation, and Paul Elcano,
individually and in his capacity as Executive Director ofWLS, (hereinafter collectively referred
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to as "Defendants") by and through their attorneys of record, Lipson, Neilson, Cole, Seltzer &
22
Garin, P.C., bring this Motion for a More Definite Statement, or in the Alternative, Motion to
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Dismiss for Failure to State a Claim based on Nevada Rules of Civil Procedure 8, 12(e), and
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12(b)(5).
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11/
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r;
v

This Motion is based on the Memorandum of Points and Authorities below, together
2 with the pleadings and files herein, and any argument this Court permits.
3 Dated this 18
th
day of September, 2013.
4 LIPSON NEILSON COLE SELTZER & GARIN, P.C.
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13

By:

Nevada Bar No. 6653
SHANNON D. NORDSTROM, ESQ.
Nevada Bar No. 8211
LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C.
9080 West Post Road, Suite 100
Las Vegas, Nevada 89148
(702) 382-1500
(702) 382-1512 - fax
igarin@lipsonneilson.com
Attorneys for Defendants
14 MEMORANDUM OF POINTS AND AUTHORITIES
15 I. Introduction
16 Plaintiff's Complaint against Defendants fails to identify the basis for relief and does not
17 state specific claims for relief or counts. In fact, even in the Complaint Plaintiff concedes it will
18 "require a substantial revision or amending.
JJ1
Based on the use of buzz words and legal
19 conclusions, it appears the following claims may be at issue: (1) Violations of Title VII of the
20 Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq.; (2) Violation of the Equal Pay Act, 29
21 USC 206(d); (3) Tortious Discharge in Violation of Public Policy; (4) Breach of Contract; (5)
22 Intentional Infliction of Emotional Distress; (6) Section 1983 claim; (7) Whistleblower
23 Retaliation; and (8) Punitive Damages. However, it remains entirely unclear whether Plaintiff
24 pursues these theories or any theories, considering Plaintiff fails to allege separate counts or
25 proper allegations to identify the same.
26 //I
27
28
1/ Complaint at 4: 1-2, 13.
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The matter is currently before the Court on Defendants' Motion for a More Definite
2 Statement as permitted under Nevada Rule of Civil Procedure 12(e).2 For Defendant to
3 prepare an appropriate response to the Complaint, including identifying the nature of the
4 appropriate response and applicable defenses, Plaintiff must be required to identify which
5 theories of recovery he actually asserts against the Defendants. Moreover, Plaintiff must
6 clearly set these theories out as separate counts. Therefore, Defendants request the Court
7 order Plaintiff to file a more definite statement.
8 In the alternative, the Court should not allow Plaintiff's generic and conclusory claims
9 and allegations to proceed, as pled. Plaintiffs Complaint is lacking in both facts and supporting
10 legal theories. Accordingly, Plaintiffs claims should be dismissed pursuant to Nevada Rule of
11 Civil Procedure 12(b)(5).
12 II.
13
The Court Possesses the Authority to Order A More Definite Statement
The Court has wide discretion to require the plaintiff to provide a more definite
14 statement.
3
Federal Courts
4
have held that "even though a complaint is not defective for
15 failure to designate the statute or other provision of law violated, the judge may in his
16 discretion, in response to a motion for more definite statement under Fed.R Civ. P.12(e),
17 require such detail as may be appropriate in the particular case .... "5
18 The Ninth Circuit has affirmed a district court order requiring the plaintiff to plead "the
19 elements of the prima facie case" and to identify "the transaction or occurrence giving rise" to
20
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2{ NRCP 12(e) states, "If a pleading to which a responsive pleading is permitted is so vague or ambiguous
23 that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite
statement before interpOSing a responsive pleading. The motion shall point out the defects complained of and the
24 details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the
order or within such other time as the court may fix, the court may strike the pleading to which the motion was
25 directed or make such order as it deems just."
26 3/ Warth v. Seldin, 422 U.S. 490,501-502,95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
27 4/ Nelson v. Heer, 121 Nev. 832, 834, 122 P.3d 1252, 1253 (2005) (recognizing that federal decisions
involving the Federal Rules of Civil Procedure provide persuasive authority to a Nevada court.)
28
5/ McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996).
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the claim, to comply with Rule 8.
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Motions for a more definite statement are encouraged to
2 clarify insufficient complaints.
7
Even where there is no ground for a motion to dismiss,
3 vagueness and lack of detail"should be attacked by a motion for a more definite statement."
8
4 III.
5
Plaintiff's Complaint Does Not Comply With Rules 8(a),(e) and 10(b), Requiring
A More Definite Statement
Nevada Rule of Civil Procedure 8(a) states that a pleading which sets forth a claim for
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relief shall contain a short and plain statement of the claim. Each averment of a Complaint
"shall be simple, concise, and direct."g Rule 8(e) expressly contemplates allegations in
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separate counts and Rule 1 O(b) mandates "separate counts ... whenever separation facilitates
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the clear presentation of the matters set forth." The purpose of requiring that separate claims
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be stated in separate counts of the complaint is to give notice to the court and to the parties
of the claims being presented.
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Plaintiffs Complaint is not simple, concise, or direct, and does not allege separate
counts. This leaves the Court and Defendants to guess as to what specific theories of
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recovery Plaintiff asserts. It is unreasonable to expect a defendant to respond to a complaint
15
when the alleged violations are not properly stated.
11
After the title "Complaint for Damages"
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on the first page of Plaintiffs pleading, wherein several theories of recovery are potentially
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identified, there is not a single title setting forth the separate claims for relief in the Complaint.
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Indeed, Plaintiffs causes of action are listed under the "Prayer for Relief' section in Plaintiffs
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pleading and consist of claims for damages. Plaintiff fails to identify any claims for relief.
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22 6/ Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000).
23 7/ Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002).
24 8/ Ybarra v. City of San Jose, 503 F.2d 1041, 1044 (9th Cir. 1974), quoting Harman V. Valley Nat'l Bank
25
26
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of Ariz., 339 F.2d 564,567 (9th Cir. 1964), quoting 2 Moore's Fed. Practice 1112.08 pp. 2245-46.
9/ NRCP 8(e).
10, Am Jur Pleading 150
11/ Byrne V. Nezhat, 261 F.3d 1075,1129-30 (11th Cir. 2001) (characterizing the plaintiffs failure to identify
28 his claims enough for the defendant to frame a responsive pleading as "shotgun pleading," and declining to make
the defendant respond).
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At some point - on summary judgment motion or at final pretrial conference - "the court
2 is confronted with the time-consuming tasks it avoided earlier - rearranging the pleadings and
3 discerning whether the plaintiff has stated a claim, or claims, for relief, and whether the
4 defendant's affirmative defenses are legally sufficient."12 Furthermore, the "judicial work that
5 results from shotgun pleadings is far more time consuming than the work required up front to
6 prevent the case from proceeding beyond the pleadings until the issues are reasonably well
7 defined."13 For judicial economy, this work should be done up front. The Complaint is
8 verbose, confusing, and entirely conclusory. Indeed, Plaintiff attaches 99 pages of exhibits for
9 this Court and Defendants to decipher, in support of generic and conclusory statements that
10 Defendants committed "violations."14 Notably, Plaintiff acknowledges the Complaint is
11 deficient and will require "substantial revision or amending."15
12 Accordingly, Defendants request that the Court grant this motion and order Plaintiff to
13 file a more definite statement of his claims.
14 IV. If The Court Finds Plaintiff Adequately Identifies His Claims For Relief, The Court
Should Dismiss Plaintiff's Claims Pursuant to N.R.C.P. 12(b)(5) For Failure To
State A Claim Upon Which Relief May Be Granted
16
A complaint should be dismissed when a plaintiff fails "to state a claim upon which relief
17
can be granted."16 A plaintiff fails to state a claim if it appears beyond a doubt that the
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claimant can prove no set of facts that would entitle it to relief. 17 In considering the motion, the
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court must accept all of Plaintiff's factual allegations as true and construe them in Plaintiff's
favor.
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However, the court is "not bound to accept as true a legal conclusion couched as a
13/ ld. at 1130 n.1 06 (citation omitted).
14/ Complaint at 7: 12-26; 10: 13-14.
151 Complaint at 4: 1-2, 13.
16, NRCP 12(b)(5).
17, Buzz Stew, LLC v. City of North Las Vegas, 181 P.3d 670, 672 (2008).
18, Id. at 672.
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factual allegation."19 Indeed, the Court is not required to suspend reality nor ignore vague or
2 conclusory allegations in the Complaint.
20
As set forth below, Plaintiff fails to state claims for
3 which relief can be granted.
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1. Violations of Title VII of the Civil Rights Act of 1964,42 U.S.C. 2000(e),
et seq. and the Equal Pay Act, 29 USC 206(d)
Plaintiff's Complaint does little more than generically cite to Title VII of the Civil Rights
Act of 1964 and the Equal Pay Act in support of these purported claims. At best, Plaintiff
attaches 99 pages of exhibits in support of these claims and to contend Defendants committed
violations of these statutes.
21
However, the mere reference to 99 pages of exhibits fails to
identify the factual allegations Plaintiff relies on in support of these claims. In effect, dismissal
of these claims is warranted.
2. Tortious Discharge in Violation of Public Policy I Whistleblowing
Retaliation
The essence of a tortious discharge claim is the wrongful, generally retaliatory
termination of employment through means that are contrary to public policy.22 A tortious
discharge claim is "severely limited to those rare and exceptional cases where the employer's
conduct violates strong and compelling public policy."23 Reporting an employer's illegal action
to an outside authority ("whistle blowing") is one type of wrongful discharge recognized as
actionable under Nevada law.24 The Nevada Supreme Court has explained that whistle
blowing activity is entitled to protection only when the employee's actions "are not merely
private or proprietary, but instead seek to further the public good."25 Courts protect whistle
19/ Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944 (1986).
20/ See Pareto v. Federal Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998); Clegg v. Cult Awareness
Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
21/ Complaint at 7:12-26; 10:13-14.
22/ See D'Angelo v. Gardner, 107 Nev. 714,819 P.2d 206 (1991); Allum v. Valley Bank of Nevada, 114
Nev. 1313,970 P.2d 1062 (1998); Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984).
23/
ld
.
24/ Wiltsie v. Baby Grand Corp., 105 Nev. 291, 293, 774 P.2d 432,433-434 (1989).
25/ ld. at 293,434 (citing to Wagner v. City of Globe, 150 Ariz. 82, 722 P.2d 250, 257 (1986)).
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blowing to encourage employees to report "illegal or unsafe practices"26 and report "dangerous
2 or suspect activity"27 that may infringe on safe and proper practices.
3 In this case, Plaintiff fails to plead facts that support a tortious discharge claim. Whistle
4 blowing appears to be the basis for Plaintiff's tortious discharge claim as he states
5 "whisteblowing retaliation" in the caption and appears to list it as a separate claim. Nothing in
6 the allegations, however, contend Plaintiff ever reported any wrongdoing by Defendants.
7 Plaintiff did not expose "illegal or unsafe practices" or report "dangerous or suspect activity"
8 by Defendants. Simply put, there was no "whistle blowing" to give rise to the exceptional claim
9 of tortious discharge. Thus, dismissal is proper.
10 3. Breach of Contract
u
p.; 11 In Nevada, employees are presumptively at-will employees.
28
At-will employment can
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.:d:
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~ i ~ ~ 14 Here, Plaintiff is presumptively an at-will employee. Plaintiff fails to make any
~ ~ ~ c 15 allegations to the contrary. Accordingly, the Court should dismiss Plaintiff's presumed claim
~ ~ ~
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5
R
~ 17 4. Intentional Infliction of Emotional Distress
18 To establish a claim for intentional infliction of emotional distress (liED), a plaintiff must
19 demonstrate: (1) extreme and outrageous conduct with either the intention of, or reckless
20 disregard for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme
21
22
23
26
11d
.
271 Clark v. ColumbialHCA Information Services, Inc., 117 Nev. 468, 479, 25 P.3d 215, 223 (2001).
24
281 Southwest Gas Corp. v. Vargas, 111 Nev. 1064, 1071, 901 P.2d 693, 697 (1995), reh'g denied (Jan.
25 18, 1996), citing American Bank Stationary v. Farmer, 106 Nev. 698, 701, 799 P.2d 1100, 1101-02 (1990); Yeager
v. Harrah's Club, 111 Nev. 830, 834, 897 P.2d 1093 (1995); Hirschhorn v. Sizzler Restaurants Int'l, 913 F.Supp.
26 1393, 1399-1400 (D. Nev. 1995) (absence of a written employment contract gives rise to presumption that
employment is at-will).
27
28
29
11d
.
31 Vancheri v. GNLV Corp., 105 Nev. 417,777 P.2d 366 (Nev. 1989) (citing Restatement (Second) of
Contract 90( 1) (1973))
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emotional distress and (3) actual or proximate causation.
31
Extreme and outrageous conduct
2 is that which is "atrocious, intolerable, or outside all possible bounds of decency."32
3 In this case, Plaintiff fails to make any factual averments substantiating his claim for
4 liED. This claim is premised on the following statement, "Mr. Coughlin experienced severe
5 emotional distress due to the violations committed by WLS. This included suffering loss of
6 morale, confidence, self-esteem, humiliation and loss of reputation."33 Once again, Plaintiff
7 fails to identify the purported violations that give rise to this claim. Plaintiff also fails to identify
8 that such alleged violations rise to the level of "extreme and outrageous conduct" to support
9 a claim for liED. Based on such deficiencies, Plaintiffs presumed claim for liED should be
10 dismissed.
11 5. Section 1983 claim
12 To state a claim under 1983, a plaintiff must allege the violation of a right secured by
13 the Constitution and laws ofthe United States, and must show that the alleged deprivation was
14 committed by a person acting under color of state law.
34
Plaintiffs Complaint generically cites
15 to 1983 case law without any factual averments supporting this claim. In effect, Plaintiff fails
16 to properly plead this claim and dismissal is proper.
17 III
18 III
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31/ Olivero v. Lowe, 116 Nev. 395, 398-99, 995 P.2d 1023, 1025-26 (2000) (Citations omitted).
32/ Maiuike v. Agency Rent-A-Car, 114 Nev. 1, 4, 953 P.2d 24, 26 (1998).
33/ Complaint at 8:6-8.
26
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34/ Parratt v. Taylor, 451 U. S. 527, 535 (1981) (overruled in part on other grounds, Daniels v. Williams,
474 U. S. 327, 330-331 (1986)).
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6. Punitive Damages
As a rule, there is no cause of action for punitive damages by itself.35 A
punitive-damages claim is not a separate or independent cause of action.
36
Rather, a
punitive-damages award is an element of recovery37, a type of relief,38 or an additional
remedy.39 Punitive damages are a derivative sort of damages
40
awarded as a mere incident
of the cause of action in which they are sought.
41
Punitive damages cannot be awarded until
a plaintiff proves an underlying cause of action.42
Plaintiffs "cause of action" for punitive damages is not a legitimate cause of action and,
it is further contingent upon liability. Accordingly, Plaintiffs punitive damage claim identified
35/ Watson v. Dixon, 352 N.C. 343, 532 S.E.2d 175, 146 Ed. Law Rep. 555 (2000); Bird v. Rozier, 948
P.2d 888 (Wyo. 1997).
36/ South Port Marine, LLC v. Gulf Oil Ltd. Partnership, 234 F.3d 58 (1st Cir. 2000); Byrne V. Nezhat, 261
F.3d 1075, 50 Fed. R. Servo 3d 1350 (11th Cir. 2001); Contractor's Safety Ass'n V. Cal. Compo Ins. Co., 48 Cal.
2d 71, 307 P.2d 626 (1957); Palmer V. A.H. Robins Co., Inc., 684 P.2d 187, 38 U.C.C. Rep. Servo 1150 (Colo.
1984); McLain V. Pensacola Coach Corp., 152 Fla. 876,13 So. 2d 221 (1943); Fosterv. Sikes, 202 Ga. 122,42
S.E.2d 441 (1947); Klein wort Benson North America, Inc. v. Quantum Financial Services, Inc., 181/11. 2d 214, 229
III. Dec. 496, 692 N.E.2d 269 (1998); Sebastian V. Wood, 246 Iowa 94,66 N.W.2d 841 (1954); Wolfv. Bonanza
Inv. Co., 77 Nev. 138,360 P.2d 360 (1961); Barberv. Hohl, 40 N.J. Super. 526, 123 A2d 785 (App. Div. 1956);
Crawford v. Taylor, 58 N.M. 340, 270 P.2d 978 (1954); Mathies v. Kittrell, 1960 OK 175, 354 P.2d 413 (Okla.
1960); Carnation Lumber Co. v. McKenney, 224 Or. 541, 356 P.2d 932 (1960); Hilbert v. Roth, 395 Pa. 270, 149
A2d 648 (1959); Norman V. Arnold, 2002 UT 81, 57 P.3d 997 (Utah 2002); Zedd V. Jenkins, 194 Va. 704, 74
S.E.2d 791 (1953); Errington V. Zolessi, 9 P.3d 966 (Wyo. 2000).
37/ Gould V. Starr, 558 S.W.2d 755 (Mo. Ct. App. 1977); APS Food Systems, Inc. V. Ward Foods, Inc.,
70 AD.2d 483,421 N.Y.S.2d 223, 27 U.C.C. Rep. Servo 1381 (1st Dep't 1979).
38/ Klein wort Benson North America, Inc. V. Quantum Financial Services, Inc., 181 III. 2d 214, 229111. Dec.
496,692 N.E.2d 269 (1998).
39/ South Port Marine, LLC V. Gulf Oil Ltd. Partnership, 234 F.3d 58 (1st Cir. 2000); DeBry V. Cascade
Enterprises, 879 P.2d 1353 (Utah 1994).
40/ Edmond V. Fairfield Sunrise Village, Inc., 132 Ariz. 142,644 P.2d 296 (Ct. App. Div. 2 1982).
41/ Moskovitz V. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 1994-0hio-324, 635 N.E.2d 331,35 Al.R.5th
841 (1994).
42/ Gaia Technologies Inc. V. Recycled Products Corp., 175 F.3d 365, 43 Fed. R. Servo 3d 946 (5th Cir.
1999); Metroplex Corp. V. Thompson Industries, Inc., 25 Fed. Appx. 802 (10th Cir. 2002) (applying Pennsylvania
law and requiring proof of an underlying tort); Watson v. Dixon, 352 N.C. 343, 532 S.E.2d 175, 146 Ed. Law Rep.
555 (2000); Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334 (Tex. App. San Antonio 2000). City of Reno V.
Silver State Flying Serv., 84 Nev. 170, 180,438 P.2d 257,264 (1968). (Compensatory damages must be awarded
before the court can award punitive damages).
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1 as a cause of action fails to state a claim upon which relief can be granted.
2 V. Conclusion
3 Based on the foregoing, Defendants respectfully request the Court grant Defendants'
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Motion for a More Definite Statement, or alternatively, dismiss Plaintiff's presumed claims, as
well as any additional relief requested by Plaintiff.
Dated this 18th day of September, 2013.
LIPSON NEILSON COLE SELTZER & GARIN, P.C.

By:

Nevada Bar No. 6653
SHANNON D. NORDSTROM, ESQ.
Nevada Bar No. 8211
LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C.
9080 West Post Road, Suite 100
Las Vegas, Nevada 89148
(702) 382-1500
(702) 382-1512 - fax
jgarin@lipsonneilson.com
Attorneys for Defendants
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AFFIRMATION
(Pursuant to NRS 239B.030)
The undersigned does hereby affirm that the proceeding document, DEFENDANTS'
MOTION FORA MORE DEFINITE STATEMENT, OR IN THE ALTERNATIVE, MOTION TO
DISMISS FOR FAILURETO STATEACLAIMfiled in Case No. CV11-01896, does not contain
the Social Security Number of any person.
Dated this 18th day of September, 2013.
LIPSON NEILSON COLE SELTZER & GARIN, P.C.

By:

Nevada Bar No. 6653
SHANNON D. NORDSTROM, ESQ.
Nevada Bar No. 8211
LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C.
9080 West Post Road, Suite 100
Las Vegas, Nevada 89148
(702) 382-1500
(702) 382-1512 - fax
jgarin@lipsonneilson.com
Attorneys for Defendants
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CERTIFICATE OF SERVICE
I certify that on the 18th day of September, 2013, I served a true and correct copy of
DEFENDANTS' MOTION FOR A MORE DEFINITE STATEMENT, OR IN THE
ALTERNATIVE, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, upon the
following parties, via first class mail, postage prepaid, addressed as follows:
Zach Coughlin
1471 E. 9th Street
Reno, NV 89512
Plaintiff, in proper person
An employee of
Lipson, Neilson, Cole, Seltzer & Garin, P.C.
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