Cipriani v. Resorts World Las Vegas, LLC ( 2024 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERT J. CIPRIANI, Case No. 2:23-cv-01626-MMD-MDC 7 Plaintiff, ORDER v. 8 RESORTS WORLD LAS VEGAS, LLC, et 9 al., 10 Defendants. 11 12 I. SUMMARY 13 Plaintiff Robert J. Cipriani sued Defendants Resorts World Las Vegas, LLC and 14 Resorts World Las Vegas Hotels, LLC (collectively, “Resorts World”) and Scott Sibella, 15 the former president of Resorts World, for either encouraging another casino patron to 16 harass Cipriani, or letting that patron harass Cipriani. (ECF No. 54 (“FAC”).) Before the 17 Court are Defendants’ motions to dismiss the FAC (ECF Nos. 55, 59),1 along with two 18 associated motions to strike (ECF Nos. 56, 68). As further explained below, the Court will 19 grant both motions to dismiss along with the earlier-filed motion to strike, though it finds 20 the later-filed motion to strike moot because Cipriani withdrew the motion Resorts World 21 seeks to strike. To preview, because Cipriani is judicially estopped from making several 22 arguments and sets of allegations, and his claims otherwise fail as a matter of law, the 23 Court will dismiss the FAC with prejudice. 24 /// 25 /// 26 /// 27 28 1Cipriani filed a consolidated response to both motions (ECF No. 61), and Sibella (ECF No. 62) and Resorts World (ECF No. 64) filed replies in support of their motions. 2 November 19, 2021, was a bad day for Cipriani. (ECF No. 54 at 9.) He was playing 3 blackjack at Resorts World. (Id. at 3, 8-9.) Another patron named Robert Alexander had 4 been harassing Cipriani for weeks. (Id. at 4.) Cipriani had complained to Sibella and 5 others at Resorts World that Alexander should not have been allowed to gamble at 6 Resorts World because he had pled guilty to federal fraud charges the year before and 7 was thus a “convicted fraudster who has no place on a casino floor[.]” (Id. at 5.) But 8 Defendants did not kick Alexander out after Cipriani complained about his presence. (Id. 9 at 6-7.) 10 “Alexander, mounted on his mobility scooter, repeatedly pursued and disrupted 11 [Cipriani’s] play at [Resorts World’s] tables.” (Id. at 8.) “Time and time again, Alexander 12 maneuvered his scooter within inches of [Cipriani’s] person, causing Cipriani to become 13 fearful for his safety, and blatantly and unlawfully video recording Cipriani against the 14 latter’s express instructions.” (Id.) This culminated when Alexander did it again to Cipriani 15 on November 19, 2021. (Id. at 9.) In response, Cipriani took Alexander’s cellphone, ran 16 away with it, and gave it to a Resorts World security guard. (Id.) 17 Cipriani was later arrested and charged with larceny for taking Alexander’s phone. 18 (Id. at 10.) Plaintiff generally alleges Defendants either let or encouraged Alexander to 19 harass him because he complained to Sibella and others about Alexander and two other 20 convicted felons being allowed to gamble at Resorts World and had made similar 21 complaints to Sibella when Sibella oversaw the MGM Grand. (Id.; see also id. at 3-5.) And 22 while Cipriani has removed most description of it from his operative FAC, Cipriani also 23 alleged in his original complaint that he was also arrested on November 19, 2021 (the 24 same day) based on a report that Resorts World made to the Nevada Gaming Control 25 Board that Cipriani was past-posting bets while playing blackjack at Resorts World. (ECF 26 No. 1 at 13-16.) In sum, November 19, 2021, was a bad day for Cipriani because he was 27 28 2The following facts are adapted from the FAC. 2 took Alexander’s phone. 3 III. DISCUSSION 4 The Court first addresses the pending motions to strike before addressing the 5 motions to dismiss and then explaining why the Court will not give Cipriani another 6 opportunity to amend. 7 A. Motions to Strike 8 To start, Resorts World’s motion to strike (ECF No. 68) is moot because Cipriani 9 withdrew (ECF No. 70) the request for judicial notice (ECF No. 66) that Resorts World 10 seeks to strike. The Court deems the request for judicial notice (ECF No. 66) withdrawn 11 and denies the motion to strike it (ECF No. 68) as moot. 12 But Sibella’s motion to strike is not moot. Sibella moves to strike references to, and 13 a copy of, a plea agreement that he entered into on December 18, 2023 (ECF No. 54 at 14 84), from Cipriani’s FAC (id. at 4:18-19, 13:16-25, 15:10-12, 68-96 (attaching a copy of 15 the plea agreement and related documents as an exhibit to the FAC)). “Federal Rule of 16 Civil Procedure 12(f) provides that in its answer to the pleadings, the moving party may 17 request that the court ‘order stricken from any pleading any insufficient defense or any 18 redundant, immaterial, impertinent, or scandalous matter.”’ In re 2TheMart.com, Inc. Sec. 19 Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000) (citation omitted). Immaterial and 20 impertinent generally mean irrelevant, and scandalous includes allegations that cast a 21 cruelly derogatory light on a party or other person. See id. (citations omitted). 22 Sibella argues the exhibit consisting of the plea agreement and references to it in 23 the FAC should be struck because the plea agreement post-dates the complaint, relates 24 to Sibella’s employment with a different company during a different time, and involves 25 different conduct than Sibella’s alleged conduct in this case. (ECF No. 56 at 21-22.) 26 Cipriani does not respond to the timeliness argument but asks that the Court not strike it 27 because it is consistent with the type of conduct Cipriani complained about while Sibella 28 2 No. 61 at 17-18.) The Court agrees with Sibella. 3 The plea agreement and references to it in the FAC are immaterial, impertinent, 4 and scandalous. The plea agreement is not relevant to any of Cipriani’s claims against 5 Sibella in this case, because the plea agreement relates to a different time at a different 6 casino involving different people. It is also scandalous as to Sibella because it is offered 7 to support Cipriani’s suggestion that Sibella is nefarious without tending to make any of 8 Cipriani’s allegations in the FAC more or less true. Moreover, and alternatively, inclusion 9 of references to the plea agreement in the FAC are improper because the plea agreement 10 post-dates the original complaint. (Compare ECF No. 1 (filed Oct. 9, 2023) with ECF No. 11 54 at 84 (dated December 18, 2023).) Although United States Magistrate Judge 12 Maximiliano D. Couvillier, III granted Cipriani’s motion to amend in part to include 13 references to the plea agreement, the appropriate procedural mechanism for Cipriani to 14 include allegations about the plea agreement was a motion for leave to file a supplemental 15 complaint under Fed. R. Civ. P. 15(d) instead of an amended complaint under Fed. R. 16 Civ. P. 15(a). (ECF No. 52.) See also also Eid v. Alaska Airlines, Inc., 621 F.3d 858, 874 17 (9th Cir. 2010) (explaining the distinction as turning on whether the allegations predate or 18 postdate the original complaint). Inclusion of the plea agreement and references to it in 19 the FAC is thus procedurally improper as well as irrelevant and scandalous. The Court 20 will direct the Clerk of Court to strike the exhibit consisting of the plea agreement and the 21 references to it in the FAC. See Finnegan v. Washoe Cnty., No. 3:17-cv-00002-MMD- 22 WGC, 2017 WL 3299040, at *5 (D. Nev. Aug. 2, 2017) (striking a portion of a paragraph 23 in an amended complaint after noting that, “[a]n amended complaint may not add facts 24 that occurred after the date that the original complaint was filed.” (citation omitted)). 25 B. Motions to Dismiss 26 Resorts World and Sibella make overlapping arguments in their motions to 27 dismiss. The Court first addresses one of Resorts World’s arguments pertinent to all of 28 2 each argument as appropriate. 3 But before getting into that analysis, the Court explains how Cipriani has narrowed 4 the scope of his FAC through concessions he has made in this case. “Judicial estoppel 5 is an equitable doctrine that precludes a party from gaining an advantage by asserting 6 one position, and then later seeking an advantage by taking a clearly inconsistent 7 position.” Grondal v. United States, 21 F.4th 1140, 1151 (9th Cir. 2021) (quoting Hamilton 8 v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001)). The Court finds it 9 necessary to make this clarification at the outset of its analysis because, as described in 10 the factual background above, three things Cipriani is understandably upset about 11 happened on November 19, 2021: he got into an altercation with Alexander; he took 12 Alexander’s cell phone and was arrested and criminally charged for it; and he was 13 arrested and criminally charged for past-posting bets. 14 However, Cipriani amended his Complaint to remove his allegations regarding the 15 charges that he past-posted bets and argues in his opposition to the pending motions that 16 his allegations in the FAC no longer cover that conduct. (ECF No. 52 at 1 (noting that one 17 of the reasons Cipriani sought to amend was to remove “references to a report to the 18 Nevada Gaming Control Board (NGCB)”), 54 (excluding allegations relating to past- 19 posting and the NGGB investigation into Cipriani triggered by a report from Resorts 20 World).) Similarly, Cipriani concedes in responding to the pending motions that his 21 operative claims are not based on Defendants reporting him to the NGCB for past-posting 22 bets. (ECF No. 61 at 7 (representing that communications between Defendants and 23 NGCB do not form the basis for his claims against Defendants).) Because Cipriani has 24 taken this position, he is estopped from contending otherwise. And the Court accordingly 25 construes Cipriani’s FAC as not alleging any claims based on Resorts World reporting 26 Cipriani to the NGCB for past-posting bets or the ensuing criminal prosecution.3 27 28 3This finding also renders Resorts World’s argument that this whole case is barred by application of NRS § 463.3407 inapplicable. (ECF No. 59 at 6 n.5, 13-15.) 2 cellphone incident to the police[.]” (Id. at 6 n.1.) Plaintiff made an identical representation 3 in response to Resorts World’s first motion to dismiss his original complaint as well. (ECF 4 No. 23 at 5 n.2.) Thus, while his allegations in his FAC are unclear (ECF No. 54 at 14 5 (alleging in pertinent part that Defendants harmed him because of an “unjustified arrest”), 6 17-19 (same)), Plaintiff is judicially estopped from arguing that his claims are based on 7 Defendants calling the police about Cipriani taking Alexander’s cell phone, which also led 8 to Cipriani’s arrest. The Court accordingly ignores the allegations in the FAC about an 9 “unjustified arrest” and ‘summoning law enforcement.’ 10 The Court now proceeds to analyze the pending motions to dismiss with this 11 narrowed understanding of Cipriani’s claims. Said otherwise, the Court construes Cipriani 12 as only alleging harm in the FAC based on Defendants either encouraging Alexander to 13 harass him, or letting Alexander harass him. 14 1. Resorts World’s Judicial Estoppel Argument as to Cipriani’s Negligence and Related Claims 15 16 As noted, Cipriani’s claims against Resorts World are based on his contention that 17 its employees either encouraged Alexander to harass him or breached a duty they had to 18 ensure his safety by letting Alexander harass him. (ECF No. 54 at 15-22.) Resorts World 19 asks the Court to take judicial notice of a counterclaim Cipriani filed in a state court case 20 Alexander and his son filed against Cipriani arising out of the same dispute that led to this 21 case and find based on the content of that counterclaim that Resorts World cannot have 22 breached the alleged duty it owed Cipriani because Cipriani is judicially estopped from 23 alleging as such. (ECF No. 59 at 7-8.) Cipriani does not respond to this contention, nor 24 does Cipriani oppose Resorts World’s request for judicial notice. (ECF No. 61.) But the 25 Court nonetheless finds it dispositive of Cipriani’s claims against Resorts World in this 26 case. 27 To start, the Court takes judicial notice of the counterclaim that Cipriani filed in 28 state court against Alexander and his son. (ECF No. 59-4 at 14-16.) See Porter v. Ollison, 2 state court); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006) (“We take judicial 3 notice of the Montana state court orders and proceedings.”). 4 Cipriani made one particularly pertinent allegation in this counterclaim that 5 contradicts his allegations against Resorts World in the FAC.4 Cipriani specifically 6 alleged, on information and belief, that “Alexander was trespassed from [Resorts World] 7 based upon his extreme and outrageous conduct and presumably to ensure the safety of 8 guests such as” Cipriani. (ECF No. 59-4 at 15-16.) And ‘on information and belief’ is not 9 an applicable caveat because Alexander and his son consistently alleged in their 10 complaint in the state court case that, because of their altercation with Cipriani, they were 11 trespassed from Resorts World and are no longer allowed on any Resorts World 12 properties. (ECF No. 59-3 at 5.) So Resorts World trespassed Alexander following his 13 altercation with Cipriani presumably to ensure Cipriani’s safety. (ECF No. 59-4 at 15-16.) 14 This cannot be squared with Cipriani’s sole theory of how Resorts World harmed him; by 15 allowing Alexander to harass him in disregard for his safety. (ECF No. 54 at 15-24 16 (describing the harm Cipriani suffered this way).) 17 Cipriani’s claims against Resorts World—including his first three claims for 18 negligence, innkeeper liability, and negligent supervision that the Court does not further 19 address below as to their assertion against Resorts World—are accordingly barred under 20 the doctrine of judicial estoppel. “The application of judicial estoppel is not limited to bar 21 the assertion of inconsistent positions in the same litigation, but is also appropriate to bar 22 litigants from making incompatible statements in two different cases.” Hamilton, 270 F.3d 23 at 783; see also id. at 786 (finding the plaintiff was judicially estopped from pursuing 24 claims against his homeowner’s insurance company because he had taken an 25 inconsistent position in a prior bankruptcy proceeding); see also Rissetto v. Plumbers & 26 Steamfitters Loc. 343, 94 F.3d 597, 606 (9th Cir. 1996) (finding that the plaintiff could not 27 4Cipriani filed the counterclaim in the state court case initiated by Alexander and 28 his son on June 24, 2022 (ECF No. 59-4 at 2, 14), over a year before he initially filed this case (ECF No. 1 (filed October 9, 2023)). 2 obtained a favorable settlement [in a prior worker’s compensation proceeding] based on 3 her assertion that she could not work, plaintiff was estopped from claiming that she was 4 performing her job adequately.”); United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 5 F.3d 772, 774 (9th Cir. 2009) (“because Spectrum presents us with a legal position that 6 is clearly inconsistent with the position it took and benefitted from in previous litigation, 7 judicial estoppel prevents us from allowing Spectrum to argue that it first published 8 infringing material after purchasing its excess insurance coverage.”). The Court 9 accordingly grants Resorts World’s motion to dismiss for this reason, though it offers 10 some alternative reasons for dismissal of some of Cipriani’s claims against Resorts World 11 below. 12 2. Sibella’s Argument as to Cipriani’s Negligence Claim 13 Sibella argues for dismissal of Cipriani’s negligence claim against him in pertinent 14 part because he owed Cipriani no duty to control Alexander’s conduct, as Sibella and 15 Cipriani lacked the requisite special relationship. (ECF No. 55 at 13-15.) Cipriani does not 16 respond to this argument, instead responding only to Sibella’s other argument that 17 Cipriani inadequately alleged that Sibella personally participated in the alleged tortious 18 conduct. (ECF No. 61 at 9-11.) Cipriani’s nonresponse to the pertinent portion of Sibella’s 19 argument constitutes consent to granting Sibella’s motion as to that argument. See LR 7- 20 2(d). But even if it did not, the Court finds Sibella’s argument persuasive. 21 “A claim for negligence in Nevada requires that the plaintiff satisfy four elements: 22 (1) an existing duty of care, (2) breach, (3) legal causation, and (4) damages.” Turner v. 23 Mandalay Sports Ent., LLC, 180 P.3d 1172, 1175 (Nev. 2008). “[T]he question of whether 24 a ‘duty’ to act exists is a question of law solely to be determined by the court.” Lee v. 25 GNLV Corp., 22 P.3d 209, 212 (Nev. 2001) (citation omitted). And, “[g]enerally, ‘no duty 26 is owed to control the dangerous conduct of another.”’ Sparks v. Alpha Tau Omega 27 Fraternity, Inc., 255 P.3d 238, 244 (Nev. 2011) (citation omitted). But an exception to this 28 general rule arises “when (1) a special relationship exists between the parties ..., and (2) 2 relationship exists is largely a question of control—whether the plaintiff submitted to the 3 real control of the defendant such that the control, if exercised by the defendant, would 4 have meaningfully reduced the harm that the plaintiff suffered. See id. at 245. 5 Cipriani’s allegations in the FAC are insufficient to establish that Sibella and 6 Cipriani had the sort of special relationship that would have required him to protect 7 Cipriani from Alexander’s alleged harassment. As Sibella argues (ECF No. 55 at 13), the 8 most Cipriani alleges is that Resorts World owed him a duty as a casino patron to exercise 9 reasonable care in ensuring his safety, and that duty extended to Sibella, as Resorts 10 World’s president and COO “with full control over the operations of the hotel and casino” 11 (ECF No. 54 at 16). But Plaintiff does not allege that Sibella was present at Resorts World 12 while Alexander was harassing Cipriani, instead generally alleging that unnamed security 13 personnel “witnessed the events unfold for weeks.” (Id. at 16.) And while it is conceivable 14 that the president and COO of a casino could respond to a complaint by one patron by 15 kicking another patron out, it is not correspondingly reasonable to impose a duty on that 16 executive to kick a patron out every time another patron asks. The FAC accordingly lacks 17 allegations that Sibella had sufficient control over Alexander’s alleged harassment of 18 Cipriani for the Court to find that Sibella and Cipriani had a special relationship. 19 But perhaps more importantly, the FAC lacks allegations sufficient to establish that 20 Cipriani submitted to Sibella’s control such that the Court could impute a duty to Sibella 21 by virtue of their special relationship. Indeed, there are no allegations going to whether 22 and how Cipriani’s ability to, “provide for his own protection has been limited in some way 23 by his submission to the control of” Sibella. Beckman v. Match.com, LLC, No. 2:13-cv-97 24 JCM (NJK), 2017 WL 1304288, at *3 (D. Nev. Mar. 10, 2017), aff’d, 743 F. App’x 142 (9th 25 Cir. 2018) (citation omitted); see also id. (finding that the plaintiff’s negligence claim failed 26 for this reason). The Court accordingly grants Sibella’s motion as to Cipriani’s negligence 27 claim. (ECF No. 54 at 15-17.) See Flaherty v. Wells Fargo Bank Nat’l Ass’n, 623 F. Supp. 28 3d 1124, 1129 (D. Nev. 2022) (finding that there was “no special relationship” where the 2 defendant’s control or the defendant otherwise controlled the plaintiff). 3 3. Sibella’s Argument as to Cipriani’s Innkeeper Liability Claim 4 Sibella next argues that Cipriani’s claim against him for innkeeper liability fails 5 because he is not the ‘owner’ or ‘keeper’ of Resorts World, and even Cipriani otherwise 6 alleged in his FAC that the Genting Group owns Resorts World. (ECF No. 55 at 15-17.) 7 Cipriani points to his allegation that Sibella had full control over the hotel and casino’s 8 operations in countering that he has sufficiently alleged this claim against Cipriani. (ECF 9 No. 61 at 11-12.) The Court agrees with Sibella. 10 Cipriani specifically alleges a violation of NRS § 651.015, which prescribes the 11 liability of “owners” or “keepers” of hotels to their patrons when the patron is injured or 12 killed. (ECF No. 54 at 17-18.) See also NRS § 651.015. And to start, Cipriani does not 13 exactly allege he was injured because of any action or inaction on Sibella’s part. (ECF 14 No. 54 at 17-18.) He alleges he was threatened and harassed by Alexander and alleges 15 this harmed him and caused him emotional distress. (Id.) It is accordingly unclear to the 16 Court whether Cipriani’s innkeeper liability claim is cognizable against anyone because it 17 is unclear whether he was injured by Alexander. 18 But regardless, Sibella is not the “owner” or “keeper” of Resorts World, so 19 Cipriani’s innkeeper liability claim against him fails. Indeed, Cipriani alleges that Resorts 20 World operates the resort (id. at 2), and attached an exhibit to his FAC consisting of an 21 email that Cipriani sent to the CEO of the Genting Group (id. at 67), which owns Resorts 22 World (ECF No. 18 (certificate of interested parties)), complaining about Sibella and his 23 tolerance for alleged criminals gambling at Resorts World—confirming that Plaintiff both 24 understands and alleges Genting Group owns Resorts World. The Court is not required 25 to—and does not—accept his implausible and contradictory allegation that Sibella should 26 be subject to innkeeper liability because he had full control over Resorts World. See, e.g., 27 Desio v. Russell Rd. Food & Beverage, LLC, No. 2:15-cv-01440-GMN-CWH, 2016 WL 28 2 allegations as true.”). 3 In addition, the one case Cipriani relies upon to support his very short argument 4 as to why this claim is cognizable is neither binding upon the Court nor persuasive. In 5 Ricketts v. Morehead Co., 122 Cal. App. 2d 948, 953 (Cal. Ct. App. 1954), the California 6 Court of Appeals interpreted a California statute regarding an innkeeper’s liability for 7 property kept in a hotel safe to limit the maximum amount the plaintiff could recover from 8 the couple that managed the hotel to $250. See id. And while it is true that the Ricketts 9 court implicitly decided that hotel managers (in addition to the hotel’s owner) could be 10 liable for lost property, the California Court of Appeals did not focus on that point in the 11 pertinent portion of the decision, instead focusing on its holding that the plaintiff’s recovery 12 against that couple was limited to $250. See id. But more importantly, Ricketts was not 13 interpreting NRS § 651.015. And the California statute Ricketts was interpreting is more 14 analogous to NRS § 651.010 than NRS § 651.015. In sum, the Court does not find 15 Ricketts adequately supports Cipriani’s argument that he alleged a cognizable claim 16 under NRS § 651.015 against Sibella. 17 And while the Court was unable to locate binding precedent interpreting who is an 18 “owner” or “keeper” under NRS § 651.015, the defendant in the cases it reviewed was 19 always the owner of the hotel, not a managerial employee. See, e.g., Humphries v. New 20 York-New York Hotel & Casino, 403 P.3d 358, 360 (Nev. 2017) (“filed a complaint against 21 NYNY”); Est. of Smith ex rel. Smith v. Mahoney’s Silver Nugget, Inc., 265 P.3d 688, 690 22 (Nev. 2011) (“filed suit against the Silver Nugget”); Racine v. PHW Las Vegas, LLC, 669 23 F. App’x 845 (9th Cir. 2016) (“Planet Hollywood”). This suggests to the Court that Cipriani 24 is attempting to assert a novel theory—that a hotel manager can be considered the 25 “owner” or “keeper” under NRS § 651.015—but failed to proffer any supporting caselaw 26 or other legal authority in response to Sibella’s motion. The Court can only conclude that 27 Cipriani’s NRS § 651.015 claim is not cognizable against Sibella. Sibella’s motion is 28 accordingly granted as to Cipriani’s NRS § 651.015 claim. (ECF No. 54 at 17-18.) and Supervision Claim 2 3 Sibella next argues that Cipriani’s claim for negligent hiring, training, and 4 supervision is not cognizable against him because he is not the employer of the unnamed 5 other Resorts World employees who either encouraged or allowed Alexander to harass 6 Cipriani. (ECF No. 55 at 16-18.) The entirety of Cipriani’s responsive argument is, “[a]s 7 for the third cause of action, the FAC specifically alleges that, ‘Sibella also had control 8 over hiring, training, supervision, discipline, discharge, security and relevant day-to-day 9 aspects of RWLV’s operations.’ (ECF No. 61 at 12 (quoting (FAC ¶ 108)).) The Court 10 again agrees with Sibella. 11 To start, while Fed. R. Civ. P. 8 does not require detailed factual allegations, it 12 demands more than “labels and conclusions” or a “formulaic recitation of the elements of 13 a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. 14 v. Twombly, 550 U.S. 544, 555 (2007)). Pointing to a single, conclusory allegation is 15 accordingly insufficient to successfully oppose a motion to dismiss. Second, “[a] claim for 16 negligent hiring, training, or supervision contemplates liability for an employer based on 17 injuries caused by a negligently managed employee.” Freeman Expositions, LLC v. 18 Eighth Jud. Dist. Ct. in & for Cnty. of Clark, 520 P.3d 803, 812 (Nev. 2022) (citation 19 omitted). And Cipriani does not actually dispute that Sibella did not employ the other, 20 unnamed Resorts World employees that allegedly encouraged or permitted Alexander to 21 harass Cipriani. (ECF No. 61 at 12.) Sibella was not the other employees’ employer. As 22 such, Cipriani’s claim for negligent hiring, training, and supervision is not cognizable 23 against Sibella. Sibella’s motion is accordingly granted as to this claim as well. (ECF No. 24 54 at 18-19.) 25 5. IIED 26 Both Resorts World and Sibella argue that Cipriani does not allege a plausible IIED 27 claim in his FAC because the emotional distress he complains of is conclusory and 28 insufficiently severe, and Cipriani alleges that Alexander caused the distress, not 2 alleged the outrageous conduct element because Defendants breached their duties to 3 him, they did not act on his complaints about Alexander after he made them, and he was 4 ‘extremely uncomfortable and feared for his safety’ on November 19, 2021. (ECF No. 61 5 at 12-13.) Cipriani further counters that he did not need to provide every detail supporting 6 his IIED claim to make it plausible, and he is not necessarily required to establish a 7 physical manifestation of his emotional distress if it is severe enough. (Id. at 13-14.) The 8 Court agrees with Defendants. 9 “The elements of a cause of action for intentional infliction of emotional distress 10 are ‘(1) extreme and outrageous conduct with either the intention of, or reckless disregard 11 for, causing emotional distress, (2) the plaintiff’s having suffered severe or extreme 12 emotional distress and (3) actual or proximate causation.’” Dillard Dep’t Stores, Inc. v. 13 Beckwith, 989 P.2d 882, 886 (Nev. 1999) (citation omitted). To establish severe emotional 14 distress, the plaintiff must demonstrate that “the stress [is] so severe and of such intensity 15 that no reasonable person could be expected to endure it.” Alam v. Reno Hilton Corp., 16 819 F. Supp. 905, 911 (D. Nev. 1993) (citing Nelson v. City of Las Vegas, 665 P.2d 1141, 17 1145 (Nev. 1983)). “General physical or emotional discomfort is insufficient to 18 demonstrate severe emotional distress.” Burns v. Mayer, 175 F. Supp. 2d 1259, 1268 (D. 19 Nev. 2001) (citing Chowdhry v. NLVH, Inc., 851 P.2d 459, 462 (Nev. 1993)). 20 As noted, Cipriani argues that Defendants’ conduct was extreme and outrageous 21 because Defendants breached their duties to him. (ECF No. 61 at 12.) But the Court found 22 above that Defendants did not breach any duties they owed Cipriani; Resorts World 23 because Cipriani is judicially estopped from making such an argument and Sibella 24 because he owed Cipriani no duty. See supra. Cipriani accordingly has not—and 25 cannot—satisfy the first element of his IIED claim. 26 The Court is further unconvinced that the stress Cipriani describes in the FAC is 27 so severe and of such intensity that no reasonable person could be expected to endure 28 it. Cipriani describes in the FAC how Alexander repeatedly maneuvered his mobility 2 also video recorded Cipriani even though Cipriani asked him not to. (Id.) These 3 interactions culminated on November 19, 2021, when Alexander drove his scooter close 4 to Cipriani and started filming him—so Cipriani took Alexander’s cellphone and gave it to 5 a Resorts World security guard. (Id. at 9.) Cipriani otherwise suggests that Alexander 6 verbally harassed him but does not elaborate on what Alexander said to him. (See 7 generally id.) At most, these allegations describe general physical or emotional discomfort 8 insufficient to demonstrate severe emotional distress. See Burns, 175 F. Supp. 2d at 9 1268; see also Candelore v. Clark Cnty. Sanitation Dist., 752 F. Supp. 956, 962 (D. Nev. 10 1990), aff’d, 975 F.2d 588 (9th Cir. 1992) (quoting Restatement (Second) of Torts § 41, 11 which states that IIED “clearly does not extend to mere insults, indignities, threats, 12 annoyances, petty oppressions, or other trivialities”). The Court accordingly finds that 13 Cipriani has not plausibly alleged the second element of an IIED claim. 14 Cipriani’s IIED claim also has a causation issue. Cipriani indeed alleges that he 15 “was needlessly subjected to the inevitable severe emotional distress associated with an 16 extended campaign of harassment, assaults and intimidation at the hands of Alexander[.]” 17 (ECF No. 54 at 15.) Cipriani consistently alleged in his state court counterclaim that 18 Alexander (and his son) subjected Cipriani to severe emotional distress. (ECF No. 59-4 19 at 16.) Plaintiff accordingly himself alleges that Alexander was the source of his emotional 20 distress—not Defendants. The Court thus finds that Plaintiff has not plausibly alleged the 21 third element of his IIED claim either—actual or proximate causation. 22 In sum, the Court dismisses Cipriani’s IIED claim. Both of Defendants’ motions are 23 correspondingly granted. 24 6. Civil Conspiracy 25 Defendants further argue that Cipriani’s civil conspiracy claim fails because his 26 underlying IIED claim fails, and because of the intra-corporate conspiracy doctrine. (ECF 27 Nos. 55 at 20-21, 59 at 18-20.) Cipriani does not respond to the argument that this claim 28 fails because his IIED claim fails—likely because he unsuccessfully contends his IIED 2 arguing he has alleged that Sibella engaged in some misconduct motivated by seeking 3 his own personal gain. (ECF No. 61 at 14-16.) The Court agrees with Defendants that this 4 claim fails because Cipriani’s underlying IIED claim fails. 5 “Actionable civil conspiracy arises where two or more persons undertake some 6 concerted action with the intent ‘to accomplish an unlawful objective for the purpose of 7 harming another,’ and damage results.” Interior Elec. Inc. Nevada v. T.W.C. Constr., Inc., 8 No. 2:18-cv-01118-JAD-VCF, 2020 WL 719410, at *5 (D. Nev. Feb. 12, 2020) (quoting 9 Guilfoyle v. Olde Monmouth Stock Transfer Co., 335 P.3d 190, 198 (Nev. 2014)). And “it 10 is necessary for the act in furtherance of the conspiracy to constitute an actionable tort.” 11 Eikelberger v. Tolotti, 611 P.2d 1086, 1088 (Nev. 1980). As discussed above, Cipriani 12 has not plausibly alleged any actionable tort claim against either Defendant. So Cipriani’s 13 civil conspiracy claim necessarily fails. Both Defendants’ motions are granted as to this 14 claim. 15 7. Concert of Action 16 Defendants finally argue Cipriani’s concert of action claim fails because he does 17 not allege that they agreed to engage in inherently dangerous conduct; letting Alexander 18 get too close to Cipriani on his scooter is not that. (ECF Nos. 55 at 20, 59 at 20-21.) 19 Cipriani counters that Alexander’s harassment exposed him to a serious risk of harm 20 because he maneuvered his scooter too close to Cipriani and caused Cipriani to take 21 Alexander’s cellphone, which led to Cipriani’s arrest. (ECF No. 61 at 16-17.) The Court 22 again agrees with Defendants. 23 To start, and as noted above, Cipriani is precluded from arguing harm based on 24 his arrest for taking Alexander’s cellphone under the doctrine of judicial estoppel. Cipriani 25 is accordingly left with the allegation that Alexander maneuvered his scooter too close to 26 Cipriani. But the Court finds this allegation does not plausibly constitute inherently 27 dangerous conduct. 28 /// 2 an inherently dangerous activity, with a known risk of harm, that could lead to the 3 commission of a tort.” GES, Inc. v. Corbitt, 21 P.3d 11, 15 (Nev. 2001). Courts have noted 4 that some activities are inherently dangerous, like drag racing, see Dow Chem. Co. v. 5 Mahlum, 970 P.2d 98, 111 (1998), abrogated by GES, 21 P.3d 11, or organizing a high- 6 tech scavenger hunt where someone was rendered blind and paraplegic after falling 30 7 feet down an abandoned mine shaft, see Lord v. Chew, 373 P.3d 937 (Nev. 2011); but 8 see id. (not specifically finding this activity was inherently dangerous and instead focusing 9 on the propriety of a jury instruction). But other courts have found other activities lacking 10 in the inherent danger required to state a claim for concert of action, such as real estate 11 transactions, see Tai-Si Kim v. Kearney, 838 F. Supp. 2d 1077, 1092 (D. Nev. 2012), 12 entering into a contract “to build a communications” tower, see Rebel Commc’ns, LLC v. 13 Virgin Valley Water Dist., No. 2:10-CV-0513-LRH-GWF, 2015 WL 4172442, at *6 (D. Nev. 14 July 9, 2015), posting articles and videos online disparaging opposing counsel in a family 15 court proceeding, see Abrams v. Sanson, 458 P.3d 1062, 1064-65, 1070 (Nev. 2020), 16 “[m]aking and reviewing a promotion decision at a university[,]” Honghui Deng v. Nevada 17 ex rel. Bd. of Regents for Nevada Sys. of Higher Educ., No. 2:17-cv-03019-APG-VCF, 18 2020 WL 1470866, at *3 (D. Nev. Mar. 25, 2020), “manipulating the use of [police] force 19 reports[,]” Carr v. Las Vegas Metro. Police Dep’t, No. 2:16-cv-02994-APG-NJK, 2017 WL 20 4274163, at *5 (D. Nev. Sept. 25, 2017), and entering into an “alleged joint agreement to 21 allow [the defendant] to illegally access Plaintiffs’ email and server[.]” Dickerson v. Wells, 22 No. 2:08-cv-00630-KJD-PAL, 2009 WL 10693511, at *2 (D. Nev. Mar. 18, 2009). 23 At risk of comparing apples to oranges, letting Alexander maneuver his scoter 24 closer than Cipriani would have liked to him is much closer to the activities described 25 above that other courts have found not inherently dangerous than drag racing or 26 organizing a high tech scavenger hunt. It is simply implausible that not kicking Alexander 27 out of Resorts World when Cipriani first complained about him was inherently dangerous. 28 2 as to this claim. 3 C. Leave to Amend 4 Cipriani requests leave to amend in a cursory way at the conclusion of his response 5 to the pending motions. (ECF No. 61 at 18.) He simply states that neither Defendant has 6 shown amendment would be futile, so the Court should grant him leave to amend if it 7 finds any of his claims should be dismissed. (Id.) He does not, however, attach a proposed 8 amended pleading in compliance with LR 15-1, make any argument about how he could 9 amend consistent with his claims to make any of them plausible, or offer any additional 10 facts suggesting that amendment would not be futile. Moreover, and as discussed above, 11 Cipriani has already been granted leave to amend once (ECF No. 52), leading to denial 12 of the first round of motions to dismiss as moot (ECF No. 53). And the reasons for 13 dismissal the Court provided above stem primarily from the resolution of questions of law 14 that do not suggest amendment would be productive. Said otherwise, it is not as if the 15 Court merely found some factual allegations lacking but the existing allegations suggest 16 there are other facts out there that would make Cipriani’s claims plausible. 17 After whittling down Cipriani’s claims through application of the doctrine of judicial 18 estoppel, Cipriani is left only with his allegations that Defendants let Alexander harass 19 him and maneuver his scooter too close to him. And Cipriani has alleged in a related state 20 court suit that Resorts World trespassed Alexander and his son presumably for Cipriani’s 21 safety after the incident where Cipriani took Alexander’s cellphone that also lies at the 22 heart of this case. Thus, as the Court found above, he is judicially estopped from pursuing 23 any of his claims against Resorts World. In addition, the Court found that several of his 24 claims against Resorts World fail for alternative reasons. As to Sibella, the Court found 25 that Cipriani’s core negligence claim against him failed because Sibella owed Cipriani no 26 duty—a finding of law that would not change with any potential amendment. See, e.g., 27 Butler ex rel. Biller v. Bayer, 168 P.3d 1055, 1063 (Nev. 2007) (“the existence of ‘duty’ is 28 1 || a question of law’). All of this leads the Court to the overall conclusion that amendment 2 || would be futile. The Court will accordingly dismiss Cipriani’s FAC with prejudice. 3 || IV. CONCLUSION 4 The Court notes that the parties made several arguments and cited to several 5 || cases not discussed above. The Court has reviewed these arguments and cases and 6 || determines that they do not warrant discussion as they do not affect the outcome of the 7 || motions before the Court. 8 It is therefore ordered that Sibella’s motion to dismiss (ECF No. 55) is granted as 9 || specified herein. 10 It is further ordered that Sibella’s motion to strike (ECF No. 56) is granted. 11 The Clerk of Court is directed to strike Sibella’s plea agreement and related 12 || allegations in the FAC. (ECF No. 54 at 4:18-19, 13:16-25, 15:10-12, 68-96.) 13 Itis further ordered that Resorts World’s motion to dismiss (ECF No. 59) is granted 14 || as specified herein. 15 It is further ordered that Resort World’s motion to strike (ECF No. 68) Cipriani’s 16 || request for judicial notice (ECF No. 66) is denied as moot because Cipriani withdrew that 17 || request (ECF No. 70). 18 It is further ordered that the FAC (ECF No. 54) is dismissed, in its entirety, with 19 || prejudice. 20 The Clerk of Court is directed to enter judgment accordingly—in Defendants’ 21 || favor—and close this case. 22 DATED THIS 23% Day of October 2024. 23 ALA 24 MIRANDA M. DU 25 UNITED STATES DISTRICT JUDGE 26 27 28 18