Righthaven LLC v. Leon et al

MOTION to Dismiss

D. Nev.April 11, 2011

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOT MICHAEL P. KIMBRELL, ESQUIRE Nevada Bar No. 7776 MICHAEL P. KIMBRELL, LTD 3470 East Russell Road, Suite 250 Las Vegas, NV 89120 Telephone: (702) 471-7001 Fax: (702) 446-0493 Attorney for Defendant DENISE NICHOLS UNITED STATES DISTRICT COURT DISTRICT OF NEVADA RIGHTHAVEN LLC, a Nevada ) Limited Liability Company, ) CIVIL ACTION NO.: 2:10-CV-01672-GMN-LRL ) ) MOTION TO DISMISS COMPLAINT UNDER PLAINTIFF, ) FRCP 12 (b) (6) FAILURE TO STATE A ) CLAIM UPON WHICH JUDGEMENT CAN ) WHICH BE GRANTED v. ) ) ) ) DENISE NICHOLS, ) ) DEFENDANT. ) _______________________________) COMES NOW the defendant, DENISE NICHOLS by and through her counsel, MICHAEL P. KIMBRELL, ESQ., and moves this court to dismiss the complaint served upon Defendant for the reasons that follow: 1. The Complaint, which has been served upon her, does not list her as a party. 2. Nor does it contain any reference to her. 3. No claim is stated against her. Therefore, it should be dismissed against her as .a putative defendant Defendant’s motion for dismissal of complaint is based on the Points and Authorities attached hereto. DATED this 11 day of April, 2011.th Case 2:10-cv-01672-GMN -LRL Document 22 Filed 04/11/11 Page 1 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, /s/ Michael P. Kimbrell . MICHAEL P. KIMBRELL, ESQ. Counsel for Defendant DENISE NICHOLS MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND Plaintiff served a Summons and Complaint upon Defendant March 23, 2011. Said Complaint, attached, contains no reference to Defendant by name, reference, or implication. FRCP 12 (b) (6), and 12 © states in pertinent part: (6) failure to state a claim upon which relief can be granted; and FRCP 12 (b) (e): Motion For a More Definite Statement A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. In the case at hand, the Complaint contains no reference by name or title or occupation that can be reasonably be deduced to ensnare Defendant or provide even a theoretical guess as to how Defendant is supposed to respond. CONCLUSIONS OF LAW Case 2:10-cv-01672-GMN -LRL Document 22 Filed 04/11/11 Page 2 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Based on the foregoing argument and the common sense application of justice, Defendant prays for a dismissal of this defective complaint. /s/ Michael P. Kimbrell MICHAEL P. KIMBRELL, ESQ. Nevada Bar No. 7776 MICHAEL P. KIMBRELL, LTD. 3470 East Russell Road, Suite 250 Las Vegas, NV 89120 (702) 471-7001 Attorney for Defendant DENISE NICHOLS Case 2:10-cv-01672-GMN -LRL Document 22 Filed 04/11/11 Page 3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER IT IS THEREFORE ORDERED that the MOTION TO DISMISS COMPLAINT UNDER FRCP 12 (b) (6) FAILURE TO STATE A CLAIM UPON WHICH JUDGEMENT CAN WHICH BE GRANTED MOTION TO DISMISS COMPLAINT UNDER FRCP 12 (b) (6) FAILURE TO STATE A CLAIM UPON WHICH JUDGEMENT CAN WHICH BE GRANTED. DATED ____ day of _____, 2011. ________________________________ UNITED STATES DISTRICT JUDGE Case 2:10-cv-01672-GMN -LRL Document 22 Filed 04/11/11 Page 4 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE Pursuant to Fed.R.Civ.P. 5(b), and Section IV of the District of Nevada Electronic Filing Procedures, I certify that I am an employee of MICHAEL P. KIMBRELL, LTD., and on April 11, 2011 the service of following document, MOTION TO DISMISS COMPLAINT UNDER FRCP 12 (b) (6) FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED, By serving the following parties as set forth below: XXXX“ Electronically through CM/ECF; G By depositing a copy in the United States Mail postage prepaid; GBy facsimile transmission. / DATED this 11th day of April 2011 Shawn A. Mangano, Esq. Nevada Bar No. 6730 shawn@manganolaw.com 9960 West Cheyenne Avenue Suite 170 Las Vegas, Nevada 89129-7701 Attorney for Plaintiff RIGHTHAVEN LLC /S/ Michael P. Kimbrell An employee of MICHAEL P. KIMBRELL, LTD. 3470 East Russell Road, Suite 250 Las Vegas, NV 89120 (702) 471-7001 Attorney for Defendant DENISE NICHOLS Case 2:10-cv-01672-GMN -LRL Document 22 Filed 04/11/11 Page 5 of 5