Whittemore v. Anderson Financial Services, LLC
2:19-cv-01951-GMN-EJY
D. Nev.Mar 20, 2020Background
- Plaintiff Katelyn Whittemore filed a Verified First Amended Complaint (FAC) asserting 11 causes of action against Anderson Financial Services, LLC and Vast Holdings Group, LLC.
- Anderson moved to stay all discovery pending resolution of its motion to dismiss the FAC. The motion to stay was unopposed.
- The magistrate judge performed a limited "preliminary peek" at Anderson’s dispositive motion and the pleadings to assess whether discovery should be stayed.
- The court found multiple claims in the FAC appear deficient under federal pleading standards or Nevada law (including Civil RICO, federal and state retaliation claims, interference with prospective economic advantage, negligence-per-se/whistleblower theories, FLSA overtime, and emotional-distress claims).
- Based on that review, the court concluded Anderson’s motion to dismiss is potentially case-dispositive and can be decided without further discovery, and therefore granted the stay of discovery.
Issues
| Issue | Whittemore's Argument | Anderson's Argument | Held |
|---|---|---|---|
| Stay of discovery | Opposed? (no opposition filed) | Stay appropriate because pending motion to dismiss may dispose of the case and requires no discovery | Stay granted (motion unopposed) |
| Civil RICO | FAC alleges predicate acts (obtaining money under false pretenses, unauthorized practice of law, bank/mail/insurance fraud) and injury (termination) | Termination alone does not show injury flowing from listed predicate acts; pleading lacks required particularity/notice | RICO claim likely deficient and subject to dismissal |
| Retaliation (Title VII, ADEA, NRS) | Asserts retaliatory termination; alleges right-to-sue notices and recent charge naming Anderson | Original EEOC charges did not name Anderson; Title VII/ADA requirements tie suit to respondent named in charge | As pled, retaliation claims against Anderson likely fail and will be dismissed |
| Intentional interference with prospective economic advantage | Alleges Anderson contacted a prospective employer and told them not to hire her | Claim rests on a single, conclusory allegation; insufficient under Iqbal/Twombly plausibility standard | Claim likely insufficient and subject to dismissal |
| Negligence per se / Whistleblower / FLSA / Emotional distress | Asserts statutory violations (NRS anti‑discrimination/blacklisting), whistleblower retaliation for EEOC contact, unpaid overtime, and emotional-distress claims | Nevada law provides limited or no private cause of action for some statutory violations; overlapping statutory remedies preclude separate torts; FLSA and IIED claims lack factual plausibility | These claims are likely barred or deficient and will be dismissed |
Key Cases Cited
- Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597 (D. Nev. 2011) (stay of discovery is not routinely warranted; court should be convinced plaintiff cannot state a claim)
- Wood v. McEwen, 644 F.2d 797 (9th Cir. 1981) (supports staying discovery when plaintiff cannot state a claim)
- Turner Broadcasting Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554 (D. Nev. 1997) (party seeking stay bears heavy burden to justify halting discovery)
- Siragusa v. Brown, 971 P.2d 801 (Nev. 1999) (Nevada civil RICO pleading must state essential facts with sufficient particularity to give notice)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must contain factual content that makes entitlement to relief plausible)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must allege enough facts to state a plausible claim)
- Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) (conclusory legal assertions are not entitled to an assumption of truth)
- Consolidated Generator-Nevada, Inc. v. Cummins Engine Co. Inc., 971 P.2d 1251 (Nev. 1998) (elements for interference with prospective business advantage)