United States District Court, D. Montana, Butte Division
JEFFREY S. RAPP, Plaintiff,
HAMPTON MANAGEMENT LLC, Defendant.
ORDER, AND FINDINGS AND RECOMMENDATION
Jeremiah C. Lynch United States Magistrate Judge
the court is Hampton Inns Management LLC's
(“Hampton Inns”) Fed.R.Civ.P. 12(b)(6) motion to
dismiss Plaintiff Jeffrey Rapp's complaint. Also before
the Court are Rapp's two pleadings filed as a
“Demand for Summary Judgment”, and a
“Motion to Compell [sic] Truthful Answers Participate
reasons discussed, the Court recommends Hampton Inns'
motion to dismiss be granted in part, and denied in part. And
Rapp's motions are subject to denial.
commenced this action with his complaint filed in the Montana
Eighteenth Judicial District Court, Gallatin County. Hampton
Inns removed the case to this Court based upon the
Court's diversity of citizenship jurisdiction provided at
28 U.S.C. § 1332.
worked for Hampton Inns when its General Manager, Doris
Fleming, began making statements to Hampton Inns about Rapp
which he asserts were false. Fleming accused Rapp of (1)
engaging in inappropriate conduct with a young female
co-worker, (2) being an incompetent employee for failing to
install batteries in smoke detectors, and (3) fraudulently
reporting his work hours. Hampton Inns' Human Resource
Manager, Robert Blom, repeated the statements to the Montana
Department of Labor, in workers' compensation matters,
and to Hampton Inns' attorneys. Rapp also alleges
“Defendant[, through Fleming, ] spread it all over town
that Rapp was a pervert, [a] thief, and derelict/incompetent
in his duties[.]” (Doc. 9 at 4.) Rapp asserts the
defamatory statements damaged his reputation, and that he is
entitled to an award of compensatory damages.
Fed.R.Civ.P. 12(b)(6) Motion to Dismiss
Civ. P. 12(b)(6) permits a party to move for dismissal where
the allegations of a pleading “fail to state a claim
upon which relief can be granted.” A cause of action
may be dismissed under Fed.R.Civ.P. 12(b)(6) either when it
asserts a legal theory that is not cognizable as a matter of
law, or if it fails to allege sufficient facts to support an
otherwise cognizable legal claim. SmileCare Dental Group
v. Delta Dental Plan of California, Inc., 88 F.3d 780,
783 (9th Cir. 1996). In addressing a Rule 12(b)(6)
challenge the Court accepts all factual allegations in the
complaint as true (Hospital Bldg. Co. v. Trustees of the
Rex Hospital, 425 U.S. 738, 740 (1976)), and construes
the pleading in the light most favorable to the nonmoving
party. Tanner v. Heise, 879 F.2d 572, 576
(9th Cir. 1989).
Court's standard of review under Rule 12(b)(6) is
informed by Fed.R.Civ.P. 8(a)(2) which requires that a
pleading “must contain a ‘short and plain
statement of the claim showing that the pleader is entitled
to relief.'” Ashcroft v. Iqbal, 556 U.S.
662, 677-678 (2009) (quoting Rule 8). Although Rule 8(a)(2)
does not require “detailed factual allegations”,
a plaintiff must set forth more than bare allegations that
the defendant unlawfully harmed the plaintiff. Id.
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft, 556 U.S. at 678.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
Application of Montana Law
jurisdiction over this action is founded upon diversity of
citizenship, the Court applies the substantive law of
Montana, the forum state. Medical Laboratory Mgmt.
Consultants v. American Broadcasting Companies, Inc.,
306 F.3d 806, 812 (9th Cir. 2002).