Joseph Perez v. United States Probabtion Offic , 428 F. App'x 768 ( 2011 )

FILED
NOT FOR PUBLICATION APR 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSEPH PEREZ, ) No. 09-17836
)
Plaintiff – Appellant, ) D.C. No. 2:08-cv-01356-RCJ-LRL
)
v. ) MEMORANDUM *
)
UNITED STATES PROBATION )
OFFICE; UNITED STATES OF )
AMERICA, )
)
Defendants – Appellees. )
)
)
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted April 13, 2011 **
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
Before: FERNANDEZ, RAWLINSON, Circuit Judges, and WELLS,***
District Judge.
Joseph Perez appeals the district court’s dismissal of his complaint. See
Fed. R. Civ. P. 12(b)(6). We affirm.
Perez filed his complaint pursuant to the provisions of the Federal Tort
Claims Act,1 which required him to allege claims upon which relief could be
granted to a private person under the law of the State of Nevada.2 He did not do
so.
Perez claims that his former employer, the United States Probation Office,
committed the tort of negligent supervision when its employees responded to
requests for information from prospective employers. However, he could not spell
out a negligence claim unless he could point to a duty not to disclose under Nevada
law. See Wiley v. Redd, 885 P.2d 592, 595 (Nev. 1994); see also Vinci v. Las
***
The Honorable Lesley Wells, Senior United States District Judge for the
Northern District of Ohio, sitting by designation.
1
See 28 U.S.C. §§ 1346(b), 2671–80.
2
See 28 U.S.C. § 2674; Green v. United States, 630 F.3d 1245, 1249 (9th
Cir. 2011); Delta Sav. Bank v. United States, 265 F.3d 1017, 1025 (9th Cir. 2001).
Although detailed allegations are not required, the complaint did have to “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949, 173 L.
Ed. 2d 868 (2009).
2
Vegas Sands, Inc., 984 P.2d 750, 751 (Nev. 1999). He has not pointed to any
Nevada statutory or common law which imposes a duty upon former employers to
refrain from responding to requests for information from prospective employers.
Nor is there any reason to suppose that any such duty exists. See Circus Circus
Hotels, Inc. v. Witherspoon, 657 P.2d 101, 105 & n.3 (Nev. 1983) (noting the
privilege to respond to employment queries).
Perez also claims that the release of the information constituted intentional
infliction of emotional distress. But to support that claim under Nevada law he had
to allege, among other things, “extreme and outrageous conduct” and “severe or
extreme emotional distress.” Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1386
(Nev. 1998); see also Restatement (Second) of Torts § 46 cmt. d (1965). He did
not plausibly allege either of those elements. See, e.g., Candelore v. Clark Cnty.
Sanitation Dist., 975 F.2d 588, 590, 591 (9th Cir. 1992); Barmettler, 956 P.2d at
1384, 1386; Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998).
The district court did not abuse its discretion when, after previously giving
Perez leave to amend, it determined that granting him further leave to amend
would not cure the pleading defects. See Gordon v. City of Oakland, 627 F.3d
1092, 1094 (9th Cir. 2010); Knappenberger v. City of Phoenix, 566 F.3d 936, 942
(9th Cir. 2009); Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996).
AFFIRMED.
3