The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Presently before the court are defendant County of Yuba's ("County") motions to dismiss plaintiff's Third Amended Complaint and for a more definite statement, filed pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e), respectively (Dkt. No. 41).*fn2 Because oral argument would not materially aid the resolution of the pending motions, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has considered the briefs and appropriate portions of the record in this case and, for the reasons stated below, recommends that the County's motion to dismiss be granted in part and denied in part.
The undersigned summarily denies the County's motion for a more definite statement because the County did not materially brief the merits of that motion. This is the second time that the County filed a motion for a more definite statement and failed to brief the merits of that motion. (See Order & Findings & Recommendations, Jan. 3, 2012, at 2, Dkt. No. 35.) Contrary to the County's counsel's apparent understanding of Federal Rule of Civil Procedure 12, a motion for a more definite statement is not a "throw away" motion that can simply be tacked onto a motion to dismiss. If the County's counsel again file a motion but materially fail to brief that motion, the court may impose monetary sanctions personally on counsel pursuant to Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, Local Rule 110, or the inherent power of the court.
Plaintiff's Third Amended Complaint alleges claims against: (1) Yolanda Fryson,*fn3 who is alleged to be have been a social worker employed by the County in the office of Yuba County Child Protective Services ("Yuba CPS") at all times material to plaintiff's claims; and (2) Yuba CPS, on whose behalf the County has appeared. (See Third Am. Compl. ¶¶ 4-5, 10-13.) Plaintiff's claims arise from an alleged failed blackmail scheme perpetrated by Fryson against plaintiff in September and October of 2008. (See id. ¶¶ 16-20.) In short, plaintiff alleges that Fryson used the color of her office and a badge in an attempt to extort $10,000 from plaintiff on the basis of Fryson's fraudulent assertion that allegations of child molestation and domestic violence had been filed against plaintiff. (See id. ¶¶ 17-18.) Because the allegations in the Third Amended Complaint are consistent with, and expand on, the allegations in the Second Amended Complaint, and because the parties and the court are familiar with the essential allegations at issue, the undesigned does not provide an extensive review of the allegations in the Third Amended Complaint here. The allegations material to the pending motion to dismiss will be discussed below as necessary.
However, at the outset, the undersigned recounts the most recent procedural history of this case. The court granted the County's motion to dismiss the Second Amended Complaint in part. (Order, Apr. 12, 2012, Dkt. No. 39.) Relevant here, the court permitted plaintiff's claim alleging violations of plaintiff's Fourteenth Amendment due process rights pursuant to 42 U.S.C. § 1983 and Monell v. New York Department of Social Services, 436 U.S. 658 (1978), to proceed as pled, but permitted plaintiff leave to add factual allegations to support that claim. (Id. at 2-4 & n.1.) Additionally, the court dismissed plaintiff's claim for negligent supervision, hiring, and retention with leave to amend. (Id. at 4.) Furthermore, the court dismissed plaintiff's claims of fraud and negligent infliction of emotional distress with leave to amend to the extent that plaintiff alleged those claims directly against the County, but ordered that those claims shall proceed as pled to the extent that those claims are premised on a respondeat superior theory of vicarious liability. (Id. at 4-5.)
On May 11, 2012, plaintiff filed a Third Amended Complaint, which alleges five claims for relief,*fn4 four of which are alleged against Yuba CPS: (1) violation of plaintiff's due process rights under the Fourteenth Amendment to the U.S. Constitution (Third Am. Compl. ¶¶ 31-38); (2) negligent supervision, hiring, and retention (id. ¶¶ 39-51); (3) fraud (id. ¶¶ 52-57); and (4) negligent infliction of emotional distress (id. ¶¶ 69-74). On May 29, 2012, the County filed the pending motions.*fn5
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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.
In considering a motion to dismiss for failure to state a claim, the court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved"); see also Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when evaluating them under the standard announced in Iqbal).
In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).
A. Plaintiff's Municipal Section 1983 Claim
First, the County moves to dismiss plaintiff's first claim for relief, which alleges that the County violated plaintiff's due process rights provided by the Fourteenth Amendment. (County's Memo. of P. & A. In Supp. of Mot. to Dismiss ("County's Memo.") at 5-11, Dkt. No. 41, Doc. No. 41-1.) The undersigned recommends that the County's motion be denied insofar as it challenges plaintiff's municipal Section 1983 claim.
In resolving the County's motion to dismiss plaintiff's Second Amended Complaint, the court ordered that plaintiff's due process ...