Case 2:14-cv GMN-PAL Document 21 Filed 06/10/14 Page 1 of 21

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1 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of CATHERINE CORTEZ MASTO Attorney General COLLEEN L. PLATT Deputy Attorney General Nevada State Bar # 00 North Carson Street Carson City, Nevada 0 Telephone: ( Facsimile: ( 0 Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 0 0 TROY CASTILLO, vs. Plaintiff, KEVIN INGRAM, in his official capacity as Executive Director of the Nevada Private Investigator s Licensing Board; DAVID SPENCER, in his official capacity as Chairman of the Nevada Private Investigator s Licensing Board; MARK ZANE, in his official capacity as Board Member of the Nevada Private Investigator s Licensing Board; JAMES NADEAU, in his official capacity as a Board Member of the Nevada Private Investigator s Licensing Board; JAMES COLBERT, in his official capacity as a Board Member of the Nevada Private Investigator s Licensing Board; ROBERT UITHOVEN, in his official capacity as a Board Member of the Nevada Private Investigator s Licensing Board, Defendants. / Case No. : CV 00-GMN PAL MOTION TO DISMISS State Defendants, KEVIN INGRAM, in his official capacity as Executive Director of the Nevada Private Investigator s Licensing Board; DAVID SPENCER, in his official capacity as Chairman of the Nevada Private Investigator s Licensing Board; MARK ZANE, in his official capacity as a Board Member of the Nevada Private Investigator s Licensing Board; JAMES NADEAU, in his official capacity as a Board Member of the Nevada Private Investigator s --

2 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 Licensing Board; JAMES COLBERT, in his official capacity as a Board Member of the Nevada Private Investigator s Licensing Board; ROBERT UITHOVEN, in his official capacity as a Board Member of the Nevada Private Investigator s Licensing Board, appearing through their attorneys, CATHERINE CORTEZ MASTO Attorney General and COLLEEN L. PLATT Deputy Attorney General, move this Court to dismiss this action. This Motion is made pursuant to Rules (b( and (b( of the Federal Rules of Civil Procedure ( FRCP, and is based upon the following Memorandum of Points and Authorities, together with all other papers, pleadings and documents filed herein. MEMORANDUM OF POINTS AND AUTHORITIES I. NATURE OF MOTION Defendants, Kevin Ingram, David Spencer, Mark Zane, James Nadeau, James Colbert and Robert Uithoven, all in their official capacities ( Board, move this Court for dismissal of this action. This Court lacks subject matter jurisdiction since the Plaintiff, Troy Castillo 0 ( Castillo, lacks standing to bring this matter, this matter is not yet ripe for review and this matter is moot. If this Court finds an actual case or controversy exists, dismissal of this action is warranted based upon Castillo s failure to state a claim upon which relief may be granted. Castillo fails to state a claim for a violation of the Commerce Clause because the statutes do not unduly burden interstate commerce, the Board has a legitimate state interest, and the statute is narrowly tailored to meet that interest. Castillo fails to state a claim for a violation of the Privileges and Immunities Clause of Article IV because the statute at issue regulates all licensees equally regardless of the licensee s state of residence. Castillo fails to state a claim for a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment because the statute at issue is rationally related to legitimate state interests. Castillo fails to state a claim for a violation of the First Amendment because the statutes at issue regulate conduct, not speech, further an important governmental interest, are unrelated to the suppression of free expression, and incidentally restrict neither speech nor do they prohibit a substantial amount of protected speech. Lastly, Richard Putnam must be --

3 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of substituted for James Colbert in this lawsuit because he is no longer a member of the Board and was succeeded by Mr. Colbert. II. FACTS 0 As set forth in his Complaint, Troy Castillo (Castillo received a license as a private investigator from the Board in 0, which was held in abeyance until 0. See Dkt., p. at. Castillo filed his Complaint on March, 0, challenging various sections of Nevada Revised Statutes (NRS chapter, stating various claims including a violation of the: ( Dormant Commerce Clause of Section of Article I; ( Privileges and Immunities Clause of Section of Article IV; ( Due Process and Equal Protection Clauses of the Fourteenth Amendment; and ( First Amendment. On April, 0, Castillo personally served the Complaint on the Board. On May 0, 0, Castillo personally served the Complaint on the Attorney General s Office, properly effectuating service. On May, 0, Castillo prematurely filed a Motion for Default Judgment. On May, 0, the Board filed its Opposition to the Motion for Default Judgment. On June 0, 0, days after completion of service of the Complaint, the Board filed the instant Motion. III. STANDARD FOR MOTION TO DISMISS 0 A. (b( Standard for Motion to Dismiss When ruling on a (b( motion to dismiss, the court must accept all factual allegations in the complaint as true. Carson Harbor Village, Ltd. V. City of Carson, F.d,, (th Cir. 00. The justifiability of a matter is determined by three doctrines standing, mootness, and ripeness. Dailey v. Vought Aircraft Co., F.d, (th Cir... Standing Standing addresses whether the plaintiff is the proper party to bring the matter to the court for adjudication. Chandler v. State Farm Mutual Automobile Insurance Company, F.d, (th Cir. 00. Once a defendant objects to the lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 0 U.S., (. In order for a person to --

4 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of demonstrate that he has standing to sue, he must establish three elements that are an indispensable part of his case. Lujan, 0 U.S. at 0. First, a person must demonstrate that he has suffered an injury in fact. Id. The injury must be such that it is concrete and particularized and actual or imminent, not conjectural or hypothetical. Id. (quoting Whitmore v. Arkansas, U.S., (0. Second, there must be a causal 0 0 connection between the injury alleged and the conduct, which is the subject of the suit. Id. at 0. The injury must be traceable to the action of the defendant and not the result of an independent action of a third party who is not before the court. Id. at 0 (quoting Simon v. Eastern Ky. Welfare Rights Organization, U.S., (. Lastly, the plaintiff must show that it is likely and not merely speculative, that the injury that is complained of will be redressed by a favorable decision. Id.. Ripeness Another doctrine related to standing is ripeness. Under this doctrine, courts may dispose of matters that are premature for review because the plaintiff s purported injury is too speculative and may never occur. Chandler, F.d at. The ripeness doctrine is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Underwood v. Mackay, No. :-cv-00-mmd- VPC, 0 WL 0, at * (quoting Pac. Gas & Elect. Co. v. State Energy Res. Conservation & Dev. Comm n, U.S. 0, 00 ( (quoting Abbott Laboratories v. Gardner, U.S., (. The ripeness doctrine contains both a constitutional and a prudential component. Underwood, 0 WL 0, at *. Generally courts have considered the constitutional component of ripeness under the rubric of standing, and in many cases, ripeness coincides squarely with standing s injury in fact prong. Id. (quoting Thomas v. Anchorage Equal Rights Comm n, 0 F.d, (th Cir Whether a matter is prudentially ripe turns on whether the issue is fit for judicial review and whether the plaintiff can demonstrate a hardship, should the court withhold consideration of the matter --

5 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 and such hardship must not be merely financial, but must be immediate, direct, and significant. Underwood, 0 WL 0, at *. A question is fit for decision when it can be decided without considering contingent future events that may or may not occur as anticipated, or indeed may not occur at all. Id. (quoting Cardenas v. Anzai, F.d, (th Cir. 00. Though a plaintiff need not wait for the consummation of the threatened injury to obtain preventive relief, the injury must be impending. Id. (quoting Unnamed John Smith Prisoners v. Meese, F.d, (th Cir.. Thus, a claim is ripe for review if the allegations contained in the complaint are primarily legal and do not require further factual development, and the challenged action is final. Center for Biological Diversity v. Kempthorne, F.d 0, 0 (th Cir. 00 (quoting U.S. West Commc n v. MFS Intelenet, Inc., F.d, (th Cir... Mootness The last doctrine related to standing is mootness. A matter becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Los Angeles County v. Davis, 0 U.S., ( (quoting Powell v. McCormack, U.S., (. A matter does not become moot simply because of the cessation of an allegedly illegal conduct. US v. Concentrated Phosphate Export 0 Association, U.S., 0 (. A case may become moot if subsequent events make it so that the allegedly illegal behavior would not be reasonably expected to recur. US v. Concentrated Phosphate Export Association, U.S. at 0. If there is no longer a possibility that an appellant can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction. Ruvalcaba v. City of Los Angeles, F.d, (th Cir.. B. (b( Standard for Motion to Dismiss FRCP (b( allows the filing of a motion to dismiss based upon the failure to state a claim upon which relief may be granted. A dismissal under FRCP (b( is essentially a ruling on a question of law. North Star Int l v. Arizona Corp. Comm n, 0 F.d, 0 (th Cir. (citation omitted. Under FRCP (a( a pleading that states a claim for relief --

6 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 must contain a short and plain statement of the claim showing that the pleader is entitled to relief. This standard does not require detailed factual allegations. Bell Atlantic Corp. v. Twombly, 0 U.S., (00. However, it requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Twombly, 0 U.S. at. A complaint must cross the line between possibility and plausibility by making assertions that are not merely naked assertions that lack an additional factual enhancement. Id. at. 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. Ashcroft v. Iqbal, U.S., (00. This standard asks for more than a sheer possibility that a defendant has acted unlawfully. Iqbal, U.S. at. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief. Id. at. A court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact or unreasonable inferences. Sprewell v. Golden State Warriors, F.d,, (th Cir. 00 (citing Clegg v. Cult Awareness Network, F.d, (th Cir.. IV. ARGUMENT 0 A. Castillo s Complaint Should Be Dismissed for Lack of Subject Matter Jurisdiction Even assuming all facts contained in the Complaint are true, the Complaint should still be dismissed because this Court lacks subject matter jurisdiction. Federal courts jurisdiction under Article III of the United States Constitution is limited to cases which allege an actual case or controversy. City of Los Angeles, U.S., 0 (. As stated previously, the justifiability of a matter is determined by three doctrines standing, mootness, and ripeness. Dailey v. Vought Aircraft Co. supra. As explained in more detail below, in this case, Castillo s complaint should be dismissed because: ( Castillo lacks standing because no actual injury has been suffered; ( the Board has not taken any disciplinary action against Castillo, and as --

7 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of such the matter is not ripe; and ( Castillo has obtained a license as a private investigator from the Board and as such the matter is moot.. Castillo Lacks Standing to Bring This Suit In this case, Castillo fails to allege or identify any concrete actual injury caused by the Board that can be redressed by a favorable court decision. Generalized and vague 0 allegations that do not supply all essential elements of a claim will not withstand a motion to dismiss. Ivey v. Board of Regents, F.d, (th Cir.. For each of the four claims contained in the Complaint, Castillo has failed to allege an injury in fact. Castillo claims to have ceased business operations in this State, but this is a voluntary act by Castillo himself and cannot be said to be traceable to the Board. Dkt. p. at -. Castillo himself admits that the Board has taken no disciplinary action against him. Dkt. p. at. In addition, paragraphs through,,, and are merely 0 unsupported statements which seek a legal conclusion, not factual allegations and thus should not be considered. Throughout his Complaint, Castillo, incorrectly in many instances, recites statutes or partial provisions of statutes. Mere recitation of a statute neither is a fact nor is it an injury. Castillo applied for, and was issued a license by the Board. The Complaint contains no facts to show that he paid the required investigative fee, nor that the amount of the fee that he paid was more than an in-state applicant. Even if Castillo could show an injury, he has failed to show how that injury could be redressed by a favorable decision by this Court. None of the facts contained in the Complaint allege an injury that is traceable to the Board, in fact, any injury would be traceable back to Castillo himself and not the Board. Any injury that Castillo may have is conjectural and hypothetical at this point and as such, the Complaint should be dismissed for lack of standing.. Castillo s Complaint Is Not Ripe for Judicial Review For the reasons set forth in Defendant s Argument above, Castillo has failed to demonstrate that he has suffered an injury in fact with regard to Claim One and as such fails to meet the constitutional component of the ripeness doctrine. --

8 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 0 Claim One is also not ripe because it has not been reduced to more manageable proportions nor has its factual components been fleshed out by a concrete action applying the statutes to Castillo s situation in a manner that harms him or threatens to harm him. See, Lujan v. Nat l Wildlife Fed n, U.S., (0. Castillo himself admits that the Board has not taken any sort of disciplinary action against him for his failure to maintain a principal place of business in this State. Dkt. p. at. Nor has Castillo alleged that the Board has any open investigation into whether or not he has a principal place of business in this State. Furthermore, Castillo fails to allege that the Board has taken action against any out-of-state licensee who has failed to maintain a principal place of business in this State. While the Board is authorized to implement disciplinary action against a licensee who does not comply with the requirements of NRS chapter and NAC chapter, Castillo has not shown that the Board has taken any sort of final action against him nor has he shown that the Board action is imminent. As such, Claim One is not ripe and must be dismissed.. Castillo s Complaint Is Moot Claims Three and Four are moot because Castillo is a licensed private investigator and the acts that he would perform in this State would fall within that definition. Castillo asserts no facts to support that there is any potential that any allegedly illegal behavior by the Board has occurred or will likely occur in the future resulting in an injury to him. By obtaining his license from the Board he asserted to the jurisdiction of the Board, and is constitutionally estopped from attacking the constitutionality of those requirements. See Underwood v. Mackay, 0 WL 0, (U.S. Dist. Ct. Nev. 0. Castillo can obtain no relief from this Court for Claims Three and Four and as such those claims are moot and must be dismissed. For the reasons set forth above, this Court lacks subject matter jurisdiction because: ( Castillo lacks standing to bring the suit because he has not suffered an injury in fact, the injury, if any, is not traceable back to the actions of the Board; and he has not shown that the injury, if any, could be redressed by a favorable decision by this Court; ( the matter is not ripe because the Board has taken not disciplinary actions against Castillo nor has he demonstrated that there is an imminent threat that the Board will do so; and ( the matter is --

9 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 0 moot because Castillo is a fully licensed private investigator and by obtaining the license any allegedly illegal behaviors are no longer capable of being repeated against Castillo nor can Castillo obtain any relief from this Court for such a violation. B. Castillo s Complaint Must Be Dismissed Because Castillo s Complaint Fails to State a Claim Upon Which Relief May Be Granted Even if this Court finds that Castillo s claims survive (b( scrutiny, his Complaint should still be dismissed because the Complaint fails to state a claim upon which relief may be granted.. Castillo s Complaint Fails to State a Claim Upon Which Relief May Be Granted Due to the Doctrine of Constitutional Estoppel It is an elementary rule of constitutional law that one may not retain the benefits of the Act while attacking the constitutionality of one of its most important conditions. Fahey v. Mallonee, U.S., ( (quoting U.S. v. City and County of San Francisco, 0 U.S., (0. Where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant... must take the bitter with the sweet. Arnett v. Kennedy, U.S., (. In this case, Castillo has applied for and has been granted a license. Claims One through Four of Castillo s Complaint challenge the constitutionality of NRS.0,.00,.00 and.. While it is the Board s belief that all of those provisions of law are integral to the licensing regime for private investigators and as such, Castillo is constitutionally estopped from challenging the constitutionality of those provisions, two particular provisions are clearly the most integral NRS.0 and.00. NRS.0 sets forth the definition of a private investigator and NRS.00 requires a person who performs the act of a private investigator to be licensed. The Court in Fahey found that a savings and loan association was prohibited from challenging the provisions of the very Act under which it was created. Fahey, U.S. at -. The Court went on to reason that one could not challenge a provision of law that was hardly severable from those provisions which grant its right to exist. Id. at. Clearly, NRS.0 and.00 are hardly severable from the --

10 Case :-cv-00-gmn-pal Document Filed 0/0/ Page 0 of licensing regime. Mr. Castillo clearly recognized the Board s authority to so regulate the profession when he voluntarily submitted his application for licensure as a private investigator and as such acquiesced to the jurisdiction and authority of the Board in regulating that profession. See generally Dent v. State of West Virginia, U.S. ( (holding that a person may follow any lawful calling subject only to such restrictions as are imposed upon all persons of like age, sex and condition. He cannot now come in and challenge the 0 constitutionality of those provisions. As such, the Court should find that Mr. Castillo is constitutionally estopped and Counts Three and Four should be dismissed.. Castillo s Complaint Fails to State a claim for a Violation of the Commerce Clause of Article I of the United States Constitution Article I,, cl. gives Congress the power to regulate Commerce... among the several States. While this clause of the Constitution gives Congress the power to regulate commerce, it has long been recognized that it also acts as a limitation on a state s ability to enact laws, which place a substantial burden on interstate commerce. Nat l Assoc. of 0 Optometrists & Opticians v. Harris, F.d, (th Cir. 0. This negative aspect has come to be known as the Dormant Commerce Clause. Nat l Assoc. of Optometrists & Opticians, F.d at. The purpose of the Dormant Commerce Clause is to prohibit states from enacting laws, which discriminate against interstate commerce in favor of local economic protectionism. Id. at. A statute discriminates against interstate commerce when it treats in-state economic interests differently than out-of-state economic interests such that the regulation benefits the former and burdens the latter. Conservation Force, Inc. v. Manning, 0 F.d, (th Cir. 00. Such a statute is subject to strict scrutiny and the state bears the burden to show that the statute is narrowly tailored to further a legitimate interest. Manning, 0 F.d at. A statute, however, does not become subject to invalidation merely because its affect interstate commerce, the statute must substantially burden interstate commerce. Nat l Assoc. of Optometrists & Opticians, at (emphasis added. When trying to determine whether a statute substantially burdens interstate -0-

11 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of commerce we look to the balancing test set forth in Pike v. Bruce Church, Inc., U.S., (0. In Pike, the Supreme Court held that [w]here a statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Pike, U.S. at. In his first claim for relief, Castillo alleges a violation of the Commerce Clause, claiming that NRS. discriminates against interstate commerce by placing an undue burden on out-of-state licensees. NRS.(, is facially neutral it requires all licensees, 0 regardless of where they reside, to maintain a principal place of business in this state. Since the statute is facially neutral, it is Castillo s burden to provide enough facts in his Complaint to demonstrate that the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits. Pike, U.S. at. Castillo has failed in every respect to demonstrate that the requirement that each licensee maintain a principal place of business in this state is unduly burdensome to interstate commerce. His complaint is merely a 0 threadbare recital of the elements of a dormant commerce clause violation, which is supported by merely conclusory statements, which will not withstand a motion to dismiss. See Iqbal supra. The requirement that a licensee maintain a principal place of business in this State is no different than Local Rule A 0 (b ( ( of this Court which requires all attorneys admitted to the Nevada Bar who do not maintain an office in Nevada to associate with or designate an office of a licensed Nevada attorney who maintains an office in Nevada for the service of papers, process or pleadings. The Board has an interest in auditing the records of a licensee to ensure compliance with the law and requiring a licensee to have a place in Nevada where the Board can go to review those records is not unduly burdensome. Additionally, nothing in the statute does not prohibit Castillo from sharing office space or other resources, such as support staff with other private investigators or other business entities. Castillo has offered no facts, which would give this Court the reasonable inference that the Board is liable for the misconduct alleged and as such, his first claim for relief must be dismissed. --

12 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 In his second claim for relief, Castillo again alleges a violation of the Commerce Clause claiming that NRS.00( is discriminatory because it subjects similarly situated applicants to unequal fees solely on the basis of their state residency. Dkt. p. at. Castillo s Complaint, albeit incorrectly, alleges that an applicant must pay an investigative fee and that an out-of-state applicant, pursuant to the statute can potentially pay a higher investigative fee. Dkt. p. at. The Board concedes that the statute facially draws a distinction between in-state applicants and out-of-state applicants. While such a statute is subject to strict scrutiny, the Board can demonstrate that it is narrowly tailored to further a legitimate interest. In this case, the statute at issue was last amended in. It is reasonable to state that costs associated with performing a background investigation on an out-of-state applicant are substantially more than the costs associated with performing such an investigation on an in-state applicant. It is also reasonable that the Board should be able to recoup those costs. While the statute places a $,00 cap on investigative fees for in-state applicants this cap is reasonable because in-state applicants live in Nevada and are subject to the various costs associated with living in Nevada such as property taxes. In-state 0 applicants, because they live in Nevada, contribute on a daily basis to the Nevada economy. It is reasonable that the Board sought to take that into consideration when it revised the statute to require all applicants to pay the costs associated with the investigation and cap those costs at $,00 for in-state applicants. It should also be noted that the amendments to the statute were enacted in, prior to the pervasive use of the Internet and the Board had to manually conduct the background investigations, which would have required investigators to travel out-of-state to complete the background investigations of out-of-state applicants. This investigation would have certainly cost more than an investigation of an in-state applicant. Accordingly, the statute is narrowly tailored to further this legitimate interest and Claim Two should be dismissed. --

13 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of. Castillo s Complaint Fails to State a Claim for a Violation of the Privileges and Immunities Clause of Article IV of the United States Constitution Section of Article IV of the United States Constitution states The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States. The purpose of this clause is to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits 0 0 discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this. Paul v. Virginia, U.S., 0 (. In addition, this section...does not import that a citizen of one State carries with him into another fundamental privileges and immunities which come to him necessarily by the mere fact of his citizenship in the State first mentioned, but, on the contrary, that in any State every citizen of any other State is to have the same privileges and immunities which the citizens of that State enjoy. The section, in effect, prevents a State from discriminating against citizens of other States in favor of its own. Hague v. CIO, 0 U.S., ( (footnotes omitted. Thus, this section has been interpreted to prevent the States from imposing unreasonable burdens on citizens of other States in their pursuit of common callings. Baldwin v. Fish and Game Commission of Montana, U.S., (. In this case, Castillo alleges in Claim One that NRS. violates the Privileges and Immunities Clause of Section, Article IV because it treats out-of-state licensees differently than in-state licensees and does not afford protection of licensees on equal terms. Dkt. p. at. NRS. does not discriminate against the citizens of other states it requires all licensees, regardless of their state of residence to maintain a principal place of --

14 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 business in this State. It does not deprive out-of-state licensees from plying their trade in Nevada. Neither does the statute create a residency classification. Resident and nonresident private investigators are treated alike and are subject to the same requirement they must maintain a principal place of business in this State. The Privileges and Immunities Clause does not promise non-residents that it will be as easy for them as for residents to comply with a state s law; it merely protects nonresidents from legal classifications that treat them more harshly. Kleinsmith v. Shurtleff, F.d 0, 0 (th Cir. 00. Accordingly, Claim One must be dismissed. In his second claim for relief, Castillo alleges that the cap on the investigative fees for in-state applicants violates the Privileges and Immunities Clause of Section, Article IV. Dkt. p. 0 at. While NRS.00( makes a facial distinction between in-state and out-of-state applicants, such a distinction does not unreasonably burden out-of-state residents. As previously stated the statute was last amended in, and the costs 0 associated with the investigation of out-of-state applicants are significantly higher than that of in-state applicants. The statute requires each applicant to pay the costs associated with the investigation, it merely places a cap on that amount to in-state applicants, which, as previously stated is reasonable because in-state applicants contribute to the local economy on a daily basis. Nothing in NRS.00(, prohibits Castillo from pursuing his chosen profession, nor does it place an unreasonable burden on him in pursuit of that profession. Accordingly, Claim Two should be dismissed.. Castillo s Complaint Fails to State a Claim for a Violation of the Due Process of the United States Constitution In his first claim for relief, Castillo alleges that he has been deprived of his constitutionally protected interest to engage in his chose occupation as a private investigator by being required to maintain a principal place of business in this State pursuant to NRS.. Dkt., pp. at,. The Due Process Clause of the Fourteenth Amendment provides that no State shall, deprive any person of life, liberty, or property, without due process of law. A person s right to engage in one s chosen profession is not a --

15 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 0 fundamental right and challenges to the Due Process Clause are analyzed under rational basis review. Merrifield v. Lockyer, F.d, (th Cir. 00 (finding rational basis for training, experience and licensing examination requirements under due process analysis. In this case, Castillo s right to practice his chosen profession has not been denied. He applied for and was issued a license. Castillo in fact still maintains a valid license. By his own admission, he has voluntarily chosen cease operating in Nevada. Dkt. p. at. The intent behind requiring all licensees to maintain a principal place of business was to ensure that the licensee had a place where the Board s staff could inspect the records of the licensee during an audit and that the Board did not incur the excessive expenses of traveling out-of-state to audit out-of-state licensees. The Court is not limited to considering only the legislative declaration but may consider any conceivable basis that may support the challenged legislation. FCC v. Beach Commc ns, Inc., 0 U.S. 0, ( (emphasis added. It is certainly rational to have a private investigator maintain a principal place of business in this State so ensure that the Board has access to records, which a licensee is required to maintain and to ensure that the Board does not incur substantial costs in having to travel out-of-state to audit those records. Accordingly, dismissal of Claim One is warranted.. Castillo s Complaint Fails to State a Claim for a Violation of the Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution In his second claim for relief, Castillo alleges a violation of the Equal Protection Clause of the Fourteenth Amendment, claiming that NRS.00( deprives him of his constitutional right to equal protection under the law. Dkt. p. 0 at 0. The Equal Protection Clause of the Fourteenth Amendment provides that no State shall, deny any person within its jurisdiction equal protection of the laws. As the classification at issue, licensed private investigators, does not implicate a suspect class, Mr. Castillo s Equal Protection Claim is also subject to rational basis review. Merrifield, F.d t. Under rational basis review, a statute will pass constitutional muster if it is rationally related to a legitimate state interest. Id. A state is afforded wide latitude when enacting statutes that regulate their local economies and the courts are prohibited from judging the wisdom or --

16 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 0 desirability of the policy determination made by the legislature when it enacted the legislation. Id. at. The statute here clearly meets that hurdle. The legislature enacted NRS.00( to ensure that the Board did not incur the substantial costs associated with investigating out-ofstate applicants and to in fact ensure that those costs were borne by the applicant himself. Ensuring that the Board is fiscally responsible and viable and requiring out-of-state applicants to pay the costs associated with the investigation of the applicant is clearly rational to that interest. As previously stated, it is also reasonable that the Board would have taken into consideration that an in-state applicant contributes to the local economy on a daily basis and as such placing a cap on the amount of investigative fees an in-state applicant is required to pay is reasonable. Since the requirement that an out-of-state applicant is responsible for the costs associated his background investigation is rationally related to a state interest, dismissal of Claim Two is warranted.. Castillo s Complaint Fails to State a Claim for a Violation of the First Amendment of the United States Constitution The First Amendment of the United States Constitution provides, in part, that the government shall make no law... abridging the freedom of speech. Except in very limited circumstances, government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Ashcroft v. American Civil Liberties Union, U.S., (00 (quoting Bolger v. Youngs Drug Products Corp., U.S. 0,, 0 S.Ct., L.Ed.d (. Thus, a statute, which regulates speech before a person, has engaged in that speech is considered a prior restraint on speech and such regulation will be overturned unless there are narrow, objective, and definite standards to guide the licensing authority. Shuttlesworth v. City of Birmingham, Ala., U.S., (. --

17 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 0 However, a state has sufficient latitude in its enactment of laws that only incidentally restrict speech. U.S. v. O Brien, U.S, (. Such laws are reviewed under an intermediate scrutiny test. O Brien, U.S. at. Thus, a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at. In this case, Castillo alleges in Claim Three that the definition of private investigator found at NRS.0 and the requirement that he maintain a principal place of business in this State found at NRS. work as a content-based prior restraint on his free speech. Dkt. p. at 0. This argument is without merit. In order for a person to avail himself to the protections of the First Amendment, the conduct he is seeking to have protected must be such that it was made to convey a particularized message which is likely to be understood by those who viewed it. Texas v. Johnson, U.S., 0 ( (quoting Spence v. Washington, U.S. 0, 0 (. The acts, which constitute being a private investigator, do not communicate a particularized message nor are they intended to. Neither does maintaining a principal place of business in this State convey any sort of particularized message. A person s speech is not the trigger for which licensure is required, it is the acts of a person the conducting of an investigation for example which is the trigger. While there is an aspect of speech in conducting investigations, the asking of questions for example, there is no aspect of speech required for the maintaining of a principal place of business. See Edwards v. District of Columbia, F.Supp.d 0, (D.D.C. 0 (holding that guiding and directing tourists on segways through the city does not communicate a particularized message and thus is not a violation of the First Amendment. Since the statutes govern conduct and only incidentally burden speech, if at all, intermediate scrutiny is appropriate. In applying the test laid out in O Brien, can clearly satisfy each requirement. The Board enactment of the statutes is clearly within the constitutional power of the Board, satisfying the first element of the test. The Board can satisfy the second element of the test --

18 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of by demonstrating that it has an important or substantial government interest. What can be more important or substantial than protecting the public from unlicensed private investigators and ensuring the financial viability of the Board to ensure that its mission of protecting the public continues. Private investigators may have access to incredibly personal private 0 0 information when they are on a job and it is important that such information be protected and being viewed by a person who has been thoroughly vetted. In addition, the requirement that a licensee maintain a principal place of business, which does not have a speech component, and as such should be analyzed under rational basis, furthers an important governmental interest ensuring that the Board remains financially feasible so that it can continue to regulate the private investigator profession and other professions the Board is charged with regulating. By requiring a licensee to maintain a principal place of business in Nevada, the Board is ensuring that it has a location in this State where it can go to audit the records of the licensee. If a licensee did not maintain a principal place of business in this state, the Board would have to incur a great financial burden to travel to a licensee s place of business, out of this state to audit the records of the licensee. The Board can also satisfy the third element of the test in that the State s interest is wholly unrelated to the suppression of free expression. Nothing about the Board wanting to protect the public or to prevent it from financial ruin is related to Castillo s speech. Nor do they seek to control the speech that Castillo does in carrying out his profession. Lastly, the Board can satisfy the final element of the test because the restriction on speech, if any, is merely incidental and is no greater than is necessary to further their interest. The Board in enacting NRS.0 sought to cover the types of acts which a private investigator might conduct in the course of his profession. The acts found in NRS.0 are no broader than is necessary to ensure that the public is protected and the persons who seek to undertake such acts are duly licensed by the Board. In addition, nothing in NRS. prohibits the combining of resources by licensees or other persons to alleviate the costs associated with maintaining a principal place of business in this State. As such, any restriction is merely incidental and is no greater than necessary to further the Board s interest. As such, Claim Three should be dismissed. --

19 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of 0 0. Castillo s Complaint Fails to state a Claim for a Violation of the First Amendment of the United States Constitution In his last claim for relief, Castillo alleges that the definition of private investigator is facially overbroad and thus a violation of his First Amendment right to free speech. Dkt. p. at. A statute is facially overbroad if it prohibits a substantial amount of protected speech. U.S. v. Williams, U.S., (00. A statute that is overbroad chills speech by the threatened enforcement of the statute will deter people from engaging in protected speech prohibiting the exchange of ideas between people. Williams, U.S. at. In determining whether a statute is overbroad, a court must first analyze what the statute covers. Id. at. Once the statute has been construed, a court must then look to see if the statute criminalizes a substantial amount of protected expressive activity. Id. at. In this case, as previously stated, the statute at issue does not regulate any speech it regulates conduct. Even if it could be argued that there is an aspect of speech that is regulated, it is not a substantial amount of protected activity. NRS.0 needs to include the types of acts, which the Board feels are rationally within the acts, which a private investigator would perform. Accordingly, NRS.0 is not facially overbroad and Claim Four should be dismissed. C. Substitution of James Colbert for Richard Putnam is Warranted Pursuant to FRCP (d an action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer s successor is automatically substituted as a party. Later proceedings should be in the substituted party s name... In this case, Richard Putnam is no longer a member of the Board. He tendered his resignation on July, 0, and was succeeded by James Colbert on October, 0. Substitution of James Colbert for Richard Putnam is proper pursuant to FRCP (d. --

20 Case :-cv-00-gmn-pal Document Filed 0/0/ Page 0 of V. CONCLUSION For the foregoing reasons, the Nevada Private Investigator s Licensing Board respectfully requests that this Court grant its Motion to Dismiss as a matter of law on all claims contained in Plaintiff s Complaint. The Board further requests that this Court award the Board reasonable attorney s fees and costs in this action and any other relief that the Court deems just and proper. DATED this 0th day of June, 0. CATHERINE CORTEZ MASTO Attorney General 0 0 By: -0- /s/ Colleen L. Platt COLLEEN L. PLATT Nevada State Bar # Deputy Attorney General 00 North Carson Street Carson City, Nevada 0 ( Attorneys for Nevada State Defendants, Kevin Ingram, Mark Zane, David Spencer, James Nadeau; Robert Uithoven; James Colbert

21 Case :-cv-00-gmn-pal Document Filed 0/0/ Page of CERTIFICATE OF SERVICE I, Sandra Geyer hereby certify I am an employee of the Office of the Attorney General and that on 0th, June, 0, I electronically filed the foregoing Motion to Dismiss with the Clerk of the Court for the United States District of Nevada by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system. /s/ Sandra Geyer SANDRA GEYER

22 Kiren Mathews From: Sent: To: Subject: Tuesday, June 0, 0 :0 PM cmecfhelpdesk@nvd.uscourts.gov Activity in Case :-cv-00-gmn-pal Castillo v. Ingram et al Motion to Dismiss This is an automatic message generated by the CM/ECF system. Please DO NOT RESPOND to this because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 0 page limit do not apply. Notice of Electronic Filing United States District Court District of Nevada The following transaction was entered by Platt, Colleen on /0/0 at :0 PM PDT and filed on /0/0 Case Name: Castillo v. Ingram et al Case Number: :-cv-00-gmn-pal Filer: Kevin Ingram James Nadeau Richard Putnam David Spencer Robert Uithoven Mark Zane Document Number: Docket Text: MOTION to Dismiss by Defendants Kevin Ingram, James Nadeau, Richard Putnam, David Spencer, Robert Uithoven, Mark Zane. Responses due by //0. Certificate of Interested Parties due by /0/0. Discovery Plan/Scheduling Order due by //0. (Platt, Colleen :-cv-00-gmn-pal Notice has been electronically mailed to: Anastasia Paulinna Boden apb@pacificlegal.org, incominglit@pacificlegal.org, tae@pacificlegal.org Colleen Lelani Platt CPlatt@ag.nv.gov, sgeyer@ag.nv.gov Lee I. Iglody lee@iglody.com, patty@iglody.com Timothy Sandefur tms@pacificlegal.org, bas@pacificlegal.org, IncomingLit@pacificlegal.org

23 :-cv-00-gmn-pal Notice has been delivered by other means to: The following document(s are associated with this transaction: Document description:main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfstamp_id=00 [Date=/0/0] [FileNumber=0-0 ] [0f0f0fbefcdccaacedc0ceefb0 bfaeecdacb0e0fcbabebadbefc]]