United States District Court, D. Nevada
LLOYD D. GEORGE, District Judge.
The plaintiff, Elie Harfouche, brought this suit against defendants Joseph Rahi, Haifa Wehbe, Youssef Harb, Maroun Abiaad, Stars on Tour, Inc., and La Vedette Productions, Inc., for breach of contract, unjust enrichment, tortious interference with contract, and tortious interference with prospective business advantage. Abiaad, La Vedette, and Stars on Tour have moved to dismiss, or alternatively for summary judgment (## 14, 16). Harfouche did not file an opposition, but instead moved to stay this action (#26). Abiaad, La Vedette, and Stars on Tour have opposed the motion to stay (#32), as has Rahi (#29). The Court will deny Harfouche's motion to stay, and will grant the motion to dismiss.
In addition, Wehbe has moved to quash service and dismiss this action (#39). Harfouche opposed the motion and cross-moved to either declare the service proper or order that Wehbe's attorney be appointed as an agent upon whom service can be processed (#41). The Court will grant Wehbe's motion, and deny Harfouche's cross-motion.
Motion to Stay
In his motion to stay, Harfouche asks this Court to stay this action to allow the District of New Jersey to have an opportunity to consider a motion to re-open a case there. As Harfouche has previously represented to this Court, he initiated the litigation in New Jersey in 2010. As Harfouche concedes, "the same case involving the same parties cannot and should not be litigated in two separate forums." The New Jersey litigation, however, was dismissed. That Harfouche has attempted to re-open the New Jersey litigation is not sufficient reason to stay this matter. Accordingly, the Court will deny his motion to stay.
Motion to Dismiss
The defendants' motion to dismiss, brought pursuant to Fed.R.Civ.P. 12(b)(6), challenges whether the plaintiff's complaint states "a claim upon which relief can be granted." In ruling upon this motion, the court is governed by the relaxed requirement of Rule 8(a)(2) that the complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." As summarized by the Supreme Court, a plaintiff must allege sufficient factual matter, accepted as true, "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Nevertheless, while a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id., at 555 (citations omitted). In deciding whether the factual allegations state a claim, the court accepts those allegations as true, as "Rule 12(b)(6) does not countenance... dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Further, the court "construe[s] the pleadings in the light most favorable to the nonmoving party." Outdoor Media Group, Inc. v. City of Beaumont, 506 F3.d 895, 900 (9th Cir. 2007).
However, bare, conclusory allegations, including legal allegations couched as factual, are not entitled to be assumed to be true. Twombly, 550 U.S. at 555. "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal 556 U.S. ___, 129 S.Ct. 1937, 1949 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id., at 1950. Thus, this court considers the conclusory statements in a complaint pursuant to their factual context.
To be plausible on its face, a claim must be more than merely possible or conceivable. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief." Id., (citing Fed. R. Civ. Proc. 8(a)(2)). Rather, the factual allegations must push the claim "across the line from conceivable to plausible." Twombly. 550 U.S. at 570. Thus, allegations that are consistent with a claim, but that are more likely explained by lawful behavior, do not plausibly establish a claim. Id., at 567.
The essence of the motion to dismiss filed by Abiaad, La Vedette, and Stars on Tour is that Harfouche's claims against them are barred by the statute of limitations, and that this Court lacks personal jurisdiction over these defendants. Harfouche did not file an opposition to the motion, instead filing only a motion to stay. The failure to file an opposition constitutes consent to having the motion granted. See, Local Rule 7-2(d). Nevertheless, even if Harfouche had filed an opposition, the Court would have granted the motion as it is meritorious.
As alleged in the complaint, Harfouche signed a contract with Wehbe in 2006. Harfouche alleges that, pursuant to this contract, Wehbe agreed to perform nine shows at locations in Canada and the United States. He further asserts they entered into an addendum to the contract in April 2007, in which they agreed the tour would occur in October and November 2007, and would include a show in Las Vegas. He alleges that, after he performed his obligations under the contract, Wehbe did not appear at any of the show dates in the United States. He further asserts that Wehbe entered into a contract (or contracts) with Abiaad, Harb, and Vedette for shows that conflicted with the show dates arranged by Harfouche, or made the shows arranged by Harfouche economically unfeasible.
In Nevada, claims for intentional interference with prospective business advantage and contractual relations are subject to the three-year statute of limitations in N.R.S. 11.190(3)(c). See, Stalk v. Mushkin, 125 Nev. 21, 22, 199 P.3d 838, 839 (2009). The Nevada Supreme Court explained that "[b]ecause we have determined that business interests are personal property, we conclude that intentional interference with these business interests are actions for taking personal property and not actions for injuries to a person." Id., at 842, citing Clark v. Figge, 181 N.W.2d 211, 216 (Iowa 1970) (concluding that a claim for interference in business relationships was "fundamentally proprietary in character although incidental injuries may have been of a different nature").
Under Nevada law, the statute of limitations begins to run "when the wrong occurs and a party sustains injuries for which relief could be sought." Petersen v. Bruen, 106 Nev. 271, 274, 792 P.2d 18 (1990). When a plaintiff has not discovered his injury or cause of injury at the time of its occurrence, the statute of limitations is tolled "until the injured party discovers or reasonably should have discovered facts supporting a cause of action." Id. However, when "uncontroverted evidence proves that the plaintiff discovered or should have discovered the facts giving rise to the claim, " such a determination can be made as a matter of law. Siragusa v. Brown, 114 Nev. 1384, 1393, 971 P.2d 801 (1998).
In Stalk, the Nevada Supreme Court noted that both parties offered various events as triggering the beginning of the limitations period on their claims for intentional interference with prospective advantage and contractual relations. The court selected the date occurring last in time, which was the date that plaintiff was terminated from the subject contract. See, 199 P.3d at 842. This district court has previously acknowledged that Nevada does not have case law directly on point as to when an interference with contractual relations claim accrues, but held "that a tortious interference with contractual relations claim does not accrue unless there is actual disruption of the contract, whether it is anticipatory or immediate." Treasury Solutions Holdings, Inc. v. Upromise, Inc. 3:10-CV-00031-ECR, 2012 WL 40462 (D. Nev. Jan. 6, 2012). Thus, in Treasury Solutions, ...