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Resort Props. of America, Inc. v. Westgate Resorts, Inc.

United States District Court, D. Nevada

December 1, 2014

RESORT PROPERTIES OF AMERICA, INC., Plaintiff(s),
v.
WESTGATE RESORTS, INC., et al., Defendant(s)

For Resort Properties of America, Inc., Plaintiff: Adam K. Bult, LEAD ATTORNEY, Brownstein Hyatt Farber Schreck, Las Vegas, NV; Jeffrey S. Rugg, LEAD ATTORNEY, Brownstein Hyatt Farber Schreck LLP, Las Vegas, NV.

For Westgate Resorts, Inc., Westgate Resorts Ltd., Central Florida Investments, Inc., Defendants: Brian R. cummings, Robin S Trupp, LEAD ATTORNEYS, Greenspoon Marder, P.A., Tampa, FL; Michael E Marder, LEAD ATTORNEY, PRO HAC VICE, Greenspoon Marder, PA, Orlando, FL; Richard W. Epstein, LEAD ATTORNEY, PRO HAC VICE, Greenspoon Marder, P.A., Fort Lauderdale, FL; James E Smyth, II, Kaempfer Crowell Renshaw Gronauer & Fiorentino, Las Vegas, NV.

ORDER

James C. Mahan, UNITED STATES DISTRICT JUDGE.

Presently before the court is a motion to dismiss or alternatively, for a more definite statement, filed by defendants Central Florida Investments, Inc., Westgate Resorts Ltd., and Westgate Resorts, Inc. (hereinafter " defendants" or " Westgate"). (Doc. # 19). Plaintiff Resort Properties of America, Inc. (hereinafter " plaintiff" or " RPA") filed a response, (doc. # 25), and defendants filed a reply, (doc. # 28).

Also before the court is defendants' request for judicial notice. (Doc. # 18).

I. Background

Resort Properties of America, Inc. (" RPA") provides real estate services to clients looking to purchase and sell hotels, casinos, and resorts in Las Vegas, Nevada. (Doc. # 1). David Atwell served as RPA's president until he died in November 2013. (Doc. # 1). Mr. Atwell was a licensed real estate broker. Mr. Atwell's daughter, Heather Atwell, took over as RPA's president when her father died. (Doc. # 1).

In or before September 2011, Westgate contracted with RPA for assistance in acquiring a hotel or resort property in Las Vegas. (Doc. # 1). RPA contacted the owners of several properties in Las Vegas on Westgate's behalf, including the owners of the Las Vegas Hilton (" LVH") property at 3000 Paradise Road, Las Vegas, Nevada. (Doc. # 1).

Mr. Atwell corresponded periodically with David Siegel of Westgate. (Doc. # 1). Mr. Atwell represented Mr. Siegel and Westgate in discussions with potential sellers. (Doc. # 1). Through the end of 2011 and early 2012, Mr. Atwell communicated with representatives of LVH on Westgate's behalf to pursue a purchase. (Doc. # 1). Mr. Atwell and Mr. Siegel also discussed the possibility of alternative properties to purchase, including the Riviera. (Doc. # 1). In April 2013, RPA became aware that Westgate had reached an agreement to purchase the LVH property. (Doc. # 1).

In May 2013, Mr. Atwell followed up with Mr. Siegel regarding the commission owed for Westgate's purchase of the LVH property. (Doc. # 1). Beginning in December 2013, Heather Atwell communicated with Westgate regarding financing options for Westgate's LVH property purchase and a potential partnership with another of RPA's clients. (Doc. # 1).

On February 20, 2014, Westgate and RPA entered into a fee agreement in which Westgate promised to pay a 1% commission of the price or valuation of any purchased property. (Doc. # 1). Soon thereafter, Westgate chose not to pursue RPA's proposed partnership or financing. In May 2014, Mr. Siegel acknowledged to Heather Atwell that it owed a commission on the LVH purchase. (Doc. # 1).

On July 2, 2014, Westgate announced its purchase of the LVH property. (Doc. # 1). RPA contends that the purchase price was $150 million or more. (Doc. # 1). Westgate now refuses to pay any commission to RPA. (Doc. # 1).

Plaintiff filed the instant action in Nevada state court on August 11, 2014, asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, quantum meruit, and fraud. (Doc. # 1). Defendants removed the action on September 8, 2014, on diversity grounds. (Doc. # 1).

Defendants then filed this motion to dismiss or, alternatively, for a more definite statement. (Doc. # 19). Defendants also request that the court take judicial notice of RPA's articles of incorporation, David and Heather Atwell's certificates of real estate licensure, and a letter from a State of Nevada real estate audit investigator. (Doc. # 18). ...


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