United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
Pending before the Court is the Motion to Dismiss (ECF No. 40) filed by Defendants Harris Corporation; M/A Com, Inc.; TE Connectivity Inc.; TE Connectivity Ltd.; TE Connectivity Networks, Inc.; Tyco Electronics Corporation; and Tyco Electronics, Ltd. (collectively, "Defendants"). Plaintiff Las Vegas Metropolitan Police Department ("Plaintiff" or "LVMPD") filed a Response (ECF No. 13) and Defendants filed a Reply (ECF No. 16).
This case arises from a contract (the "Contract") between Plaintiff and Defendant M/A Com, Inc. ("M/A-Com"), under which M/A-Com, in a response to Plaintiff's request for proposals, agreed to replace Plaintiff's radio communication system. (Second Am. Compl. ¶¶ 10, 40, ECF No. 35). In the proposal and the contract, M/A COM represented that the new radio system would be "state of the art" and "would, among other things, provide redundancies, reliability, maintainability and interoperability." ( Id. ¶ 16). However, Plaintiff now alleges that, after several years of development and several million dollars spent, Defendants delivered inoperability, rather than the promised "interoperability." ( Id. ¶ 51 ("Once constructed, extensive problems have been encountered with respect to the radio system infrastructure, radios, consoles and/or the recording system.")). Furthermore, despite notifying Defendants and providing opportunities for Defendants to cure the problems, the radio system is still defective and "is effectively useless." ( Id. ¶¶ 57-62, 81).
As a result of these alleged breaches of the contract, Plaintiff initiated the instant action in state court. ( See Am. Compl., ECF 1-2). Thereafter, Defendants removed the action to this Court, (Notice of Removal, ECF No. 1), and filed a Motion to Dismiss, (ECF No. 9), in which the Court dismissed Plaintiff's Misrepresentation Claims, but gave Plaintiff leave to amend its Fraudulent Misrepresentation claim (Order, ECF No. 34). Subsequently, Plaintiff filed its Second Amended Complaint (ECF No. 35), and Defendants filed the instant Motion to Dismiss (ECF No. 40).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).
If the court grants a motion to dismiss, it must then decide whether to grant leave to amend. The court should "freely give" leave to amend when there is no "undue delay, bad faith[, ] dilatory motive on the part of the movant... undue prejudice to the opposing party by virtue of... the amendment, [or] futility of the amendment...." Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
Defendants assert that Plaintiff's following claims should be dismissed: (1) Fraud; (2) Breach of Implied Warranties; (3) Declaratory Relief; and (4) Unjust Enrichment. (Mot. to Dismiss 10:8-12:8). Defendants also request the Court to take judicial notice of court documents filed in other courts. ( Id. 11:2 n.2). The Court will first address Defendants' judicial notice request and then address each claim in turn.
A. Judicial Notice
Review on a motion pursuant to Fed.R.Civ.P. 12(b)(6) is normally limited to the complaint itself. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). If the district court relies on materials outside the pleadings in making its ruling, it must treat the motion to dismiss as one for summary judgment and give the non-moving party an opportunity to respond. Fed.R.Civ.P. 12(b); see United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). "A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment." Ritchie, 342 F.3d at 908.
Additionally, if adjudicative facts or matters of public record meet the requirements of Fed.R.Evid. 201, a court may judicially notice them in deciding a motion to dismiss. Id. at 909; see Fed.R.Evid. 201(b) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."); see also Carstarphen v. Milsner, 594 F.Supp.2d 1201, 1207 (D. Nev. 2009).
"Court orders and filings are the type of documents that are properly noticed under [Rule 201(b)]." Neilson v. Union Bank of Cal., 290 F.Supp.2d 1101, 1112 (C.D. Cal. 2003). In particular, courts may take judicial notice of proceedings of other courts if those proceedings have a "direct relation to matters at issue." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 971 F.2d 244, 248 (9th Cir. 1992) (citations omitted). However, "[a]s a general rule, a court may not take judicial notice of proceedings or records in another cause so as to supply, without formal introduction of evidence, facts essential to support a contention in a cause then before it." M/V American Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983). Nonetheless, the court can take judicial notice of these documents for the "limited purpose of recognizing the judicial act' that the order represents on the subject matter of litigation." Neilson, 290 F.Supp.2d at 1112 (quoting United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994)).
Defendants request that the Court take judicial notice of various documents from a previous action involving LVMPD and Motorola, Inc. ("the Motorola litigation"), including briefs filed by LVMPD and transcripts from hearings and trial. (Mot. to Dismiss 11:2 n.2). Given that these documents are a matter of public record, the Court takes judicial notice. However, the Court notes that it only takes judicial notice of the existence of these documents and not for the truth of any disputed facts therein. See San Luis v. Badgley, 136 F.Supp.2d 1136, 1146 (E.D. Cal. 2000) (a court "may take judicial notice of a document filed in another court not for the truth of the matters asserted in the litigation, but rather to establish the fact of such litigation and related filings" (citation omitted)); see also Miglin v. Mellon, 2:08-CV-01013-LRH-PA, 2009 WL 3719457, at *2 (D. Nev. Nov. 4, 2009) (taking judicial notice of documents for their existence and not for the truth of any disputed fact therein). Therefore, to the extent that the contents of these documents conflict with the factual allegations of Plaintiff's Second Amended Complaint, the Court will take as true the factual allegations of the Second Amended Complaint. See, e.g., Lee, 250 F.3d at 690.
Additionally, Defendants request that the Court take judicial notice of various documents referenced in Plaintiff's Second Amended Complaint. (Mot. to Dismiss 11:2 n.2). To the extent that these documents are referenced in Plaintiff's Second Amended Complaint, the Court will consider these documents.
Plaintiff's first claim for relief alleges that "Defendants made numerous false representations, " "Defendants intended to induce LVMPD to rely upon the representations, " and "LVMPD justifiably relied upon Defendants' representations." (Second Am. Compl. ¶¶ 100, 105-06). Defendants assert that Plaintiff's claim fails for the following reasons: (1) Plaintiff's allegations only amount to a standard breach of contract claim; (2) Plaintiff's failed to allege how it justifiably relied on the statements at issue; (3) Plaintiff failed to identify who relied on the statements at issue or how the statements were false when made; (4) the statements at issue of future conduct, opinions, estimates, and sales talk do not constitute actionable representations under Nevada law; (5) to the extent Plaintiff's claim is premised on a fraudulent concealment theory, it is not legally viable; and (6) Nevada's three-year statute ...