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Tropicana Entertainment, Inc. v. N3A Manufacturing, Inc.

United States District Court, D. Nevada

April 5, 2017




         Before the court is defendants N3A Manufacturing, Inc., d/b/a Hotelure, Inc. (“Hotelure”); Niall Alli; Adrienne Alli; Richard Bennett; Jay Kalman; and Joseph Rizzo's (collectively “individual defendants”) motion to dismiss plaintiff Tropicana Entertainment Inc.'s (“Tropicana”) first amended complaint (ECF No. 3). ECF No. 26. Tropicana filed an opposition to the motion (ECF No. 32) to which defendants replied (ECF No. 34).

         I. Facts and Procedural Background

         At its core, this is a breach of contract action. Plaintiff Tropicana owns and operates a number of hotels, resorts, and casinos throughout the world. As part of its business operations, Tropicana operates an online supplier portal known as SWS Direct. The supplier portal allows the Tropicana to procure goods and services directly from registered vendors. Prior to transacting business on SWS Direct, each vendor must submit a verified registration packet. As part of the registration packet, each vendor agrees to certain contractual terms and conditions.[1] All purchases and sales through SWS Direct are conducted via purchase orders. Each purchase order also contains certain terms and conditions including the specific condition that each individual signing on behalf of a vendor expressly warrants and represents that he or she has the power and authority to bind the vendor to the agreement.

         Defendant Hotelure is a company which supplies various hotel goods and furnishings. On or about April 3, 2014, Hotelure submitted a verified vendor registration packet and became a registered vendor on SWS Direct. ECF No. 3, Ex. 1. Thereafter, on six different occasions from April through September 2015, Tropicana submitted purchase orders to Hotelure through SWS Direct for the purchase of hotel furniture and equipment. See ECF No. 3, Exs. 3-6. On each occasion, Hotelure issued a confirming invoice accepting each purchase order and requesting either full or partial payment of the order prior to delivery. In satisfaction of each purchase order, the Tropicana submitted payments in excess of $1, 700, 000.00 directly to Hotelure which were accepted and deposited. However, Hotelure allegedly failed to deliver the contracted goods.

         On May 17, 2016, Tropicana filed a complaint against defendants. ECF No. 1. Subsequently, on June 23, 2016, the Tropicana filed its first amended complaint against defendants alleging seven causes of action: (1) breach of contract; (2) violation of the Nevada Uniform Commercial Code (“Nevada UCC”); (3) breach of the implied covenants of good faith and fair dealing; (4) unjust enrichment; (5) conversion; (6) fraud and misrepresentation; and (7) negligent misrepresentation. ECF No. 3. Thereafter, defendants filed the present motion to dismiss. ECF No. 26.

         II. Legal Standard

         Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading standard. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That is, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations; however, a pleading that offers “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” will not suffice. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. at 1949 (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's judicial experience and common sense, that the defendant is liable for the misconduct alleged. See Id. at 1949-50. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. at 1949 (internal quotation marks and citation omitted).

         In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as true. Id. However, “bare assertions . . . amount[ing] to nothing more than a formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1951) (brackets in original) (internal quotation marks omitted). The court discounts these allegations because “they do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a factual allegation.” Id. (citing Iqbal, 129 S.Ct. at 1951.) “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id.

         III. Discussion

         A. Breach of Contract

         To plead a cause of action for breach of contract a plaintiff must allege: (1) the existence of a valid contract; (2) a breach of that contract by the defendant; and (3) damages resulting from that breach. See Saini v. Int'l Game Tech., 434 F.Supp.2d 913, 919-20 (D. Nev. 2006); Brown v. Kinross Gold U.S.A., Inc., 531 F.Supp.2d 1234, 1240 (D. Nev. 2008).

         In their motion to dismiss, defendants argue that there is no contract between Tropicana and the non-corporate individual defendants. See ECF No. 26. The court agrees. Here, the only contracts alleged in this action are those directly between Tropicana and Hotelure. There are no separately alleged individual contracts between Tropicana and the non-corporate individual defendants for the purchase of goods and furnishings. In fact, nowhere in the first amended complaint does the Tropicana even identify the individual defendants who allegedly signed the vendor registration packet or acknowledged the purchase orders. Rather, Tropicana simply uses the term “defendants” throughout the first amended complaint. See, e.g., ECF No. 3, ¬∂19 (‚ÄúDefendants ...

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