United States District Court, D. Nevada
J. Dawson United S District Judge.
before the Court is Defendant's Partial Motion to Dismiss
(#5). Plaintiff filed a response in opposition (#10) to which
Defendant replied (#13).
Noelle Gage claims that within the four years prior to filing
her complaint, Defendant Cox Communications, Inc.
(“Cox”) made numerous calls to her cellular
phone. Though Plaintiff informed Defendant that it was
calling the wrong person, Plaintiff says that the calls
continued. Plaintiff claims that Defendant uses an automated
telephone dialer system to call her cellular phone, without
her consent, thereby violating the Telephone Consumer
Protection Act (“TCPA”). 47 U.S.C. § 227.
complaint, Plaintiff alleges violations of the TCPA as well
as Nevada's Deceptive Trade Practice Act
(“NDTPA”). The NDTPA lists “[r]epeatedly or
continuously conduct[ing] [a] solicitation or presentation in
a manner that is considered by a reasonable person to be
annoying, abusive or harassing” as a “deceptive
trade practice.” N.R.S. § 598.0918(2). Plaintiff
claims that Defendant's harrassing phone calls violated
the NDTPA and therefore she is entitled to relief for
consumer fraud per N.R.S. § 41.600(e). Defendant moves
to dismiss Plaintiff's NDTPA claims on the grounds that
section 598 only applies to the sale of goods and services,
and that Plaintiff has not made sufficient factual
allegations to support a claim of consumer fraud.
may dismiss a plaintiff's complaint for “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” F.R.C.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands more than “labels and
conclusions or a formulaic recitation of the elements of a
cause of action.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citations omitted). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. Thus, “[to]survive a motion to dismiss, a
complaint must contain sufficient factual matter to
‘state a claim for relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (citation
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pled factual allegations in the complaint;
however, legal conclusions or mere recitals of the elements
of a cause of action, supported only by conclusory
statements, are not entitled to the assumption of truth.
Id. at 678. Second, a district court must consider
whether the factual allegations in the complaint allege a
plausible claim for relief. Id. at 679. A claim is
facially plausible when the plaintiff's complaint alleges
facts that allow the court to draw a reasonable inference
that the defendant is liable for the alleged misconduct.
Id. at 678. Further, where the complaint does 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. at 679 (internal quotation marks omitted). Thus,
when the claims in a complaint have not crossed the line from
conceivable to plausible, the complaint must be dismissed.
Twombly, 550 U.S. at 570. Moreover, “[a]ll
allegations of material fact in the complaint are taken as
true and construed in the light most favorable to the
non-moving party.” In re Stac Elecs. Sec.
Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (citation
has a stricter pleading standard under Rule 9, which requires
a party to “state with particularity the circumstances
constituting fraud.” Fed.R.Civ.P. 9(b); Nev. R. Civ. P.
9(b). Pleading fraud with particularity requires “an
account of the time, place, and specific content of the false
representations, as well as the identities of the parties to
the misrepresentations.” Swartz v. KPMG LLP,
476 F.3d 756, 764 (9th Cir. 2007); see also Morris v.
Bank of Nev., 886 P.2d 454, 456, n.1 (Nev.1994). Fraud
claims against corporate or business entities require
allegations that specifically identify names of individuals
who made the misrepresentation, that they had authority to
speak for the corporation, and what was said or written and
when. Smith v. Accredited Home Lenders, 2016 WL
1045507, at *2 (D. Nev. 2016).
asserts that Plaintiff has failed to state a claim for which
relief can be granted in regards to her third cause of
action. Plaintiff alleges that Defendant's harassing
phone calls violated the NDTPA and she seeks damages for
consumer fraud. Defendant argues that the NDTPA only applies
to the sale of goods and services and is therefore not
applicable to Defendant's calls, which were for debt
collection purposes. Additionally, Defendant argues that
Plaintiff has not met the heightened pleading standard for
her claims of consumer fraud.
The NDTPA Only Applies to the Sale of Goods and
argues that Plaintiff's third cause of action should be
dismissed because the NDTPA only applies to the sale of goods
and services. Plaintiff contends that while some sections of
NRS § 598 only apply to the sale of goods and services,
NRS § 598.0918(2) is not one of those sections. However,
this Court has previously held that the entirety of Section
§ 598 only applies to transactions involving goods and
services. Alexander v. Aurora Loan Services, 2010 WL
2773796, *2 (D. Nev. July 8, 2010); see also Archer v.
Bank of America Corp., 2011 WL 6752562, *2 (D. Nev.
December 23, 2011). Additionally, N.R.S. § 80.015(1)(h)
states that the act of “securing or collecting
debts” does not constitute doing business in Nevada and
is therefore not applicable to the NDTPA. See Baeza v.
Bank of America N.A., 2012 WL 4062809, *4 (D. Nev.
September 14, 2012). Plaintiff has not plead that
Defendant's phone calls involved the sale of goods or
services. In fact, Plaintiff concedes that the calls were in
regards to debt collection. Therefore, the NDTPA does not
grant Plaintiff a right to relief. Alexander, 2010
WL 2273796 at *2. Plaintiff's third cause of action under
the NDTPA is dismissed.
Plaintiff's claims of fraud are not ...