United States District Court, D. Nevada
before the court is defendant Paris Las Vegas Operating
Company, LLC's (“Paris”) motion to dismiss.
(ECF No. 9). Plaintiff TPOV Enterprises 16, LLC (“TPOV
16”) filed a response (ECF No. 11), to which Paris
replied (ECF No. 12).
a breach of contract case involving a restaurant in the Paris
Hotel & Casino in Las Vegas. TPOV 16 alleges Paris
breached a contract with TPOV 16 when it terminated the
contract and continues to operate “Gordon Ramsay
Steak” (“GR Steak”). (ECF No. 1). The
contract was assigned to TPOV 16 by its
predecessor-in-interest, TPOV Enterprises, LLC (“TPOV
Enterprises”). (ECF No. 1 at 7).
November 2011, TPOV Enterprises and Paris entered into a
development and operation agreement (“TPOV
agreement”). (ECF No. 1 at 2). Under the TPOV
agreement, TPOV Enterprises was to provide $1, 000, 000.00 of
capital and services for the design, development,
construction, and operation of a restaurant, GR Steak, inside
the Paris Hotel. (ECF No. 1). In exchange, TPOV Enterprises
and Paris agreed upon a structure by which profits were
disbursed and payments were provided. (ECF No. 1 at 5-6). As
a condition precedent to entering into the TPOV agreement,
Paris entered into an agreement with celebrity chef Gordon
Ramsay (“Ramsay”) “relating to the design,
development, construction, and operation of [GR Steak]”
(“Ramsay agreement”), under which Ramsay would be
paid a percentage of the gross restaurant sales. (ECF No. 1
Seibel was a member of TPOV Enterprises at the time of the
TPOV agreement, and later pleaded guilty to one count of
obstructing or impeding the due administration of the
internal revenue laws under 26 U.S.C. § 7212(a). (ECF
No. 1 at 3). After Mr. Seibel pleaded guilty, TPOV
Enterprises allegedly assigned its interests under the TPOV
agreement to TPOV 16, and “the direct or indirect
membership interests in TPOV Enterprises held by Mr. Seibel
would be assigned to The Seibel Family 2016 Trust.”
(ECF No. 1 at 7). Paris was allegedly notified of this and
did not object. (ECF No. 1 at 7-8). Several months later,
Paris terminated the TPOV agreement. (ECF No. 1 at 8). The
purported termination was allegedly based on Paris's
“rejection of the transfer to TPOV 16 and to the
alleged unsuitability of Mr. Seibel.” (ECF No. 1 at 8).
February 3, 2017, TPOV 16 filed the underlying complaint,
alleging five claims for relief: (1) breach of contract; (2)
breach of the covenant of good faith and fair dealing; (3)
unjust enrichment; (4) declaratory relief; and (5)
accounting. (ECF No. 1).
instant motion, Paris moves to dismiss under Federal Rule of
Civil Procedure 12(b)(1) and (6), as well as Rule 12(b)(7)
for failure to join Gordon Ramsay and Gordon Ramsay Holdings
(“GRH”) as necessary parties. (ECF No. 9). The
court will address each as it sees fit.
Subject Matter Jurisdiction
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
1989). Thus, federal subject matter jurisdiction must exist
at the time an action is commenced. Mallard Auto. Grp.,
Ltd. v. United States, 343 F.Supp.2d 949, 952 (D. Nev.
2004) (citing Morongo Band of Mission Indians v. Cal.
State Bd. of Equalization, 858 F.2d 1376, 1380 (9th
Rule of Civil Procedure 12(b)(1) allows defendants to seek
dismissal of a claim or action for a lack of subject matter
jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule
12(b)(1) is appropriate if the complaint, considered in its
entirety, fails to allege facts on its face sufficient to
establish subject matter jurisdiction. In re Dynamic
Random Access Memory (DRAM) Antitrust Litig., 546 F.3d
981, 984-85 (9th Cir. 2008).
the defendant is the moving party in a 12(b)(1) motion to
dismiss, the plaintiff is the party invoking the court's
jurisdiction. As a result, the plaintiff bears the burden of
proving that the case is properly in federal court to survive
the motion. McCauley v. Ford Motor Co., 264 F.3d
952, 957 (9th Cir. 2001) (citing McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)). More
specifically, the plaintiff's pleadings must show
“the existence of whatever is essential to federal
jurisdiction, and, if [plaintiff] does not do so, the court,
on having the defect called to its attention or on
discovering the same, must dismiss the case, unless the
defect be corrected by amendment.” Smith v.
McCullough, 270 U.S. 456, 459 (1926).
moving to dismiss under Rule 12(b)(1), the challenging party
may either make a “facial attack, ” confining the
inquiry to challenges in the complaint, or a “factual
attack” challenging subject matter on a factual basis.
Savage v. Glendale Union High Sch., 343 F.3d 1036,
1039 n.2 (9th Cir. 2003). For a facial attack, the court
assumes the truthfulness of the allegations, as in a motion
to dismiss under Rule 12(b)(6). Trentacosta v. Frontier
Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th
Cir. 1987). By contrast, when presented as a factual
challenge, a Rule 12(b)(1) motion can be supported by
affidavits or other evidence outside of the pleadings.
United States v. LSL Biotechs., 379 F.3d 672, 700
n.14 (9th Cir. 2004) (citing St. Clair v. City of
Chicago, 880 F.2d 199, 201 (9th Cir. 1989)).
Failure to State a Claim
court 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.” Fed.R.Civ.P. 8(a)(2). Although rule 8 does not
require detailed factual allegations, it does require more
than labels and conclusions. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Furthermore, a
formulaic recitation of the elements of a cause of action
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009) (citation omitted). Rule 8 does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions. Id. at 678-79.
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Id. A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. When a complaint pleads facts that are
merely consistent with a defendant's liability, and shows
only a mere possibility of entitlement, the complaint does
not meet the requirements to show plausibility of entitlement
to relief. Id.
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering a
motion to dismiss. Id. First, the court must accept
as true all of the allegations contained in a complaint.
However, this requirement is inapplicable to legal
conclusions. Id. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Id. at 678. Where the complaint does not
permit the court to infer more than the mere possibility of
misconduct, the complaint has “alleged - but not shown
- that the pleader is entitled to relief.” Id.
at 679. When the allegations in a complaint have not crossed
the line from conceivable to plausible, plaintiff's claim
must be dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court held:
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued