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Ames v. Caesars Entertainment Corp.

United States District Court, D. Nevada

April 1, 2019

JAY AMES, Plaintiff,


          Gloria M. Navarro, Chief Judge

         Pending before the Court is the Motion to Dismiss, (ECF No. 25), filed by Defendant Rio Properties, LLC (“Defendant”). Plaintiff Aaron Leigh-Pink and Tana Emerson (collectively, “Plaintiffs”) filed a Response, (ECF No. 26), and Defendant filed a Reply, (ECF No. 27). For the reasons discussed below, Defendant's Motion to Dismiss is GRANTED.

         I. BACKGROUND

         This case arises from alleged violations of the Nevada Deceptive Trade Practices Act (“NDTPA”) and other state-based claims. (See Am. Second Compl. (“SAC”) ¶¶ 30-89, ECF No. 22). Plaintiffs' allegations are as follow. Defendant owns and operates the Rio All-Suite Hotel and Casino (“Rio”), located in Las Vegas, Nevada. (Id. ¶ 1). Plaintiff Leigh-Pink was a guest at the Rio, in May and September 2017. (Id. ¶ 11). Plaintiff Emerson was a guest at the Rio in June 2017. (Id. ¶ 13). Plaintiffs did not pay “room rates” for their respective hotel rooms; their stays were “comp'ed” (i.e., complimentary). (See Id. ¶¶ 9, 35). However, Plaintiffs paid a “resort fee” of $34.01 per night, which according to Defendant, pays for internet use, telephone use, and fitness room access for two hotel guests. (Id.); (Mot. to Dismiss (“MTD”) 2:14-16, ECF No. 22).

         Plaintiffs further allege that from May 1, 2017, to “at least” September 28, 2017, Defendant knew that the Rio's water system was infected with legionella bacteria, which causes legionnaires disease, a potentially deadly bacterial disease. (See, e.g., id. ¶ 37, 47). More specifically, Plaintiffs allege that on May 1, 2017, the Southern Nevada Health District (“SNHD”) notified Defendant of a report that two guests who stayed at the Rio in March and April 2017 developed legionnaires disease after staying at the Rio. (Id. ¶ 2). Over the next few days, SNHD representatives corresponded and met with Defendant's representatives, and “discussed the fact that SNHD would be conducting a legionella investigation of the [Rio] hotel.” (Id. ¶¶ 3, 4). Further, Defendant's representatives were shown a PowerPoint presentation “to educate” them “on the seriousness of the situation and the health risks to guests of the hotel.” (Id. ¶ 4).

         Plaintiffs do not allege that they contracted or developed legionnaires disease as a result of their stay at the Rio. Instead, Plaintiffs allege that “they relied justifiably on Defendant's concealment/omission when they stayed at the [Rio]” and that they “suffered harm and damages” in that they “parted ways with their money by paying . . . the Resort Fee of $34.01 per day, ” when Plaintiffs “either would have not stayed at the [Rio] at all . . ., or alternatively, paid Defendant amounts greater than what a room and facilities in a hotel with legionella bacteria in the water system is fairly and reasonably worth to the average consumer.” (See, e.g., id. ¶¶ 35, 38, 45, 48).

         On October 11, 2017, Plaintiffs filed a class action against Defendant in Clark County District Court. (Compl., ECF No. 1-1). In December 2017, Plaintiffs filed their First Amended Complaint. Defendants removed to federal court pursuant to the Class Action Fairness Act. (Pet. Removal, ECF No. 1). On March 1, 2018, Plaintiffs filed a Second Amended Complaint setting forth the following claims against Defendant: (1) violation of Nevada Revised Statute (“NRS”) § 205.377; (2) violation of NDTPA; (3) violation of Nevada's Racketeer Influenced and Corrupt Organizations Act (“RICO”); (4) negligence; (5) fraudulent concealment; (6) unjust enrichment; and (7) declaratory relief. (SAC ¶¶ 30-89). Defendant now moves to dismiss Plaintiffs' Second Amended Complaint.


         Rule 12(b)(6) of the Federal Rules of Civil Procedure mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See North 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) (emphasis added). In order to survive a motion to dismiss, a complaint must allege “sufficient factual matter, accepted as true, 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.

         “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Fed. R. Civ. P. 12(d); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

         If the court grants a motion to dismiss, it must then decide whether to grant leave to amend. Pursuant to Rule 15(a), the court should “freely” give leave to amend “when justice so requires, ” and in the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” 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).


         In the instant Motion, Defendant contends Plaintiffs' Second Amended Complaint should be dismissed because it is “populated by conclusory allegations rather than the specific factual averments needed to support the claims asserted.” (MTD 3:8-10, ECF No. 25). Defendant sets forth several arguments supporting its contention, including that Plaintiffs did not suffer damages, that they failed to plead their fraud-based claims with particularity as mandated by the Federal Rules of Civil Procedure, and that Plaintiffs fail to allege a predicate violation for their Nevada RICO claim, among others. (See generally Compl.). Plaintiffs respond that their Second Amended Complaint “sufficiently alleges the who, what, where and when about Defendant's fraudulent conduct of concealing material facts from guests, their knowledge of the presence of legionella bacteria in the [Rio's] water system, and properly alleges facts supporting each of the causes of action[.]” (Resp. 3:20-23, ECF No. 26).

         The Court now addresses the sufficiency of Plaintiffs' claims, starting with those that require an element of damages.

         A. Nevada Deceptive ...

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