United States District Court, D. Nevada
M. Navarro, Chief Judge
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.
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).
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).
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).
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.
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.
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.
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).
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
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).
Court now addresses the sufficiency of Plaintiffs'
claims, starting with those that require an element of
Nevada Deceptive ...