Phase II Chin, LLC et al v. Forum Shops, LLC et al

Filing 41

Phase II Chin, LLC et al v. Forum Shops, LLC et al

Doc. 41

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MORRIS PICKERING & PETERSON Kristina Pickering, No. 992 Jean-Paul Hendricks, No. 10079 900 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Caesars Palace Cor . and Caesars Palace Rea ty Corp.

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA PHASE I1 CHIN, LLC and LOVE & MONEY, LLC, (formerly dba O.P.M.L.V., LLC, Plaintiffs,
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) CASE NO. 2 ~ 0 8 - c ~ - CM-GWF 5 ) )

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FORUM SHOPS, LLC, FORUM DEVELOPERS LIMITED PARTNERSHIP, SIMON PROPERTY GROUP LIMITED PARTNERSHIP, SIMON PROPERTY GROUP, INC., CAESARS PALACE CORP., and CAESARS PALACE REALTY CORP., Defendants.
I. Introduction

) REPLY IN SUPPORT OF ) MOTION TO DISMISS THE ) CAESARS DEFENDANTS ) ) ) ) )

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The Court should grant the motion to dismiss filed by Caesars Palace Corporation and Caesars Palace Realty Corporation ("Caesars defendants"). As an initial housekeeping matter, the plaintiffs' separate oppositions (Dkt. No. 22, pp. 8-14; Dkt. No. 29; Dkt. No. 30), do not contest and therefore concede the Caesars defendants' point that the Complaint, fairly read, does not attempt to state any of its Causes of Action against them except the Fifth Cause of Action, entitled "Violation of 42 U.S.C. 9 1981," and the Seventh Cause

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of Action, entitled "Conspiracy." Accordingly, all claims in the Complaint against Caesars should be summarily dismissed except the Fifth and Seventh Causes of Action. See LR 7-2(d).' This is because, as plaintiffs also concede, plaintiffs have no contract with - and no contract rights against - the Caesars defendants. The plaintiffs' remaining Causes of Action, which the Forum defendants challenge in their separate motion to dismiss (Dkt. No. 12); arise under the Lease and the Lease Agreement. Caesars is not a party to either. Though plaintiffs argue otherwise, with no contract and no contract rights alleged with or against Caesars, the plaintiffs' Fifth Cause of Action, "Violation of 42 U.S.C. 5 1981,"fails as to the Caesars defendants as a matter of law and also should be dismissed as to them. In 2006, the United States Supreme Court reversed the Ninth Circuit's expansive reading of

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5 1981 -by which the

Ninth Circuit had reversed this Court's more faithful reading of the statute - and made clear that the sine qua non of a § 1981 claim is the assertion by the plaintiff of a contract right in a contract made or attempted to be made with a defendant. Domino's Pizza, Inc. v.McDonald, 546 U.S. 470 (2006). Reversing the Ninth Circuit and reinstating this Court's ruling, the Supreme Court wrote: "[Nlothing in the text of § 1981 suggests that it was meant to provide an omnibus remedy for all racial injustice. [It is] limited to situations involving contracts." Id. at 479 (emphasis in original). Consistent with the plain text of the statute, "Any claim brought under § 1981 . . . must identify an impaired 'contractual relationship,' § Caesars specifically moved to dismiss the Ei hth Cause of Action, entitled "Breach of Im lied Covenant of Good Faith and air Dealin Dkt. No. 20, p .2,7-8, noting t at it was unclear whether the plaintiffs inten ed to include the aesars entities as defendants to this claim or not. As the Caesars defendants established in their movin papers, since they are not a arty to nor do they owe an implied duty under the ease or Lease Amendment etween plaintiffs and the Forum defendants, there is no implied covenant claim as to Caesars. Plaintiffs' failure to oppose this point concedes it under LR 7-2(d).
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Caesars 'oins the Forum defendants' reply in support of their motion to dismiss, Dkt. No. 6, to the extent it applies to the issues in dispute between Caesars and the plaintiffs. 2

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198l(b), under which the plaintiff has rights." Id. at 476 (footnote omitted). It is an "explicit statutory requirement that the plaintiff be the 'perso[n]' whose 'right. . . to make and enforce contracts,' 5 1981(a),was 'impair[ed],' § 1981[c], on account of race." Id. at 478. "Section 1981 plaintiffs must identify injuries flowing from a racially motivated breach of their own contractual relationship, not of someone else's." Id. at 479. Citing pre-Domino's case law, the plaintiffs nonetheless insist that their 5 1981 claim against Caesars is sufficient. As the discussion that follows will show, it is not. Neither plaintiffs nor the prospective and/or actual but inconvenienced customers on whose behalf they purport to assert rights have a contract right, actual or prospective, to gain access to the plaintiffs' premises through Caesars after midnight, without arranging and paying for the extra security required. Without such a contract-based right, plaintiffs' 5 1981 claim against the Caesars defendants fails. Case after case has so held, on a variety of grounds, all applicable here. In addition, plaintiffs have failed to allege plausible facts, as required by Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007), to support either their Fifth Cause of Action, "Violation of 42 U.S.C. 5 1981," or Seventh Cause of Action, "Conspiracy." Plaintiffs improperly include a laundry list of grievances intended to scandalize the Court that are irrelevant to their 5 1981 claim because unrelated to any contract claim of right - and which the Caesars defendants thus have moved to strike under Rule 12(f). Plaintiffs rely on that list to establish their common law conspiracy claim. But as Twombly holds, conclusory allegations of evil animus or "concerted action" do not suffice. Specific, plausible facts establishing the conspiracy are required but wholly missing here. The common law conspiracy claim, equally with the legally insufficient properly should be dismissed.

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5 1981 claim, can and

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THE TWOMBLY STANDARD APPLIES Bell Atlantic v. Tzuombly, 127 S.Ct. 1955,1974 (2007), requires a

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complainant to plead "enough facts to state a claim to relief that is plausible on its

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face" (emphasis added). Although plaintiffs argue otherwise, Dkt. No. 29, p. 20,
the Ninth Circuit has applied Towmbly's "plausible on its face" standard in contexts other than the Sherman Act setting in which Twombly arose. In Maloney

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v. Scottsdale Insurance Co., 256 Fed. Appx. 29, "1(9th Cir. 2007), a breach of
contract case, the Court cited Twombly for the proposition that, while "a complaint need not contain detailed factual allegations . . . it must plead enough facts to state a claim to relief that is plausible on its face" (emphasis added). The Ninth Circuit reiterated this standard in Weber v. Department of Veterans Aflairs,
521 F.3d 1061,1065 (9th Cir. 2008), addressing a complaint for back pay and

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benefits and stating, again, that the claim to relief must be "plausible on its face.'6

Accord Angel v. Eldorado Casino, Inc., 2008 US Dist LEXIS 37491, *4-*5 (D. Nev.
April 25,2008) (citing Twombly for the proposition that a complaint must be "supported by showing enough facts to state a claim to relief that is plausible on its face" and "raise a right to relief above the speculative level"). "[A]plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65. As to Caesars, plaintiffs' complaint fails this standard.

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and requiring the pleader to "amplify a claim with some actual allegations when such amplification is needed to render a claim lausible")(em hasis in original); Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210,121 (10th Cir. 200 ) (adjusting the former Rule 12(b)(6)standard to comply with Twombly).

This holdin is clear1 in line with other Circuit Courts. Zqbal v. Hasty, 490 F.3d 143 (2d 8 r . 2007) radopting the Twombly lausibility standard

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111.

DISCUSSION
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The Complaint Fails to State a 5 1981 Claim Against Caesars.

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"Section 1981 prohibits discrimination in the making and enforcement of private contracts." Black Agents I3 Brokers Agency, Inc. v.Near

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North Ins. Brokerage, Inc., 409 F.3d 833,837 (7th Cir. 2005). As the first step in the
analysis, the plaintiff must identify the private contract at issue and the plaintiffs' and the defendants' relationship to it and to each other; absent such a relationship, the claim fails. Burnett v. Sharma, 511 F. Supp.2d 136,140-41 (D.D.C. 2007) (citing and analyzing Domino's). Next, "To state a claim under

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5 1981,

[plaintiffs] must allege facts in support of the following propositions: (1) [plaintiffs are] a member of a racial minority; (2) [the defendant] intended to discriminate on the basis of race; and (3) the discrimination deprived [plaintiffs] of one or more rights enumerated in § 1981, such as the making and enforcing of
a contract." Black Agents I3 Brokers Agency, 409 F.3d at 837. Here, plaintiffs have

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failed in each step.
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Plaintiffs Have No Contract with Caesars.

With no contract and no contract right, there is no § 1981 claim.

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Domino's Pizza, Inc. v.McDonald, 546 U.S. 470 (2006). Plaintiffs correctly note Domino's facts differ from those alleged here. Dkt. No. 22, pp. 9-10. In Domino's,
the plaintiff was an individual who owned a company allegedly discriminated against based on race in the making and enforcing of a contract; because the plaintiff did not have rights under the identified contract, his claims failed. But

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see infra 5 III.A.2 (here, plaintiffs have no contract right either; they are asserting
the rights of their patrons, deficiently). Caesars' point in citing Domino's, however, was not that the facts were on all fours with this case but that the law it states, and the reading it gives § 1981, apply here. Domino's holding is emphatic: "Any claim brought under § 1981 . . . must initially identify an impaired

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'contractual relationship,' 9 1981(b), under which the plaintiff has rights." 546

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U.S. at 476 (emphasis added).
Here, plaintiffs have identified no impaired contractual relationship with Caesars under which they have rights. This is fatal. The District of Columbia faced a similar situation in Burnett. The plaintiff there was an AfricanAmerican tenant who brought a § 1981 claim against her landlord, her landlord's attorney, and the District of Columbia, which had entertained her landlord's eviction proceedings against her. The Court began its analysis by quoting the following language from Domino's: "A plaintiff cannot state a claim under § 1981 unless she has (or would have) rights under the existing (or proposed) contract that she wishes to make and enforce. Section 1981 plaintiffs must identify injuries flowing from a racially motivated breach of their own contractual relationship." Burnett, 511 F. Supp.2d at 141. Because "nothing in her complaint even suggests the existence of an actual or proposed contractual agreement involving the District of Columbia" - the lease there, as here, was with her landlord - the Court granted the District's motion to dismiss. Id.

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Benton v. Cousins Properties, Inc., 230 F. Supp.2d 1351 (N.D.Ga. 2002),
is to like effect. The plaintiff in Benton was an African-American woman who operated a shoeshine stand in an office building managed by Cousins but whose conference and cafeteria facilities were managed by Marriott. Plaintiff separately contracted with Marriott to lease a conference room in the building for a holiday bazaar for a small group of twenty-five which later expanded into a larger group, requiring different and additional services beyond those for which plaintiff had contracted with Marriott. Cousins, as the building manager, asked Marriott "to be responsible for the costs of providing security and janitorial services due to the potentially large traffic that would be passing through the facility to the conference room bazaar." Id. at 1372. As here, while concerned about the event and the security issues it posed, Cousins "allowed the event" but not without
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passing on the extra cost. Cousins also rejected plaintiffs' request to use the elevators to transport goods to display at the bazaar unless plaintiff provided padding to protect them and denied plaintiffs' request to hand out flyers to Cousins' tenants. When plaintiff demanded additional services beyond those provided in the contract from Marriott, Marriott refused, unless plaintiff paid for them. Id. at 1373. The Court granted both Cousins' and Marriott's motions for summary judgment. As to Cousins, the absence of a contract between plaintiff and Cousins was significant: "[Wlhile it is true that plaintiff was not granted free signage, access to the elevators for her vendors to load their equipment, or access to the mail-drop boxes, for purposes of distributing internal flyers, plaintif had no contract with Cousins that would have entitled her to these benefits." Id. at 1375 (emphasis added). The Court then went on to address the plaintiffs' claim with Marriott. Noting the paucity of case law "defining the conduct that will constitute actionable harrassment under Section 1981 in a non-employment contract situation," id. at 1376, the Court concluded that, because the benefits denied or in dispute were benefits claimed but not provided for in the Marriott contract, "any rudeness to which plaintiff was subjected was a result of this business dispute . . . over services that plaintiff wanted, but that defendants argued she had not contracted for, and expenses that defendant Marriott believed plaintiff owed, but that she had not agreed to pay plaintiff and in favor of Cousins and Marriott.

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. . . and not because of

plaintiff's race." Id. at 1378. The Court granted summary judgment against

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Benton was pre-Domino's but, like Burnett, it makes Caesars' point. A
defendant who is not under contract to provide services to a tenant of another and who in fact offers to provide services provided plaintiff will agree to pay for them has not violated 42 U.S.C. 5 1981. The injury plaintiff complains of here, as against Caesars, is that Caesars is closing the gate between its premises and 7

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Forum's Mall after midnight. Plaintiff admits that it has no contract right to demand that Caesar keep the gate open for free; indeed, the Lease Amendment plaintiffs have with the Forum defendants states that plaintiffs, i.e., "Tenant shall pay for all security. . . costs associated with the Premises after normal Center hours

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Dkt. No. 12, Ex. C,

3. This is a garden variety business dispute

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between plaintiffs and the Forum defendants. Caesars, as a private party, not a state actor and a non-party to the contract in dispute, cannot be sued under the Civil Rights Act for a contract dispute between the Forum defendants and plaintiffs when plaintiffs allege no contract rights against Caesars. See Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F. 3d 833,837 (7th Cir. 2005) (noting that "it is difficult to understand how" a person who, while under contract to its co-defendant and the source of funds for performance of a contract between plaintiff and the co-defendant, "could have intended to discriminate against [plaintiff] in the making and termination of a contract when the two were never parties to a binding agreement nor were they trying to enter into an agreement"; summary judgment granted); Collier v. Plumbers Local No. 1, 2007 WL 1673047 * 2 n.5 (E.D.N.Y. 2007) ("Collier cannot recover for harm to her expectation interest in defendants' referral and assignment practices, because that interest is not contractual"). Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303 (9th Cir. 1992), overruled on other grounds, does not help plaintiffs, though they argue it does. Dkt. No. 22, p. ll.*In the first place, Kiewit is a pre-Domino's case and the Ninth Circuit's loose reading of
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5 1981's requirement of a plaintiff identifying a

Dkt. No. 22, p. 11. The case contains no analysis, only a citation to Kiewit, and Caesars submits does not comport with Domino's, the other cases cited in the text, or develo ing law in this area. See also Hovton v. Hussmann C o y . , 2007 WL 3352367 (noting that "it is less clear, however, whether a wronged plaintiff may proceed against a defendant not a part to the contract," but disposing of the case on other grounds and so not reaching t e issue).

v.Allstate, 2007 U.S. Dist. Lexis 5133 ,for the propositiongrivity is not required.

Plaintiffs also cite an un ublished District of California case, Franklin

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contractual relationship under which he has rights against the defendant was rejected in Domino's. In the second place, the language plaintiffs find comfort in from Kiewit is dictum. Third, and most importantly, Kiewit upheld the district court's grant of the defendant's motion to dismiss. It held that, based on the complaint, "[wle simply cannot know what contract Kiewit prevented the MBE plaintiffs from entering into." Id. at 1313. Thus, Kiewit, as Domino's holds, took the identification of a contract under which plaintiff would have rights as the starting point. Here, no such contract with Caesars has been alleged. And, as the discussion in the section that immediately follows will show, plaintiffs have not
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identified an adequate substitute.
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Plaintiffs Fail to Alle e Plausible Facts to Support the Prima Facie Elements of a 4 U.S.C. 5 1981 Claim.

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Not only do plaintiffs fail to identify a contractual right Caesars owes that has been denied them, they also fail to establish the three elements of a prima facie § 1981 claim which, as noted above and argued at greater length by [plaintiffs are] a member of a racial minority; ( 2 ) the Forum defendants, are: "(1) [the defendant] intended to discriminate on the basis of race; and (3) the discrimination deprived [plaintiffs] of one or more rights enumerated in § 1981, such as the making and enforcing of a contract." Black Agents & Brokers Agency, 409 F.3d at 837.
a. Plaintiffs Are Not Themselves Members of a Racial Minority and Have Failed to Identify Contract Rights That Were Denied to Those They Claim to Represent.

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Plaintiffs acknowledge they are not themselves minorities or minority-owned. They claim instead to be asserting the rights of their actual and prospective patrons, the majority of whom they allege are African-Americans.

Citing Thinkjet Ink Information Resources, Inc. ZI. Sun Microsystems, Inc., 368 F.3d
1053,1057 (9th Cir. 2004), plaintiffs argue they have representational standing on behalf of their prospective customers. Dkt. No. 22, p. 9. But plaintiffs misread

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Thinkjet. This case arises in the for-profit context; indeed, the gravamen of the complaint is that plaintiffs are making less money now than they were in the past. As the Thinkjet opinion emphasizes, "applying the associational standing model

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in the for-profit context ordinarily would not be appropriate." Id. at 1059 (emphasis
added). The Court in Thinkjet did not have to reach the question of associational standing in the for-profit context, because the plaintiff entity there, unlike the plaintiffs here, was minority-owned and operated and thus had standing in its own right. Id. at 1060. Nothing in the complaint establishes or suggests a factual basis for finding associational standing appropriate in this for-profit case. Indeed, plaintiffs' argument for associational standing proves too much. Assuming arguendo plaintiffs do have representational standing, what rights are being asserted on behalf of their patrons under 5 1981 against Caesars? As already developed, the sine qua non of a § 1981 claim is discrimination in the making or enforcement of a contract. Here, plaintiffs claim to be asserting the rights of their patrons to make contracts with plaintiffs for food and drink. As noted in Kinnon

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v.Arcoub, Gopman & Associates, Inc., 490 F.3d 886,891 (11th Cir. 2007), "there
exists scant authority . . . applying § 1981 to claims brought by customers against commercial establishments." The cases that do exist make clear, however, that "Section 1981 does not provide a general cause of action for all racial harassment that occurs during the contracting process. Rather, in the retail context, the plaintiff must demonstrate the loss of an actual contract interest." Id. at 892. This means that "there must have been interference with a contract beyond the mere expectation of being treated without discrimination while shopping." Id. Thus, it is not enough in the retail setting that the plaintiff thought about but failed to make a purchase. She had to attempt and be thwarted in an actual commercial transaction. Id.; Kirt v.Fashion Bug, 479 F. Supp.2d 938,953-54 (N.D. Iowa 2007), adhered to on rehearing, 495 F. Supp.2d 957 (N.D. Iowa 2007).
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As plaintiffs concede, neither they nor their patrons have a contractual right to pass through Caesars' gate after hours to access the Forum Shops mall. The plaintiffs' patrons' claims thus are limited to the proposition that
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they are being thwarted in their efforts to contract with the plaintiffs for food and beverage. But the plaintiffs' patrons either gained access to plaintiffs' premises through the other Forum Shops' entrance and so, in fact, concluded their retail transactions with the plaintiffs (actual customers); or left and went elsewhere without attempting to transact business with plaintiffs. This is insufficient, because, as in Kiewit, 972 F.2d at 1313, it simply is impossible to know what contract, if any, would have been made. With no identifiable contract, there is no

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9 1981 claim.

See Kinnon, 490 F.3d at 891.

The absence of a contractual right to use the Caesars' gateway to the Forum Shops mall after hours without paying for the associated security costs whether by plaintiffs or their patrons or anyone else - distinguishes this case from those in which representational standing has been allowed. Sullivan v.

Little Hunting Park, Inc., 396 U.S. 229 (1969), illustrates the point. The plaintiff in Sullivan was a white man who rented his house to a black man, Freeman. He also
assigned Freeman a membership share in a corporation which permitted the owner to use a private park the corporation controlled. Because Freeman was black, the corporation refused to approve the share assignment and, when Sullivan protested, the association expelled him. Sullivan sued under the companion statute to 5 1981,42 U.S.C.

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5 1982, and the Court allowed him to

proceed, noting that "the white owner is at times the only effective adversary of

the unlawful restrictive covenant." Id. at 237 (emphasis added). To rule otherwise,
"would give impetus to the perpetuation of racial restrictions on property," which

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9 1982 forbids. Id.
Here, by contrast, there is no racial discrimination in the making or enforcement of a contract by Caesars. On the contrary, plaintiffs concede they

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have no right or entitlement to after-hours access through Caesars without paying for security; they simply believe it is unfair to have to pay for the whole of the security. Compl. 1163 & 64. Unlike Sullivan, where the plaintiff had a property right he attempted to assign to another and had extinguished as a result, there is no contract right, whether in plaintiffs or their patrons, to pass through the Caesars gate after hours. There is thus no statutorily protected contract right requiring representational standing for its vindication. Plaintiffs' associational standing argument cannot create a right where none exists. Indeed, the absence of such a right militates against not in favor of such standing which, as Thinkjet holds, is rarely, if ever, appropriate in the for-profit setting. b. Plaintiffs Fail to Allege Plausible Discrimination. Plaintiffs allege that the Caesars defendants are "hostile towards, and prejudiced against, African-Americans" and thereby OPM and "seek to force 27. OPM out of business." Compl. 1 These allegations are directly refuted and thereby rendered implausible by other allegations in plaintiffs' own complaint. Plaintiffs allege that "Caesars stated that it would be willing to keep the door open only If O.P.M.L.V. paid the entire cost of increased security near the 63. doorway." Compl. 1 If the Caesars defendants were as hostile towards African-Americans and OPM as plaintiffs allege, the Caesars defendants would not have offered to keep the gate open with increased security. Furthermore, the Caesars and Forum defendants would not have "held holiday parties at OPM" and "both Caesars and Simon executives" would not "have been to OPM during operating hours," Compl. p[ 63, if they secretly held racial animus for OPM or its patrons. The Ninth Circuit has previously dismissed claims under 42 U.S.C. 3 1981 when allegations in the complaint were contradictory. "We have held that a plaintiff can. . . plead himself out of a claim by including unnecessary details contrary to his claims." Sprewell v. Golden State Warriors, 266 F.3d 979,988-89 (9th
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Cir. 2001) (citing Steckman v.Hart Brewing, Inc., 143 F.3d 1293,1295-96 (9th Cir.1998) ("[Wle are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint.");cf. Sou Line R.R. v.
St. Louis Southwestern Ry., Co., 125 F.3d 481,483 (7th Cir. 1997) ("A plaintiff can

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plead himself out of court by alleging facts which show that he has no claim, even though he was not required to allege those facts.") The allegations in plaintiffs complaints simply do not allege sufficient plausible facts to show that the Caesars defendants intended to discriminate against OPM on the basis of race concerning an activity enumerated under 5 1981. The complaint does not meet the plausibility standard as required by the Supreme Court in Twombly and recognized by the Ninth Circuit in Maloney and Webber. Notwithstanding the fact that "[tlhe standard used to evaluate a motion to dismiss is a liberal one ... a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not

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f initially pled." h e y v. Board of Regents of Uni. o Alaska, 673 F.2d 266,268 (9th Cir.
1982). Furthermore, the allegations in the complaint are readily contradicted by the alleged actions of the Caesars defendants. Plaintiffs 42 U.S.C. 5 1981 claim should be dismissed as to the Caesars defendants.
c.

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The Making and Enforcing of a Contract.

As Caesars has already demonstrated, plaintiffs fail to identify a contract right owed them or their patrons by Caesars that they have been denied. They have no contractual expectation or entitlement to after-hours passage through Caesars to the Forum Shops mall without paying for associated additional security. Nor is it sufficient to hold Caesars in to allege rights under the Lease and Lease Agreement with the Forum Shops. See supra 5 III.A.l. In essence, what plaintiffs appear to be asserting is some sort of conspiracy to deprive them of contract rights with Forum. But for a civil rights conspiracy

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MORRIS PICKERINGO PETERSO
A T T O R N E Y S AT L a w

900 B A N K O F A M E R I C A PLAZA 300 S O U T H F O U R T H S T R E E T
LAS V E G A S , N E V A D A 89101
702/474-9400

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claim, state action is required. 42 U.S.C. 55 1983 & 1985. None has been alleged. Absent a contract right with Caesars, their 5 1981 claim fails.
B.

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Plaintiffs' Common Law Conspiracy Claim Also Fails.

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Plaintiffs attempt to distinguish Twombly, based on Rozue

Entertainment, Inc. v. William Morris Agency, Inc., 2000 U.S. Dist Lexis 9256, "20"21,2000-2 Trade Cas. (CCH) P72,971 (S.D.N.Y.July 6,2000) (quoting Modern

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Home Institute, Inc. v.Hartford Accident & Indemnity Co., 513 F.2d 102,110 (2d Cir.
1975)). However, multiple circuit courts, including the Second Circuit: and more recently the Ninth Circuit, 5 I1 supra, have adopted the Twombly "plausible on its face" pleading standard when considering claims under a Fed. R. Civ. P. 12(b)(6) motion to dismiss. To assert a claim of civil conspiracy claim under Twombly, plaintiffs must allege facts plausible on their face that "a combination of two or more persons who by some concerted action, intend to accomplish an unlawful objective for the purpose of harming another, and damage results from those acts." Consolidated Generator, 114 Nevada at 1311,911 P.3d at 1256. Plaintiffs have utterly failed to allege the required plausible facts. In their opposition, plaintiffs point to paragraph 27 as outlining the motivations behind the alleged conspiracy between the Caesars defendants and the Forum defendants. In its simplest form paragraph 27 alleges that defendants' actions are "calculated to force plaintiffs out of business," Compl. p[ 27, because of "hostility towards and prejudice against African-Americans.'' Id. These allegations, coupled with the conclusory and self-serving allegations in Plaintiffs' Seventh Cause of Action for "conspiracy"still do not provide the court with "plausible" allegations as required by Twombly. The Complaint alleges no facts that the Caesars Defendants and the Forum Defendants agreed in any way to accomplish an "unlawful" objective.

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See Note 2, supra.

900 B A N K O F A M E R I C A P L A Z A
3 0 0 5 0 U T H FOURTH STREET L A S V E G A S , N E V A D A 89101 702/474-9400 FAX [phone]

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As alleged in the complaint, the Caesars Defendants closed the gate to the Forum Shops on the weekends beginning in August, 2007 in response to a shooting at the Caesars resort complex, Compl. ¶ 58, a safety issue that all concede required redress. The fact that this security measure has harmed OPM's business, while unfortunate, does not prove, or plausibly allege, that the Caesars defendants and the Forum Shops defendants entered into a conspiracy to further the alleged goal of discriminating against OPM. "A plaintiff must demonstrate the existence of an agreement or meeting of the minds to violate constitutional rights. The defendants must have,

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by some concerted action, intend[ed] to accomplish some unlawful objective for
the purpose of harming another which results in damage." Mendocino

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Environmental Center v. Mendocino County, 192 F.3d 1283,1301 (9th Cir. 1999). In
this case plaintiffs' allegations demonstrate nothing beyond the Caesars defendants' concern for their patrons' safety. Therefore, plaintiffs' conspiracy claim should be dismissed as to the Caesars defendants.

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C.

Plaintiffs' Corn laint Includes Allegations That Should Be Stricken under 5;;ed. R. Civ. P. 12(f). Rule 12(f)provides that the court may strike "any redundant,

immaterial, impertinent, or scandalous matter from a pleading. [Tlhe funcl on o a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Stiefel v. Bechtel Corp., 2008 WL 2025105, "4 (S.D. Cal. 2008) (citing Fantasy,

Inc. v. Fogerty, 984 F.2d 1524,1527 (9th Cir.1993), rev'd on other grounds, 510 U.S.
517 (1994) (internal quotation marks omitted). "The decision to grant or deny a motion to strike is within the sound discretion of the trial court." Id. Plaintiffs' complaint against the Caesars defendants comes down to their mistaken belief that they have a right to keep the Caesars Palace entrance to the Forum Shops open after hours without paying for the extra security required.

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MORRIS PICKERlNG6 PETERSOI
A T T O R N E Y S AT LAW 900 B A N K O F A M E R I C A P L A Z A
3 0 0 S O U T H FOURTH STREET LASVEGAS, NEVADA89101 702/474-9400

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F A X 702/474-9422

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This core grievance is not actionable and not made actionable by the irrelevant and spurious accusations contained in the complaint. Caesars defendants request that if any part of the Complaint survives motion practice and is allowed to proceed against any defendant the allegations in paragraphs 28,30,34,35,37,40,42,51, and 55 should be stricken under Fed R. Civ. P. 12(f).
IV. CONCLUSION

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For the foregoing reasons and the additional reasons stated in the Forum defendants' Motion to Dismiss and Reply in Support of Motion to Dismiss, the Caesars defendants ask for an order dismissing the complaint for failure to state a claim against them upon which relief can be granted under federal or state law. MORRIS PICKERING & PETERSON

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By:

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/s/ Kristina Pickerina Kristina Pickering, No: 992 Jean-Paul Hendricks, No. 10079 900 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101

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Attorneys for Defendants Caesars Palace Cor . and Caesars Palace Rea ty Corp.

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MORRIS PICKERING 0 PETERSOF
A T T O R N E Y S A T LAW

900 B A N K O F A M E R I C A PLAZA

300 SOUTH FOURTH STREET
L A S V E G A S , N E V A D A 89101

702/474-9400
FAX [phone]

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CERTIFICATE OF SERVICE

Pursuant to Fed. R. Civ. P. 5(b) and Section IV of District of Nevada Electronic Filing Procedures, I certify that I am an employee of MORRIS PICKERING & PETERSON, and that the following documents were served via electronic service: REPLY IN SUPPORT OF MOTION TO DISMISS THE
CAESARS DEFENDANTS

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TO: C. Stanley Hunterton Pamela R. Lawson HUNTERTON & ASSOCIATES 333 South Sixth Street Las Vegas, Nevada 89101 Philip Heller FAGELBAUM & HELLER, LLP 2049 Century Park East, Suite 4250 Los Angeles, CA 90067 Attorneys for Plaintiff Phase I1 Chin, LLC Harold Gewerter GEWERTER LAW OFFICES 5440 W. Sahara Ave. Third Floor Las Vegas, Nevada 89146 Attorneys for Plaintiff Love & Money, LLC Samuel S. Lionel LIONEL SAWYER & COLLINS 300 S. Fourth St., #1700 Las Vegas, Nevada 89101 Attorneys for Defendants Forum Shops, LLC, Forum Developers Limited Partnership, Simon Pro erty Group Limited Partnership, andpSimon Property Group, Inc.

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MORRIS PlCKtRlNC 6 PETERSOI
A T T O R N E Y S A T LAW 900 B A N K O F A M E R I C A PLAZA

300 SOUTH FOURTH STREET L A S V E G A S , N E V A D A 89101
702/474-9400 F A X ?02/474-9422

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