Caldwell v. Compass Entertainment Group LLC et al
Filing
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ORDER Granting in part and Denying in part 15 / 16 Motion to Dismiss; FURTHER ORDERED that Plaintiff's complaint is DISMISSED with leave to amend; FURTHER ORDERED that Plaintiff file an amended complaint in compliance with this order within 1 4 days of entry of this order, failure to do so will result in the action being dismissed with prejudice; FURTHER ORDERED that the motion to dismiss based on improper is DENIED. Signed by Judge Kent J. Dawson on 11/6/12. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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EVERT CALDWELL,
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Plaintiff,
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v.
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Case No. 2:12-CV-00458-KJD-GWF
COMPASS ENTERTAINMENT GROUP,
LLC, et al.,
ORDER
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Defendants.
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Presently before the Court is Defendant Compass Entertainment Group, LLC and Rounder,
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Inc.’s Motion to Dismiss (#15/16). Plaintiff filed a response in opposition (#20) to which
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Defendants replied (#21).
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Pro se Plaintiff has filed a prolix seventy-eight (78) page Complaint (#1) which contains
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forty-eight (48) pages of facts and thirty (30) pages attempting to tie those facts to twenty-two (22)
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counts, or causes of action. Defendants have now moved to dismiss the complaint, or in the
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alternative, seek a more definite statement. While hesitant to say that Plaintiff has not been detailed
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enough in his factual allegations, the Court has identified several defects in the complaint which
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require the Court to grant the motion, but also grant leave to Plaintiff to file an amended complaint.
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First, Plaintiff’s factual allegations make it appear that he is raising the rights of third parties
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who have not been joined in this action. Particularly, it appears that Plaintiff is actually asserting the
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claims of Rounder Enterprises, Inc. and Rounder Life Enterprises, LLC which are not parties named
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as plaintiffs or defendants in the complaint. The general rule is that a plaintiff must assert his own
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rights rather than rely on those of a third party. See, generally, Hong Kong Supermarket v. Kizer,
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830 F.2d 1078, 1081 (9th Cir. 1987). From Plaintiff’s pleadings, it is not clear whether he suffered
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the injury or whether the named third parties suffered the injury. Thus it appears that Plaintiff has
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failed to allege facts sufficient to support the claim. See Lujan v. Defenders of the Wildlife, 504 U.S.
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555, 560 (1992). Furthermore, even if they were named, corporations and other unincorporated
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associations must appear in federal court through an attorney. See Rowland v. Cal. Men’s Colony,
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Unit II Men’s Advisory Council, 506 U.S. 194, 201-202 (1993); D-Beam Ltd. P’ship v. Roller Derby
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Skates, Inc., 366 F.3d 972, 973-74 (9th Cir. 2004). Plaintiff may not represent anyone other than
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himself.
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Plaintiff is granted leave to amend his complaint. However, Plaintiff must state facts that
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demonstrate for each claim that he is asserting his rights, and not the rights of a third party. He
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cannot assert claims for breach of a contract to which he is not a party. Attaching a copy of the
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alleged contracts to the complaint would be appropriate. Further, claims must be based on facts
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asserted in the complaint, not in his response to the motion to dismiss.
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Second, facts supporting claims based on fraud or misrepresentation must be pled with
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particularity. See Fed. R. Civ. Pr. 9(b). This means that all allegations of fraud must include “the
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time, place and nature of the alleged fraudulent activities.” Fecht v. Price Co., 70 F.3d 1078, 1082
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(9th Cir. 2009). Under Rule 9(b), Plaintiff must specify the “who, what, when, where, and how” of
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the alleged activities. Rule 9(b) “does not allow a complaint to merely lump multiple defendants
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together but require[s] plaintiffs to differentiate their allegations surrounding his alleged participation
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in fraud.” Swartz v. KPMG LLP, 476 F.3d 756, 764-765 (9th Cir. 2007). In cases of fraud involving
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multiple defendants, a plaintiff must, at a minimum, “identif[y] the role of [each] defendant[ ] in the
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alleged fraudulent scheme.” Id. (citing Moore v. Kayport Package Express, Inc., 885 F.2d 531, 541
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(9th Cir.1989)).
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For claims alleging fraud in the inducement of a contract, under Nevada law, a party must
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allege facts demonstrating each of the following elements: (1) a false representation; (2) knowledge
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or belief that the representation was false or knowledge that the defendant had an insufficient basis
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for making the representation; (3) intent to induce the plaintiff to consent to the contract’s formation;
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(4) justifiable reliance upon the misrepresentation; and (5) damage resulting from such reliance. J.A.
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Jones Constr. v. Lehrer McGovern Bovis, 89 P.3d 1009, 1018 (Nev. 2004). Plaintiff’s complaint
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fails to plead fraud with the particularity required. However, Plaintiff is granted leave to amend his
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complaint. Therefore, Plaintiff’s amended complaint must be particular as required by Rule 9(b) and
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allege facts demonstrating the appropriate legal elements of a claim.
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Furthermore, complaints must contain “a short and plain statement of the claim showing the
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pleader is entitled to relief.” See Fed. R. Civ. Pr. 8(a). Thus, while fraud must be pled with
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particularity as outlined by the Court, Plaintiff is cautioned against inserting extraneous facts and
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alleged misdeeds of defendants that are not directly relevant to the claims he asserts. For example,
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acts that occurred after the contract was entered into may be asserted to state a cause of action for
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breach of contract, but are not facts in support of a claim for fraudulent inducement to enter into that
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contract.
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Finally, Plaintiff has adequately alleged facts and provided evidence in support of his claim
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that venue is appropriate in this district. Defendants merely deny Plaintiff’s assertions without any
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sworn statement or admissible evidence contradicting Plaintiff’s allegations that Rounder, Inc. and
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Compass Entertainment Group, LLC maintain their principal places of business in Las Vegas,
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Nevada and that Defendants’ alleged actions primarily occurred in this judicial district. Therefore,
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the motion to dismiss based on improper venue is denied.
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Accordingly, IT IS HEREBY ORDERED that Defendant Compass Entertainment Group,
LLC and Rounder, Inc.’s Motion to Dismiss (#15/16) is GRANTED in part and DENIED in part;
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IT IS FURTHER ORDERED that Plaintiff’s complaint is DISMISSED with leave to
amend;
IT IS FURTHER ORDERED that Plaintiff file an amended complaint in compliance with this
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order within fourteen (14) days of the order’s entry, failure to do so will result in the action being
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dismissed with prejudice;
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IT IS FURTHER ORDERED that the motion to dismiss based on improper venue is
DENIED.
DATED this 6th day of November 2012.
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_____________________________
Kent J. Dawson
United States District Judge
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