Gage v. Cox Communications, Inc.

Filing 18

ORDER. IT IS HEREBY ORDERED that 5 Defendant's Partial Motion to Dismiss is GRANTED. Signed by Judge Kent J. Dawson on 4/26/17. (Copies have been distributed pursuant to the NEF - ADR)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 NOELLE GAGE, 11 Plaintiff, 12 v. Case No.: 2:16-cv-02708-KJD-GWF ORDER 13 COX COMMUNICATIONS, INC., 14 Defendants. 15 16 Presently before the Court is Defendant’s Partial Motion to Dismiss (#5). Plaintiff filed a 17 response in opposition (#10) to which Defendant replied (#13). 18 I. Background 19 Plaintiff Noelle Gage claims that within the four years prior to filing her complaint, 20 Defendant Cox Communications, Inc. (“Cox”) made numerous calls to her cellular phone. Though 21 Plaintiff informed Defendant that it was calling the wrong person, Plaintiff says that the calls 22 continued. Plaintiff claims that Defendant uses an automated telephone dialer system to call her 23 cellular phone, without her consent, thereby violating the Telephone Consumer Protection Act 24 (“TCPA”). 47 U.S.C. § 227. 25 26 In her complaint, Plaintiff alleges violations of the TCPA as well as Nevada’s Deceptive Trade Practice Act (“NDTPA”). The NDTPA lists “[r]epeatedly or continuously conduct[ing] [a] 1 solicitation or presentation in a manner that is considered by a reasonable person to be annoying, 2 abusive or harassing” as a “deceptive trade practice.” N.R.S. § 598.0918(2). Plaintiff claims that 3 Defendant’s harrassing phone calls violated the NDTPA and therefore she is entitled to relief for 4 consumer fraud per N.R.S. § 41.600(e). Defendant moves to dismiss Plaintiff’s NDTPA claims on 5 the grounds that section 598 only applies to the sale of goods and services, and that Plaintiff has not 6 made sufficient factual allegations to support a claim of consumer fraud. 7 II. Legal Standard 8 9 A 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 10 plain statement of the claim showing that the pleader is entitled to relief.” F.R.C.P. 8(a)(2); 11 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require 12 detailed factual allegations, it demands more than “labels and conclusions or a formulaic 13 recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 14 (citations omitted). “Factual allegations must be enough to raise a right to relief above the 15 speculative level.” Twombly, 550 U.S. at 555. Thus, “[to]survive a motion to dismiss, a 16 complaint must contain sufficient factual matter to ‘state a claim for relief that is plausible on its 17 face.’” Iqbal, 556 U.S. at 678 (citation omitted). 18 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 19 when considering motions to dismiss. First, a district court must accept as true all well-pled 20 factual allegations in the complaint; however, legal conclusions or mere recitals of the elements 21 of a cause of action, supported only by conclusory statements, are not entitled to the assumption 22 of truth. Id. at 678. Second, a district court must consider whether the factual allegations in the 23 complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the 24 plaintiff’s complaint alleges facts that allow the court to draw a reasonable inference that the 25 defendant is liable for the alleged misconduct. Id. at 678. Further, where the complaint does not 26 permit the court to infer more than the mere possibility of misconduct, the complaint has 2 1 “alleged–but it has not show[n]–that the pleader is entitled to relief.” Id. at 679 (internal 2 quotation marks omitted). Thus, when the claims in a complaint have not crossed the line from 3 conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. 4 Moreover, “[a]ll allegations of material fact in the complaint are taken as true and construed in 5 the light most favorable to the non-moving party.” In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 6 1403 (9th Cir. 1996) (citation omitted). 7 Fraud has a stricter pleading standard under Rule 9, which requires a party to “state with 8 particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b); Nev. R. Civ. P. 9(b). 9 Pleading fraud with particularity requires “an account of the time, place, and specific content of the 10 false representations, as well as the identities of the parties to the misrepresentations.” Swartz v. 11 KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007); see also Morris v. Bank of Nev., 886 P.2d 454, 456, 12 n.1 (Nev.1994). Fraud claims against corporate or business entities require allegations that 13 specifically identify names of individuals who made the misrepresentation, that they had authority to 14 speak for the corporation, and what was said or written and when. Smith v. Accredited Home 15 Lenders, 2016 WL 1045507, at *2 (D. Nev. 2016). 16 III. Analysis 17 Defendant asserts that Plaintiff has failed to state a claim for which relief can be granted in 18 regards to her third cause of action. Plaintiff alleges that Defendant’s harassing phone calls violated 19 the NDTPA and she seeks damages for consumer fraud. Defendant argues that the NDTPA only 20 applies to the sale of goods and services and is therefore not applicable to Defendant’s calls, which 21 were for debt collection purposes. Additionally, Defendant argues that Plaintiff has not met the 22 heightened pleading standard for her claims of consumer fraud. 23 A. The NDTPA Only Applies to the Sale of Goods and Services. 24 Defendant argues that Plaintiff’s third cause of action should be dismissed because the 25 NDTPA only applies to the sale of goods and services. Plaintiff contends that while some sections of 26 NRS § 598 only apply to the sale of goods and services, NRS § 598.0918(2) is not one of those 3 1 sections. However, this Court has previously held that the entirety of Section § 598 only applies to 2 transactions involving goods and services. Alexander v. Aurora Loan Services, 2010 WL 2773796, 3 *2 (D. Nev. July 8, 2010); see also Archer v. Bank of America Corp., 2011 WL 6752562, *2 (D. Nev. 4 December 23, 2011). Additionally, N.R.S. § 80.015(1)(h) states that the act of “securing or collecting 5 debts” does not constitute doing business in Nevada and is therefore not applicable to the NDTPA. 6 See Baeza v. Bank of America N.A., 2012 WL 4062809, *4 (D. Nev. September 14, 2012). Plaintiff 7 has not plead that Defendant’s phone calls involved the sale of goods or services. In fact, Plaintiff 8 concedes that the calls were in regards to debt collection. Therefore, the NDTPA does not grant 9 Plaintiff a right to relief. Alexander, 2010 WL 2273796 at *2. Plaintiff’s third cause of action under 10 the NDTPA is dismissed. 11 B. Plaintiff’s claims of fraud are not sufficiently plead. 12 Also, Defendant argues that Plaintiff’s third cause of action should be dismissed because her 13 claims of consumer fraud failed to meet the heightened pleading standards of Rule 9(b). Plaintiff 14 argues that claims brought under NRS § 41.600 are not subject to the heightened standard and 15 therefore her claim is sufficiently plead. Rule 9 requires that a party claiming fraud “state with 16 particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). This includes the time, place, 17 and content of the misrepresentation. Swartz, 476 F.3d 756 at 764. Claims of consumer fraud, 18 brought under NRS § 41.600, “must satisfy NRCP 9(b)’s heightened pleading standards.” Davenport 19 v. Homecomings Financial, LLC, 2014 WL 1318964 *2 (Nev. March 31, 2014). In the present case, 20 Plaintiff has failed to allege the required time, place, and content of the alleged fraud. Plaintiff argues 21 that she has sufficiently plead a deceptive trade practice as defined in NRS § 598, which is all that is 22 needed to bring an action under section 41.600(e). However, for the reasons previously mentioned, 23 section 598 does not provide Plaintiff with a remedy in this situation. Plaintiff’s third cause of action 24 is not sufficiently plead. Fed. R. Civ. P. 9(b). The Court would normally grant Plaintiff leave to 25 amend, but doing so would be futile. 26 4 1 IV. Conclusion 2 Accordingly IT IS HEREBY ORDERED that Defendant’s Partial Motion to Dismiss (#5) is 3 GRANTED. 4 Dated this 26th day of April, 2017. 5 6 7 8 _____________________________ Kent J. Dawson United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5

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