Montes v. Bank of America, NA et al, No. 2:2013cv00660 - Document 58 (D. Nev. 2014)

Court Description: ORDER Denying 43 Motion to Reconsider. IT IS FURTHER ORDERED that 33 and 34 Motions to Dismiss are GRANTED. Claims two through six are dismissed with prejudice. The seventh and eighth claims are dismissed with limited leave to amend within 14 days. Signed by Judge Robert C. Jones on 4/15/2014. (Copies have been distributed pursuant to the NEF - EDS)
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Montes v. Bank of America, NA et al 1 Doc. 58 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 4 5 6 7 8 9 10 11 12 JOSE MONTES, individually; And All Others ) ) Similarly Situated, ) ) Plaintiffs, ) ) vs. ) ) ) BANK OF AMERICA NA; NATIONAL ) UNION FIRE INSURANCE COMPANY OF ) ) PITTSBURGH PA; DOES I through XX, inclusive; ROE CORPORATIONS I through ) ) XX, inclusive, ) ) Defendants. ) ) 2:13-cv-00660-RCJ-VCF ORDER PROPOSED ORDER 13 14 15 This putative class action arises out of an alleged fraud in the sale of insurance. Defendants have separately moved to dismiss the second amended complaint (ECF Nos. 33 and 16 34), and Plaintiff has filed a motion to reconsider (ECF No. 43) the Court’s order dismissing 17 18 claims in the first amended complaint (ECF No. 18). For the reasons stated herein the motion to 19 reconsider is denied, and the motions to dismiss are granted. Specifically, the Court dismisses all 20 claims asserted against Bank of America and all of the challenged claims asserted against 21 National Union. Claims two through six are dismissed with prejudice, and claims seven and eight 22 are dismissed with limited leave to amend. Specifically, Plaintiff is granted leave to amend, 23 24 within fourteen (14) days of the entry of this Order into the electronic docket, to properly state 25 claims, if possible, under 15 U.S.C. §1693m and NRS 41.600 and a corresponding civil 26 conspiracy claim. Claims under other statutes will not be permitted. The breach of contract claim 27 asserted against National Union remains operative. 28 1 Dockets.Justia.com 1 2 I. BACKGROUND In April 2013, Defendants National Union Fire Insurance Company of Pittsburgh, PA 3 (“National Union”) and Bank of America, NA (“Bank of America”) filed a petition for removal 4 based on diversity jurisdiction and attached Plaintiff Jose Montes’s first amended complaint 5 (“FAC”) from the Eighth Judicial District in Clark County, Nevada. (Pet. for Removal, ECF No. 6 7 1, at 1–2 ; FAC, ECF No. 1, at 17–24). 8 The FAC alleged the following: Bank of America was a bank operating in Nevada, and 9 National Union was an insurer selling insurance products in Nevada. (FAC, ECF No. 1, at 17– 10 18). Each and every Defendant was acting as an “agent” for each and every other Defendant. 11 12 (Id.). Plaintiff was a Bank of America customer. (Id.). “Defendants solicited Plaintiff to purchase 13 accident insurance coverage.” (Id.). “Defendants, using written materials, engaged in a common 14 scheme of uniform sales [,] advertised and offered accident coverage that would allegedly pay 15 benefits to Plaintiff up to a total of $1,071,000.00.” (Id.). “Plaintiff contracted with Defendants to 16 purchase insurance for coverage benefits up to a total of $1,071,000.00, paying monthly 17 18 premiums for more than four years.” (Id.). “Defendants, using written materials, engaged in a 19 common scheme of uniform sales, advertised and offered accident coverage that would pay 20 Plaintiff up to $365,000 for Recovery at Home.” (Id.). “Plaintiff contracted with Defendants to 21 purchase insurance for accident coverage that would pay Plaintiff up to $365,000 for Recovery at 22 Home.” (Id.). 23 24 The FAC further alleged that on February 6, 2012, Plaintiff was injured by a motor 25 vehicle and hospitalized for six weeks. (Id.). He then recovered at home for forty-six weeks. 26 (Id.). During this time, Plaintiff made a claim for benefits under the policy but Defendants 27 “wrongfully denied payment of benefits for the claim.” (Id. at 19). 28 2 1 Plaintiff then initiated this action, originally asserting eight causes of action: In the first 2 cause of action, Plaintiff alleged breach of contract against both Defendants for failing to provide 3 the coverage that he agreed to purchase and failing to pay benefits under the policy as written. 4 (Id. at 19). In the second cause of action, Plaintiff alleged breach of the implied covenant of good 5 faith and fair dealing against both Defendants for failing to disclose that the policy did not 6 7 provide the coverage Defendants advertised and contracted to provide and for refusing to provide 8 coverage under the policy for hospitalization for “each day after 1 Day(s) of Medically 9 Necessary Confinement” as written in the policy. (Id. at 19–20). In the third cause of action, 10 Plaintiff alleged unjust enrichment against Defendants because they accepted, used, and enjoyed 11 the benefit of premiums paid by Plaintiff but did not deliver a policy containing the coverages 12 13 promised. (Id. at 20). 14 In the fourth cause of action, Plaintiff alleged negligence against both Defendants. 15 Specifically, he alleged that Defendants owed him a duty to fully disclose the terms of the 16 insurance policy coverage but failed to do so. (Id. at 21). In the fifth cause of action, Plaintiff 17 18 alleged negligent training and support, arguing that Defendants had “trained [their] agents 19 uniformly, using the same written materials, and required the sales agents to use uniform sales 20 material it provided.” (Id.). Plaintiff further alleged that Defendants negligently trained and 21 supported their sales agents because the agents failed to fully disclose the terms of the insurance 22 policy provisions advertised and promised to Plaintiff. (Id.). In the sixth cause of action, Plaintiff 23 24 alleged concealment, fraud, and misrepresentation. (Id. at 22). Specifically, Plaintiff alleged that 25 Defendants intentionally and fraudulently concealed that the policy he purchased did not cover 26 him for the amount advertised and that the policy he purchased for the Recovery at Home 27 28 3 1 2 3 4 Benefit did not cover him for that circumstance. (Id.). Plaintiff further alleged that Defendants knew that the policies did not cover him. (Id.). In the seventh cause of action, Plaintiff alleged civil conspiracy, arguing that Defendants conspired among themselves to intentionally conceal the fact that Plaintiff was not getting the 5 insurance policy that he paid for. (Id. at 23). Plaintiff further alleged that Defendants conspired to 6 7 “prepare uniform written sales materials and required [their] agents to use those uniform written 8 sales materials to sell Plaintiff an insurance policy Defendants knew concealed from Plaintiff 9 that he was not getting the insurance coverage he had contracted and was paying for.” (Id.). In 10 the eighth cause of action, Plaintiff alleged “unfair business practices, statutory violations” but 11 did not identify any statutes. (Id.). Instead, Plaintiff alleged that Defendants acted in violation of 12 13 “both state and federal unfair business practices statutes” and in violation of “both state and 14 federal insurance, banking and other regulatory statutes.” (Id.). 15 On April 26, 2013, Defendants separately moved to dismiss (ECF Nos. 6 and 7). 16 Specifically, Bank of America moved to dismiss all claims asserted against it, (ECF No. 6), and 17 18 National Union moved to dismiss claims two through eight, to the extent they were asserted 19 against it, (ECF No. 7). On October 30, 2013, this Court granted the motions in their entirety. 20 (Order, ECF No. 18). Specifically, the Court dismissed with prejudice the first two causes of 21 action (breach of contract and breach of the implied covenant of good faith and fair dealing, 22 respectively) to the extent they were asserted against Bank of America, with prejudice. The 23 24 Court also dismissed the third cause of action (unjust enrichment), as asserted against both 25 Defendants, with prejudice. The Court dismissed each of the remaining causes of action, expect 26 for the unchallenged breach of contract claim asserted against National Union, with leave to 27 28 4 1 amend. (Id.). On January 6, 2014, Plaintiff filed his second amended complaint (“SAC”). (ECF 2 No. 24). The pending motions now follow. 3 4 II. MOTION TO RECONSIDER (ECF No. 43) Plaintiff’s motion to reconsider fails to satisfy the demanding standard for reconsideration, 5 and it is therefore denied. 6 7 8 9 A. Legal Standard A court should be loathe to revisit its own decisions unless extraordinary circumstances show that its prior decision was clearly erroneous or would work a manifest injustice. 10 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). This principle is 11 12 embodied in the law of the case doctrine, under which “a court is generally precluded from 13 reconsidering an issue that has already been decided by the same court, or a higher court in the 14 identical case.” United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (quoting Thomas 15 v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)). Nonetheless, in certain limited circumstances, a 16 court has discretion to reconsider its prior decisions. 17 18 While Rule 59(e) and Rule 60(b) permit a district court to reconsider and amend previous 19 orders, this is an “extraordinary remedy, to be used sparingly in the interests of finality and 20 conservation of judicial resources.” Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th 21 Cir. 2000) (quoting 12 James Wm. Moore et al., Moore’s Federal Practice § 59.30(4) (3d ed. 22 2000)) (internal quotation marks omitted). 23 24 Indeed, a district court should not grant a motion for reconsideration “absent highly 25 unusual circumstances, unless the court (1) is presented with newly discovered evidence, (2) 26 committed clear error, or (3) if there is an intervening change in the controlling law.” 389 27 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. 28 5 1 Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). A motion for reconsideration “may not be used 2 to raise arguments or present evidence for the first time when they could reasonably have been 3 raised earlier in the litigation.” Kona Enter., 229 F.3d at 890. Mere dissatisfaction with the 4 court’s order, or belief that the court is wrong in its decision, is not grounds for reconsideration. 5 Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). A motion 6 7 to reconsider must set forth “some valid reason why the court should reconsider its prior 8 decision” and set “forth facts or law of a strongly convincing nature to persuade the court to 9 reverse its prior decision.” Frasure v. United States, 256 F. Supp. 2d 1180, 1183 (D. Nev. 2003). 10 Furthermore, “[a] motion for reconsideration is not an avenue to re-litigate the same issues and 11 12 13 14 15 arguments upon which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005). B. Analysis Plaintiff seeks relief from the Court’s prior order, which, among other things, dismissed the 16 following claims with prejudice: (1) breach of contract (as asserted against Bank of America); 17 18 (2) breach of the implied covenant of good faith and fair dealing (as asserted against Bank of 19 America); and (3) unjust enrichment. (Order, ECF No. 18). Plaintiff contends that 20 reconsideration is warranted for two reasons, neither of which is persuasive: (1) that “newly 21 discovered” evidence supports the claims dismissed with prejudice; and (2) that “a more careful 22 examination of the law will show that [sic] claims dismissed with prejudice are legally sufficient 23 24 25 26 and should be allowed.” (Mot. Recons., ECF No. 43, at 8). As an initial matter, relief from judgment on the basis of newly discovered evidence is warranted only when the moving party shows that the evidence “(1) is truly-newly discovered; 27 (2) could not have been discovered through due diligence; and (3) is of such a material and 28 6 1 controlling nature that it demands a probable change in the outcome.” Wells Enterprises v. Wells 2 Bloomfield, LLC, No. 3:11-CV-00246-RCJ, 2013 WL 5663182, at *4 (D. Nev. Oct. 15, 2013) 3 (quoting United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1130 n.45 (E.D. Cal. 4 2001) (internal quotation marks omitted); see also Coastal Transfer Co. v. Toyota Motor Sales, 5 U.S.A., 833 F.2d 208, 211 (9th Cir.1987). 6 Here, although Plaintiff generally alleges that he has provided a more detailed set of facts 7 8 in support of the dismissed claims, he makes no meaningful attempt to argue that the allegedly 9 newly discovered facts satisfy the demanding standard for reconsideration. Moreover, it appears 10 that Plaintiff has not alleged any new, previously undiscoverable, material facts, but has instead 11 attempted to add detail to the conclusory allegations asserted in the FAC. This is not an adequate 12 13 basis for reconsideration. Plaintiff’s second basis for reconsideration is also unpersuasive. Indeed, Plaintiff is 14 15 simply attempting to raise “new” arguments based on old case law that was reasonably available 16 when he opposed Defendants’ previous motions to dismiss. This is impermissible. Kona Enter., 17 18 229 F.3d at 890. Furthermore, the Court already considered the bulk of Plaintiff’s “new” legal 19 theories in its prior order, and it is well settled that a motion for reconsideration that merely 20 rehashes arguments previously raised is appropriately denied. Taylor v. Knapp, 871 F.2d 803, 21 804 (9th Cir. 1989). The motion for reconsideration is therefore denied. 22 III. MOTIONS TO DISMISS (ECF Nos. 33 and 34) 23 24 25 26 A. Legal Standard When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept as true all factual allegations in the complaint as well as all reasonable inferences 27 that may be drawn from such allegations. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir. 28 7 1 2000). Such allegations must be construed in the light most favorable to the nonmoving party. 2 Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). In general, the court should look 3 only to the contents of the complaint during its review of a Rule 12(b)(6) motion to dismiss. 4 However, the court may consider documents attached to the complaint or referred to in the 5 complaint whose authenticity no party questions. Id.; see Durning v. First Boston Corp., 815 6 7 8 9 F.2d 1265, 1267 (9th Cir. 1987). The analysis and purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 10 2001). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is 11 entitled to offer evidence to support the claims. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 12 13 (9th Cir. 1997) (quotations omitted). To avoid a Rule 12(b)(6) dismissal, a complaint does not 14 need detailed factual allegations; rather, it must plead “enough facts to state a claim to relief that 15 is plausible on its face.” Clemens v. Daimler Chrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 16 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 17 18 L.Ed.2d 929 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 19 868 (2009) (stating that a “claim has facial plausibility when the plaintiff pleads factual content 20 that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged”). Even though a complaint does not need “detailed factual allegations” to 22 pass Rule 12(b)(6) muster, the factual allegations “must be enough to raise a right to relief above 23 24 the speculative level . . . on the assumption that all the allegations in the complaint are true (even 25 if doubtful in fact).” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965. “A pleading that offers ‘labels 26 and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.” 27 Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. “Nor does a complaint suffice if it tenders ‘naked 28 8 1 assertion[s]’ devoid of ‘further factual enhancements.’” Id. (quoting Twombly, 550 U.S. at 557, 2 127 S.Ct. at 1966). Furthermore, Federal Rule of Civil Procedure 9(b) provides that “[i]n alleging fraud or 3 4 5 mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” 6 7 Fed. R. Civ. P. 9(b). Under Rule 9(b), a plaintiff must be specific enough to give defendants 8 notice of the particular misconduct so that they can defend against the charge and not just deny 9 that they have done anything wrong. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th 10 Cir. 2003). “Averments of fraud must be accompanied by ‘the who, what, when, where, and 11 12 how’ of the misconduct charged.” Id. A “plaintiff must set forth more than the neutral facts 13 necessary to identify the transaction. The plaintiff must set forth what is false or misleading 14 about a statement, and why it is false.” Id. 15 B. Analysis 16 Through his SAC and other moving papers, Plaintiff has obscured the relevant facts and 17 18 issues in an apparent effort to needlessly burden both the Defendants and the Court. The Court is 19 not impressed. As an initial matter, Plaintiff has shown blatant disregard for the Court’s prior 20 order. Specifically, in the SAC, Plaintiff realleges the three claims that the Court previously 21 dismissed with prejudice: (1) breach of contract against Bank of America; (2) breach of the 22 implied covenant of good faith and fair dealing against Bank of America; and (3) unjust 23 24 enrichment. (See SAC, ECF No. 24, at 14–15). However, Plaintiff now acknowledges that “none 25 of the claims stated [in the SAC] apply to a Defendant where the Court has ruled otherwise.” 26 (Opp’n to Mot. Dismiss, ECF No. 41, at 6). While the plain language of the SAC, and 27 particularly its attempt to restate a claim for unjust enrichment, contradicts this assertion, the 28 9 1 Court will take Plaintiff at his word and treat the SAC as if it does not attempt to restate these 2 three claims. Accordingly, and consistent with the Court’s denial of Plaintiff’s motion to 3 reconsider, these claims remain dismissed with prejudice. 4 5 With respect to the remaining causes of action, Plaintiff acknowledges that “[t]he ‘essence’ of the claims against the Defendants is for fraud and misrepresentation for promising 6 7 coverage Defendants knew were not going to deliver [sic] to their 175,000 customers who 8 trusted them and bought the policy.” (Id. at 2). Indeed, as Plaintiff notes, “[t]his is anything but a 9 ‘standard insurance dispute.’” (Id.). 10 In its prior order, the Court dismissed several of Plaintiff’s claims for failure to satisfy 11 12 Federal Rule of Civil Procedure 9(b)’s heightened pleading standard. In granting leave to amend 13 each of these claims, the Court instructed Plaintiff as to how to satisfy Rule 9(b). (See generally 14 Order, ECF No. 18). Among other things, the Court thrice warned Plaintiff that averments of 15 fraud must be accompanied by “the who, what, when, where, and how” of the misconduct 16 charged.” (Id. at 8, 10, 12 (citing Vess, 317 F.3d at 1106)). Parroting the Court’s instruction, 17 18 Plaintiff now contends that “consistent with this Court’s [o]rder, the who, what, when, where, 19 and how of the Complaint has been augmented by more than 700%.” (Opp’n to Mot. Dismiss, 20 ECF No. 41, at 3). However, despite including additional facts, Plaintiff has again failed to plead 21 fraud with specificity Rule 9(b) requires. Furthermore, several of Plaintiff’s claims, as they are 22 now alleged, fail as a matter of law. Because of these defects, which are described in detail 23 24 below, the motions to dismiss are granted in the entirety. Specifically, claims two through six are 25 dismissed with prejudice, and claims seven and eight are dismissed with limited leave to amend. 26 Claim one, for breach of contract, remains operative against National Union. 27 28 10 1 2 1. To the extent this claim is asserted against Bank of America, it was dismissed with 3 4 First Claim: Breach of Contract prejudice in the Court’s prior order. (Order, ECF No. 18, at 13). National Union, however, has 5 not challenged the breach of contract claim, (see generally Mot. Dismiss, ECF No. 34), and it 6 7 8 therefore remains operative against National Union. 2. Second Claim: Breach of the Implied Covenant of Good Faith and Fair Dealing 9 To the extent this claim is asserted against Bank of America, it was dismissed with 10 prejudice in the Court’s prior order, (Order, ECF No. 18, at 13), and it is now dismissed as 11 asserted against National Union. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In its October 30, 2013 order, the Court instructed: The Nevada Supreme Court adopted a cause of action called “bad faith” in U.S. Fid.& Guar. Co. v. Peterson, 540 P.2d 1070, 1071 (Nev. 1975). In Nevada, bad faith is defined as: “(1) an insurer’s denial of (or refusal to pay) an insured’s claim; (2) without any reasonable basis; and (3) the insurer’s knowledge or awareness of the lack of any reasonable basis to deny coverage, or the insurer’s reckless disregard as to the unreasonableness of the denial.” Schumacher v. State Farm Fire & Cas. Co., 467 F.Supp.2d 1090, 1095 (D. Nev. 2006). The Nevada Supreme Court has found that “[l]iability for bad faith is strictly tied to the implied-in-law covenant of good faith and fair dealing arising out of an underlying contractual relationship.” United Fire Ins. Co. v. McClelland, 780 P.2d 193, 197 (Nev. 1989). “When no contractual relationship exists, no recovery for bad faith is allowed.” Id. . . . With respect to National Union, the Court finds that Plaintiff has pled insufficient facts to state a cause of action for bad faith, but grants leave to amend. The FAC alleges that Plaintiff purchased accident insurance coverage from National Union that would pay benefits up to a total of $1,071,000.00 and up to $365,000 for recovery at home. (See FAC, ECF No. 1, at 18).The FAC alleges that Plaintiff was in a motor vehicle accident and was hospitalized for 6 weeks and recovered at home for 46 weeks. (Id.). The FAC alleges that Plaintiff made a claim for benefits under the policy and that Defendants denied payment of his claims. (Id. at 19). Based on these facts, the Court finds that Plaintiff has pled that National Union refused to pay his claim but has not pled facts to demonstrate that the denial was “without any reasonable basis” or that National Union had 11 1 2 3 4 “knowledge or awareness of the lack of any reasonable basis to deny coverage.” As such, the Court grants National Union’s motion to dismiss this claim but grants Plaintiff leave to amend the complaint to provide more factual allegations. (Id. at 7–8). The SAC does not cure these factual deficiencies. Instead, Plaintiff now appears to focus on alleged pre-contract misrepresentations concerning a later-issued insurance policy. 5 Specifically, Plaintiff alleges the following: 6 7 50. Defendants breached its [sic] duty of implied covenant of good faith and fair dealings by failing to disclose to Plaintiff that the policy did not provide the coverage Defendants advertised and contracted to provide . . . . 51. Defendants further breached its [sic] duty of implied covenant of good faith and fair dealings by failing to provide Plaintiff with a renewed policy of coverage that was agreed upon by Defendants . . . . 8 9 10 11 (SAC ¶¶ 50–51, ECF No. 24, at 14). However, because actionable bad faith, in this 12 13 context, requires an underlying contractual relationship, such pre-contract conduct cannot 14 support a claim of bad faith. Wensley v. First Nat. Bank of Nev., 874 F. Supp. 2d 957, 964 15 (D. Nev. 2012) (“A party cannot breach the covenant of good faith and fair dealing 16 before a contract is formed.”); Indep. Order of Foresters v. Donald, Lufkin & Jenrette, 17 18 Inc., 157 F.3d 933, 941 (2d Cir. 1998) ( “[A]n implied covenant relates only to the 19 performance of obligations under an extant contract, and not to any pre-contract 20 conduct.”). 21 22 Plaintiff’s post-contract allegations are likewise unavailing. Except for the conclusory allegation that the “denials [of coverage] were unreasonable,” (SAC ¶ 41, 23 24 ECF No. 24, at 13), Plaintiff has pled nothing that would support an inference that the 25 denial was “without any reasonable basis” or that National Union had “knowledge or 26 awareness of the lack of any reasonable basis to deny coverage.” In fact, Plaintiff has 27 neither attached the disputed insurance contract nor alleged its relevant terms. Moreover, 28 12 1 he has failed to allege how or why he qualified for the disputed coverage or that National 2 Union’s denial grounds were not supported by the insurance contract. The Court has 3 already granted Plaintiff leave to correct these deficiencies, (Order, ECF No. 18, at 13), 4 and he has failed to do so. The claim for breach of the implied covenant of good faith and 5 fair and dealing is therefore dismissed. 6 7 3. The Court has already dismissed this claim with prejudice once, (id.), and it need not do 8 9 Third Claim: Unjust Enrichment so again. The claim for unjust enrichment remains dismissed as to both Defendants. 10 4. Fourth Claim: Negligence 11 The negligence claim is likewise dismissed as to both Defendants. In its prior dismissal of 12 13 this perplexing negligence claim, the Court concluded that Plaintiff intended to state a claim for 14 negligent misrepresentation and granted leave to “state a cause of action for negligent 15 misrepresentation” under Rule 9(b)’s heightened pleading standard. (Id. at 10). The Court did not 16 grant leave to amend to restate negligence generally: 17 18 19 20 21 22 23 24 25 26 27 28 The Court notes that, in the FAC, Plaintiff appears to be attempting to state a claim for “negligence” based on Defendants breach of the duties to disclose the terms of the insurance policy and pay the benefits under the policy. (See FAC, ECF No. 1, at 21). In Plaintiff’s opposition, he asserts that he states a claim for negligent misrepresentation and that such a claim is not barred by the economic loss doctrine. (See Opp’n to Mot. Dismiss, ECF No. 9, at 7). To prevail on a negligence theory in Nevada, a plaintiff must show that “(1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal cause of the plaintiff’s injury; and (4) the plaintiff suffered damages.” Wiley v. Redd, 885 P.2d 592, 595 (Nev. 1994). In order to prevail on a claim for negligent misrepresentation, a plaintiff must plead: (1) a representation that is false; (2) that the representation was made in the course of the defendant’s business or in any action in which he has a pecuniary interest; (3) the representation was for the guidance of others in their business transactions; (4) the representation was justifiably relied upon; (5) that such reliance resulted in pecuniary loss to the relying party; and (6) that the defendant failed to exercise reasonable care or competence in obtaining or communicating the information. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 G.K. Las Vegas Ltd. P’ship v. Simon Prop. Grp., Inc., 460 F. Supp. 2d 1246, 1262 (D. Nev. 2006). A plaintiff must plead negligent misrepresentation with Federal Rule of Civil Procedure 9(b) particularity. Id. . . . After reviewing Plaintiff’s opposition to the motion to dismiss, the Court finds that Plaintiff is attempting to plead negligent misrepresentation rather than negligence. The Court notes that, in his opposition to the motion to dismiss, Plaintiff repeatedly argues that negligent misrepresentation is an exception to the economic loss doctrine. As such, the Court believes that Plaintiff’s FAC meant to allege negligent misrepresentation rather than negligence for the fourth cause of action. Nonetheless, the Court finds that the fourth claim is insufficiently pled because Plaintiff only makes the factual allegations that: (a) Defendants owed Plaintiff a duty to disclose fully the terms of the insurance policy coverage, in both amount and scope; (b) Defendants negligently failed to disclose the terms of the insurance policy coverage, both amount and scope; and (c) Defendants negligently failed to pay benefits under the policy, wrongly interpreted that the policy covered medically necessary confinement only after 31 days. (See FAC, ECF No. 1, at 21). The Court finds that these allegations lack the particularity required by Rule 9(b) because Plaintiff does not delineate between the actions of each defendant and does not provide the who, what, when, where, and how of the false representations. The Court grants both Bank of America and National Union’s motion to dismiss the fourth cause of action but grants leave to amend to state a cause of action for negligent misrepresentation. (Id.). Plaintiff, however, has disregarded the Court’s limited grant of leave to amend by 16 attempting to restate a claim for negligence generally. This, of course, is reason enough to 17 18 dismiss the fourth cause of action to the extent it concerns anything other than negligent 19 misrepresentation. Nonetheless, Plaintiff himself highlights several additional defects in his half- 20 page defense of the amended negligence claim: 21 22 23 24 25 26 27 Plaintiffs [sic] amended complaint supports at least two claims for negligence against NUFI—one for negligent hiring and training, [sic] one for negligent misrepresentation, all of which have been supplemented with facts to support them, detailed herein. Defendants read too much into headings of the amended complaints. The sufficiency of a complaint is how the facts are pled. Causes of action and statutes do not need to be pled. As long as ‘factual allegations establish a plausible entitlement to relief, the complaint is sufficient. Alvarez v. Hill [sic] 518 F.3d 1152 (9th Cir. 2008). It does not matter whether the claims fall under one heading or another, but whether the facts alleged support claims of negligence. 28 14 1 2 3 4 The Defendants also were negligent by failure to abide by a statute intended for the benefit of the plaintiffs [sic]. As detailed below, Defendants violated NRS 686A.310, 696A.030 and 686A.040. (Opp’n to Mot. Dismiss, ECF No. 40, at 7). Taking Plaintiff at his word, the Court dismisses the negligence claim to the extent it is 5 duplicative of the fifth claim (negligent training and support) and the sixth claim (concealment, 6 7 fraud, misrepresentation). See M.M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1091 (9th Cir. 2012) 8 (“[A] district court has broad discretion to control its own docket, and that includes the power to 9 dismiss duplicative claims.”). The negligent misrepresentation claim is also defective, as a matter 10 of law, for the reasons discussed below. See infra Part III.B.6. Furthermore, to the extent that 11 Plaintiff argues that it has stated a claim for negligence per se, the Court disagrees. 12 13 Although often pled as such, “negligence per se is not a separate cause of action but a 14 doctrine whereby a court will consider the negligence elements of duty and breach satisfied as a 15 matter of law, leaving only causation and damages to be determined by the fact-finder, where: 16 (1) a plaintiff can show that a defendant has violated a duty imposed onto him by a criminal or 17 18 regulatory statute; (2) the plaintiff is a member of the class of persons intended to be protected 19 by the statute or regulation; and (3) the alleged harm resulting is of the kind intended to be 20 prevented by statute.” Insco v. Aetna Health & Life Ins. Co., 673 F. Supp. 2d 1180, 1191 (D. 21 Nev. 2009) (citing Ashwood v. Clark Cnty., 930 P.2d 740, 743–44 (Nev. 1997)). 22 Here, among other defects, the statutes upon which Plaintiff relies, do not support a 23 24 theory of negligence per se. See Yusko v. Horace Mann Servs. Corp., No. 2:11-CV-00278-RLH, 25 2012 WL 458471, at *3 (D. Nev. Feb. 10, 2012) (citing Boales v. Brighton Builders, Inc ., 29 26 S.W.3d 159, 166 (Tex. Ct. App. 2000) (explaining that where a comprehensive statutory scheme 27 establishes its own penalties, it does not support a theory of negligence per se); Sharp Plumbing, 28 15 1 Inc. v. Nat’l Fire & Marine Ins. Co., No. 2:09-CV-00783-GMN, 2013 WL 6858895, at *13, n.5 2 (D. Nev. Dec. 27, 2013) (“The common law cause of action for negligence, including negligence 3 per se, is not a recognized cause of action for violations of section 686A.310 of Nevada Revised 4 Statutes.”) (citing Albert H. Wohlers & Co. v. Bartgis, 969 P.2d 949, 960–61 (Nev. 1998) (per 5 curiam) (analyzing NRS 686A.310 as an independent statutory cause of action)). Moreover, it is 6 7 unclear how a negligence claim premised on violations of NRS 686A.310, 696A.030, and 8 686A.040 would not be duplicative of Plaintiff’s eighth claim (unfair business practices, 9 statutory violations), which is premised, at least in part, on alleged violations of the same 10 statutes. (See Opp’n to Mot. Dismiss, ECF No. 40, at 27). Further, a requisite element of 11 12 negligence is damages, Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1175 (Nev. 13 2008), and Plaintiff has failed to allege any tort damages that are not barred by Nevada’s 14 economic loss doctrine, see Calloway v. City of Reno, 993 P.2d 1259, 1263 (Nev. 2000) (“Under 15 the economic loss doctrine there can be no recovery in tort for purely economic losses.”). 16 Finally, to the extent that Plaintiff contends that his negligence claim is based on some 17 18 common law duty owed by Bank of America, in its alleged capacity as an insurance agent, policy 19 holder, or “bank selling insurance,” (see Opp’n to Mot. Dismiss, ECF No. 41, at 6–9), the Court 20 is not persuaded. The authorities Plaintiff cites are not binding, and they are readily 21 distinguishable. Moreover, Plaintiff has failed to adequately allege, among other things the 22 existence of an agency relationship with Bank of America. The fourth cause of action is therefore 23 24 25 26 dismissed in its entirety. 5. Fifth Claim: Negligent Training and Support Plaintiff has once again failed to adequately plead his claim for negligent training and 27 support. In its earlier order, the Court provided clear instructions: 28 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 To state a claim for negligent training and supervision in Nevada, Plaintiff must show (1) a general duty on the employer to use reasonable care in the training and/or supervision of employees to ensure that they are fit for their positions; (2) breach; (3) injury; and (4) causation. Okeke v. Biomat USA, Inc., 927 F. Supp. 2d 1021, 1028 (D. Nev. 2013). “Claims for negligent training and supervision are based upon the premise that an employer should be liable when it places an employee, who it knows or should have known behaves wrongfully, in a position in which the employee can harm someone else.” Id. However, an “employee’s wrongful behavior does not in and of itself give rise to a claim for negligent training and supervision.” Id. In this case, Plaintiff alleges that “Defendants trained its agents uniformly, using the same written materials, and required the sales agents to use uniform sales material it provided” and that “Defendants negligently trained and supported its sales agents, such that those agents failed to disclose fully the terms of the insurance policy provisions advertised and promised to Plaintiff.” (See FAC, ECF No. 1, at 21). The Court finds that these allegations are insufficient to state a claim for negligent training and grants Plaintiff leave to amend. The allegations do not provide any facts about what the written materials say, what the sales agents are trained to say, or what information the agents failed to disclose. Moreover, Plaintiff does not identify the various actions of the two Defendants, one of whom he alleges is the agent of the other. The Court grants both Bank of America and National Union’s motion to dismiss this cause of action with leave to amend. 15 16 17 18 (Order, ECF No. 18, at 11) (emphasis added). Plaintiff has failed to include the required allegations. Nonetheless, he appears to contend that the newly added details concerning alleged misrepresentations in the promotional materials, 19 (SAC ¶¶ 19–22, ECF No. 24, at 5–8), coupled with allegations that these materials were 20 21 circulated among Defendants’ employees prior to publication, (id. ¶ 14), and conclusory 22 allegations of improper training and knowledge that insurance contracts are “ripe for fraud and 23 misleading claims,” (id. ¶ 15), properly state a claim for negligent training, (Opp’n to Mot. 24 Dismiss, ECF No. 41, at 12–14). Plaintiff is incorrect. The SAC does not allege, in any manner, 25 “what the sales agents are trained to say,” or what any particular agent actually said or failed to 26 27 say. Moreover, the SAC fails to allege that either Defendant knew or should have known, prior 28 to Plaintiff’s purchase of insurance, that its employees were behaving “wrongfully,” or that with 17 1 such knowledge it placed its employees in a position to harm Plaintiff. This missing is allegation 2 fatal. See Okeke, 927 F. Supp. 2d at 1028; Hall v. SSF, Inc., 930 P.2d 94 (Nev. 1996). The fifth 3 claim is therefore dismissed. 4 5 6. Sixth Claim: Concealment, Fraud, Misrepresentation While this claim was initially dismissed for failure to satisfy Rule 9(b)’s particularity 6 7 requirement, (Order, ECF No. 18, at 12), the additional allegations in the SAC demonstrate 8 what could only be surmised from the FAC: The sixth claim is based entirely on allegations 9 that National Union’s “Customer Years Reward Offer” and the “Customer Years Reward 10 Insurance” promotional materials erroneously promised coverage that was not provided in 11 12 Plaintiff’s actual insurance contract. (See SAC ¶¶ 19, 20, 21, 22, 69–74, ECF No. 24). At 13 bottom, Plaintiff claims that the promotional materials are misleading because, according to 14 him, the advertised Maximum Total Benefit cannot be reached under the written terms of the 15 insurance contract, (id.), which Plaintiff has conspicuously failed to provide to this Court. 16 However, such allegations cannot, as a matter of law, support a claim for fraud or 17 18 19 misrepresentation. Indeed, this claim is fatally defective for at least two reasons. First, it is barred by Nevada’s parol evidence rule, see Rd. & Highway Builders v. N. Nev. 20 Rebar, 284 P.3d 377, 380–81 (Nev. 2012) (“As explained by this court in Tallman, the 21 purported inducement cannot be something that conflicts with the [written contract’s] express 22 terms, as the terms of the contract are the embodiment of all oral negotiations and 23 24 stipulations.”) (citing Sherrodd, Inc. v. Morrison-Knudsen Co., 815 P.2d 1135, 1137 (Mont. 25 1991) (The fraud exception to the parol evidence rule applies only “when the alleged fraud 26 does not relate directly to the subject of the contract. Where an alleged oral promise directly 27 contradicts the terms of an express written contract, the parol evidence rule applies.”)); 28 18 1 Tallman v. First Nat. Bank, 208 P.2d 302, 307 (Nev. 1949) ( “[F]raud is not established by 2 showing parol agreements at variance with a written instrument . . . .”). 3 4 Second, Plaintiff cannot adequately allege the justifiable reliance element of his claim, see Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998) (defining the tort of 5 negligent misrepresentation), because under Nevada law, an insured has a duty to read his 6 7 insurance policy and is deemed to have constructive knowledge of the coverage it plainly 8 provides, see Farmers Ins. Exch. v. Young, 832 P.2d 376, 379 n.2 (Nev. 1992) (“Although we 9 understand that many people may in fact not read their insurance policies, we conclude that the 10 consumer has at least this responsibility. If we presume that consumers do not read policies, we 11 would then force insurers to explain verbally every minute detail of a policy. We must assume 12 13 that the insured party has at least read the policy and given a plain common-sense meaning to 14 the policy’s provisions.”); Farmers Ins. Exch. v. Neal, 64 P.3d 472, 473 (Nev. 2003); First Fin. 15 Ins. Co. v. Scotch 80’s Ltd., Inc., No. 2:08-CV-00862-RLH, 2010 WL 4005423, at *2 (D. Nev. 16 Oct. 12, 2010); 44 C.J.S. Insurance § 536 (“[I]t remains an insured’s duty to read the policy if 17 18 an examination of the policy would make it readily apparent that the coverage contracted for 19 was not issued; in other words, if it is readily apparent that the insured did not get the coverage 20 that he or she requested, the duty to read will still bar a lawsuit against the agent even if the 21 insured relied upon the agent’s expertise.”). Given this well-settled rule, reliance on any prior 22 representations regarding coverage is not justifiable as a matter of law. Furthermore, by failing 23 24 to allege the basis for his reliance, Plaintiff has alleged this element only in the most 25 conclusory manner. (See SAC ¶¶ 33–35, ECF No. 24). This is insufficient pleading. Plaintiff’s 26 sixth claim is therefore dismissed. 27 28 19 1 7. The civil conspiracy claim is again dismissed with leave to amend. In its prior order, the 2 3 4 Seventh Claim: Civil Conspiracy Court dismissed this claim as inadequately pled. (Order, ECF No. 18, at 13). In the SAC, Plaintiff has added significant, relevant factual material; however, the claim remains deficient. 5 Specifically, for the reasons stated herein, Plaintiff has failed to adequately allege that 6 7 Defendants, acting in combination, caused actionable damages by engaging in wrongful 8 conduct. See Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 622 (Nev. 1983) (“An 9 actionable civil conspiracy is a combination of two or more persons who, by some concerted 10 action, intend to accomplish some unlawful objective for the purpose of harming another 11 12 which results in damage.”). Indeed, the Court has dismissed each cause of action in which 13 Defendants are alleged to have acted in combination. However, because the Court is inclined to 14 grant leave to amend the eighth claim (unfair business practices, statutory violations), it will 15 likewise grant leave to amend this claim to include adequate allegations of a conspiracy to 16 engage in any statutory violations properly realleged in a third amended complaint. 17 18 19 20 21 22 23 24 8. Eighth Claim: Unfair Business Practices, Statutory Violations The Court dismisses the eighth claim with limited leave to amend. In its prior order, the Court dismissed this claim as inadequately pled: The Court grants Bank of America and National Union’s motion to dismiss this cause of action because Plaintiff alleges that Defendants violated “both state and federal unfair business practices statutes” and “both state and federal insurance, banking and other regulatory statutes” but never identifies any of these alleged statutes and does not allege how they allegedly violated these statutes. The Court grants Plaintiff leave to amend this cause of action. 25 (Order, ECF No. 18, at 13). In the SAC, Plaintiff repleads this claim and now includes a list of 26 27 28 allegedly violated statues: (1) Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §1964; (2) U.S.C. §1693; (3) NRS 686A.030 and 686A.040 (insurance fraud/ false 20 1 advertising); (4) NRS 686A.310 (unfair practices in settling insurance claims); (5) NRS 207.360 2 (racketeering); and (6) NRS 598.0915 and 598.092 (deceptive trade practices). (SAC ¶¶ 83–92, 3 ECF No. 24, at 18–20). However, Plaintiff has failed to state a viable cause of action under any 4 of these statutes. Nonetheless, finding that Plaintiff may be able to adequately allege a statutory 5 cause of action under 15 U.S.C. §1693m and NRS 41.600, the Court will grant limited leave to 6 7 amend to state claims under these statutes. Claims under other statutes will not be permitted. The RICO claim fails as a matter of law.1 Specifically, it is predicated on Plaintiff’s fraud 8 9 claim, which the Court has herein dismissed with prejudice. See supra Part III.B.6. Moreover, 10 Plaintiff has failed to allege the underlying fraud with Rule 9(b) particularity. Id.; see also 11 Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991) 12 13 (recognizing that the heightened pleading standards applicable to fraud claims under Rule 9(b) 14 apply to a RICO claim alleging predicate acts of fraud). The RICO claim is therefore dismissed 15 with prejudice. 16 The claim under 15 U.S.C. §1693 also fails. This section carries the title “Congressional 17 18 findings and declaration of purpose,” consists of two short subsections, and provides no private 19 right of action. There is simply no statutory basis for a cognizable cause of action under §1693, 20 and the claim is therefore dismissed. However, there appears to be a disconnect between what 21 Plaintiff pled and what he intended to plead. In his opposition to the instant motion, he defends 22 the §1693 claim under a different statutory provision. (Opp’n to Mot. Dismiss, ECF No. 40, at 23 24 26). Specifically, while referring to §1693, he quotes from 15 U.S.C. §1693m, which he 25 incorrectly cites as 15 U.S.C. §1693(m)—§1693 does not contain a subsection (m), and 15 26 U.S.C. §1693m is an entirely different section. This distinction is crucial because unlike §1693, 27 1 28 “To state a civil RICO claim, plaintiffs must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (5) causing injury to plaintiffs’ ‘business or property.’” Ove v. Gwinn, 264 F.3d 817, 825 (9th Cir. 2001) (citing 18 U.S.C. § 1964(c)). 21 1 §1693m provides a cause of action under certain specified circumstances. Given the confusion 2 created by Plaintiff’s sloppy pleading, it is unclear from the face of the SAC which, if any, of 3 these circumstances Plaintiff has adequately alleged. The Court will therefore grant leave to 4 amend this claim to properly allege a violation of the statutes upon which Plaintiff initially 5 intended to rely. 6 7 Plaintiff lacks standing to bring a claim under NRS 686A.030 or NRS 686A.040, and 8 these claims are therefore dismissed as a matter of law. Pursuant to NRS 686A.015(1), the 9 Nevada Insurance Commissioner has “exclusive jurisdiction in regulating the subject of trade 10 practices in the business of insurance in this state.” Stated another way, “any right to relief for 11 12 [Plaintiff’s] claims alleging violation of the Nevada Insurance Code resides exclusively with the 13 Insurance Commissioner, Nev. Rev. Stat. § 686A.015(1), and the Nevada Supreme Court has 14 held that there can be no private right of action related to the regulatory requirements for insurers 15 in Nevada.” Weaver v. Aetna Life Ins. Co., 370 F. App’x 822, 824 (9th Cir. 2010) (citing Allstate 16 Ins. Co. v. Thorpe, 170 P.3d 989, 994 (Nev. 2007) (concluding that the existence of a 17 18 comprehensive administrative scheme regarding the enforcement of NRS Title 57, under which 19 the insurance commissioner has exclusive jurisdiction and is required to determine complaints 20 for enforcement, precludes any private cause of action in the district courts)); see also Baldonado 21 v. Wynn Las Vegas, LLC, 194 P.3d 96, 104 n.32 (Nev. 2008) (confirming that the exclusive 22 jurisdiction of the Insurance Commissioner precludes a private cause of action). Accordingly, 23 24 25 Plaintiff’s claims under NRS Title 57 are dismissed with prejudice. Plaintiffs’ claim under NRS 207.360 is also dismissed as a matter of law. As an initial 26 matter, it appears that Plaintiff has once again failed to allege the correct statute. Indeed, his 27 opposition makes clear that he intended to rely on NRS 207.470 (Nevada’s RICO statute), 28 22 1 which, unlike NRS 207.360, creates a private right of action. (See Opp’n to Mot. Dismiss, ECF 2 No. 40, at 28). Normally, the Court would be inclined to dismiss this defective claim and grant 3 leave to amend; however, an amendment would be futile here. Indeed, Plaintiff’s claim under 4 Nevada’s RICO statute fails for the same reason that the federal claim fails—it is predicated on a 5 claim of fraud, (see id.), which is inadequately pled and defective as a matter of law, see supra 6 7 Part III.B.6. The state law RICO claim is therefore defective as a matter of law and dismissed 8 with prejudice. See Steele v. Hosp. Corp. of Am., 36 F.3d 69, 71 (9th Cir. 1994) (Nevada courts 9 have interpreted the provisions of Nevada’s RICO statute consistently with the corresponding 10 provisions of the federal RICO statute.); Allum v. Valley Bank of Nev., 849 P.2d 297, 298 n.2 11 12 13 (Nev. 1993) (noting that Nevada’s RICO statutes are patterned after the federal RICO statutes). With respect to the claims asserted under NRS 598.0915 and NRS 598.092, which define 14 deceptive trade practices, it appears that Plaintiff actually intended to assert a claim under NRS 15 41.600, (see Opp’n to Mot. Dismiss, ECF No. 40, at 28), which creates a cause of action for the 16 conduct defined in NRS 598.0915 and NRS 598.092. To the extent that this is the case, Plaintiff 17 18 is granted leave to amend to properly allege a violation of NRS 41.600. Plaintiff is, however, 19 reminded that should he allege that Defendants “knowingly made false representations” 20 regarding coverage, Rule 9(b) will apply, and the claim will be dismissed absent adequate 21 allegations of “the who, what, when, where, and how of the misconduct charged.” See Vess, 317 22 F.3d at 1106. Such pleading will likely require Plaintiff to allege what the disputed contract 23 24 25 26 actually provides. Leave to amend will not be granted again. Finally, while Plaintiff correctly contends that NRS 686A.310(2) authorizes a private right of action against an insurer, Century Sur. Co. v. Casino W., Inc., No. 3:07-CV-00636-RCJ, 27 2010 WL 762188, at *6 (D. Nev. Mar. 4, 2010), it is wholly inapplicable to the material facts 28 23 1 alleged. Indeed, the provisions of NRS 686A.310 “address the manner in which an insurer 2 handles an insured’s claim,” Schumacher v. State Farm Fire & Cas. Co., 467 F. Supp. 2d 1090, 3 1095 (D. Nev. 2006); they do not apply to allegations of misleading offers of insurance. 4 5 While the Nevada Supreme Court has not squarely addressed this issue, it has relied on the plain language of the statute’s title, “Unfair practices in settling claims; liability of insurer for 6 7 damages,” to support a narrow interpretation of its provisions, Albert H. Wohlers & Co. v. 8 Bartgis, 969 P.2d 949, 959 (Nev. 1998) (“[T]he title of a statute may be considered in construing 9 the statute. The title of NRS 686A.310 reads “Unfair practices in settling claims; liability of 10 insurer for damages.” From a plain reading of its title, there is no indication that the legislature 11 12 intended NRS 686A.310 to apply to other entities beyond insurers.”) (internal citations omitted). 13 A plain reading of this title indicates that NRS 686A.310 applies to unfair practices connected to 14 the settlement of insurance claims, and nothing in the statute’s text suggests that it should apply 15 to promotional materials related to the sale of insurance. This is evidenced by the plain language 16 of the private right of action NRS 686A.310(2) creates: “In addition to any rights or remedies 17 18 available to the Commissioner, an insurer is liable to its insured for any damages sustained by 19 the insured as a result of the commission of any act set forth in subsection 1 as an unfair 20 practice.” (emphasis added). The acts set forth in subsection 1 relate exclusively to the settlement 21 of insurance claims. NRS 686A.310(1). Thus, by its own terms, NRS 686A.310(2) applies only 22 to allegations related to the handling of an insured’s claim, meaning that it does not apply where, 23 24 25 as here, an insured merely alleges misrepresentations in promotional materials,2 see State v. As Plaintiff has explained, “[t]he ‘essence’ of the claims against the Defendants is for fraud and misrepresentation for promising coverage Defendants knew were not going to deliver [sic] to their 175,000 customers who trusted them and bought the policy.” (Opp’n to Mot. Dismiss, ECF No. 41, at 2). Consistent with this characterization, Plaintiff has not alleged that either Defendant misrepresented the provisions of his insurance policy while handling an insurance claim. Instead, with respect to his claim under NRS 686A.310(1)(a), he alleges only that Defendants 2 26 27 28 24 1 Javier C., 289 P.3d 1194, 1197 (Nev. 2012) (“Nevada follows the maxim “expressio unius est 2 exclusio alterius,” the expression of one thing is the exclusion of another.”). This Court is 3 confident that the Nevada Supreme Court would reach the same conclusion.3 Therefore, the NRS 4 686A.310 claim is dismissed with prejudice. 5 CONCLUSION 6 7 IT IS HEREBY ORDERED that the motion to reconsider (ECF No. 43) is DENIED. 8 IT IS FURTHER ORDERED that the motions to dismiss (ECF Nos. 33 and 34) are 9 GRANTED in the entirety. Claims two through six are dismissed with prejudice. The seventh 10 and eighth claims are dismissed with limited leave to amend. Specifically, Plaintiff is granted 11 leave to amend, within fourteen (14) days of the entry of this Order into the electronic docket, to 12 13 properly state claims, if possible, under 15 U.S.C. §1693m and NRS 41.600 and a corresponding 14 civil conspiracy claim. Claims under other statutes will not be permitted. 15 IT IS SO ORDERED. 16 17 April 15, 2014 Dated: _______________________ 18 19 20 _____________________________________ ROBERT C. JONES United States District Judge 21 22 23 24 25 26 27 28 “knowingly made a false representation in the transaction of the selling of insurance.” (SAC ¶ 18, ECF No. 24, at 19). Thus, as Plaintiff correctly notes, “[t]his is anything but a ‘standard insurance dispute,’” (Opp’n to Mot. Dismiss, ECF No. 41, at 2), and it does not implicate NRS 686A.310. 3 “When interpreting state law, federal courts are bound by decisions of the state’s highest court. In the absence of such a decision, a federal court must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.” Strother, 79 F.3d 859, 865 (9th Cir. 1996). 25