Aguirre Guerra v. Dematic Corp.

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 GUISELA AQUIRRE GUERRA, 3:18-CV-0376-LRH-CLB

5 Plaintiff,

6 v. ORDER

7 DEMATIC CORP, et al., 8 Defendants. 9

10 Before the court is Plaintiff Guisela Aguirre Guerra’s (“Guerra”) motion for leave to 11 file a second amended complaint (ECF No. 68). Defendant Dematic Corporation 12 (“Dematic”) opposed the motion,1 (ECF No. 70), and Plaintiff replied. (ECF No. 71). 13 Having thoroughly reviewed the records and papers, the Court denies Plaintiff’s motion for 14 leave to file a second amended complaint. 15 I. Factual Background and Procedural History 16 On June 11, 2018, Guerra filed a complaint against Dematic in state court alleging 17 that it negligently caused, and is strictly liable for, an injury the plaintiff obtained while 18 working for Sally Beauty Supply, LLC (“Sally Beauty”). (ECF No. 1-1). Specifically, Guerra 19 alleges that a lift gate, which allows the user to pass through a portion of the conveyor belt 20 system in Sally Beauty’s warehouse, manufactured and installed by Dematic, injured 21 Guerra in 2016. (ECF No. 1-1 at 5-6). Dematic removed the case to this Court pursuant 22 to 28 USC § 1441. (ECF No. 1). After a brief period of discovery, the parties filed a 23 stipulation to amend the complaint adding as defendant Dematic’s predecessor Raspitan 24 25 26

27 1 Defendant Sally Beauty Supply LLC filed a non-opposition to Guerra’s motion. (ECF No. 69). 1 Demag (“Raspitan”)2, the company originally responsible for the development and 2 installation of the lift gate at Sally Beauty. (ECF No. 14). After further discovery, Guerra 3 claims she uncovered additional information giving rise to the current motion to amend. 4 Guerra’s proposed second amended complaint (“SAC”) alleges, in addition to the 5 claims set forth in the original complaint, Raspitan misrepresented the amount of force 6 required to lift the gate when they sold the conveyor system to Sally Beauty in 1999. (ECF 7 No. 68-1 at ¶ 20-23). Specifically, Plaintiff alleges Raspitan represented to Sally Beauty in 8 1999 that the lift gate would take “less than 40 pounds of force to lift.” (ECF No. 68-1 at ¶ 9 21). The complaint further alleges that after testing the gate, Guerra found the amount of 10 force required to lift the gate is “over 55 pounds[.]” (ECF No. 68-1 at ¶ 22) The SAC does 11 not provide the specific date that the representation was made, the specific person it was 12 made to or any other specific allegations related to the alleged misrepresentation. 13 II. LEGAL STANDARD 14 A. Motion for Leave to Amend Complaint 15 The Federal Rules of Civil Procedure state that “leave shall be freely given when 16 justice so requires.” Fed. R. Civ. Pro. 15(a). “After a party has amended a pleading once 17 as a matter of course, it may only amend further after obtaining leave of the court, or by 18 consent of the adverse party. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 19 (9th Cir. 2003). When deciding whether to grant leave to amend federal courts consider 20 the following five factors: (1) undue delay, (2) bad faith, (3) repeated failure to cure 21 deficiencies, (4) undue prejudice to the opposing party by virtue of allowance of the 22 amendment, and (5) futility of amendment. Id. at 1052 (citing Foman v. Davis, 371 U.S. 23 178, 183 (1962)). 24 Rule 15(a) creates a presumption in favor of granting leave to amend, however, 25 leave to amend is properly denied when amendment would be futile. Foman v. Davis, 371 26

27 2 Dematic has stipulated that Dematic has assumed Raspitan’s liabilities in this case. Therefore, if Raspitan is found liable, then Dematic is responsible. 1 U.S. 178, 182. (1962). Futility arises when the amendment is legally insufficient, Miller v. 2 Rykoff-Sexon, Inc., 845 F.3d 209, 214 (9th Cir. 1988), or “where the amended complaint 3 would . . . be subject to dismissal.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 4 (9th Cir. 1998); see also Carrico v. City & Cty. of San Francisco, 656 F.3d 1002, 1008 (9th 5 Cir. 2011) (amendment is futile when the claimant lacks standing to bring the claim). 6 B. Nevada Deceptive Trade Practices Act 7 The Nevada Deceptive Trade Practices Act (“NDTPA”) grants a broad right of 8 action to “any person who is a victim of consumer fraud.” NRS 41.600(1). The statute 9 goes on to define consumer fraud as deceptive trade practices stated in “NRS 598.0915 10 and 598.092, inclusive.” NRS 41.600(2)(e). “If the claimant is the prevailing party, the 11 court shall award the claimant “[a]ny damages that the claimant has sustained.” NRS 12 41.600(3)(a). 13 The Nevada Supreme Court has yet to define the elements of a claim brought under 14 the NDTPA, “including whether causation and reliance are required.” Picus v. Wal-Mart 15 Stores, Inc., 256 F.R.D. 651, 657. Where a Federal Court is deciding an issue not yet 16 reached by the State’s highest court, “the task of the federal courts is to predict how the 17 state high court would resolve it.” Id. (quoting Giles v. Gen. Motors Acceptance Corp., 18 494 F.3d 865, 872 (9th Cir. 2007).) 19 To best effectuate the legislative intent, Nevada Courts interpret statutes according 20 to their plain and ordinary meaning. Poole v. Nevada Auto Dealership Investments, LLC, 21 135 Nev. 280 (Nev App. 2019). “When a statute ‘is susceptible to more than one natural 22 or honest interpretation, it is ambiguous, and the plain meaning rule has no application. 23 Id. (quoting State, Dep’t of Bus. & indus. V. Granite Constr. Co., 118 Nev. 83, 87 (Nev. 24 2002)). Once a statute is deemed to be ambiguous, the courts “consult legislative history, 25 reason, and policy” to effectuate the legislative intent. In re CityCenter Constr. & Lien 26 Mater Litig., 129 Nev. 669, 673. 27 1 Applying these principles to the NDTPA, the court in Picus v. Wal-Mart Stores, Inc. 2 found that “for a private NDTPA claim for damages, the Nevada Supreme Court would 3 require, at a minimum, a victim of consumer fraud to prove that (1) an act of consumer 4 fraud by the defendant (2) caused (3) damage to the plaintiff.” 256 F.R.D. at 658. 5 Moreover, when the claimant alleges an affirmative misrepresentation, the causation 6 element includes reliance. Id. This court agrees. 7 Furthermore, to be a victim under the NDTPA and have standing to bring a claim, 8 the claimant must show that the deceptive trade practices “directly harmed” her. Del. Webb 9 Communities, Inc. v. Partington, 652 F.3d 1145, 1153 (9th Cir. 2011). This direct harm 10 standard, when considered with the elements of the underlying offense, requires the 11 claimant to show a minimal causal connection between the deceptive trade practice and 12 the alleged harm to have standing to bring a claim. 13 II. Discussion 14 A. Failure to Properly Plead Claim 15 The SAC alleges as follows: In 1999, Rapistan sold the gate at issue in this case 16 to Sally Beauty. (ECF No. 68-1 at ¶ 21). At the time of the sale, Rapistan represented that 17 the gate would take less than 40 pounds of force to lift the gate. (Id.) However, the SAC 18 alleges this representation was false because “it takes in excess of 55 pounds to lift the 19 gate.” (Id. at ¶ 22). Thus, according to the SAC, Dematic, through Rapistan’s false 20 representation, violated NRS 598.0915. However, NRS 598.0915 contains sixteen (16) 21 separate subsections and the SAC fails to identify which of these subsections was 22 allegedly violated. This alone is sufficient to deny the motion to amend. See Huggins v. 23 Quality Loan servicing, LP, 2011 WL 310490 at *4 (D. Nev. Jan. 27, 2011) (dismissing the 24 claim because plaintiff failed to clarify which provision of NRS 598.0915 the defendants 25 have violated on the face of the complaint). 26 /// 27 /// 1 B. Futility 2 Although the SAC does not point to the specific provides of NRS 598.0915 that 3 allegedly violated, Guerra’s motion to amend identifies subsections (5), (7), (9) and (15) 4 as the subsections at issue in this case. (ECF No. 68 at 3).3 Each of the subsections 5 identified require proof that a representation was made in connection with the alleged 6 deceptive trade practice. However, even if the court assumes the identification of these 7 subsections in motion is sufficient for purposes of ruling on the motion to amend, the 8 motion must be denied on this basis as well because Guerra does not have standing to 9 assert these claims. 10 For a plaintiff to properly assert a claim under any subsection of NRS 598.0915, 11 they must first meet the standing requirements proscribed by NRS 41.600(1). As stated 12 above, only victims of deceptive trade practices may bring a claim under the statute. NRS 13 41.600(1). To be a victim of deceptive trade practices the plaintiff must have suffered a 14 “direct harm” from the alleged wrongdoing, Del Webb, 652 F. 3d at 1153, or stated 15 differently there must be at least some minimal causal connection between the alleged 16 deceptive trade practice and the injury. This basic principle of causation is evident in the 17 text of the underlying statute. see Picus, 256 F.R.D. at 658. In this case, Guerra alleges 18 Rapistan made a misrepresentation regarding the gate provided to Sally Beauty in 1999 19 – 17 years prior to her injury. (ECF No. 68-1 at ¶ 21). Guerra does not allege that she 20 knew of the representation, nor does she allege that she relied on the representation in 21 any manner. (See ECF No. 68-1 at ¶¶ 21-24). However, the provisions of NRS 598.0915 22 Guerra claims are at issue in this case each involve conduct involving an affirmative 23 representation. 24

25 3 Guerra’s motion asserts that NRS 598.0915(9) applies to this case. (See ECF No. 68 at 3). This subsection makes it a deceptive trade practice to “advertise[] goods or 26 services with intent not to sell or lease them as advertised.” NRS 598.0915(9). However, 27 nothing in the SAC indicates that the misrepresentation was made in advertising to the broader public. Rather, the SAC only asserts the representation was made to Sally Beauty. 1 Although Guerra argues that she need not show that she relied on the 2 || misrepresentation in order to assert her deceptive trade practices claim, (ECF No. 71 at 3 || 5), this position is contrary to the line of cases surrounding the NDTPA and is not 4 || supported by the language of the statute. See De! Webb, 652 F. 3d at 1153; Picus, 256 5 || F.R.D. at 658. As noted above, when alleging an affirmative misrepresentation was made 6 || to support a claim of deceptive trade practices, the law requires the claimant to allege 7 || reliance on the misrepresentation. Picus, 256 F.R.D. at 658. 8 Guerra’s failure to allege any facts suggesting she knew of the representation or 9 || relied on the representation is fatal to her claim. The facts alleged by Guerra only show a 10 || misrepresentation was made to Sally Beauty in 1999 — some 17 years before Guerra was 11 || injured. (ECF No. 68). Rather, Guerra’s proposed SAC only alleges the gate itself caused 12 || her harm. (ECF Nos. 1, 68). This alleged harm is only tangentially related to the words in 13 || an information brochure provided to her employer 17 years before the injury. Without 14 || Guerra knowing what Raspitan claimed the weight of the gate to be, she cannot be a victim 15 || of the misrepresentation. Therefore, even assuming all of Guerra’s factual allegations to 16 || be true, the claim fails to allege any facts that would suggest Guerra has standing under 17 || NRS 41.600(1). See De! Webb, 652 F. 3d at 1153. 18 Due to Guerra’s lack of standing to bring a claim, allowing the amendment would 19 || be futile. Carrico, 656 F.3d at 1008. Therefore, the motion for leave to file a second 20 || amended complaint must be denied. 21 || Il. Conclusion 22 IT IS THEREFORE ORDERED that Guerra’s motion for leave to file seconded 23 || amended complaint (ECF No. 68) is DENIED. 24 || DATED: September 9, 2020. 25 3 . 26 7 UNITED STATES STRATE JUDGE 28