1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 TERESA RENITA BURWELL, Case No. 2:25-cv-00284-RFB-EJY
5 Plaintiff,
6 v. ORDER
7 SIGNATURE REAL ESTATE GROUP & AND TRIPLE E PROPERTIES, LLC REPORT AND RECOMMENDATION 8 Defendants. 9 10 Pending before the Court is Plaintiff Teresa Burwell’s application to proceed in forma 11 pauperis (sometimes “IFP”) and Complaint. ECF Nos. 1, 1-1. Based on the representation in the 12 IFP, the Court finds Plaintiff is unable to pay the required filing fee and her application to proceed 13 in forma pauperis is granted below. 14 I. Screening Standard 15 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 16 under 28 U.S.C. § 1915(e)(2). To survive § 1915 review, a complaint must “contain sufficient 17 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 18 Iqbal, 556 U.S. 662, 678 (2009). This standard “does not require detailed factual allegations, but it 19 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (internal 20 quotation omitted). The Court must liberally construe pro se complaints and may only dismiss them 21 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 22 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). 23 II. Discussion 24 Plaintiff, a Nevada resident, asserts multiple claims against Signature Real Estate Group and 25 Triple E Properties (the owner and manager of her apartment complex, respectively), for whom 26 Nevada addresses are given. ECF No. 1-1 at 2. Plaintiff alleges violations of the Sherman Antitrust 27 Act (15 U.S.C § 1, et seq.), the Clayton Act (15 U.S.C. § 12, et seq.), the Federal Trade Commission 1 Act (15 U.S.C § 41, et seq.) and NRS 118A.300.1 ECF No. 1-1 at 3. Plaintiff alleges Defendants 2 violated these laws by increasing her rent from $1,495 to $2,200, which she characterizes as 3 “predatory price fixing by means of increasing [her] rent over 5% … and failing to provide … proper 4 notice.” Id. at 4. Plaintiff asserts these alleged violations caused her “unnecessary duress, stress, 5 embarrassment and suffering,” and resulted in her being homeless for a period of six months. Id. 6 The Court begins by considering Plaintiff’s federal claims, because in the absence of 7 complete diversity or a valid federal question, the Court would be unable to exercise jurisdiction 8 over Plaintiff’s state law claim. See Residential Funding Real Estate Holdings, LLC v. Chavez, Case 9 No. CV 10-04488 MMM (JCGx), 2010 WL 3220065 (C.D. Cal. Aug. 12, 2010) (“[A] court cannot 10 exercise supplemental jurisdiction unless at least one claim in the action falls independently within 11 its jurisdiction.”). 12 With regards to Plaintiff’s claim under the Federal Trade Commission Act, that statute does 13 not include a private right of action. Belssner v. One Nev. Credit Union, Case No. 2:17-CV-1648 14 JCM-VCF, 2017 WL 3910776, at *2 (D. Nev. Sep. 19, 2017) (“[T]he FTCA does not provide for a 15 private right of action.”) (citing, inter alia, Carlson v. Coca Cola Co., 483 F.2d 279, 280 (9th Cir. 16 1973)). The Court therefore recommends dismissing this claim with prejudice. 17 Turning to the Sherman Antitrust Act, while that Act itself does not include a private right 18 of action, section 4 of the Clayton Act does allow private parties to sue for violations of the Sherman 19 Act and other relevant antitrust laws. 15 U.S.C. § 15 (“[A]ny person who shall be injured in his 20 business or property by reason of anything forbidden in the antitrust laws may sue therefor in any 21 district court of the United States in the district in which the defendant resides.”) The Clayton Act 22 is not a freestanding cause of action, however, and thus Plaintiff must still properly allege violation 23 of a specific antitrust law. Kendall v. Visa U.S.A., Inc., 518 F.3d 1042 (9th Cir. 2008) (The Clayton 24 Act “does not furnish an independent cause of action[;] [r]ather, it allows the court to fashion relief 25
1 Plaintiff also alleges at different points violations of “AB40,” which she describes as providing that “no eviction 26 should be filed sought or granted with a pending rental assistance application.” ECF No. 1-1 at 3-4. Based on this description, the Court construes Plaintiff’s Complaint to be referencing Nevada Senate Bill 335 (2023), a proposed piece 27 of legislation that would have provided such protections. 2023 NV S.B. 335 (LexisNexis). However, even assuming 1 upon a showing of a separate violation of the antitrust laws.”) Though Plaintiff does not specify 2 which provision of the Sherman Antitrust Act she alleges Defendants violated, the Court construes 3 her reference to price fixing to be alleging a violation of Section 1 of that Act. See Optronic Techs., 4 Inc. v. Ningbo Sunny Elec. Co., Ltd., 20 F.4th 466, 479 (9th Cir. 2021) (“Horizontal price fixing and 5 market allocation are per se Section 1 violations.”) (citing Palmer v. BRG of Ga., Inc., 498 U.S. 46, 6 49 (1990)). 7 To state a claim under Section 1 of the Sherman Act, Plaintiff must allege “(1) that there was 8 a contract, combination, or conspiracy; (2) that the agreement unreasonably restrained trade under 9 either a per se rule of illegality or a rule of reason analysis; and (3) that the restraint affected interstate 10 commerce.” Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1062 (9th Cir. 2001) (internal quotations 11 omitted). Further, the allegations must include “enough factual matter (taken as true) to suggest that 12 an agreement was made.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). In addition to the 13 specific pleading requirements under this provision, a private party seeking to enforce antitrust laws 14 through a private suit under the Clayton Act must demonstrate an antitrust injury, not simply an 15 individual injury. McGlinchy v. Shell Chem. Co., 845 F.2d 802, 815 (9th Cir. 1988) (A plaintiff 16 must “allege antitrust injury to the market or to competition in general, not merely injury to 17 individuals”). An antitrust injury is an injury “of the type the antitrust laws were intended to prevent 18 that also flows from that which makes defendants’ acts unlawful.” Brunswick Corp. v. Pueblo Bowl- 19 O-Mat, Inc., 429 U.S. 477, 489 (1977). 20 Applying these standards to Plaintiff’s Complaint, the Court finds she fails to state a claim 21 under Section 1 of the Sherman Act or any other antitrust law.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 TERESA RENITA BURWELL, Case No. 2:25-cv-00284-RFB-EJY
5 Plaintiff,
6 v. ORDER
7 SIGNATURE REAL ESTATE GROUP & AND TRIPLE E PROPERTIES, LLC REPORT AND RECOMMENDATION 8 Defendants. 9 10 Pending before the Court is Plaintiff Teresa Burwell’s application to proceed in forma 11 pauperis (sometimes “IFP”) and Complaint. ECF Nos. 1, 1-1. Based on the representation in the 12 IFP, the Court finds Plaintiff is unable to pay the required filing fee and her application to proceed 13 in forma pauperis is granted below. 14 I. Screening Standard 15 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 16 under 28 U.S.C. § 1915(e)(2). To survive § 1915 review, a complaint must “contain sufficient 17 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 18 Iqbal, 556 U.S. 662, 678 (2009). This standard “does not require detailed factual allegations, but it 19 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (internal 20 quotation omitted). The Court must liberally construe pro se complaints and may only dismiss them 21 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 22 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). 23 II. Discussion 24 Plaintiff, a Nevada resident, asserts multiple claims against Signature Real Estate Group and 25 Triple E Properties (the owner and manager of her apartment complex, respectively), for whom 26 Nevada addresses are given. ECF No. 1-1 at 2. Plaintiff alleges violations of the Sherman Antitrust 27 Act (15 U.S.C § 1, et seq.), the Clayton Act (15 U.S.C. § 12, et seq.), the Federal Trade Commission 1 Act (15 U.S.C § 41, et seq.) and NRS 118A.300.1 ECF No. 1-1 at 3. Plaintiff alleges Defendants 2 violated these laws by increasing her rent from $1,495 to $2,200, which she characterizes as 3 “predatory price fixing by means of increasing [her] rent over 5% … and failing to provide … proper 4 notice.” Id. at 4. Plaintiff asserts these alleged violations caused her “unnecessary duress, stress, 5 embarrassment and suffering,” and resulted in her being homeless for a period of six months. Id. 6 The Court begins by considering Plaintiff’s federal claims, because in the absence of 7 complete diversity or a valid federal question, the Court would be unable to exercise jurisdiction 8 over Plaintiff’s state law claim. See Residential Funding Real Estate Holdings, LLC v. Chavez, Case 9 No. CV 10-04488 MMM (JCGx), 2010 WL 3220065 (C.D. Cal. Aug. 12, 2010) (“[A] court cannot 10 exercise supplemental jurisdiction unless at least one claim in the action falls independently within 11 its jurisdiction.”). 12 With regards to Plaintiff’s claim under the Federal Trade Commission Act, that statute does 13 not include a private right of action. Belssner v. One Nev. Credit Union, Case No. 2:17-CV-1648 14 JCM-VCF, 2017 WL 3910776, at *2 (D. Nev. Sep. 19, 2017) (“[T]he FTCA does not provide for a 15 private right of action.”) (citing, inter alia, Carlson v. Coca Cola Co., 483 F.2d 279, 280 (9th Cir. 16 1973)). The Court therefore recommends dismissing this claim with prejudice. 17 Turning to the Sherman Antitrust Act, while that Act itself does not include a private right 18 of action, section 4 of the Clayton Act does allow private parties to sue for violations of the Sherman 19 Act and other relevant antitrust laws. 15 U.S.C. § 15 (“[A]ny person who shall be injured in his 20 business or property by reason of anything forbidden in the antitrust laws may sue therefor in any 21 district court of the United States in the district in which the defendant resides.”) The Clayton Act 22 is not a freestanding cause of action, however, and thus Plaintiff must still properly allege violation 23 of a specific antitrust law. Kendall v. Visa U.S.A., Inc., 518 F.3d 1042 (9th Cir. 2008) (The Clayton 24 Act “does not furnish an independent cause of action[;] [r]ather, it allows the court to fashion relief 25
1 Plaintiff also alleges at different points violations of “AB40,” which she describes as providing that “no eviction 26 should be filed sought or granted with a pending rental assistance application.” ECF No. 1-1 at 3-4. Based on this description, the Court construes Plaintiff’s Complaint to be referencing Nevada Senate Bill 335 (2023), a proposed piece 27 of legislation that would have provided such protections. 2023 NV S.B. 335 (LexisNexis). However, even assuming 1 upon a showing of a separate violation of the antitrust laws.”) Though Plaintiff does not specify 2 which provision of the Sherman Antitrust Act she alleges Defendants violated, the Court construes 3 her reference to price fixing to be alleging a violation of Section 1 of that Act. See Optronic Techs., 4 Inc. v. Ningbo Sunny Elec. Co., Ltd., 20 F.4th 466, 479 (9th Cir. 2021) (“Horizontal price fixing and 5 market allocation are per se Section 1 violations.”) (citing Palmer v. BRG of Ga., Inc., 498 U.S. 46, 6 49 (1990)). 7 To state a claim under Section 1 of the Sherman Act, Plaintiff must allege “(1) that there was 8 a contract, combination, or conspiracy; (2) that the agreement unreasonably restrained trade under 9 either a per se rule of illegality or a rule of reason analysis; and (3) that the restraint affected interstate 10 commerce.” Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1062 (9th Cir. 2001) (internal quotations 11 omitted). Further, the allegations must include “enough factual matter (taken as true) to suggest that 12 an agreement was made.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). In addition to the 13 specific pleading requirements under this provision, a private party seeking to enforce antitrust laws 14 through a private suit under the Clayton Act must demonstrate an antitrust injury, not simply an 15 individual injury. McGlinchy v. Shell Chem. Co., 845 F.2d 802, 815 (9th Cir. 1988) (A plaintiff 16 must “allege antitrust injury to the market or to competition in general, not merely injury to 17 individuals”). An antitrust injury is an injury “of the type the antitrust laws were intended to prevent 18 that also flows from that which makes defendants’ acts unlawful.” Brunswick Corp. v. Pueblo Bowl- 19 O-Mat, Inc., 429 U.S. 477, 489 (1977). 20 Applying these standards to Plaintiff’s Complaint, the Court finds she fails to state a claim 21 under Section 1 of the Sherman Act or any other antitrust law. Plaintiff asserts that her rent increase 22 was the result of “predatory price fixing,” ECF No. 1-1 at 4, but she does not allege the existence of 23 an agreement between Defendants and any other leasing agency or property manager to set a 24 minimum rent throughout a specified market, or that the increase in her rent was part of a larger 25 scheme that restrained trade in a way that affected interstate commerce. More fundamentally, 26 Plaintiff only alleges injury to herself in the form of “unnecessary duress, stress, embarrassment, and 27 suffering.” Id. To sustain an antitrust claim, Plaintiff must allege an injury to the relevant market 1 McGlinchy, 845 F.2d at 815. The Court dismisses Plaintiff’s antitrust claims; however, because it 2 is possible Plaintiff will be able to plead additional facts sufficient to state a claim under the Sherman 3 Act, this dismissal is without prejudice to filing an amended complaint. 4 Finally, because none of Plaintiff’s federal claims survive screening and there is no diversity 5 of parties, the Court dismisses her claim under NRS 118A.300. If Plaintiff believes Defendants have 6 violated relevant protections for renters under Nevada law, she may file such a claim in state court 7 or, if she chooses to file an amended complaint in the instant action and such complaint states a valid 8 claim under federal law, the Court, at its discretion, may exercise supplemental jurisdiction over this 9 state law claim. Therefore, this dismissal will be without prejudice. 10 III. Conclusion 11 For the above reasons, the Court finds Plaintiff fails to state a claim upon which relief can be 12 granted and therefore dismisses her Complaint. If Plaintiff wishes to replead her antitrust claims in 13 an Amended Complaint, she must be sure to properly allege the existence of an agreement between 14 Defendants and other leasing managers, and that such agreement caused an injury not only to herself, 15 but to the rental market generally through reduced competition. Additionally, any claims arising 16 under Nevada law will be considered only if Plaintiff properly states a claim under federal law. 17 IV. Order 18 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma 19 pauperis is GRANTED. 20 IT IS FURTHER ORDERED that Plaintiff’s claims under the Sherman Antitrust Act, the 21 Clayton Act, and NRS 118A.300 are DISMISSED without prejudice. 22 IT IS FURTHER ORDERED that Plaintiff must, if she so chooses, file an amended 23 complaint, which must be titled “FIRST AMENDED COMPLAINT,” by April 14, 2025. Plaintiff’s 24 filing must be complete in and of itself. That means all of the facts and all claims Plaintiff wishes 25 the Court to review must be included in the FIRST AMENDED COMPLAINT. The Court cannot 26 review Plaintiff’s original Complaint for any purpose. 27 IT IS FURTHER ORDERED that failure to timely file and otherwise comply with this Order 1 V. Recommendation 2 IT IS HEREBY RECOMMENDED that Plaintiff’s claim under the Federal Trade 3 Commission Act be DISMISSED with prejudice. 4 Dated this 14th day of March, 2025. 5
6 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 7
8 NOTICE 9 Under Local Rule IB 3-2, any objection to this Report and Recommendation must be in 10 writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court holds 11 the courts of appeal may determine that an appeal has been waived due to the failure to file objections 12 within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). The Ninth Circuit also held 13 that (1) failure to file objections within the specified time and (2) failure to properly address and 14 brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal 15 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 16 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 17
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