Douglas Coder & Linda Coder Family LLLP v. RNO Exhibitions, LLC

• Court: District Court, D. Nevada
• Decided: February 8, 2022
• Docket: 3:19-cv-00520
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DOUGLAS CODER & LINDA CODER Case No. 3:19-cv-00520-MMD-CLB FAMILY LLLP, 7 ORDER Plaintiff, 8 v.

9 RNO EXHIBITIONS, LLC, et al.,

10 Defendants.

11 12 I. SUMMARY 13 Plaintiff Douglas Coder and Linda Coder Family LLLP sued Defendants RNO 14 Exhibitions, LLC (“RNO”) and Vincent L. Webb (RNO’s alleged alter ego) after Plaintiff 15 lent some money to RNO, but RNO never repaid Plaintiff. (ECF No. 37 (“FAC”).) Before 16 the Court are three motions for summary judgment: (1) RNO’s motion on Plaintiff’s 17 intentional misrepresentation and accounting claims (ECF No. 77);1 (2) Webb’s motion 18 on all of Plaintiff’s claims asserted against him (ECF No. 78);2 and (3) Plaintiff’s motion 19 on its breach of contract claim against RNO and intentional misrepresentation claim 20 against RNO and Webb (ECF No. 79).3 As further explained below, the Court will grant 21 Plaintiff summary judgment on its breach of contract claim against RNO, decline to 22 resolve the alter ego issue and intentional misrepresentation claim in this order because 23 genuine disputes of material fact preclude summary judgment, and grant Defendants 24 25 1Plaintiff filed a response (ECF No. 86) and RNO filed a reply (ECF No. 90). 26 2Plaintiff filed a response (ECF No. 85) and Webb filed a reply (ECF No. 89). 27 3Webb (ECF No. 82) and RNO (ECF No. 84) filed responses, and Plaintiff filed a 28 reply (ECF No. 91). Defendants requested oral argument, but the Court denies their request as unnecessary. See LR 78-1 (“All motions may be considered and decided with 2 Plaintiff lacks an ownership interest in RNO. 3 II. BACKGROUND 4 The following facts are undisputed unless otherwise noted. In 2014 and 2015, RNO 5 was a startup seeking funding for its business. (ECF No. 78-1 at 3.) Webb described 6 himself during this timeframe as RNO’s Founder and President. (ECF No. 85-2 at 54.) 7 Generally speaking, RNO’s business model was to promote and hold auctions at 8 tradeshows using a proprietary app loaded onto tablets handed out to people at the 9 tradeshows, allowing those tradeshow attendees to learn more about certain products 10 and bid on them, and allowing RNO to sell the information collected from the app to 11 companies selling their products at RNO’s auctions while also getting a commission on 12 each product sold at auction. (Id. at 49-53, 55.) RNO targeted the “$343 Billion dollar 13 Home Improvement and DIY Industry[.]” (Id. at 50.) 14 A business associate of Webb introduced him to Douglas Coder. (ECF No. 78-1 15 at 3.) Webb spoke to Douglas Coder on the phone, and Douglas Coder talked about his 16 history raising money for startups, but then explained he was retiring, and put Webb in 17 touch with his son, Scott Coder. (Id. at 3.) Scott Coder orally agreed to find investors for 18 RNO with Webb in exchange for a 10% commission on any money he brought in. (Id. at 19 3-4; see also ECF No. 85-2 at 4.) Scott Coder did find some investors for RNO, and RNO 20 paid him commissions. (ECF No. 78-1 at 4.) 21 It is then disputed exactly how it happened—Scott Coder says he solicited his 22 father to invest in RNO (ECF No. 85-2 at 5-6)—but in 2015, Douglas Coder decided to 23 loan money to RNO (see id.; see also ECF No. 79-6 at 3). It is also disputed whether 24 Douglas Coder sent RNO some money before entering into an agreement with RNO, but 25 there is no dispute that, on November 15, 2015, Plaintiff4 and RNO, with Webb as RNO’s 26 4“Plaintiff Douglas Coder & Linda Coder Family LLLP is a limited liability limited 27 partnership that was organized and exists under the laws of the State of Arizona. The members of that partnership are residents of the States of Arizona and Iowa.” (ECF No. 28 37 at 2.) Scott Coder says he is a partner in it. (ECF No. 79-6 at 3.) Douglas Coder seems 2 No. 79-6 at 7-11.) The Agreement provided that Plaintiff would loan RNO $280,000, and 3 RNO would repay that amount with interest. (Id. at 7; see also 8-9 (the Promissory Note 4 spelling out the loan terms more explicitly).) The Agreement also gave Plaintiff the option 5 to buy a 2.8% equity stake in RNO for one dollar provided it gave RNO the $280,000, 6 returned the signed loan documents, and paid one dollar for the shares. (Id. at 7, 10.) 7 Plaintiff paid RNO the $280,000 it agreed to under the Agreement in three 8 installments. (Id. at 3.) “On or about February 24, 2017, RNO made an interest payment 9 of $10,373.91 to” Plaintiff. (Id. at 4.) Otherwise, RNO has not paid any of the money back. 10 (Id. at 4-5.) Plaintiff accordingly contends that RNO owes it $423,626.09 at the time it filed 11 its motion for summary judgment. (Id. at 4.) 12 Plaintiff filed this case against RNO, and Webb as RNO’s alter ego, seeking 13 repayment of the money it is owed. (ECF No. 37.) Plaintiff specifically brought claims for 14 breach of contract (the Agreement), breach of the covenant of good faith and fair dealing, 15 unjust enrichment, for an accounting, and intentional misrepresentation. (Id.) 16 The Court previously dismissed Plaintiff’s breach of the covenant of good faith and 17 fair dealing and unjust enrichment claims. (ECF No. 56.)5 As noted, Plaintiff, RNO, and 18 Webb now move for summary judgment on certain claims. 19 III. LEGAL STANDARD 20 “The purpose of summary judgment is to avoid unnecessary trials when there is 21 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 22

23 to also have some control over it because Scott Coder says that it was his father, Douglas Coder, who decided to invest in RNO, presumably through Plaintiff as Plaintiff’s name is 24 in the Agreement. (ECF No. 85-2 at 5-6.) While the precise relationship between Douglas Coder and Plaintiff is unclear, Plaintiff seems to take it for granted that Douglas Coder 25 could, and did, make decisions on behalf of Plaintiff. Moreover, Plaintiff’s name suggests it is an LLLP set up by Douglas Coder and his wife Linda to make investments or for other 26 purposes.

27 5The Court also granted a motion to strike a third-party complaint that RNO filed against Scott Coder and his alleged business Coder Consulting Team, LLC, but that ruling 28 is not particularly pertinent to the issues discussed herein. (ECF Nos. 61 (stricken third- party complaint), 76 (order).) 2 when the pleadings, the discovery and disclosure materials on file, and any affidavits 3 “show there is no genuine issue as to any material fact and that the movant is entitled to 4 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue 5 is “genuine” if there is a sufficient evidentiary basis on which a reasonable factfinder could 6 find for the nonmoving party and a dispute is “material” if it could affect the outcome of 7 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 8 (1986). Where reasonable minds could differ on the material facts at issue, however, 9 summary judgment is not appropriate. See id. at 250-51. “The amount of evidence 10 necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to 11 resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 12 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 13 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and 14 draws all inferences in the light most favorable to the nonmoving party. See Kaiser 15 Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986) (citation 16 omitted). 17 The moving party bears the burden of showing that there are no genuine issues of 18 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 19 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 20 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 21 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings 22 but must produce specific evidence, through affidavits or admissible discovery material, 23 to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 24 1991), and “must do more than simply show that there is some metaphysical doubt as to 25 the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting 26 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 27 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient[.]” 28 Anderson, 477 U.S. at 252. 2 must be considered on its own merits.’” Fair Hous. Council of Riverside County, Inc. v. 3 Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quoting William W. Schwarzer, et 4 al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 499 (Feb. 5 1992)) (citations omitted). “In fulfilling its duty to review each cross-motion separately, the 6 court must review the evidence submitted in support of each cross-motion.” Id. 7 IV. DISCUSSION 8 Though the Court considered each of the pending motions on their own merits and 9 reviewed the evidence submitted in support of each motion, the pending motions raise 10 overlapping issues and arguments, so the Court organizes its discussion below by issue 11 rather than motion. The Court first discusses the overlapping issues of Plaintiff’s breach 12 of contract claim and alter ego theory, then Plaintiff’s accounting claim, and then Plaintiff’s 13 intentional misrepresentation claim. 14 A. Breach of Contract and Alter Ego 15 To start, RNO consents to entry of summary judgment against it on Plaintiff’s 16 breach of contract claim. (ECF No. 84 at 2.) It is thus undisputed that RNO breached the 17 Agreement. And the Court agrees with the parties that the undisputed evidence before 18 the Court shows that RNO breached the Agreement. (See, e.g., ECF No. 79-6.) Plaintiff’s 19 motion for summary judgment is accordingly granted on its breach of contract claim 20 against RNO. 21 And while Plaintiff does not move for summary judgment on its breach of contract 22 claim against Webb, Webb moves for summary judgment on it. (ECF Nos. 78, 79 at 2.) 23 But Webb’s argument that he is entitled to summary judgment on Plaintiff’s breach of 24 contract claim is based on his argument that he is not RNO’s alter ego, and, indeed, he 25 also moves for summary judgment on Plaintiff’s alter ego claim because Plaintiff asserted 26 it as a standalone claim. (ECF No. 78 at 5-6, 9-11.) 27 There is no dispute that Webb signed the Agreement on behalf of RNO. (ECF Nos. 28 78 at 5, 79-6 at 9, 85 at 14 (“On November 5, 2015, Mr. Webb, on behalf of RNO, signed 2 liability for breach of contract depends on whether RNO is his alter ego. (ECF No. 85 at 3 11 (stating that Plaintiff’s “breach of contract claim is brought against Mr. Webb as an 4 alter ego of RNO.”).) The Court accordingly addresses the parties’ alter ego arguments 5 here. 6 Webb argues that Plaintiff has no evidence RNO is his alter ego, specifically 7 arguing that there is no evidence of a unity of interest and ownership or any evidence of 8 manifest injustice. (ECF No. 78 at 9-11.) Plaintiff counters that genuine disputes of 9 material fact preclude summary judgment on this issue because Webb is the manager, 10 organizer, registered agent, founder, and president of RNO, Webb was the only person 11 Plaintiff or any of the Coders ever dealt with, no discovery materials have suggested that 12 anyone else was authorized to speak on RNO’s behalf, and RNO was undercapitalized. 13 (ECF No. 85 at 12-13.) The Court agrees with Plaintiff in pertinent part. 14 Under Nevada law, “[a] person acts as the alter ego of a corporation only if: (a) 15 [t]he corporation is influenced and governed by the person; (b) [t]here is such unity of 16 interest and ownership that the corporation and the person are inseparable from each 17 other; and (c) [a]dherence to the notion of the corporation being an entity separate from 18 the person would sanction fraud or promote a manifest injustice.” NRS § 78.747. Whether 19 a person acted as the alter ego of a corporation is a question of law. See id. Further, “the 20 alter ego doctrine applies to LLCs.”6 Gardner on Behalf of L.G. v. Eighth Judicial Dist. 21 Court in & for Cty. of Clark, 405 P.3d 651, 655 (Nev. 2017). And “[a]lthough ‘there is no 22 litmus test for determining when the corporate fiction should be disregarded,’ factors 23 indicating the existence of an alter ego include: ‘(1) commingling of funds; (2) 24 undercapitalization; (3) unauthorized diversion of funds; (4) treatment of corporate assets 25 as the individual’s own; and (5) failure to observe corporate formalities.’” Beta Soft Sys., 26 27

28 6RNO is an LLC. (ECF No. 43 at 1.) 2 *3 (D. Nev. Aug. 25, 2017) (citation omitted). 3 While the ultimate question of whether RNO is Webb’s alter ego may be a question 4 of law, disputes of material fact prevent the Court from resolving the question at this stage. 5 Webb’s motion on this issue is not the typical summary judgment motion where he 6 presents evidence to support his arguments; he instead argues that Plaintiff has no 7 evidence necessary to establish his liability under an alter ego theory. (ECF No. 78 at 2.) 8 There is nothing improper about Webb’s approach. However, Plaintiff does present some 9 evidence in response to Webb’s motion leading the Court to conclude that it cannot grant 10 Webb summary judgment that he is not RNO’s alter ego and must accordingly let Plaintiff 11 proceed on its breach of contract claim under an alter ego theory against Webb. 12 For example, Webb argues “[t]here is no evidence that Webb in his individual 13 capacity is a member in RNO or owns any portion of RNO.”7 (Id.) But Plaintiff responds 14 with an RNO promotional PowerPoint listing Webb as the Founder and President of RNO 15 (ECF No. 85-2 at 54) and RNO’s articles of incorporation filed with the Nevada Secretary 16 of State listing Webb as the noncommercial registered agent, manager (or potentially 17 7There is a subtle difference between this statement and saying, “Webb is not a 18 member or partial owner of RNO.” That would be a statement of fact. But what Webb offers is merely an assertion that Plaintiff’s cannot prove he is a member or partial owner 19 of RNO. This reinforces the Court’s finding that disputes of material fact remain precluding summary judgment. As pertinent to this discussion, is Webb a member or partial owner 20 of RNO? The Court cannot say based on this clever but unhelpful phrasing unsupported by any evidence. And while admittedly Webb’s reply brief includes the statement, “[i]n this 21 case, we have a Manager (Webb) who is not an owner of RNO[,]” (ECF No. 89 at 7), “[a]ttorney argument is no evidence.” Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 22 1034, 1043 (Fed. Cir. 2017). Because Plaintiff presented some evidence tending to show Webb has an ownership interest in RNO with its response, it is no longer sufficient for 23 Webb to simply reiterate attorney argument that he does not. In addition, Webb similarly states in his motion, “[a] company owned by Webb named Hellgate Ranch LLC has an 24 ownership stake in RNO. Plaintiff would have to pierce the corporate veil of RNO and then pierce the corporate veil of Hellgate Ranch to assert liability against Vincent Webb 25 individually.” (ECF No. 78 at 9.) A declaration from Webb accompanied his motion but does not support this statement—Webb’s declaration did not include any explanation 26 about the relationship between Webb, Hellgate Ranch LLC, and RNO, or any supporting exhibits. (ECF No. 78-1.) This does not satisfy Webb’s burden under Fed. R. Civ. P. 27 56(c)(1) or LR 56-1, which requires, “citing the particular portions of any pleading, affidavit, deposition, interrogatory, answer, admission, or other evidence on which the 28 party relies.” The Court lacks evidence at this juncture to make a finding as to Webb’s relationship with RNO. 2 definitively show that Webb is a member or partial owner of RNO, but it shows he was 3 very involved in RNO, and one could reasonably infer from this high degree of 4 involvement that Webb was or is a member or partial owner of RNO. Indeed, it would be 5 surprising if someone so involved in a small company had absolutely no ownership 6 interest in it. And Webb does not present any evidence in reply, simply doubling down on 7 his argument that, “Plaintiff has no evidence that Webb owns any part of RNO.” (ECF No. 8 89 at 6.) But because of the evidence Plaintiff presented—which Webb declines to 9 engage with—and viewing this evidence in the light most favorable to Plaintiff as the 10 nonmoving party, it would be improper to grant Webb summary judgment by finding that 11 he has no ownership interest in RNO. And “the absence of corporate ownership is not 12 dispositive” in any event. Brown v. Kinross Gold U.S.A., Inc., 531 F. Supp. 2d 1234, 1242 13 (D. Nev. 2008); see also id. at 1243 (declining to grant summary judgment because a 14 dispute of material fact existed as to whether two entities were alter egos). 15 Moreover, it is undisputed that RNO was undercapitalized. (ECF No. 78 at 9-10 16 (asserting Plaintiff has no evidence on the other factors mentioned in Beta Soft Sys.), 85 17 at 12 (stating it is undisputed that RNO was undercapitalized), 89 at 6-7 (declining to 18 dispute that RNO was undercapitalized).) Thus, one of the factors listed in Beta Soft Sys., 19 2017 WL 3707393, at *3, weighs in favor of finding that RNO was Webb’s alter ego. As 20 to the other Beta Soft Sys. factors, all the Court has are Webb’s assertions that Plaintiff 21 cannot prove, for example, that “Webb treated RNO’s corporate assets as his own[.]” 22 (ECF No. 78 at 9-10.) What the Court lacks is evidence tending to suggest any of these 23 other factors weigh one way or the other. 24 In addition, Plaintiff points to evidence to the effect that Plaintiff only ever dealt with 25 Webb, the evidence produced during discovery shows that Webb was the only person 26 sending emails on RNO’s behalf, and contracts between RNO and other investors were 27 all signed by Webb. (ECF No. 85 at 12 (citing ECF Nos. 85-7 and 85-8).) This evidence 28 tends to show that Webb was involved in RNO’s affairs to such a degree that it might be 2 Webb summary judgment that RNO is not his alter ego. 3 In sum, disputes of material fact—and indeed, a deficiency of factual development 4 in the record before the Court—preclude the Court from reaching the legal question of 5 whether RNO was Webb’s alter ego at this time. Webb’s motion for summary judgment 6 is denied to the extent it seeks a ruling that RNO was not his alter ego. Accordingly, 7 Webb’s motion for summary judgment is also denied as to Plaintiff’s breach of contract 8 claim because Plaintiff may still be able to prevail on that claim against him if Plaintiff can 9 establish RNO was Webb’s alter ego. 10 B. Accounting 11 Both RNO and Webb move for summary judgment on Plaintiff’s accounting claim. 12 (ECF Nos. 77 at 3-4, 78 at 6.) Defendants both make the same argument: Plaintiff has no 13 right to an accounting because Plaintiff has no special relationship with either RNO or 14 Webb, because Plaintiff owns no stock in RNO, as Plaintiff never paid the additional dollar 15 it was required to pay to get a 2.8% equity stake in RNO—and mere creditors like Plaintiff 16 have no right to the equitable remedy of accounting. (See id.) Plaintiff counters that a 17 genuine dispute of material fact precludes summary judgment on this issue because, 18 while Plaintiff never received its 2.8% equity interest in RNO, it should have, because it 19 paid RNO $280,000, or 280,000 times the amount it owed to get the stock interest. (ECF 20 Nos. 85 at 15, 86 at 11.) RNO replies in pertinent part that the Agreement specified the 21 one dollar was additional to the $280,000.8 (ECF No. 90 at 6.) The Court agrees with 22 RNO. 23 8RNO’s argument on this claim is more pertinent than Webb’s because Plaintiff 24 seeks an accounting from RNO. (ECF Nos. 37 at 8 (“RNO Exhibitions has an obligation to render a full and complete accounting to Plaintiff of how it has spent the money loaned 25 to it by Plaintiff.”), 85 at 15 (“RNO Exhibitions has an obligation to render a full and complete accounting to Plaintiff of how it has spent the money loaned to it by Plaintiff.”), 26 86 at 11 (“RNO Exhibitions has an obligation to render a full and complete accounting to Plaintiff of how it has spent the money loaned to it by Plaintiff.”).) To the extent Plaintiff 27 even asserts this claim against Webb, it does so on an alter ego theory. Thus, if Plaintiff does not have a right to an accounting from RNO, it does not have a right to an accounting 28 from Webb. And the Court’s finding above that disputes of material fact preclude summary 1 The pertinent portion of the Agreement reads: 2 3 4 5 6 || (ECF No. 79-6 at 10; see also ECF No. 86-5 at 5 (same).)° Plaintiff must accordingly have 7 || given RNO three things before it got the promised equity interest: (1) the loan money; (2) 8 || the signed loan documents; and (2) one dollar for the stock. (/d.) The Court accordingly 9 || agrees with RNO that the one dollar is additional—not part of—the $280,000 Plaintiff 10 || undisputedly loaned RNO. (ECF No. 90 at 6.) 11 Further, Plaintiff does not dispute RNO’s assertion that it never paid the additional 12 || dollar, nor did Plaintiff proffer any evidence that it did wnen challenged in RNO’s motion. 13 || (ECF Nos. 85 at 15, 86 at 11.) The Court accordingly finds that Plaintiff has no ownership 14 || or equity stake in RNO, because Plaintiff never performed a condition precedent to 15 || receiving one. 16 Considering that Plaintiff has no ownership or equity stake in RNO, Plaintiff has no 17 || right to an accounting from RNO. The Court previously declined to dismiss the accounting 18 || claim even though it is a remedy, not a claim, because without “an accounting, Plaintiff 19 || would be unable to determine the value of this ownership interest, if any.” (ECF No. 56 at 20 || 9.) However, the undisputed facts now show that Plaintiff has no ownership interest in 21 || RNO, and the Court so holds. Thus, Plaintiff is merely a creditor of RNO. And the debt 22 || RNO owes to Plaintiff is neither disouted—see supra—nor difficult to compute, so there 23 || is no reason to allow Plaintiffs accounting claim to proceed past this point in this case. 24 |p — judgment that RNO is not Webb's alter ego accordingly does not stand in the way of 25 || granting summary judgment to both RNO and Webb on Plaintiff's accounting claim because the Court finds RNO is entitled to summary judgment on Plaintiff's accounting 26 || claim against it. 27 °There is an error in this portion of the Agreement because it states one half percent and then 2.8%. The parties do not discuss this error in their briefing. Regardless, 28 || the error is immaterial to the Court’s analysis because the dispute about the ownership stake is whether Plaintiff has one, not the amount of the ownership stake.

2 2012 WL 194434, at *8-*9 (D. Nev. Jan. 23, 2012) (granting one party summary judgment 3 that it deserved an accounting from the other so it could determine the value of a 4 percentage of cash collected that it was entitled to, relying on Delaware law for the general 5 proposition that one element of an accounting claim is that “the accounts are held by one 6 side and there are circumstances of great complication”); see also Equitable Life Assur. 7 Soc’y of U.S. v. Brown, 213 U.S. 25, 44 (1909) (holding that a mere creditor has no right 8 to an accounting “in the absence of any trust relation between them” and the debtor). 9 In sum, RNO and Webb’s motions for summary judgment are granted as to 10 Plaintiff’s accounting claim. 11 C. Intentional Misrepresentation 12 Plaintiff, RNO,10 and Webb all move for summary judgment on Plaintiff’s intentional 13 misrepresentation claim.11 (ECF Nos. 77 at 4, 78 at 6-8, 79 at 12-17.) Webb argues that 14 he never sent the business plan containing the alleged material omissions to Plaintiff, or 15 even solicited money from Plaintiff directly, and that there is no evidence of justifiable 16 reliance because Plaintiff should have known RNO was in bad financial shape when 17 Plaintiff made its loan to RNO. (ECF No. 78 at 6-8.) Plaintiff basically argues in its motion 18 that Webb put out rosy projections about RNO’s future financial performance and never 19 corrected them even though he knew they were not accurate, and Scott Coder was acting 20 as Webb’s agent, so Webb’s argument that he never directly spoke with Plaintiff fails. 21 (ECF No. 79 at 12-16.) Plaintiff further responds in pertinent part to Webb’s motion with 22

23 10RNO simply incorporates by reference Webb’s arguments so the Court does not discuss RNO’s arguments throughout this section. (ECF No. 77 at 4.) And it was Webb 24 who made the alleged material omissions in any event.

25 11Under Nevada law, intentional misrepresentation requires: “[a] false representation made by the defendant, knowledge or belief on the part of the defendant 26 that the representation is false—or, that he has not a sufficient basis of information to make it, an intention to induce the plaintiff to act or to refrain from acting in reliance upon 27 the misrepresentation, justifiable reliance upon the representation on the part of the plaintiff in taking action or refraining from it, and damage to the plaintiff, resulting from 28 such reliance[.]” Lubbe v. Barba, 540 P.2d 115, 117 (Nev. 1975). 2 him and his father in person, and subsequently made several false statements to Scott 3 Coder to the effect that RNO was in good financial shape though he knew it was not. 4 (ECF No. 85 at 17-19; see also ECF No. 85-2 at 3-8.) Webb responds to this contention 5 in his response to Plaintiff’s motion by stating, “Plaintiff never provides any evidence that 6 Webb provided the May 2014 Draft Plan to Plaintiff.” (ECF No. 82 at 5.) Webb otherwise 7 reiterates his argument that there was no justifiable reliance on Plaintiff’s part because, 8 essentially, Douglas Coder should have known better, and argues that Plaintiff’s 9 argument that Webb’s false representations or omissions were communicated through 10 Scott Coder is not in line with the allegations in the operative complaint. (Id. at 3-4, 5-6.) 11 By his reply in support of his motion, Webb acknowledges that there are several 12 genuine disputes of material fact as to Plaintiff’s intentional misrepresentation claim, but 13 states, “[w]hat is undisputed is that Plaintiff has no evidence of reasonable reliance.” (ECF 14 No. 89 at 5.) Plaintiff argues in reply—supported by Scott Coder’s declaration and 15 deposition testimony from Webb—that Plaintiff justifiably relied on Webb’s false 16 statements and/or omissions because Webb passed false information along to Plaintiff 17 through Scott Coder acting as an agent for RNO knowing that that information was false 18 when he passed it along or failed to correct prior information he had passed along 19 suggesting that RNO was in good financial shape. (ECF No. 91 at 3-7 (citing ECF Nos. 20 85-2 and 91-1).) 21 The Court finds that no party is entitled to summary judgment on the intentional 22 misrepresentation claim on the record presented with the pending motions. Basic material 23 facts remain in dispute, like whether Webb ever went to Phoenix, or met with Douglas or 24 Scott Coder in person, or whether Webb actually gave Plaintiff any information directly, 25 or only through Scott Coder, and if so, what information Webb gave Plaintiff. Webb 26 concedes as much by essentially arguing in his reply that the only way the Court could 27 grant him summary judgment on this claim is by finding Douglas Coder was objectively 28 unreasonable when he decided to lend money to Webb through Plaintiff. (ECF No. 89 at 1 || 3-6.) Webb specifically argues the justifiable reliance element of an_ intentional 2 || misrepresentation claim is lacking because Plaintiff has “no evidence of reasonable 3 || reliance on the misrepresentations and omissions alleged.” (/d. at 5-6.) To define the type 4 || of reasonableness he is discussing, Webb asks hypothetical questions such as what due 5 || diligence did Douglas Coder conduct before he decided to invest and why did he not get 6 || a personal guarantee from Webb before agreeing to loan RNO money? (/d. at 5-6.) 7 The Court cannot answer these questions on this record. And that further illustrates 8 || why summary judgment would be inappropriate—in any party’s favor—on the intentional 9 || misrepresentation claim at this time. All pending motions for summary judgment are 10 || accordingly denied to the extent they seek summary judgment on Plaintiff's intentional 11 || misrepresentation claim. 12 || V. CONCLUSION 13 The Court notes that the parties made several arguments and cited to several 14 || cases not discussed above. The Court has reviewed these arguments and cases and 15 || determines that they do not warrant discussion as they do not affect the outcome of the 16 || motions before the Court. 17 It is therefore ordered that RNO’s motion for summary judgment (ECF No. 77) is 18 || granted in part, and denied in part, as specified herein. 19 It is further ordered that Webb’s motion for summary judgment (ECF No. 78) is 20 || granted in part, and denied in part, as specified herein. 21 It is further ordered that Plaintiff's motion for partial summary judgment (ECF No. 22 || 79) is granted in part, and denied in part, as specified herein. 23 DATED THIS 8" Day of February 2022. AGR- 25 MIRANDA M. DU 26 CHIEF UNITED STATES DISTRICT JUDGE 27 28 13