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2:14-cv-00837-GMN-NJK MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD SMITH LLP
ATTORNEYS AT LAW
JOSH COLE AICKLEN Nevada Bar No. 007254 DAVID B. AVAKIAN Nevada Bar No. 009502 LEWIS BRISBOIS BISGAARD & SMITH
LLP
6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 702.893.3383 FAX: 702.893.3789 Attorneys for Defendant NARCONON FRESH START d/b/a RAINBOW CANYON RETREAT UNITED STATES DISTRICT COURT DISTRICT OF NEVADA CHARIS YATES, a Washington Citizen; BERET PUGH, a Washington Citizen; and DEAN PUGH, a Washington Citizen, Plaintiffs, vs. NARCONON FRESH START d/b/a RAINBOW CANYON RETREAT, a California Corporation; ASSOCIATION FOR BETTER LIVING AND EDUCATION INTERNATIONAL; NARCONON INTERNATIONAL; and DOES 1-100, ROE Corporations I-X, inclusive, Defendants. CASE NO. 2:14-cv-00837-GMN-NJK
DEFENDANT
NARCONON FRESH START D/B/A RAINBOW CANYON RETREAT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED AND FOR OTHER RELIEF
(FRCP 12(b)(6); FRCP 6, FRCP 9, as applied to 28 U.S.C. Section 1332, 28 U.S.C. 1330-1368, 28 U.S.C. 1331, 18 U.S.C. 1962 and 18 U.S.C. 1964) Defendant, NARCONON FRESH START, d/b/a RAINBOW CANYON RETREAT, a California Corporation, by and through its counsel LEWIS BRISBOIS BISGAARD & SMITH, LLP, hereby moves this Court for an Order Dismissing Plaintiffs CHARIS YATES, BERET PUGH, and DEAN PUGH’s Complaint for failure to state a claim against it upon which relief may be granted, and for the other relief requested herein, pursuant to FRCP 12(b)(6); FRCP 6, FRCP 9, as applied to
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2:14-cv-00837-GMN-NJK MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD SMITH LLP
ATTORNEYS AT LAW
28 U.S.C. Section 1332, 18 USC 1962 and 18 U.S.C. 1964. This motion is made and based upon the papers and pleading of record herein, Memorandum of Points and Authorities, matters which can be judicially noticed, and such oral evidence as may be required by the Court in the determination of the issues raised in this Motion.
MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF MATERIAL FACTS.
A. Parties to This Action.
Plaintiffs in this action are Washington citizens CHARIS YATES, BERET PUGH and DEAN PUGH (collectively, “Plaintiffs” or “YATES”). On May 27, 2014, YATES filed a Complaint against the moving Defendant NARCONON FRESH START d/b/a RAINBOW CANYON RETREAT, a California Corporation (hereinafter, “FRESH START”), and two other California corporations, ASSOCIATION FOR BETTER LIVING AND EDUCATION INTERNATIONAL; NARCONON INTERNATIONAL. Plaintiffs also improperly named “Doe” and “Roe” parties as defendants.
B. Allegations against FRESH START in the YATES Complaint.
The Complaint includes ten claims for relief, titled as follows:
First Claim for Relief: Breach of Contract (Complaint Page 9 (hereafter, “CP” 9) (Filed Document Page 9 of 17 (hereafter “FDP” 9) and see Exhibit A (document entitled “Narconon FRESH START Terms and Conditions” (FDP 3-5)) attached to the Complaint;
Second Claim for Relief: Fraud (CP9-10/FDP9-10);
Third Claim for Relief: Negligence (CP10-11/FDP10-11);
Fourth Claim for Relief: Intentional Infliction of Emotional Distress (CP11/FDP11);
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2:14-cv-00837-GMN-NJK MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD SMITH LLP
ATTORNEYS AT LAW
Fifth Claim for Relief: Negligent Misrepresentation (CP11-12/FDP11-12);
Sixth Claim for Relief: Negligence
Per Se
based on Defendants’ claimed violations of NRS 630.160 purportedly relating to licensing of medical professionals (CP12-13/FDP12-13) and what Plaintiff wrongly contends was medical advice to Beret Pugh;
Seventh Claim for Relief: Civil RICO for Mail and Wire Fraud based on alleged violations of 18.U.S.C. 1964(c) and 18 U.S.C. 1962 (CP113-14/FDP13-14) alleging that FRESH START’s alleged use of phones, wires, mail, and internet was “integral to their fraudulent scheme;”
Eighth Claim for Relief: Breach of Implied Covenant of Good Faith and Fair Dealing of Contract Plaintiffs Dean Pugh and Charis Yates allegedly entered into for FRESH START “to provide treatment to Beret.” (CP14-15/FDP14-15);
Ninth Cause of Action (sic): Civil Conspiracy implicating NRS 630.160 (Ninth Claim for Relief (CP15/FDP16); and
Tenth Cause of Action (sic): Fraud (Claims for alleged violations of NRS 41.600 and NRS 598.0915 to 598.0925) essentially, allegations of deceptive advertising. (CP15-16/FDP15-16).
C.
The “Contract.” (First Claim for Relief.)
The terms of the “contract” between YATES and FRESH START are the basis for many of the claims for relief in the YATES Complaint. YATES attached an executed document entitled “NARCONON FRESH START TERMS AND CONDITIONS,” which is signed by the “responsible party,” apparently Dean Pugh. The name of the person to be treated is not included. According to the “Terms and Conditions,” the Narconon Program was defined as: / / /
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