Edward Wilson; Eric Miles v. Stratosphere Corporation

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD WILSON; ERIC MILES,
Plaintiffs - Appellants,
v.
STRATOSPHERE CORPORATION,
Defendant - Appellee.
No. 09-15347
D.C. No. 2:06-cv-01055-JCM-
GWF
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 2, 2010
Las Vegas, Nevada
Before: THOMAS, McKEOWN and BYBEE, Circuit Judges.
Appellants Edward Wilson and Eric Miles, on behalf of themselves and
others similarly situated, appeal the district court’s grant of summary judgment on
their claims of consumer fraud under Nevada Revised Statute § 41.600 and unjust
enrichment. We affirm.
FILED
MAR 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The parties dispute whether the district court had jurisdiction over this
action. Stratosphere argues that Appellants’ class action does not meet the
jurisdictional amount-in-controversy of five million dollars under 28 U.S.C. §
1332(d)(2). Since Appellants’ complaint “alleges damages in excess of the federal
amount-in controversy requirement[,]” the jurisdictional requirement “is
presumptively satisfied unless it appears to a legal certainty that the claim is
actually for less than the jurisdictional minimum.” Lowdermilk v. U.S. Bank Nat’l
Ass’n, 479 F.3d 994, 998 (9th Cir. 2007) (quotation marks and emphasis omitted).
Stratosphere has failed to show to a legal certainty that the damages could not
reach five million dollars. Thus, appellants pleaded sufficient facts to establish
subject matter jurisdiction.
Appellants allege consumer fraud under Nevada Revised Statute § 41.600,
which allows any person who is a victim of consumer fraud to bring suit. The
statute defines consumer fraud as a “deceptive practice [under Nevada Revised
Statute §] 598.0195.” Nev. Rev. Stat. § 41.600. In turn, § 598.0915 defines a
deceptive trade practice as “[a]dvertis[ing] goods or services with intent not to sell
or lease them as advertised” and “[m]ak[ing] false or misleading statements of fact
concerning the price of goods or services . . . .” Nev. Rev. Stat. §§ 598.0915(9),
(13). Nevada Revised Statute § 598.0905 defines advertising as an “attempt by

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publication, dissemination, solicitation or circulation to induce, directly or
indirectly, any person to enter into any obligation to lease or acquire any title or
interest in any property.” Appellants argue that Stratosphere misled them by
charging a resort fee separate from the room rate, irrespective of whether the fee
was disclosed or not. They offer no case law to support their argument that the
mere act of charging fees separate from a room rate violates § 598.0915. They also
fail to support their claim that Stratosphere advertised through Hotels.com because
Stratosphere “disseminated” a room rate to Hotels.com. The contract between
Stratosphere and Hotels.com demonstrates that Stratosphere had no control over
the rate Hotels.com decided to charge Appellants for a room at the Stratosphere.
Appellants also argue that Stratosphere was unjustly enriched by the fee
Appellants paid at check out. Their claim for unjust enrichment fails, however,
because “unjust enrichment is not available when there is an express, written
contract . . . .” LeasePartners Corp. v. Robert L. Brooks Trust Dated Nov. 12,
1975, 942 P.2d 182, 187 (Nev. 1997). Wilson signed and initialed a document
agreeing to pay the five-dollar fee. Miles’s girlfriend, who paid for the room, also
signed the document agreeing to pay for the room. Because they entered into a
written contract to pay the fee, their claim that Stratosphere was unjustly enriched
fails.

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AFFIRMED.

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