Aaron Leigh -Pink; Tana Emerson v. Rio Properties , LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARON LEIGH -PINK; TANA
EMERSON,
Plaintiffs-Appellants,
v.
RIO PROPERTIES , LLC,
Defendant-Appellee.
No. 19-17556
D.C. No.
2:17-cv-02910-
GMN-VCF
ORDER
Filed July 22, 2022
Before: Ronald M. Gould and Ryan D. Nelson, Circuit
Judges, and Brian M. Cogan,* District Judge.
Order
* The Honorable Brian M. Cogan, United States District Judge for
the Eastern District of New York, sitting by designation.

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2 LEIGH -PINK V . RIO PROPERTIES
SUMMARY**
Nevada Law
The panel affirmed the district court’s dismissal of
plaintiffs’ fraudulent concealment and consumer fraud
claims after the Nevada State Supreme Court answered a
question the panel had certified to it.
The panel certified the following question:
For purposes of a fraudulent concealment
claim, and for purposes of a consumer fraud
claim under NRS § 41.600, has a plaintiff
suffered damages if the defendant’s
fraudulent actions caused the plaintiff to
purchase a product or service that the plaintiff
would not otherwise have purchased, even if
the product or service was not worth less than
what the plaintiff paid?
The Nevada State Supreme Court answered “that a
plaintiff who receives the true value of the goods or services
purchased has not suffered damages under theories of
common-law fraudulent concealment or N.R.S. 41.600.”
Applying Nevada state law as declared by the Nevada
State Supreme Court, the panel held that plaintiffs failed to
allege recoverable damages as to their fraudulent
concealment and consumer fraud claims.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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LEIGH -PINK V . RIO PROPERTIES 3
COUNSEL
Robert A. Waller Jr. (argued), Law Office of Robert A.
Waller Jr., Cardiff-by-the-Sea, California, for Plaintiffs-
Appellants.
Richard Fama (argued), New York, New York; F. Brenden
Coller, Philadelphia, Pennsylvania; for Defendant-Appellee.
ORDER
Plaintiffs Aaron Leigh-Pink and Tana Emerson appealed
the district court’s dismissal of their claims against Rio
Properties, LLC (“Rio”), which owns and operates the Rio
All-Suite Hotel and Casino in Las Vegas, Nevada. Plaintiffs
paid a resort fee to the hotel to use its internet, telephones,
and fitness room.1 During this time, plaintiffs claim
defendant knew that its water system was infected with
Legionella bacteria, which causes Legionnaires’ Disease.
After learning of the contamination, plaintiffs brought this
putative class action against defendant. They seek the return
of the resort fee on the theory that they would not have gone
to the hotel, and would not have paid the resort fee, if
defendant had told them about the presence of the
Legionella.
In a prior decision, we affirmed the dismissal of
plaintiffs’ claims for negligence, “declaratory relief,”
violation of Nevada Revised Statutes (“NRS”) § 205.377(1),
and consumer fraud, and reversed the dismissal of plaintiffs’
unjust enrichment claim. Leigh-Pink v. Rio Properties, LLC,
1 Plaintiffs’ hotel room was “comped,” and thus plaintiffs have no
claim to recover a room fee.

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4 LEIGH -PINK V . RIO PROPERTIES
849 F. App’x 628 (9th Cir. 2021). However, we reserved
judgment on plaintiffs’ claims for fraudulent concealment
and statutory consumer fraud, based on NRS § 598.0923(2),
because a controlling question of state law existed. See id.
at 631.
Plaintiffs adequately pled defendant’s knowledge of the
Legionella, as well as causation. But a question remained
whether plaintiffs sustained legally recoverable damages.
There was no dispute that plaintiffs received the market
value of the services for which they paid. Plaintiffs
contended, however, that they would never have purchased
these services had they known that defendant’s hotel
contained Legionella.
We, therefore, certified the following question to the
Supreme Court of Nevada:
For purposes of a fraudulent concealment
claim, and for purposes of a consumer fraud
claim under NRS § 41.600, has a plaintiff
suffered damages if the defendant’s
fraudulent actions caused the plaintiff to
purchase a product or service that the plaintiff
would not otherwise have purchased, even if
the product or service was not worth less than
what the plaintiff paid?
Without modifying the question, the Nevada State Supreme
Court answered “that a plaintiff who receives the true value
of the goods or services purchased has not suffered damages
under theories of common-law fraudulent concealment or
N.R.S. 41.600.” Leigh-Pink v. Rio Props., LLC, — P.3d —,
138 Nev. Adv. Op. 48, 2022 WL 2375733 at *1 (2022).

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LEIGH -PINK V . RIO PROPERTIES 5
Applying Nevada state law as declared by the Nevada
State Supreme Court, plaintiffs failed to allege recoverable
damages as to their fraudulent concealment and consumer
fraud claims. Thus, the district court’s dismissal of these two
claims is AFFIRMED.

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