Fleeger v. Bell
| Decision Date | 12 April 2000 |
| Docket Number | No. CV-S-99-1565-PMP(RJJ).,CV-S-99-1565-PMP(RJJ). |
| Parties | Matthew H. FLEEGER, an individual, Plaintiff, v. Stewart L. BELL, Clark County District Attorney; Scott Doyle, Douglas County District Attorney; and Desert Palace, Inc. dba Caesars Palace, a corporation, Defendants. |
| Court | U.S. District Court — District of Nevada |
Richard I. Fine, Los Angeles, CA, Robert L. Langford, Walton & Langford, Las Vegas, NV, for plaintiff.
Ivan L. Kallick, Diane L. Faber, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, Scott M. Mahoney, Las Vegas, NV, for Desert Palace, Inc.
Stephen C. Balkenbush, David P. Lane, Thorndal, Armstrong, Delk, Balkenbush & Eisinger, Reno, NV, for Douglas Co. DA, defendant.
Richard C. Maurer, Rawlings, Olson, Cannon, Gormley & Desruisseaux, Las Vegas, NV, for Clark Co. DA, defendant.
Presently before this Court is Defendant Desert Palace, Inc.'s Motion to Dismiss First Amended Complaint (# 18) filed on January 24, 2000. Plaintiff Matthew Fleeger filed an Opposition (# 23) on February 18, 2000. Desert Palace, Inc. filed a Reply (# 22) on February 18, 2000.
Defendant Desert Palace, Inc., dba Caesars Palace (hereinafter referred to as "Desert Palace") is a well-known provider of resort hotel and casino amenities. In order to better serve its gaming patrons, Desert Palace extends lines of gambling credit to those who fill out a pre-printed application form. This form requires specific information, such as a patron's name, home address, business address, telephone numbers, social security number, bank and bank account number. (Am.Compl.Ex.1.) Upon approval of this credit application by Desert Palace, a patron may request the issuance of certain instruments commonly known as casino "markers."
The markers, if signed by the patron, may in turn be used to obtain casino chips with which to gamble at a Desert Palace establishment. (Am.Compl. ¶ 2.) Each marker identifies its value in United States dollars and bears the instruction "PAY TO THE ORDER OF." The markers also bear the following stipulation:
I authorize the payee to complete any of the following items on this negotiable instrument: (1) any missing amounts; (2) a date; (3) the name, account number and/or address and branch of any bank or financial institution; and (4) any electronic encoding of the above items. This information can be for any account from which I may in the future have the right to withdraw funds, regardless of whether that account now exists, of whether I provided the information on the account to the payee. I acknowledge that I incurred the debt evidenced by this instrument in Nevada. I agree that any dispute regarding or involving this instrument, the debt, or the payee shall be brought only in a court, state or federal, in Nevada. I hereby submit to the jurisdiction of any court, state or federal, in Nevada.
(Id.) According to Plaintiff Matthew Fleeger ("Fleeger"), spaces for information such as account number, bank address and bank branch are left blank on the marker at the time of execution. (Am. Compl.¶ 4.) When a patron is finished gambling, he either cashes out the markers (i.e., pays them off) or leaves the casino with the markers outstanding as a debt owed to Desert Palace.
On at least two occasions in November 1997 and January 1998, Fleeger executed several such markers with Desert Palace. By April 1998, Fleeger had accumulated a debt of approximately $183,856.00 as reflected in unpaid markers owed to Desert Palace. (Am.Compl.¶ 43.) When Desert Palace attempted to deposit some of the markers reflecting this outstanding debt, however, they were returned by Fleeger's banks with the notations "NSF" and "Returned Not Paid." After sending a payment demand letter to Fleeger, Desert Palace requested Clark County District Attorney Stewart L. Bell and Douglas County District Attorney Scott Doyle ("the District Attorneys") to collect the debt as a "bad check" under Nev.Rev.Stat. § 205.130.1 (Am.Compl.¶¶ 4, 36, 45.) The District Attorneys each filed criminal charges against Fleeger. Arrest warrants were issued therefrom in both Nevada and Texas, leading to Fleeger's eventual arrest and detention in both Dallas, Texas and Colin, Texas. (Id. ¶¶ 47-48, 50.)
On November 4, 1999, Fleeger filed a Class Action Complaint (# 1) on behalf of himself and other similarly situated plaintiffs. Desert Palace filed a Motion to Dismiss the Class Action Complaint (# 6) for failure to state a claim on December 13, 1999. Instead of opposing this motion Fleeger filed the extant Amended Class Action Complaint (# 13) on January 5, 2000.2
In his Amended Complaint, Fleeger contends that the markers were not negotiable "checks" or "drafts" for purposes of Nevada gaming and commercial law, but rather IOU's or promissory notes. He therefore argues that Desert Palace's request to the District Attorneys to collect the unpaid markers and prosecute him and other debtors for passing bad checks lacked proper foundation in either Nevada or federal law. To this end, Fleeger has alleged that Desert Palace directly violated and/or conspired with the District Attorneys to violate: (1) the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692o; (2) Nevada false arrest and false imprisonment laws; (3) substantive due process rights guaranteed by the Fourteenth Amendment of the United States Constitution; (4) 42 U.S.C. § 1983; and (5) Regulation 5.140 of the Nevada Gaming Commission and State Gaming Control Board. Desert Palace has moved to dismiss these allegations with prejudice for failure to state claims upon which relief can be granted. See Fed.R.Civ.Pro. 12(b)(6).
In considering a motion to dismiss, "all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir.1998) (citation omitted). The issue is not whether the plaintiff will ultimately prevail, but whether he may offer evidence in support of his claims. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
While a district court must normally ignore those matters that lie outside the pleadings, it may consider: (1) documents physically attached to the complaint, see Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.), cert. denied, 484 U.S. 944, 108 S.Ct. 330, 98 L.Ed.2d 358 (1987); (2) documents of undisputed authenticity that are alleged or referenced within the complaint, see Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998); Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994); and (3) public records and other judicially noticeable evidence, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986). Thus, for the purposes of Desert Palace's Motion to Dismiss, this Court may reference the unredeemed casino markers and the pre-printed credit application form giving rise to this dispute.
In his First Amended Complaint (# 13), Fleeger has asserted claims individually and on behalf of other similarly situated plaintiffs. (Am.Compl.¶ 21.) However, since the proposed class has not yet been certified, it is appropriate to consider only Fleeger's claims against Desert Palace at this time. This Court will consider each of Fleeger's causes of action in seriatim.
At the outset, Desert Palace requests the dismissal of Fleeger's allegations that it violated the FDCPA both through (1) its individual acts and (2) its unlawful "conspiracy" with the District Attorneys. The FDCPA prevents "debt collector[s]" from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Fleeger contends, in essence, that Desert Palace violated these provisions by demanding repayment of its markers under Nevada's bad check statute and referencing the matter to the local District Attorneys. (Am.Compl. ¶ 77.) Neither allegation, however, is sustainable.
In order to assert direct liability under the FDCPA, a plaintiff must show that the defendant's actions or status rendered it a "debt collector" for purposes of the Act. See Heintz v. Jenkins, 514 U.S. 291, 292, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995); Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1513 (9th Cir.1994). Ordinarily, the FDCPA protects consumers against only those entities that collect debts for third parties. See Romine v. Diversified Collection Servs., Inc., 155 F.3d 1142, 1146 (9th Cir.1998). The FDCPA does provide, however, that "any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts" may also fall within the ambit of the term "debt collector." 15 U.S.C. § 1692a(6)(A). Nevertheless, examination of Fleeger's Complaint fails to unearth any allegations lying in conformity with these standards.
Here, Fleeger has conceded that the sums pursued by Desert Palace were for those monies owed to it as a result of gambling losses. (Am.Compl. ¶¶ 36, 43.) While it is true that Desert Palace conducts business under the name "Caesars Palace," nowhere does the Amended Complaint allege that it presented itself under any identity other than the "Caesars" moniker during the period of alleged malfeasance. (Am.Compl.Ex.1.) Indeed, the dishonored checks forming the basis of this suit are made payable to "Caesars Palace." Similarly, Desert Palace's payment demand letters and credit application form (Am.Compl.Ex.1) bear the "Caesars" name. Thus, ...
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