                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 23 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



EDWARD WILSON; ERIC MILES,                       No. 09-15347

             Plaintiffs - Appellants,            D.C. No. 2:06-cv-01055-JCM-
                                                 GWF
  v.

STRATOSPHERE CORPORATION,                        MEMORANDUM *

             Defendant - Appellee.



                    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.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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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