                                                                           FILED
                           NOT FOR PUBLICATION                             APR 18 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


VESTED HOUSING GROUP, LLC, an                    No. 14-15168
Arizona limited liability company;
HENDERSON LOFTS DEVCO, LLC, an                   DC No. CV 13-1643 RCJ
Arizona limited liability company,

              Plaintiffs - Appellants,           MEMORANDUM*

 v.

PRINCIPAL REAL ESTATE
INVESTORS, LLC, a Delaware limited
liability company; HENDERSON
APARTMENT VENTURE, LLC, a
Delaware limited liability company;
PRINCIPAL LIFE INSURANCE
COMPANY, an Iowa corporation;
PRINCIPAL U.S. PROPERTY
SEPARATE ACCOUNT, an unknown
business entity,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Nevada
                Robert Clive Jones, Senior District Judge, Presiding

                     Argued and Submitted February 12, 2016


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

Before:      TASHIMA and W. FLETCHER, Circuit Judges and BASTIAN,**
             District Judge.

      Plaintiffs-Appellants Vested Housing Group, LLC (“VHG”) and Henderson

Lofts Devco, LLC (“HLD”) appeal the district court’s order granting Defendants-

Appellees Principal Real Estate Investors, LLC (“PREI”), Henderson Apartment

Venture, LLC (“HAV”), Principal Life Insurance Co. (“PLIC”), and Principal U.S.

Property Separate Account’s (“PUSPSA”) motion to dismiss. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

                                         I.

      In June 2007, VHG entered into a contract with HAV, pursuant to which

HLD (VHG’s wholly owned subsidiary) would develop real property in Nevada.

HAV agreed to purchase this property once development was complete. HAV also

warranted in the agreement that it was a valid Iowa corporation and that it was

authorized to enter into the contract. PREI, with which HAV shared a parent

company (PLIC), signed the agreement on behalf of HAV. HLD financed the

transaction with a loan from Wachovia Bank. PLIC guaranteed the loan.




       **
             The Honorable Stanley Allen Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
                                         2
      Contrary to Defendants’ representations, HAV was not actually incorporated

until October 2008. Unrelatedly, in November 2008, HLD defaulted on its loan

payments to Wachovia Bank. PLIC then repurchased the loan from Wachovia and

assigned the property to HAV, which foreclosed on the property in August 2009.

      In April 2013, Plaintiffs sued Defendants for their misrepresentations

regarding the date of HAV’s incorporation. Defendants moved to dismiss under

Federal Rules of Civil Procedure 9(b) and 12(b)(6). The district court granted their

motion based on Plaintiffs’ failure to allege adequately that Defendants’

misrepresentation proximately caused their damages. The district court did not

grant Plaintiffs leave to amend their complaint. Plaintiffs now appeal.

                                         II.

      We review a district court’s ruling on a motion to dismiss de novo, taking

into consideration “only allegations contained in the pleadings, exhibits attached to

the complaint, and matters properly subject to judicial notice.” Autotel v. Nev. Bell

Tel. Co., 697 F.3d 846, 850 (9th Cir. 2012) (quoting W. Radio Servs. Co. v. Qwest

Corp., 678 F.3d 970, 975–76 (9th Cir. 2012)). The Court “accept[s] as true all

well-pleaded factual allegations and construe[s] them in the light most favorable to

the plaintiff.” Id. We may affirm “on any ground supported by the record.”

ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).


                                          3
       To survive a motion to dismiss under Rule 12(b)(6), a pleading must contain

“a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). A complaint need not contain detailed factual

allegations to survive a motion to dismiss, but a plaintiff must provide “more than

labels and conclusions.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007).

Further, “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Id. A plaintiff must provide the court with “enough facts to

state a claim to relief that is plausible on its face.” Id. at 570.

                                            III.

       Plaintiffs asserted five causes of action under Nevada law in their complaint:

(1) intentional misrepresentation or fraud, (2) negligent misrepresentation,

(3) intentional interference with prospective economic advantage, (4) unjust

enrichment, and (5) civil conspiracy. Plaintiffs have failed to state any plausible

claim to relief.

       To state a claim for intentional misrepresentation, negligent

misrepresentation, or intentional interference with prospective economic advantage

under Nevada law, Plaintiffs must allege that Defendants’ misrepresentation

proximately caused their damages. See Nelson v. Heer, 163 P.3d 420, 426 (Nev.

2007) (listing elements of intentional misrepresentation claim); Barmettler v. Reno


                                             4
Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998) (listing elements of negligent

misrepresentation claim); Consol. Generator-Nev., Inc. v. Cummins Engine Co.,

971 P.2d 1251, 1255 (Nev. 1998) (quoting Leavitt v. Leisure Sports Inc., 734 P.2d

1221, 1225 (Nev. 1987)) (listing elements of intentional interference with

prospective economic advantage claim).

      Plaintiffs have not adequately alleged that Defendants’ misrepresentation —

that HAV was a validly formed corporation when the contract was signed —

proximately caused their damages. According to Plaintiffs, had they known HAV

did not exist at the time, they would not have signed the contract. They allege that

they would have instead sold the property to another party and would not have

begun to develop the property. This is simply not plausible. Plaintiffs have not

shown that the status of HAV – the sole purpose of which was to purchase the

property once it had been developed – when the parties entered into their

development deal was material. Rather, the foregone business opportunities and

development costs on which Plaintiffs rest their claims can be considered losses

only because the deal ultimately failed when Plaintiffs defaulted on the Wachovia

loan. Had Plaintiffs not defaulted, and instead finished developing the property,

there is no allegation or indication that Defendants would not have made good on

their promises and purchased the property.


                                          5
      Plaintiffs’ unjust enrichment claim also fails. Under Nevada law, a claim of

unjust enrichment requires “a benefit conferred on the defendant by the plaintiff,

appreciation by the defendant of such benefit, and acceptance and retention by the

defendant of such benefit under circumstances such that it would be inequitable for

him to retain the benefit without payment of the value thereof.” Leasepartners

Corp. v. Robert L. Brooks Tr. Dated Nov. 12, 1975, 942 P.2d 182, 187 (Nev. 1997)

(quoting Unionamerica Mortg. & Equity Tr. v. McDonald, 626 P.2d 1272, 1273

(Nev. 1981)). Plaintiffs allege that Defendants obtained the property through

foreclosure unjustly because Plaintiffs spent close to a million dollars developing

the property, and Defendants never compensated Plaintiffs for that benefit. But

there is no allegation that Defendants did not properly follow the foreclosure

procedures outlined in the loan agreement, which Plaintiffs themselves triggered

by defaulting on their loan. Plaintiffs cannot plausibly claim that Defendants have

retained a benefit that equitably belongs to them when Defendants obtained the

property through a valid foreclosure.

      Finally, Plaintiffs have not stated a claim of civil conspiracy. Civil

conspiracy is not an independent cause of action under Nevada law. Rather, a

claim for civil conspiracy lies only where an underlying civil wrong was

committed, which resulted in damages. See Jordan v. State ex rel. Dep’t of Motor


                                          6
Vehicles & Pub. Safety, 110 P.3d 30, 51 (Nev. 2005), abrogated on other grounds

by Buzz Stew, LLC v. City of N. Las Vegas, 181 P.3d 670 (Nev. 2008). Because

Plaintiffs have not adequately alleged any substantive civil wrong, their civil

conspiracy claim fails.

                                          IV.

      The district court dismissed Plaintiffs’ action without granting Plaintiffs

leave to amend their complaint. We review this decision for an abuse of discretion.

Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 737 (9th Cir. 2008). A district

court may properly deny leave to amend if it “determines that allegation of other

facts consistent with the challenged pleading could not possibly cure the

deficiency.” Id. (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806

F.2d 1383, 1401 (9th Cir. 1986)).

      The district court concluded that Plaintiffs could not allege, under any set of

facts, that Defendants’ misrepresentation had proximately caused their damages.

As explained above, this was not error.

             AFFIRMED.




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