Case 2:15-cv APG-PAL Document 1 Filed 06/11/15 Page 1 of 7

Transcription

1 Case :-cv-0-apg-pal Document Filed 0// Page of HAROLD P. GEWERTER, ESQ. E-filed: June, Nevada Bar No. ELAINE DOWLING, ESQ. Nevada Bar No. 0 GEWERTER & DOWLING S. Casino Center Las Vegas, Nevada Telephone: (0) - Fax: (0) - harold@gewerterdowling.com Attorneys for Plaintiff UNITED STATES DISTRICT COURT BRUCE PERLOWIN, an individual; Plaintiff, DISTRICT OF NEVADA * * * * CASE NO.: DEPT. NO.: vs. NIMAI HEMPHILL, an individual; BIANCA VON JUDY, an individual; DOES I through X, inclusive; and ROE ENTITIES XI through M, inclusive, Defendants. COMPLAINT FOR: ) Breach of Contract ) Breach of the Implied Covenant of Good Faith and Fair Dealing ) Fraud/Misrepresentation/and Concealment ) Conversion ) Unjust Enrichment COMES NOW, Plaintiff, BRUCE PERLOWIN, by and through his attorneys of record, HAROLD P. GEWERTER, ESQ. and ELAINE A. DOWLING of the law firm of GEWERTER & DOWLING, and for his Complaint against the Defendants, and each of them, alleges and avers as follows: JURISDICTION AND PARTIES. Plaintiff brings his complaint under federal diversity jurisdiction, U.S.C., as the parties are completely diverse and the amount in controversy exceeds $, The Plaintiff, BRUCE PERLOWIN (hereinafter PERLOWIN ) is a Nevada resident.. The Defendant, NIMAI HEMPHILL (hereinafter HEMPHILL ) is a resident of - -

2 Case :-cv-0-apg-pal Document Filed 0// Page of the State of California.. The Defendant, BIANCA VON JUDY (hereinafter VON JUDY ) is a resident of the State of California.. The contractual agreement as stated herein occurred in Clark County, State of Nevada.. The true names of Defendants DOES I through X, inclusive, whether individual, corporate, associate or otherwise are unknown to the Plaintiff, who therefore sues each Defendant by fictitious names. The Plaintiff is informed and thereupon alleges that each of the Defendants designated herein as DOE is in some way responsible for the damages claimed by the Plaintiffs herein. The Plaintiff will ask leave of this Court to amend this Complaint to insert the true names and capacities of Defendants DOES I through X, inclusive, when the identities have been ascertained, to formulate appropriate allegations, and to join such Defendants in this action. GENERAL ALLEGATIONS. On or about July,, PERLOWIN, HEMPHILL, and VON JUDY entered into a contract by which HEMPHILL and VON JUDY were employed to perform various tasks, including construction. HEMPHILL and VON JUDY were also required to purchase certain materials related to their work with funds provided by PERLOWIN and for his benefit.. PERLOWIN remitted certain sums of money to HEMPHILL and VON JUDY for certain services in advance thereto and also provided monies to purchase materials needed for certain tasks.. HEMPHIL and VON JUDY failed to perform all or a portion of the tasks that they were paid to do pursuant to the contract and left the Clark County area with funds provided by PERLOWIN. HEMPHILL and VON JUDY retained funds for their own use that were provided by PERLOWIN and intended for purchase of certain materials. Certain materials were purchased by HEMPHILL and VON JUDY with funds provided by PERLOWIN but were retained by them for their own enjoyment and use.. PERLOWIN also discovered upon HEMPHIL and VON JUDY S departure from the Las Vegas area that they had overstated the price of particular materials that HEMPHIL and - -

3 Case :-cv-0-apg-pal Document Filed 0// Page of VON JUDY purchased for PERLOWIN and kept the remainder of their funds for their own personal enjoyment and use.. Subsequent to HEMPHILL and VON JUDY leaving the area, PERLOWIN also discovered that HEMPHILL and VON JUDY had taken valuable possessions belonging to PERLOWIN.. Since leaving the Las Vegas area and absconding with PERLOWIN S advanced fees and possessions, PERLOWIN has received no communication from HEMPHILL or VON JUDY or received repayment for any of the funds or possessions stolen by HEMPHILL and VON JUDY. FIRST CAUSE OF ACTION (Breach of Contract). Plaintiff re-alleges paragraphs through as though fully stated herein.. PERLOWIN entered into a binding and enforceable contract with HEMPHILL and VON JUDY whereby HEMPHILL and VON JUDY agreed, among other things, that they would perform certain services for PERLOWIN, and purchase certain goods on his behalf.. PERLOWIN performed all of his obligations required of him relative to the contract by paying HEMPHILL the amount agreed upon for salary to perform services and for purchase of materials needed to perform certain services, as agreed upon.. HEMPHILL and VON JUDY breached their obligations owed to PERLOWIN under the contract by, among other things, failing to perform tasks as agreed upon and failing to purchase certain materials. Additionally, HEMPHILL and VON JUDY left the Las Vegas area with certain goods purchased on behalf of PERLOWIN and for his benefit, pursuant to the contract.. PERLOWIN has been damaged by HEMPHILL and VON JUDY s breach of the contract in an amount exceeding $, PERLOWIN has been required to retain the services of an attorney to prosecute this matter, and as such, is entitled to an award of his costs and reasonable attorney s fees incurred herewith. - -

4 Case :-cv-0-apg-pal Document Filed 0// Page of SECOND CAUSE OF ACTION (Breach of the Implied Covenant of Good Faith and Fair Dealing). Plaintiff re-alleges paragraphs through as though fully stated herein.. PERLOWIN entered into a binding and enforceable contract with HEMPHILL and VON JUDY whereby HEMPHILL and VON JUDY agreed, among other things, that they would perform certain tasks, purchase certain goods on behalf of PERLOWIN.. HEMPHILL and VON JUDY owed a duty of good faith to PERLOWIN that HEMPHILL and VON JUDY would perform duties as prescribed in the contract and purchase certain goods for PERLOWIN S benefit.. Inherent in this agreement, HEMPHILL and VON JUDY agreed not to overstate the costs of such materials or to keep said materials for their own benefit.. From about July, to September,, PERLOWIN paid HEMPHILL and VON JUDY for services and materials and PERLOWIN was denied the benefit thereof due to the action or inaction of HEMPHILL and VON JUDY.. HEMPHILL and VON JUDY breached their duty owed to PERLOWIN by performing in a manner that was unfaithful to the purpose of the contract. Specifically, HEMPHILL and VON JUDY received the payment necessary to purchase certain materials for work but did not complete the work in accordance with the terms of the contract.. HEMPHILL and VON JUDY also breached their duty owed to PERLOWIN by performing in a manner that was unfaithful to the purpose of the contract by overstating the cost of materials.. PERLOWIN S expectation that HEMPHILL and VON JUDY would carry out the contract by the terms therein were justified.. PERLOWIN S justified expectations were thus denied.. PERLOWIN has been damaged by HEMPHILL and VON JUDY s breach in an amount exceeding $, Plaintiff has been required to retain the services of an attorney to prosecute this matter, and as such, is entitled to an award of his costs and reasonable attorney s fees incurred herewith. - -

5 Case :-cv-0-apg-pal Document Filed 0// Page of THIRD CAUSE OF ACTION (Fraud/Misrepresentation/Concealment) 0. Plaintiff re-alleges paragraphs - as though fully stated herein.. HEMPHILL and VON JUDY perpetrated a scheme and artifice to misrepresent the nature of their dealings and transactions, all with the purpose of inducing PERLOWIN into providing HEMPHILL and VON JUDY money and materials under false pretenses.. HEMPHILL and VON JUDY had as its ulterior purpose to attain funds from PERLOWIN for purposes of performing their duties pursuant to the agreement, when HEMPHILL and VON JUDY never intended to perform the duties as prescribed under the agreement.. HEMPHILL and VON JUDY s representations were false because HEMPHILL and VON JUDY never completed the actions prescribed under the contract with PERLOWIN and furthermore retained funds that were not rightfully theirs under the terms of the contract.. HEMPHILL and VON JUDY concealed the fact that they were not going perform their duties pursuant to their contract with PERLOWIN.. PERLOWIN relied on HEMPHILL and VON JUDY s material misrepresentations and paid HEMPHILL and VON JUDY for their services and for the purchase of good necessary for certain tasks.. PERLOWIN S reliance was justified because PERLOWIN had no knowledge that the representations were false or that material information had been concealed.. PERLOWIN would not have requested services from HEMPHILL and VON JUDY if he had known that HEMPHILL and VON JUDY were not going to perform the services pursuant to the terms of the contract and to withhold monies and materials.. PERLOWIN has been damaged by HEMPHILL and VON JUDY s fraud, misrepresentation, and concealment in an amount exceeding $, HEMPHILL and VON JUDY s fraud, misrepresentation, and concealment was oppressive and/or malicious, and was motivated, in part, by HEMPHILL and VON JUDY s decision to further their own interests. - -

6 Case :-cv-0-apg-pal Document Filed 0// Page of. Plaintiff has been required to retain the services of an attorney to prosecute this matter and, as such, is entitled to an award of his costs and reasonable attorney s fees. FOURTH CAUSE OF ACTION (Conversion) 0. Plaintiff re-alleges paragraphs - as though fully stated herein.. HEMPHILL and VON JUDY committed a distinct act of dominion wrongfully exerted over PERLOWIN S personal property when they claimed to have purchased materials for work to be performed for PERLOWIN S benefit with money that PERLOWIN had provided to them for that purpose, yet failed to provide the materials and/or services to PERLOWIN.. HEMPHILL and VON JUDY committed another distinct act of dominion wrongfully exerted over PERLOWIN S personal property when they took valuable materials from PERLOWIN S home, office and trailer.. The acts were in denial of, or inconsistent with, PERLOWIN S title or rights therein because the materials belonged to PERLOWIN pursuant to the contract and by the mere fact that PERLOWIN paid for the materials with his own funds.. PERLOWIN has been damaged by HEMPHILL and VON JUDY s conversion in an amount exceeding $, Plaintiff has been required to retain the services of an attorney to prosecute this matter and, as such, is entitled to an award of his costs and reasonable attorney s fees. FIFTH CAUSE OF ACTION (Unjust Enrichment). Plaintiff re-alleges paragraphs - as though full stated herein.. HEMPHILL and VON JUDY unjustly retained the money and property belonging to PERLOWIN against the fundamental principles of justice and equity and good conscious when HEMPHILL and VON JUDY took PERLOWIN S payments for services and purchase of goods for PERLOWIN S benefit and failed to perform pursuant to the terms agreed upon by the parties.. HEMPHILL and VON JUDY also unjustly retained the money and property belonging to PERLOWIN against the fundamental principles of justice and equity and good - -

7 Case :-cv-0-apg-pal Document Filed 0// Page of conscious when HEMPHILL and VON JUDY overstated the price of particular materials necessary to complete work on behalf of PERLOWIN and retained the remainder for their own benefit.. HEMPHILL and VON JUDY have thereby been unjustly enriched in an amount in excess of $, Plaintiff has been required to retain the services of an attorney to prosecute this matter and, as such, is entitled to an award of her costs and reasonable attorney s fees. WHEREFORE, Plaintiff prays for relief as follows:. For damages in excess of $, For treble damages;. For punitive and exemplary damages;. For an award to Plaintiff of his costs and attorneys fees; and. For such other and further relief as the Court may deem just and proper. DATED this th day of June,. GEWERTER & DOWLING /s/ Harold P. Gewerter, Esq. HAROLD P. GEWERTER, ESQ. Nevada Bar No. ELAINE A. DOWLING, ESQ. Nevada Bar No. 0 S. Casino Center Blvd. Las Vegas, Nevada Attorneys for Plaintiffs - -