Aliya Medcare Finance, LLC v. Nickell (156 F. Supp. 3d 1105, 2015)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE

On October 8, 2014, Aliya Medcare Finance, LLC (“Aliya”) filed, this action against Robert P. Nickell, Comprehensive Toxicology Billing, LLC (“CTB”), Exec Billing Services, LLC (“Exec Billing”) (collectively “defendants”), and various fictitious defendants. The complaint alleged eleven claims arising from a dispute concerning negotiation and implementation of a factoring agreement between Aliya and defendants. On November 20, 2014, Aliya filed an ex parte application for a temporary restraining order. It sought a temporary restraining order requiring defendants to (1) transfer to Aliya all funds received to date as payment on receivables Aliya had purchased from CTB; (2) continue to transfer to Aliya, until the conclusion of a trial on the merits, all funds received as payment on receivables Aliya had purchased from CTB; (3) give Aliya any and all documentation received concerning receivables it had purchased; (4) give Aliya access to the billing and collection software used to manage and collect the receivables it had purchased from CTB; and restraining defendants from (5) managing, controlling, collecting, or taking any action with respect to receivables Aliya had purchased from CTB except as provided in items (1)-(4) above. On November 26, 2015, the court denied Aliya’s application because it had not adequately shown that it would suffer imminent, irreparable harm if an injunction were not entered.

On December 18, 2014, Aliya filed a first amended complaint. The first amended complaint alleges eleven claims. It pleads claims against Nickell and CTB for fraud in the inducement of the factoring agreement; fraudulent concealment; promissory fraud; negligent misrepresentation; and conversion. It also alleges separate breach of contract claims against CTB and Exec Billing; intentional interference with contractual relations and violation of California Business and Professions Code § 17200 claims against Niekell; and claims for an accounting and imposition of a constructive trust against all defendants.

On December 29, 2014, the court approved the parties’ stipulation to extend defendants’ time to respond to the first amended complaint to January 30, 2015. On January 30, 2015, defendants filed a motion to dismiss the first through fourth and sixth through tenth claims in Aliya’s first amended complaint; they do not seek dismissal of Aliya’s fifth claim for breach of contract against CTB or eleventh claim for an accounting. Aliya opposes the motion.

I. FACTUAL BACKGROUND

Aliya is in the business of factoring. The complaint alleges that Niekell is a successful pharmacist and businessman who owns and controls multiple undercapi-talized shell entities through which he conducts a multimillion dollar medical services business. One such entity is CTB, which provides toxicology services — specifically urinalysis — to patients with workers’ compensation claims. As relevant here, instead of charging patients directly for toxicology services, CTB allegedly invoices an insurance company that provides coverage for the services. The right to receive payments from insurance providers is purportedly a receivable that is often marketed and sold to third parties that factor receivables. CTB has allegedly originated thousands of such receivables,. each of which typically represents a bill of $800 to $1,400.

A. The Factoring, Non-Compete, and Indemnification Agreements

Beginning in the fourth quarter of 2012 and continuing to the first quarter of 2013, CTB and Aliya allegedly entered into three factoring agreements pursuant to which Aliya purchased existing CTB receivables and an exclusive right to acquire all right, title, and interest to CTB’s future receivables for a period of five years. The first agreement, which was executed in November 2012, documented Aliya’s purchase of $7.9 million of CTB’s receivables; the second agreement, which was executed in February 2013, reflected Ali-ya’s purchase of $4.1 million of CTB’s receivables, while the third agreement, executed in March 2013, documented Aliya’s purchase of $18 million of CTB’s receivables. The third agreement also gave Aliya the exclusive right to purchase all of CTB’s future receivables for five years, or until January 2018. Aliya asserts that by entering into these agreements, it acquired the right to receive all payments made on all of CTB’s then-existing receivables as well as all future receivables through January 2018.

Aliya alleges that, to induce it to enter into the third agreement and pay in excess of $4 million for the receivables being purchased, Niekell executed and delivered a covenant not to compete and a covenant to indemnify. The non-competition clause purportedly required all entities affiliated with CTB (the “Niekell entities”), including Exec Billing, to acknowledge that they and their respective managers, including Nic-kell, would conduct all toxicology business solely through CTB' — for Aliya’s benefit— and ensure that they operated in such a way that all receivables generated were subject to the third agreement. In the indemnification clause, the Niekell entities allegedly promised to indemnify Aliya for any loss caused by CTB’s breach of the third agreement.

Aliya, for its part, agreed to purchase all of CTB’s receivables without conducting any due diligence; in exchange, it negotiated a provision that permitted it to return any and all receivables that failed to meet certain criteria. Thus, section 14 of the third agreement provided that Aliya “shall have the right, at any time, to reject any [Receivable that, in [Aliya’s] judgment, meet or includes one or more of the following criteria... ,” The criteria set forth in section 14, for example, permitted Aliya to reject receivables that represented claims or charges “requested by a physician of record that [are] not within the applicable ‘Medical Provider Network’ [ (“MPN”) ],” i.e., claims presented by out-of-network providers. Section 14 also provided that if Aliya rejected a receivable based on any of the enumerated criteria, CTB would “have the opportunity to object to [Ailya’s] classification of [the] [receivable as [rejectable] within 10 days of receiving notice thereof[;] ... the parties [ ] agree[d] to make a ‘good faith effort to mutually determine whether the cause of such [Receivable becoming [rejectable] [could] be cured by [CTB] within a commercially reasonable time.” “With respect to any [Rejected [Receivable that [as to which CTB could not cure], an amount equal to the applicable [p]urchase [p]rice ... [was to] be deducted from the immediately following [m]onthly [funding [ajmount, or, in the event that no [transaction [m]onth remained] ... [CTB] [was obligated to] pay the applicable [p]urchase [p]rice for such [Receivable to [Aliya] within five [ ] business days.” Rejected receivables were deemed to belong to CTB; as a result, the agreement provided that CTB could “collect on or sell” any rejected receivable.

Aliya alleges that it purchased an additional $52.6 million of future receivables from CTB under the third agreement. In total, it contends it has purchased “all of CTB’s receivables, which amounts to over $83 million of receivables.”

B. Alleged Misrepresentations Concerning In-Network Doctors

The third agreement allegedly required that all receivables represent charges by referring physicians who were “in-network.” At the time it entered into the third agreement, Aliya became increasingly concerned that providers be in-network because California Senate Bill 863 had taken effect in January 2013, and Aliya believed insurance companies would begin to scrutinize whether a provider was in-network more closely, which in turn would materially affect the collectability of receivables representing charges submitted by out-of-network providers. To assuage these concerns, Nickell purportedly represented in telephone conversations and meetings at his office that the doctors ordering toxicology services from CTB were in-network. This representation allegedly proved false. Aliya asserts that it initially did not know the number of receivables being denied by insurance companies because the referring physician was out-of-network. CTB purportedly handled collection and servicing of accounts, pursuant to an agreement between the parties, until June 2013. At that time, Aliya formed its own in-house collections department. Soon after it began handling collections in house, Aliya allegedly “noticed that insurance companies had denied payment of a large number of receivables because the referring physician was out-of-network.” It contends it did not know this earlier because CTB did not provide any documentation from insurance companies; it purportedly communicated only the amount paid by insurers and remitted that amount to Aliya. By September 2013, insurers’ denial of claims submitted by out-of-network physicians allegedly totaled millions of dollars. When Aliya confronted Nickell, he purportedly denied that any doctors were out-of-network; he asserted that insurers offer any reason, including a blatantly false one, to avoid payment.

Once it learned of the out-of-network problem, Aliya purportedly formed a team of dedicated staff to research whether the physicians referring toxicology business to CTB were actually within the applicable MPN, as Nickell had purportedly represented and confirmed. Its investigation focused on the network status of 26 physicians that “collectively referred the vast majority of CTB’s business,” and 44 insurance companies that were “the most common payors with respect to the receivables.” It learned that only four of the 26 physicians had in-network status with at least one of the 44 payors; none had in-network status with more than two of the 44 insurance companies.

Aliya presented the results of its research to Nickell at a meeting on October 8, 2013. After reviewing it, Nickell purportedly said that Aliya’s staff was incompetent and maintained that all physicians referring business to CTB were in-network providers of virtually every relevant insurance company. Nickell allegedly claimed he would contact one of the twenty-six physicians and obtain documentation proving that he was within “all MPNs,” but never did so. In fact, Aliya asserts that Nickell and CTB finally admitted that the “vast majority” of the referring doctors were not within the applicable MPN. At that point, the parties sought to negotiate a mutually agreeable solution.

C. Aliya’s Rejection of Certain Receivables and CTB’s Alleged Failure to Provide Reasonable Assurances Concerning Repayment

When no resolution was reached, on October 19, 2014, Aliya formally rejected $17,650,096.36 of receivables; it asserted that the receivables were properly rejected under section 14(f) of the third agreement because the referring physicians were out-of-network. It requested a refund of $3,654,224.50, the purchase price it paid for the receivables. Simultaneously, it asked that CTB provide reasonable assurances that it would pay the refund; this was done, Aliya asserts, because it believed CTB could not pay Aliya “any significant amounts based on statements made by Nickell.” In particular, Nickell allegedly stated that CTB had no remaining assets, because its only assets were the receivables it had sold to Aliya, and that he would be willing to transfer ownership of CTB to Aliya for nominal consideration of $1. On the basis of this statement, Aliya contends it reasonably assumed that the millions of dollars it paid CTB for receivables had already been distributed to Nic-kell or otherwise dissipated. It concluded that CTB was a special purpose entity created solely to originate and hold receivables, with no other assets or liabilities.

Following Aliya’s refund request, CTB had ten days, i.e., until October 29, 2014, to notify Aliya of any objection to Aliya’s rejection of the receivables under section 14(f). CTB provided a response on that date; Aliya contends, however, that the response provided no substantive basis for the objection. Specifically, it purportedly did not identify any receivable that represented a claim submitted by an in-network physician. In addition, CTB did not request a reasonable time to cure, despite having the right to do so under the terms of the third agreement.

CTB’s response also allegedly offered no assurance that it could pay Aliya $3,654,224.50. Thus, Aliya did not transfer title to the receivables despite being ready, willing, and able to do so. It contends its obligation to transfer title to the receivables to CTB was excused because it had a reasonable basis to believe that CTB would not remit the purchase price of the receivables as it had not given reasonable assurances it would.' Alternatively, Aliya alleges that tender of the rejected receivables was excused because the law does not require a useless act. CTB therefore had until November 3, 2014 to pay Aliya the $3,654,224.50. It did not do so. Instead, it asserted through an attorney that it did “not owe Aliya a dime.” Aliya contends that CTB’s course of conduct shows it lacked sufficient funds to pay the $3,654,224.50 Aliya was owed for the rejected receivables. It also asserts that CTB’s response, i.e., that it did not owe the money, constituted a repudiation of Aliya’s refund rights under section 14(f).

D. Nickell’s and CTB’s Alleged Refusal to Honor Aliya’s Right to Reject Receivables for Charges Associated With Already Paid or Settled Workers’ Compensation Claims

Aliya alleges that insurance companies will not pay receivables for medical services when there is no longer an ongoing workers’ compensation claim; thus, the parties agreed that Aliya was permitted to reject any receivables and seek full refund of the purchase price if the receivables concerned services rendered after the underlying insurance claim had been settled, paid, or adjudicated. Aliya contends that CTB sold it at least $2,074,577 of receivables representing medical services rendered after the underlying claim had been settled, paid, or adjudicated. It contends it paid $145,356.95 for these receivables, and that after it rejected the receivables, CTB refused to refund the purchase price or issue a corresponding credit.

E. Nickell’s and CTB’s Alleged Sale of Receivables That Had Previously Been Collected In Full and Failed to Return the Purchase Price of These Receivables

In or about June 2014, Aliya purportedly discovered that CTB had sold receivables to it that had already been paid by insurers; the purchase price for the receivables was $256,706.46. Aliya contends the receivables were paid as early as January 2012, or ten months before CTB and Aliya entered into the first agreement. Because CTB and Nickell had ample time to remove the paid receivables from the group being sold to Aliya, Aliya asserts they knew, or reasonably should have known, that they were selling receivables that had already been paid and hence were worthless. Aliya alleges that Nickell and CTB concealed the fact the receivables had been paid.

Even if defendants did not act fraudulently, Aliya contends that CTB is contractually obligated to remit the funds paid on these receivables and/or issue a credit equal to the purchase price of the receivables at closing under section 12 of the third agreement. That section, titled “reconciliation,” provides:

“All monies related to the Receivables, which have already been received by Provider and not properly recorded against the listing of the Receivables in Exhibit A, will be immediately credited to Buyer at the time of the closing. All monies received by Provider after the execution of this contract and before funding related to the Receivables, will be turned over to Buyer in good funds, at the closing. All monies received by Provider after the funding related to Receivables will be turned over to Buyer in good funds within 48 hours of receipt.”

On July 3, 2014, Aliya alleged exercised its rights under section 12 and made a claim for $256,706.46 based on receivables that had already been paid to CTB by insurers. CTB purportedly did not respond until September 12, 2014, at which time it acknowledged that it had verified receipt of slightly less than the amount sought by Aliya, or $229,467.09. CTB and Nickell purportedly refused to tender that amount, despite being obligated to do so under section 12.

F. Nickell’s Alleged Diversion of Business That Belonged to Aliya

Beginning in or about October 2013, CTB allegedly began to divert urinalysis business in violation of the third agreement and non-competition clause. Aliya contends that, to date, Nickell has diverted approximately $18 million of business to various shell companies controlled by him. As evidence of this purported diversion, Aliya alleges that the monthly average of receivables from April to October 2013 was $5.2 million. Suddenly, however, in November 2013, the volume dropped dramatically; the monthly average from November 2013 to August 2014 was only $1.6 million. Nickell purportedly stated that the drop was a result of the fact that competitors had aggressively solicited CTB’s business. This explanation was purportedly false; Aliya asserts that in fact Nickell diverted toxicology business from CTB to other shell companies he owned. It contends Nickell intended to divert business from the very beginning of the parties’ relationship, and never intended to comply with the exclusivity provisions of the third agreement and non-competition clause.

G. Aliya’s Termination of the Third Agreement and CTB’s Withholding of Payments on Aliya’s Receivables

- As a result of CTB’s allegedly wrongful actions, Aliya terminated the third agreement on November 5, 2014, giving CTB notice that it would not purchase further receivables in the future. Aliya contends that given CTB’s multiple breaches of the agreement, it was entitled to terminate. The first and second agreements were purportedly not terminated, however.

Since Aliya terminated the third agreement, Nickell and CTB have purportedly begun to withhold payment on all of the receivables purchased by Aliya. It alleges that to date, CTB has withheld more than $600,000 of payments owed to Aliya. Nickell and CTB have also purportedly obstructed Aliya’s efforts to collect and service the receivables it owns, and begun their own aggressive collection activities on those receivables to maximize the amount they can withhold and convert to their own use.

Each of the parties’ three agreements required that CTB open an account into which checks representing payments on receivables Aliya purchased were to be deposited. CTB was required to send the checks, uncashed, to the account on the day they were received from the insurance company. This was purportedly done to ensure that funds would not be commingled and that Aliya would not be subjected to risk in the event CTB became insolvent. The agreements contained a “non-diversion guarantee” clause that required CTB to remit proceeds within 48 hours of receipt. Aliya contends that the non-diversion guarantees survive termination of the third agreement. CTB purportedly never opened the depository account, and failed to remit proceeds within 48 hours in direct violation of these provisions. Instead, it purportedly deposited insurance checks in its own account and commingled the funds with its own.

Aliya alleges that Nickell has used the receivable payments to fund other investments and businesses. It provides one example that purportedly demonstrates how he has misused the funds:

“[I]n the beginning of 2014 he unilaterally decided to hold on to Aliya’s funds for up to seven weeks before finally paying Aliya in two installments on February 27 ($515,758) and March 5 ($534,696). Based on information and belief, these dates coincide with Nickell’s refinancing of a commercial building that he owns through one of his other entities (Kashi-wa Court,- LLC). Nickell refinanced this building in two separate transactions on February 26 and March 4, respectively, in each case the day prior to paying Aliya past overdue amounts. Nickell took the liberty to hold on to Aliya’s funds at his discretion until such time that his refinance transactions had closed.”

When CTB eventually wed the fund's to Aliya, it allegedly did so only after deducting certain “arbitrary costs that CTB chose to assess to Aliya.” Aliya alleges that CTB has charged more than $147,000 in “improper and bogus servicing costs.” Since November 5, 2014, moreover, CTB has purportedly continued to cash checks from insurers, and refused to provide any of the proceeds to Aliya. On November 14, 2014, Aliya’s attorney allegedly sent CTB’s lawyer an email stating that Aliya had not received any funds from collections; he asked that CTB pay the funds and work with Aliya to establish a lockbox account. CTB’s attorney allegedly responded that Nickell and CTB intended to withhold all funds collected on Aliya’s receivables as a potential offset for alleged damages arising from its termination of the third agreement.

Aliya contends that CTB has no right to withhold these funds under the agreements or Nevada law, which governs the contracts. It maintains that under section 2 of the first and second agreements, and section 3 of the third agreement, all right, title and interest to he receivables was transferred to Aliya, and that CTB has no right to the proceeds. Aliya also contends that, even if the agreements did not contain such a provision, Nevada law provides that once a debtor like CTB has sold “an account, chattel paper, payment intangible or promissory note [it] ... retain[s] [no] legal or equitable interest in the collateral sold.” Thus, it asserts that even if CTB has the right to collect the rejected receivables, the first and second agreements remain binding and hence it must remit proceeds collected on receivables subject to those agreements to Aliya. It also contends that the non-diversion guarantee in the third agreement expressly survives termination of the agreement, and that CTB must therefore turn over payments received on receivables subject to that agreement as well. As a consequence, Aliya maintains that it holds title to the receivables it purchased and is entitled to possession of the proceeds. In addition to withholding proceeds from Ali-ya, Nickell and CTB also purportedly locked Aliya out of Conexem — the billing and collection software used to collect CBT’s receivables. Defendants did so despite the fact that they were allegedly obligated to give Aliya access to the software under each of the parties’ agreements. Aliya relies substantially on Co-nexem’s tools to manage the receivables it has purchased. It asserts:

“Without access to Conexem virtually no employee duties can be performed sufficiently. For example, Aliya’s employees are unable to collect on their assigned receivables because they do not have access to all the necessary information needed (accounting information, insurance correspondence and contact information, case history, notes, medical documents, patient information etc.). Without up-to-date accounting information the billing department cannot keep in accordance with current California Workers’ Compensation law and deadlines, which depreciates the potential recovery amount leading to accrued losses. Without access to the court calendar for the claims, the legal department will not know about, nor will they be able to prepare for, court appearances, causing our receivables to be dismissed with potential for sanctions and losses.”

CTB has also allegedly failed to turn over mail or copies of mail received concerning the receivables. Aliya contends that most insurers and the Workers’ Compensation Appeals Board communicate information related to receivables by mail. Without access to mailed correspondence, Aliya lacks knowledge of receivable activity and cannot collect the amounts owed. Aliya contends that CTB’s failure to provide these documents violates its exclusive and irrevocable right to manage and collect the receivables. It cites section 24 of the third agreement, which states that CTB “hereby appoints Buyer as its attorney-in-fact to exercise at any time, at Buyer’[s] cost and expense, any or all of the following powers: to make collection efforts in Provider’s name that Buyer deems necessary or desirable.” This right purportedly survives termination of the third agreement. Aliya thus asserts that CTB has breached the contracts by interfering with its right to collect receivables and with its right to transfer or assign receivables; it contends no buyer would purchase the receivables while Nic-kell and CTB continue their allegedly illegal acts.

II. DISCUSSION

A. Legal Standard Governing Motions to Dismiss Under Rule 12(b)(6)

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a “lack of a cognizable legal theory,” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). The court must accept all factual allegations pleaded in the complaint as true, and construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir.1995).

The court need not, however, accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”). Thus, a plaintiffs complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (“Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)” (citations omitted)); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.2009) (“[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief,” citing Iqbal and Twombly).

B. Whether Aliya’s Fraudulent Inducement Claim Must Be Dismissed

Under Nevada law, “[t]o establish fraud in the inducement, [Aliya] must prove by clear and convincing evidence each of the following elements: (1) a false representation made by [defendants], (2) [defendants’] knowledge or belief that the representation was false (or knowledge that it had an insufficient basis for making the representation), (3) [defendants’] intention to therewith induce [it] to consent to the contract’s formation, (4) [Aliya’s] justifiable reliance upon the misrepresentation, and (5) damage to [Aliya] resulting from such reliance.... “[F]raud is never presumed; it must be clearly and satisfactorily proved.” J.A. Jones Const. Co. v. Lehrer McGovern Bovis, Inc., 120 Nev. 277, 290-91, 89 P.3d 1009 (2004) (citing Wohlers v. Bartgis, 114 Nev. 1249, 1260-61, 969 P.2d 949 (1998)); see also Bulbman Inc. v. Nevada Bell, 108 Nev. 105, 110-11, 825 P.2d 588 (1992).

Defendants argue that Aliya’s fraudulent inducement claim is deficient because it is “nothing more than a contract claim masquerading as a tort claim.” They contend that Aliya fails to allege any damages caused by an independent injury that flowed from Nickell’s and/or CTB’s alleged misrepresentations. Stated differently, defendants argue that the fraudulent inducement claim is barred by the economic loss rule. The Nevada Supreme Court has described the economic loss rule as follows:

“The economic loss doctrine draws a legal line between contract and tort liability that forbids tort compensation for ‘certain types of foreseeable, negligently caused, financial injury.’ The doctrine expresses the policy that the need for useful commercial economic activity and the desire to make injured plaintiffs whole is best balanced by allowing tort recovery only to those plaintiffs who have suffered personal injury or property damage. And it has been reasoned that such useful commercial activity could be deterred if those involved in it were subject to tort liability. Instead, when economic loss occurs as a result of negligence in the context of commercial activity, contract law can be invoked to enforce the quality expectations derived from the parties’ agreement.” Terracon Consultants W., Inc. v. Mandalay Re sort Grp., 125 Nev. 66, 75, 206 P.3d 81 (2009).

Defendants cite no Nevada authority supporting the proposition that the economic loss rule applies to fraud claims, however. Instead, they cite one California district .court decision, which applies California law, and which did not deal with a fraudulent inducement claim. In Standard Platforms, Ltd. v. Document Imaging Sys. Corp., No. CIV. 93 20993 SW, 1995 WL 691868, *3 (N.D.Cal. Nov. 15, 1995), the court in fact expressly noted that the claim at issue was not a fraudulent inducement claim and, for that reason, did not arise from any independent duty that would support imposition of tort liability. See id. (“DISC’S fraud claim is based upon Ricoh’s performance of the warranty provisions of its agreement with Maxoptix. It bears no relation to a fraudulent inducement claim. As such, DISC’S fraud claim is precluded because it does not arise from any independent duty imposed by principles of tort law”).

[4] Nevada courts apply the economic loss rule more narrowly than California courts. In Nevada, “the doctrine bars unintentional tort actions when the plaintiff seeks to recover ‘purely economic losses.’ ” Terracon, 125 Nev. at 73, 206 P.3d 81 (citing Local Joint Exec. Bd. v. Stern, 98 Nev. 409, 411, 651 P.2d 637 (1982) (emphasis added)). The Nevada Supreme Court thus has held that “[ijntentional torts are not barred by the economic loss doctrine.” Halcrow, Inc. v. Eighth Jud. Dist. Ct., 302 P.3d 1148, 1154 n. 2 (Nev.2013) (citing Terracon, 125 Nev. at 72-73, 206 P.3d 81); see also Las Vegas Metro. Police Dep’t v. Harris Corp., No. 13-CV-01780-GMN, 2014 WL 3474278, *2 (D.Nev. July 11, 2014) (finding under Halcrow that the economic loss rule did not bar intentional tort claims). Consequently, defendants’ assertion that the economic loss rule bars Ali-ya’s fraudulent inducement claim - or any of its intentional tort claims, for that matter-is unavailing.

Defendants next contend that Ali-ya’s fraudulent inducement claim is deficient because Aliya does not plead non-conclusory facts showing that the actions it purportedly took in reliance on Nickell’s alleged misrepresentations proximately caused it damage. Defendants maintain that no damage could have been caused by any alleged misrepresentation, because as pled, Aliya’s damages flow entirely from CTB’s purported refusal to repurchase properly rejected receivables under section 14(f) of the third agreement. They assert that even if Nickell misrepresented the in-network status of the physicians, the misrepresentation alone did not cause damage because under section 14(f), Aliya had the right to require that CTB repurchase receivables reflecting claims by out-of-network physicians. Defendants argue that, if Aliya can show CTB refused to do so, its damage will have been caused by a breach of contract whether or not a misrepresentation was made. See Rossberg v. Bank of America, N.A., 219 Cal.App.4th 1481, 1499, 162 Cal.Rptr.3d 525 (2013) (“If the defrauded plaintiff would have suffered the alleged damage even in the absence of the fraudulent inducement, causation cannot be alleged and a fraud cause of action cannot be sustained”).

Rossberg is a California Court of Appeal decision. Defendants cite no authority indicating that Nevada has adopted a similar rule. Under Nevada law, a plaintiff must allege “damage ... resulting from [its] reliance” on a purported misrepresentation. J.A. Jones Const. Co., 120 Nev. at 290-91, 89 P.3d 1009. “Proximate causation is generally an issue of fact for the jury to resolve,” however. Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661 (1998) (citing Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258 (1981)). Aliya alleges that it would not have entered into the third agreement had it known that the majority of the receivables involved claims referred by out-of-network physicians. It asserts that, at approximately the same time it entered into that agreement, it stopped purchasing receivables from another provider whose doctors were out-of-network because collection rates were substantially lower. It also alleges that it had to dedicate an entire team of employees to determining the actual status of the receivables it had purchased from CTB; this may have required capital expenditures and certainly involved substantial opportunity costs. Section 14(f) does not permit recovery of these types of damages. Thus, even assuming Nevada applies a rule similar to that discussed in Rossberg, defendants’ argument that Aliya has not alleged damages caused by the purported misrepresentation as opposed to CTB’s alleged breach of contract is unavailing.

In addition, Nevada law is clear that a plaintiff need not elect remedies in a situation such as this:

“It is the law that one who has been fraudulently induced into a contract may elect to stand by that contract and sue for damages for the fraud. When this happens and the defrauding party also refuses to perform the contract as it stands, he commits a second wrong, and a separate and distinct cause of action arises for the breach of contract.... The courts of many states have recognized the rule that a suit on a contract and a suit for fraud in inducing the contract are two different causes of action with separate and consistent remedies.” J.A. Jones Const. Co., 120 Nev. at 289, 89 P.3d 1009 (quoting Bankers Trust Co. v. Pacific Employers Insurance Co., 282 F.2d 106, 110 (9th Cir.1960)).

Accordingly, Aliya has sufficiently' alleged proximate causation to survive a motion to dismiss.

Third, defendants argue that Ali-ya’s fraudulent inducement claim fails because the third agreement “specifically contemplates the possibility of the very outcome of which Aliya now claims it was not aware.” This appears to be an argument that Aliya has inadequately pled that its reliance on the purportedly fraudulent representations was reasonable. “[Ejxeept in extreme cases, whether reli-apce is reasonable is a question of fact.” See Meredith v. Weilburg, No. 13-CV-00277 RCJ, 2013 WL 5658181, *6 (D.Nev. Oct. 15, 2013) (citing Blanchard v. Blanchard, 108 Nev. 908, 912, 839 P.2d 1320 (1992)). Defendants contend that because section 14(f) permits Aliya to return receivables based on claims from out-of-network doctors, it must have known some of the receivables involved such providers, and could not reasonably have relied on any representation to the contrary.

Aliya counters that the fact the agreement contemplated a refund in the event a receivable or some receivables purchased during the five-year life of the agreement were based oh claims by out-of-network providers does not render its reliance on Nickell’s representation that all referring doctors were in-network unreasonable. It alleges that section 14(f) was “intended to guard against the possibility that some of the referring physicians were out-of-network for some receivables, not the vast majority of them,” and that, if anything, Nickell’s guarantee of a refund gave Aliya even more reason to believe Nickell when he said referring doctors were in-network. The third agreement provided that any rejected receivable would “not be part of th[e] [ajgreement”; as Aliya argues, this suggests that to the extent any receivable involved a claim by an out-of-network physician, the parties contemplated it would be a isolated exception rather than, as defendants contend, the rule. It makes little sense for CTB to agree to a provision exempting out-of-network claims when, as Aliya alleges, all — or nearly all— of the claims were actually out-of-network. Given the allegations in the complaint, i.e., that Nickell represented that all the physicians were in-network, the court cannot conclude in the context of a motion to dismiss that Aliya’s reliance was unreasonable as a matter of law. See Meredith, 2013 WL 5658181 at *6; Blanchard, 108 Nev. at 912, 839 P.2d 1320.

Defendants next maintain that the fraudulent inducement claim must be dismissed because a fraud claim cannot be predicated on statements that involve future actions or events. The authority they cite does not stand for this proposition, however. Rather, the eases concern promissory fraud, i.e., promises of future performance, which are only actionable as fraud when it can be shown that the prom-isor never intended to perform. See Bulbman, Inc. v. Nev. Bell, 108 Nev. 105, 112, 825 P.2d 588 (1992) (“The mere failure to fulfill a promise or perform in the future ... will not give rise to a fraud claim absent evidence that the promisor had no intention to perform at the time the promise was made”). Nonetheless, it appears that courts applying Nevada law require that misrepresentations concern presently existing, as opposed to future, facts. See Archway Ins. Serve., LLC v. Harris, No. 11-CV-1173 JCM CWH, 2014 WL 643785, *7 (D.Nev. Feb. 18, 2014) (“Opinions [as] to the future valuation of something do not ‘satisfy the first necessary element of actionable fraud, misrepresentation of an existing fact, unless there existed a present intent not to attempt the future fulfillment of the promises,’ ” quoting Fruit Indus. Research Found. v. Nat’l Cash Register Co., 406 F.2d 546, 549-50 (9th Cir.1969)). Aliya, however, does not allege that Nic-kell made false representations concerning future facts; it alleges that Nickell “represented] to Erik Nord [ (Aliya’s manager) ] ... that the doctors ordering toxicology services from CTB were in-network.” The allegedly actionable misstatement does not concern claims that would be submitted in the future by unnamed doctors; rather, it concerns doctors who were submitting claims to CTB at the time the representation was made. Indeed, other allegations in the complaint make this clear. Aliya pleads that “it is far-fetched to contend that Nickell had never inquired as to the ‘in-network’ status of his referring physicians, whom he had serviced for a long time and who had referred millions of dollars in business.” It also alleges that “CTB and Nickell knew or should have known that virtually all of [CTB’s] referring physicians were ‘out-of-network’ while they were servicing the receivables and prior to the [t]hird [a]greement being executed based on the insurance company denials received by CTB.” These allegations clarify that the representation Aliya challenges concerned present, not future, facts. Consequently, defendants’ motion must be denied to the extent it is based on an argument that the representations made concerned future events.

Finally, defendants argue that Ali-ya has failed to allege facts supporting its conclusion that “CTB and Nickell knew or should have known that virtually all of [the] referring physicians were ‘out-of-network’ while they were servicing the receivables and prior to the [tjhird [a]greement being executed based on the insurance company denials received by CTB.” Knowledge can be alleged generally under Rule 9(b). See Fed. R. Civ. PROC. 9(b) (“Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally”). Allegations concerning knowledge must nonetheless be plausible under Twombly and Iqbal. See Devaney v. Chester, 813 F.2d 566, 568 (2d Cir.1987) (“Although Rule 9(b) permits knowledge to be averred generally, plaintiffs must still plead the events which they claim give rise to an inference of knowledge”); Tanedo v. E. Baton Rouge Parish Sch. Bd., No. CV10-01172 JAK, 2012 WL 5447959, *8 (C.D.Cal. Oct. 4, 2012) (same).

Aliya has plausibly alleged knowledge. It pleads that as soon as it began to process collections, it discovered that insurers had previously declined to pay a large number of receivables because the referring physician was out-of-network. Ali-ya contends that the magnitude of the denials was such that CTB must have known that all, or at least a majority, of its referring physicians were not in-network. Aliya also alleges that “it is far-fetched to contend that Nickell had never inquired as to the ‘in-network’ status of his referring physicians, whom he had serviced for a long time and who had referred millions of dollars in business [to CBT] ... prior to the execution of the [tjhird [ajgreement,” especially since Nickell purportedly had “professional and/or personal relationship[s] with many of the physicians.” Accepting these allegations as true, as the court must, Aliya has plausibly alleged knowledge. If, as Aliya contends, CTB received out-of-network rejections for a large number of receivables prior to the parties’ entry into the third agreement, it is plausible that CTB and Nickell knew that not all referring physicians were in-network. Accordingly, defendants’ motion to dismiss fails to the extent premised on Aliya’s pleading of knowledge.

For all these reasons, the court denies defendants’ motion to dismiss Aliya’s fraudulent inducement claim.

C. Whether Aliya’s Fraudulent Concealment Claim Must Be Dismissed

To plead fraudulent concealment, plaintiff must allege that “(1) the defendant concealed or suppressed a material fact; (2) the defendant was under a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff ...; (4) the plaintiff was unaware of the fact and would have acted differently if she had known of the concealed or suppressed fact; (5) and, as a result of the concealment or suppression of the fact, the plaintiff sustained damages.” Dow Chem. Co. v. Mahlum, 114 Nev. 1468, 1485, 970 P.2d 98 (1998), overruled in part on other grounds in GES, Inc. v. Corbitt, 117 Nev. 265, 21 P.3d 11 (2001); see also Couturier v. Am. Invsco Corp., 10 F.Supp.3d 1143, 1157 (D.Nev.2014) (same).

Aliya alleges that CTB and Nickell concealed three facts: (1) doctors providing toxicology services were out-of-network; (2) CTB had already received payment for more than $229,000 of the receivables it sold to Aliya; and (3) Nickell diverted toxicology receivables to other entities he owned. Defendants argue that Aliya has failed adequately to allege a duty to disclose, and that the claim is deficient as a result. A duty to disclose arises, inter alia, “where the defendant alone has knowledge of material facts which are not accessible to the plaintiff.” Epperson v. Roloff, 102 Nev. 206, 213, 719 P.2d 799 (1986), overruled on other grounds in GES, Inc., 117 Nev. 265, 21 P.3d 11. Additionally, a “special relationship” between the parties, such as a fiduciary or confidential relationship, may trigger a duty to disclose. Mackintosh v. Jack Matthews & Co., 109 Nev. 628, 855 P.2d 549, 553-54 (1993). The first amended complaint does not allege - that defendants had a duty to disclose because the parties were in a confidential or fiduciary relationship; accordingly, the court must determine whether a duty to disclose arose because CTB and Nickell purportedly knew facts that were inaccessible to Aliya.

The first amended complaint does allege, albeit in a conclusory manner, that the three facts that were purportedly concealed were “material facts known only to Nickell and CTB, that Aliya could not have reasonably discovered on its own.” The question is whether this conclusory allegation is supported by sufficient “non-eonclu-sory ‘factual content’ ” to be “plausibly suggestive of a claim entitling [Aliya] to relief.” Moss, 572 F.3d at 969. Aliya has not adequately alleged that defendants concealed the out-of-network status of the vast majority of referring physicians, because it has not sufficiently pled that CTB and Nickell alone had access to the network status of the referring physicians. In fact, the complaint implies that Aliya reviewed the receivables it purchased in the first and second agreements — as distinguished from the third agreement — before purchasing them. This gives rise to an inference that it had an idea which doctors routinely referred patients to CTB, and could have consulted and/or investigated these physicians to determine whether or not they were in-network. Ail-ya also could have elected to conduct due diligence; that it did not do so does not place the network status of referring physicians within defendants’ exclusive knowledge. Accordingly, the court finds that Aliya has failed adequately to allege a fraudulent concealment claim based on the network status of referring physicians.

The same is true with respect to Aliya’s allegation that CTB concealed it had received payment for more than $229,000 of receivables that it sold to Aliya. Aliya alleges that CTB initially handled collection of the receivables, and that it sold $229,000 of receivables on it had already collected without disclosing that fact to Aliya. Because CTB was handling collections pursuant to the parties’ agreement, Aliya argues it “had no way of knowing that Nickell and CTB [had] received $229,000 that they did not tell Aliya about.” The court cannot agree. As noted, Aliya could have elected to conduct due diligence. Its failure to do so does not mean that the fact certain claims had already been paid was within defendants’ exclusive knowledge. Thus, Aliya fails adequately to allege that defendants had a duty to disclose that they had already received payment of $229,000 in receivables.

The court reaches a different conclusion with respect to Aliya’s allegations that Nickell purportedly diverted toxicology receivables from CTB to other entities he owned. None of the facts alleged in the complaint give rise to an inference that Aliya could or should have known that Nickell was using entities he controlled to divert business from CTB, and thus from Aliya. Defendants contend that the indemnification agreement makes it clear that Aliya knew business might be diverted; the indemnity agreement — which was executed well before the alleged concealment occurred — does not make any reference to the fact Nickell was or intended to divert assets, however. ' It thus does not foreclose the possible existence of a duty to disclose. Based on Aliya’s allegations, the court concludes that it has adequately alleged CTB and Nickell had exclusive knowledge of the fact Nickell was purportedly diverting assets from CTB to other entities he owned. Thus, it has sufficiently pled that defendants had a duty to disclose these facts under Nevada law.

The court nonetheless finds that Aliya’s fraudulent concealment claim is deficient to the extent based on Nickell’s purported diversion of toxicology receivables from CTB to other entities he owned, because Aliya fails plausibly to plead the third element of a fraudulent concealment claim, i.e., that CTB and Nickell “intentionally concealed or suppressed the fact[s] with the intent to defraud [it].” Dow Chem. Co., 114 Nev. at 1485, 970 P.2d 98. None of Aliya’s allegations affirmatively plead that Nickell intended to divert business from CTB to other entities. In fact, the complaint alleges a plausible, non-fraudulent explanation for the decline in physician referrals to CTB:

“When Aliya approached Nickell in November 2013 about the sudden drop in business, Nickell ... stated that competitors were aggressively taking away his business. He ... also suggested in numerous meetings that if Aliya would only agree to pay a higher fee for the receivables going forward, CTB and Nickell would be able to compete and win the business back.”

Although Aliya alleges in conclusory fashion that, “[b]ased on information and belief, from the very beginning, Nickell intended to divert the business as soon as it would be to his benefit,” this is insufficient to plead intent to defraud plausibly. Singh v. Asiana Airlines, No. 14-CV-05556 JSC, 2015 WL 983821, *7 (N.D.Cal. Mar. 4, 2015) (“Other than this conclusory allegation that Defendant ‘had no intention of performing the contract in good faith,’ or other purely con-clusory statements that Defendant acted ‘with malice,’ the complaint is absent factual allegations that plausibly establish that Defendant had an intent to defraud Plaintiff’); Digby Adler Grp., LLC v. Mercedes-Benz U.S.A., LLC, No. 14-CV-02349 TEH, 2015 WL 1548872, *4 (N.D.Cal. Apr. 7, 2015) (“ ‘[C]onclusory statements about’ intent to defraud, ‘without corroborating factual allegations,’ are ‘insufficient, standing alone, to adequately allege’ a fraud claim,” quoting Mohebbi v. Khazen, 50 F.Supp.3d 1234, 1252 (N.D.Cal.2014)); Bowen v. Access Am., No. CV 12-3083 MM, 2012 WL 4761891, *2 (N.D.Cal. Oct. 5, 2012)(“[The complaint] includes no more than conclu-sory assertions that defendants ... ‘concealed or suppressed these facts,’ ... with ‘the intent to defraud and induce [Bowen] to act.’ Accordingly, the [fraud claim] is subject to dismissal”).

Accordingly, despite the fact that Aliya adequately alleged a duty to disclose that Nickell was purportedly diverting toxicology receivables to other entities, the fraudulent concealment claim must be dismissed because it fails plausibly to allege intent to defraud with respect to these purportedly concealed facts.

D. Whether Aliya’s Promissory Fraud Claim Must Be Dismissed

“ ‘Promissory fraud,’ as it is sometimes called, is simply a fraud claim where the fact about which the tortfeasor deceives the victim is the tortfeasor’s intention not to perform from the outset.” Heldenbrand v. Multipoint Wireless, LLC, No. 12-CV-01562 RCJ, 2012 WL 5198479, *4 (D.Nev. Oct. 18, 2012) (citing Bulbman, Inc. v. Nev. Bell, 108 Nev. 105, 111-12, 825 P.2d 588 (1992)) (in turn citing Webb v. Clark, 274 Or. 387, 546 P.2d 1078 (1976)). Thus, “[t]he standard elements of fraud apply: (1) a false representation by the defendant; (2) the defendant’s knowledge or belief that the representation is false (or [that it had an] insufficient basis for making the representation); (3) the defendant’s intention to induce reliance; (4) the plaintiffs justifiable reliance; and (5) resulting damage.” Id.

Aliya contends that CTB and Nickell made two promises they did not intend to honor: (1) that Aliya could return out-of-network receivables for a refund; and (2) that they would set up a lockbox account in which they would deposit all cheeks they received from insurers as payment on Aliya’s receivables. Defendants contend this claim must be dismissed for the same reasons as the fraudulent inducement claim. The court denied defendants’ motion to dismiss that claim, however, and thus this argument is unavailing.

Second, defendants argue that Aliya has failed adequately to allege that CTB and Nickell had no intention of performing either of the promises. “The mere failure to fulfill a promise or perform in the future ... will not give rise to a fraud claim absent evidence that the prom-isor had no intention to perform at the time the promise was made.” Bulbman, Inc., 108 Nev. at 112, 825 P.2d 588; see Heldenbrand, 2012 WL 5198479 at *4 (dismissing where plaintiff did not “plausibly allege[] that Defendants concealed an intention not to perform (promissory fraud)”). Aliya’s allegations concerning intent to perform are not particularly detailed. It alleges “on information and belief, [that] Nickell and CTB promised that CTB would perform under the [t]hird [a]greement when, in fact, [they] had no intention of performing as agreed.” Aliya contends it has alleged more than the mere failure to fulfill a promise or perform in the future; specifically, it maintains that it has alleged other facts that support the conclusion that CTB and Nic-kell did not intend to perform either of the alleged promises when they were made. Aliya maintains it has pled facts that support an inference that defendants did not intend to refund payments for out-of-network receivables because it alleges that “Nickell knew the vast majority of doctors were out-of-network.” The court agrees with Aliya. The fact that a majority of the receivables purportedly reflected out-of-network claims plausibly suggests that Nickell and CTB had no intention of performing their promise that Aliya could return out-of-network receivables. If, as alleged, they knew that a majority of the doctors were out-of-network, yet intended to perform their promise to accept a return of out-of-network receivables, this would have made the agreement almost illusory because there would have been so few receivables that were covered by the contract. This gives rise to a plausible inference that defendants did not intend to perform their promise that Aliya could return out-of-network receivables. As a result, Aliya has adequately alleged a promissory fraud claim based on this promise.

Aliya also contends that CTB’s and Nickell’s lack of intent to perform their promise to set up a lockbox account is demonstrated by their failure even to attempt performance. As an initial matter, the complaint does not allege that CTB and Nickell never attempted to perform this promise; thus, even were Aliya correct that a failure even to attempt performance evidences an intent not to perform at the time a promise is made, the allegations would be deficient. In addition, there is no Nevada authority holding that “failure even to attempt performance” suffices to plead lack of intent to perform at the time a promise is made. In Tenzer v. Superscope, Inc., 39 Cal.3d 18, 80, 216 Cal.Rptr. 130, 702 P.2d 212 (1985), the California Supreme Court held that “fraudulent intent has been inferred from such circumstances as defendant’s insolvency, his hasty repudiation of the promise, his failure even to attempt performance, or his continued assurances after it was clear he would not perform.” Id. Aliya cites no authority indicating that the Nevada Supreme Court would likely reach a similar result; even had it done so, Ali-ya’s allegations belie any argument that CTB and Nickell “fail[ed] even to attempt performance.” It contends that CTB and Nickell never attempted to open the account despite Aliya’s numerous requests that they do so. The complaint, however, does not allege that CTB and Nickell failed even to attempt to perform. The only allegation concerning the lockbox is paragraph 92, which states that

“CTB has never set up this depository account, even though Aliya raised the issue with Nickell on multiple occasions, repeatedly requested that the account be set up, and sent Nickell the necessary bank forms for execution so that the account could be established.”

This allegation contains no facts as to whether CTB and Nickell attempted to perform. The first amended complaint therefore falls short of pleading that defendants made no attempt to perform either of the purported promises. The only non-conclusory allegations supporting this aspect of the promissory fraud claim indicate only that CTB and Nickell did not perform. As noted, this is insufficient to plead the claim. See Bulbman, Inc., 108 Nev. at 112, 825 P.2d 588 (“[t]he mere failure to fulfill a promise to perform in the future, however, will not give rise to a fraud claim absent evidence that the prom-isor had no intention to perform at the time the promise was made”); see also Heldenbrand, 2012 WL 5198479 at *4 (dismissing where plaintiff did not “plausibly allege[ ] that Defendants concealed an intention not to perform (promissory fraud)”); Parker v. Bank of Am., NA, No. 12 CV 126 RCJ VPC, 2012 WL 3222150, *3 (D.Nev. Aug. 3, 2012) (same); cf. Cundiff v. Dollar Loan Ctr. LLC, 726 F.Supp.2d 1232, 1238 (D.Nev.2010) (holding that “a misrepresentation as to future performance cannot be negligent because such a statement is either fraudulent, i.e., the person never held that intention at the time he made the statement, or it was not a misrepresentation at all, the person simply later failed to perform as promised”).

For these reasons, Aliya’s promissory fraud claim must be dismissed to the extent it is based on a purported promise to set up a lock box account. The court denies defendants’ motion to dismiss, however, to the extent the claim is based on CTB’s and Nickell’s promise to refund out-of-network receivables.

E. Whether Aliya’s Negligent Misrepresentation Claim Must Be Dismissed

Nevada has adopted the definition of negligent misrepresentation found in section 552 of the RESTATEMENT (SECOND) OF TORTS. See Barmettler v. Reno Air, Inc., 114 Nev. 441, 448, 956 P.2d 1382 (1998). To state a negligent misrepresentation claim, a plaintiff must plead:

“1) a representation that is false; 2) that the representation was made in the course of the defendant’s business or ... any action in which he has a pecuniary interest; B) the representation was for the guidance of others in their business transactions; 4) the representation was justifiably relied upon; 5) that such reliance resulted in pecuniary loss to the relying party; and 6) that the defendant failed to exercise reasonable care or competence in obtaining or communicating the information.”

Tene v. BAC Home Loan Servicing LP, No. 11-CV-01095 KJD, 2012 WL 222920, *3 (D.Nev. Jan. 25, 2012) (quoting G.K. Las Vegas Limited Partnership v. Simon Property Group, Inc., 460 F.Supp.2d 1246, 1262 (D.Nev.2006)).

Aliya bases its negligent misrepresentation claim on the same facts that support its fraudulent inducement claim, i.e., that “Nickell and CTB while in the course of their business, profession, or employment represented to Erik Nord, manager of Aliya, in telephone conversations and at meetings in Nickell’s office that the doctors ordering toxicology services from CTB were in-network.” It asserts that the representation was false because nearly all of the doctors were out-of-network. Defendants contend the claim fails for the same reasons the fraudulent inducement claim fails, i.e., because Aliya has failed to plead reliance, proximate causation, and damages adequately. The court, however, has concluded differently. Thus, this argument is unavailing.

Defendants also assert that Aliya does not allege a duty of care. As reflected in the legal standard they cite in their moving papers, however, Nevada does not appear to require that a defendant owe plaintiff a duty of care where “the representation was made in the course of the defendant’s business or ... any action in which he has a pecuniary interest.” G.K. Las Vegas Limited Partnership, 460 F.Supp.2d at 1262. This is because “where only pecuniary loss results, liability for negligent misrepresentation is not based on general duty rules”; instead, “[[liability is only imposed on a party who has supplied false information, where that information is for the guidance of others and where the party knows that the information will be relied upon by a foreseeable class of persons.” Halcrow, Inc., 302 P.3d at 1153.

In any event, in cases not involving economic loss, the Nevada Supreme Court