IN THE SUPREME COURT OF THE STATE OF NEVADA 

No. 82102 

MED 

MAR 1 7 2022 

SROIPiN 

E Cour-rf 

BY 

ERK 

JOSHUA RAMOS, A/K/A ERNESTO 

JOSHUA RAMOS, AN INDIVIDUAL, 

Appellant, 

vs. 

DANA WHITE, AN INDIVIDUAL; UFC 

HOLDINGS, LLC; ZUFFA, LLC, A 

NEVADA LIMITED LIABILITY 

COMPANY, D/B/A ULTIMATE 

FIGHTING CHAMPIONSHIP, 

Res • ondents. 

ORDER OF AFFIRMANCE 

This is an appeal from a dismissal order pursuant to NRCP 

12(13)(5). Eighth Judicial District Court, Clark County; David M. Jones, 

Judge." The underlying case arises out of the parties negotiations as to a 

nondisclosure agreement. 

Appellant Joshua Ramos first argues that the district court 

erred by applying the wrong standard in dismissing his complaint under 

NRCP 12(b)(5). We review de novo, Guzman v. Johnson, 137 Nev., Adv. Op. 

13, 483 P.3d 531, 536 (2021), and disagree. Ramos fails to identify anything 

specifically that the district court inappropriately relied on in making its 

NRCP 12(b)(5) determination. See Breliant v. Preferred Equities Corp., 109 

Nev. 842, 847, 858 P.2d 1258, 1261 (1993) (holding that the district court 

"may take into account matters of public record, orders, items present in the 

record of the case, and any exhibits attached to the complaint when ruling 

on a motion to dismiss for failure to state a claim upon which relief can be 

granted"). To the extent Ramos challenges the district court made during 

the motion to dismiss hearing, those comments do not warrant relief. Rust 

'Pursuant to NRAP 34(f)(1), we have determined that oral argument 

is not warranted in this appeal. 

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v. Clark Cty. Sch. Dist., 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987) (The 

district court's oral pronouncement from the bench . . . [is] ineffective for 

any purpose and cannot be appealed."). 

Turning to the specific claims, we disagree with Ramos that the 

district court erred by dismissing his breach-of-contract claim. This claim 

centered on a purported contract to enter into a nondisclosure agreement 

by which respondents would compensate Ramos in exchange for his silence 

on certain matters following the end of criminal proceedings against Ramos. 

But because the parties were merely in preliminary negotiations and had 

not agreed to any material terms, no valid contract was formed. See Nev. 

Power Co. v. Pub. Util. Comm'n, 122 Nev. 821, 839-40, 138 P.3d 486, 498-

99 (2006) (When essential terms such as [time periods or price] have yet to 

be agreed upon by the parties, a contract cannot be formed."); May v. 

Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005) (holding that a 

contract requires "an offer and acceptance, meeting of the minds, and 

consideration," and that "preliminary negotiations do not constitute a 

binding contract unless the parties have agreed to all material terms," 

which must be C4 sufficiently certain and definite"); City of Reno v. Silver 

State Flying Serv., Inc., 84 Nev. 170, 176, 438 P.2d 257, 261 (1968) 

(recognizing that "[a]n agreement to agree at a future time is nothing and 

will not support an action for damagee (quoting Salomon v. Cooper, 220 

P.2d 774, 775 (Cal. Dist. Ct. App. 1950)). Without a valid contract, Ramos' 

breach-of-contract claim necessarily fails and the district court properly 

dismissed it.2And because the breach-of-contract claim was properly 

2Ramos also argues that his complaint sufficiently alleged an impliedin-fact contract. We disagree. The complaint's allegations fail to show that 

the parties ever formed an ascertainable agreement. See Smith v. Recrion 

Corp., 91 Nev. 666, 668, 541 P.2d 663, 664-65 (1975) (holding that implied 

2 
dismissed, it follows that the claim for breach of the implied covenant of 

good faith and fair dealing also fails.3 See Awada v. Shuffle Master, Inc., 

123 Nev. 613, 623, 173 P.3d 707, 714 (2007) (recognizing that a claim for a 

contract-based breach of the implied covenant of good faith and fair dealing 

fails when there is no contract between the parties); see also Barbara Ann 

Hollier Tr. v. Shack, 131 Nev. 582, 587 n.1, 356 P.3d 1085, 1088 n.1 (2015) 

(holding that the implied covenant of good faith and fair dealing "does not 

apply during the negotiation or formation phase of a contract"). 

The district court also properly dismissed Ramos unjust 

enrichment claim. The complaint alleged that a protective order requiring 

Ramos' silence on the same matters that were to be the subject of the 

nondisclosure agreement between the parties expired upon Ramos' 

sentencing in the related criminal case, which occurred on June 30, 2016. 

It further alleged that respondent UFC Holdings, LLC, was sold "in early 

July 2016." Based on these allegations, the complaint contended that 

Ramos' silence before the UFC was sold conferred a benefit on respondents 

as the sale price was likely higher than it would have been had Ramos not 

remained silent; thus, respondents were unjustly enriched. Even when 

construing these facts in the light most favorable to Ramos, see Breliant, 

109 Nev. at 845, 858 P.2d at 1260 (providing that courts "must construe the 

pleading liberally and draw every fair intendment in favor of the [nonmoving partyl" when reviewing motions to dismiss and holding that 101 

factual allegations of the complaint must be accepted as true (internal 

contracts, while naanifested by conduct, still require 'an ascertainable 

agreemene). 

3Ramos concedes that he is not challenging the dismissal of the 

tortious breach of the implied covenant of good faith and fair dealing on 

appeal. 

3 

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(0) 1947A 49)1P. 
quotation marks omitted)), his silence up until June 30, 2016, is only an 

incidental benefit conferred upon respondents because Ramos had an 

independent legal obligation to not disclose certain facts under the 

protective order.4Incidental benefits are not adequate to support an unjust 

enrichment claim. See Or. Laborers-Emps. Health & Welfare Tr. Fund v. 

Philip Morris Inc., 185 F.3d 957, 968 (9th Cir. 1999) (holding that an unjust 

enrichment claim will not lie where defendants incidentally benefitted from 

plaintiffs independent legal obligation); Chem-Nuclear Sys., Inc. v. Arivee 

Chems., Inc., 978 F. Supp. 1105, 1110-11 (N.D. Ga. 1997) (holding that the 

plaintiff under an administrative order to remediate property could not 

pursue an unjust enrichment claim against the defendant who would 

incidentally benefit from the clean-up). And that Ramos remained silent 

after the protective order expired in hopes of entering a nondisclosure 

agreement with respondents does not constitute an unjustly retained 

benefit by respondents that supports an unjust enrichment claim. See, e.g., 

Burton Imaging Grp. v. Toys "R" Us, Inc., 502 F. Supp. 2d 434, 440-41 (E.D. 

Pa. 2007) (holding that "[a] benefit conferred is not unjustly retained if a 

party confers the benefit with the hope of obtaining a contract," and citing 

multiple authorities in support of that holding). 

Finally, we reject Ramos' contention that the district court 

abused its discretion by denying his motion to amend the complaint. See 

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4Ramos contends that the protective order did not preclude him from 

disclosing respondent Dana White's name. However, the pleadings reflect 

that the protective order applied to the disclosure of White's name and that 

it applied to Ramos. Specifically, the complaint alleged that "pursuant to 

the stipulation for a protective [o]rder[,] White's identity was only concealed 

through the close of the case after which Ramos was free to talk." (Emphasis 

added). Thus, even when viewing the complaint in the light most favorable 

to Ramos, the protective order encompassed Ramos' silence during the 

relevant timeframe. 

4 
Kantor v. Kantor, 116 Nev. 886, 891, 8 P.3d 825, 828 (2000) (reviewing the 

denial of a motion to amend for an abuse of discretion). Although Ramos 

request[ed] and reserve [d] the right to seek leave to amend his complaint, 

he did not provide a proposed amended complaint with his written motion 

as required by EDCR 2.30(a) ("A copy of the proposed amended pleading 

must be attached to any motion to amend the pleading."). Additionally, his 

written and oral motions did not sufficiently explain what the amended 

complaint would accomplish. Thus, we cannot say that the district court 

abused its discretion on this issue. See Adamson v. Bowker, 85 Nev. 115, 

121, 450 P.2d 796, 801 (1969) ("Where there is no showing of the nature or 

substance of the proposed amendment or what the appellant expects to 

accomplish by it, a reviewing court cannot say a trial court abused its 

discretion in denying leave to amend."). Accordingly, we 

ORDER the judgment of the district court AFFIRMED.5 

94.0%ahowiten11"7 C.J. 

arraguirre 

A4 

4C1-0 , J. 

Stiglich 

cc: Hon. David M. Jones, District Judge 

James A. Kohl, Settlement Judge 

Christopherson Law Offices 

Campbell & Williams 

Eighth District Court Clerk 

5The Honorable Mark Gibbons, Senior Justice, participated in the 

decision of this matter under a general order of assignment. 

5 

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