Junk Fax Doesn’t Create Conversion Claim–Edwards v. Emperor’s Garden

By Eric Goldman

Edwards v. Emperor’s Garden Restaurant, 130 P.3d 1280 (Nev. Mar. 30, 2006)

Defendants sent a single junk fax to the (pro se) plaintiff. The plaintiff sued for a variety of causes of action, including conversion and private nuisance.

The court rejected the conversion claim on two grounds. First, the junk fax’s consumption of toner and paper did not constitute sufficient destruction/material alteration to the property to constitute conversion. Second, even if it did, the court believes that a single fax is de minimis curat lex–basically, the damage is so trivial that the court is wasting its time dealing with the lawsuit.

The court also rejects the private nuisance claim, saying that it applies only to real property incursions.

None of this should be particularly surprising. The TCPA normally should be available for these types of claims. (It wasn’t available here for other reasons). So it’s not surprising that the efforts to plead around the TCPA fail. Nevertheless, I’m still wondering–if the harm doesn’t rise to the level of conversion, could it meet the standards for trespass to chattels? There is a use of a chattels (the fax machine) and a tangible harm from the use (consumption of paper and toner). Under the Sotelo court’s reasoning, maybe this would be enough…?

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