Phase II Chin, LLC et al v. Forum Shops, LLC et al

Filing 142

Phase II Chin, LLC et al v. Forum Shops, LLC et al

Doc. 142

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GORENCE & OLIVEROS, P.C. Robert J. Gorence, No. NM 981 Louren Oliveros, No. NM 14689 201 12th Street, NW Albuquerque, NM 87102 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Attorneys for Plaintiff Love & Money, LLC (formerly dba O.P.M.L.V., LLC) (Pro Hac Vice) HUNTERTON & ASSOCIATES C. Stanley Hunterton , No. NSB 1891 Pamela R. Lawson, No. NSB 5044 333 South Sixth Street Las Vegas, NV 89101 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Attorneys for Plaintiff Love & Money, LLC, (Local Counsel) UNITED STATES DISTRICT COURT DISTRICT OF NEVADA PHASE II CHIN, LLC and LOVE & MONEY, LLC (formerly dba O.P.M.L.V., Case No. 2:08-cv-00162-JCM-GWF LLC), Pl ai nt i ffs, v. FORUM SHOPS, LLC, FORUM REPLY BY PLAINTIFFS / COUNTERDEVELOPERS LIMITED PARTNERSHIP, DEFENDANTS LOVE & MONEY, LLC SIMON PROPERTY GROUP LIMITED AND PHASE II CHIN, LLC TO SECOND PARTNERSHIP, SIMON PROPERTY A M E N D E D COUNTERCLAIM BY GROUP, INC., CAESARS PALACE CORP., FORUM SHOPS, LLC and CAESARS PALACE REALTY CORP. Defendants, ________________________________________ FORUM SHOPS, LLC, Counterclaimant, v. CHIN LV, LLC, Counter-Defendant.

REPLY TO SECOND AMENDED COUNTERCLAIM, Page 1 of 11
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Plaintiffs /Counter-Defendants LOVE & MONEY, LLC and PHASE II CHIN, LLC hereby reply to Second Amended Counterclaim by Forum Shops, LLC, as follows: REPLY TO SECOND AMENDED COUNTERCLAIM REPLY TO GENERAL ALLEGATIONS 1. Plaintiffs / Counter-Defendants Love & Money, LLC and Phase II Chin, LLC are

without sufficient knowledge or information to form a belief as to the truth of the allegations of the first sentence of Paragraph 1 of the Second Amended Counterclaim. Plaintiffs / CounterDefendants admit that Forum Shops is the lessor under that certain lease between Forum Development Limited Partnership and GGH Restaurant, LLC entered into on or about March 18, 1997, as amended by the Lease Amendment entered into on or about October 9, 2003 and that the property which is the subject of the lease is located in the Forum Shops Mall in Las Vegas, Nevada. Plaintiffs / Counter-Defendants deny the remaining allegations of Paragraph 1 of the Second Amended Counterclaim. 2. Plaintiffs / Counter-Defendants admit the allegations contained in Paragraph 2 of

the Second Amended Counterclaim. 3. Plaintiffs / Counter-Defendants admit the allegations contained in Paragraph 3 of

the Second Amended Counterclaim. 4. Plaintiffs / Counter-Defendants admit that effective October 9, 2003, Forum Shops

and Chinois entered into an amendment to the lease permitting Chinois to operate OPM in part of the leased premises Wednesdays through Sundays from 10:00 p.m. until 6:00 a.m. each following morning. Except as so admitted, Plaintiffs / Counter-Defendants deny the remaining allegations of Paragraph 4 of the Second Amended Counterclaim. 5. Plaintiffs / Counter-Defendants deny the allegations of the first sentence of

Paragraph 5 of the Second Amended Counterclaim to the extent that they inaccurately construe theAmendment which, as a written document, speaks for itself. Plaintiffs / Counter-Defendants are REPLY TO SECOND AMENDED COUNTERCLAIM, Page 2 of 11

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without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of Paragraph 5 of the Second Amended Counterclaim. 6. Plaintiffs / Counter-Defendants admit that Tom Kaplan wrote a letter to Gary Lewis

on November 12, 2002, which document speaks for itself. Except as so admitted, Plaintiffs / Counter-Defendants deny the remaining allegations of Paragraph 6 of the Second Amended Counterclaim. 7. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 7 of the Second

Amended Counterclaim. 8. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 8 of the Second

Amended Counterclaim. 9. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 9 of the Second

Amended Counterclaim. 10. Plaintiffs / Counter-Defendants admit that Forum Shops sent a letter to Chinois

dated March 6, 2006 which document speaks for itself and that more than thirty days have elapsed since that time. Except as so admitted, Plaintiffs / Counter-Defendants deny every remaining allegation of Paragraph 10 of the Second Amended Counterclaim. 11. In response to Paragraph 11 of the Second Amended Counterclaim, Plaintiffs /

Counter-Defendants admit the lease contains a Section 13.1 which document speaks for itself. Except as so admitted, Plaintiffs / Counter-Defendants deny every remaining allegation of Paragraph 11. 12. In response to Paragraph 12 of the Second Amended Counterclaim, Plaintiffs /

Counter-Defendants admit the lease contains a Section 13.1 which document speaks for itself. Except as so admitted, Plaintiffs / Counter-Defendants deny every remaining allegation of Paragraph 12.

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13.

Plaintiffs / Counter-Defendants deny the allegations of Paragraph 13 of the Second

Amended Counterclaim. 14. In response to Paragraph 14 of the Second Amended Counterclaim, Plaintiffs /

Counter-Defendants admits the lease contains a Section 18.1(h) which document speaks for itself. Except as so admitted, Plaintiffs / Counter-Defendants deny every remaining allegations of Paragraph 14. 15. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 15 of the Second

Amended Counterclaim. REPLY TO FIRST CLAIM FOR RELIEF (Declaratory Judgment) 16. Plaintiffs / Counter-Defendants incorporate by reference each and every

response to the foregoing paragraphs as if fully set forth herein. 17. The allegations of Paragraph 17 of the Second Amended Counterclaim set forth

legal conclusions to which no response is required. To the extent that Paragraph 17 includes allegations that require a response, the allegations are denied. 18. The allegations of Paragraph 18 of the Second Amended Counterclaim set forth

legal conclusions to which no response is required. To the extent that Paragraph 18 includes allegations that require a response, the allegations are denied. 19. The allegations of Paragraph 19 of the Second Amended Counterclaim set forth

legal conclusions to which no response is required. To the extent that Paragraph 19 includes allegations that require a response, the allegations are denied. 20. The allegations of Paragraph 20 of the Second Amended Counterclaim set forth

legal conclusions to which no response is required. To the extent that Paragraph 20 includes allegations that require a response, the allegations are denied.

REPLY TO SECOND AMENDED COUNTERCLAIM, Page 4 of 11

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REPLY TO SECOND CLAIM FOR RELIEF (Breach of Contract) Plaintiffs / Counter-Defendants incorporate by reference each and every

response to the foregoing paragraphs as if fully set forth herein. In response to Paragraph 22 of the Second Amended Counterclaim, Plaintiffs /

Counter-Defendants admit the lease contains a Section 13.1 which document speaks for itself. 23. Except as so admitted, Plaintiffs / Counter-Defendants deny every remaining

allegation of Paragraph 22. 24. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 23 of the

Second Amended Counterclaim. 25. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 24 of the

Second Amended Counterclaim. The allegations contained in Paragraph 25 of the Second Amended Counterclaim

are not directed to the Plaintiff / Counter-Defendant Love & Money, LLC and, as such, no response is required. To the extent that a response is required, Plaintiff / Counter-Defendant Love & Money, LLC denies the allegations contained in Paragraph 25 of the Second Amended Counterclaim. Plaintiff / Counter-Defendant Phase II Chin, LLC denies the allegations set forth in Paragraph 25. 27. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 26 of the

Second Amended Counterclaim. 28. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 27 of the

Second Amended Counterclaim and demands strict proof thereof.

REPLY TO SECOND AMENDED COUNTERCLAIM, Page 5 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35. 34. 30. 29.

THIRD CLAIM FOR RELIEF Breach of Contract - L&M) Plaintiffs / Counter-Defendants incorporate by reference each and every

response to the foregoing paragraphs as if fully set forth herein. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 29 of the

Second Amended Counterclaim. 31. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 30 of the

Second Amended Counterclaim. 32. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 31 of the

Second Amended Counterclaim. 33. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 32 of the

Second Amended Counterclaim. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 34 of the

Second Amended Counterclaim. REPLY TO FOURTH CLAIM FOR RELIEF Plaintiffs / Counter-Defendants incorporate by reference each and every

response to the foregoing paragraph as if fully set forth herein. 36. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 35 of the

Second Amended Counterclaim. 37. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 36 of the

Second Amended Counterclaim. 38. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 37 of the

Second Amended Counterclaim. 39. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 38 of the

Second Amended Counterclaim. REPLY TO SECOND AMENDED COUNTERCLAIM, Page 6 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 waiver.

40.

Plaintiffs / Counter-Defendants deny the allegations of Paragraph 39 of the

Second Amended Counterclaim. 41. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 40 of the

Second Amended Counterclaim. REPLY TO FIFTH CLAIM FOR RELIEF 42. Plaintiffs / Counter-Defendants incorporate by reference each and every

response to the foregoing paragraph as if fully set forth herein 43. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 42 of the

Second Amended Counterclaim. 44. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 43 of the

Second Amended Counterclaim. 45. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 44 of the

Second Amended Counterclaim. 46. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 45 of the

Second Amended Counterclaim. 47. Plaintiffs / Counter-Defendants deny the allegations of Paragraph 46 of the

Second Amended Counterclaim. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 48. be granted. SECOND AFFIRMATIVE DEFENSE 49. Counterclaimant's claims are barred, in whole or in part, by the doctrine of The Counterclaim, in whole or in part, fails to state a claim for which relief can

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 57. unclean hands. 56. of limitations. 55. 54. breaches. 53. 52. laches. 51. 50. estoppel.

THIRD AFFIRMATIVE DEFENSE Counterclaimant's claims are barred, in whole or in part, by the doctrine of

FOURTH AFFIRMATIVE DEFENSE Counterclaimant's claims are barred, in whole or in part, by the doctrine of 19

FIFTH AFFIRMATIVE DEFENSE The Counterclaim fails to meet the standard of issuance of a declaratory

judgment under applicable law. SIXTH AFFIRMATIVE DEFENSE Counterclaimant is not entitled to attorney's fees under the lease. SEVENTH AFFIRMATIVE DEFENSE Counterclaimant's claims are barred, in whole or in part, by its own contractual

EIGHTH AFFIRMATIVE DEFENSE Plaintiffs / Counter-Defendants did not breach any legal duty to Counterclaimant

under the Lease, the Amendment, or otherwise. NINTH AFFIRMATIVE DEFENSE Counterclaimant's claims are served, in whole or in part, by the applicable statute

TENTH AFFIRMATIVE DEFENSE Counterclaimant's claims are barred, in whole or in part, by the doctrine of

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 63. 62. 61. ratification. 60. acquiescence. 59. 58.

ELEVENTH AFFIRMATIVE DEFENSE If Counterclaimant was injured and damaged as alleged, which is specifically

denied, then the injury and damages were caused, in whole or in part, by the acts or omissions of others, whether individual, corporate or otherwise, whether named or unnamed for whose conduct Plaintiffs / Counter-Defendants are not responsible. TWELFTH AFFIRMATIVE DEFENSE If Counterclaimant was injured and damaged as alleged, which is specifically

denies, then the injuries and damages resulted from an independent, intervening and/or superseding cause or causes for which Plaintiffs / Counter-Defendants are no responsible. THIRTEENTH AFFIRMATIVE DEFENSE Counterclaimant's claims are barred, in whole or in part, by the doctrine of

FOURTEENTH AFFIRMATIVE DEFENSE Counterclaimant's claims are barred, in whole or in part, by the doctrine of

FIFTEENTH AFFIRMATIVE DEFENSE Plaintiffs / Counter-Defendants currently have insufficient knowledge or

information upon which to form a belief as to whether it may have other, as yet unstated, affirmative defenses available and therefore reserve the right to assert additional affirmative defenses. SIXTEENTH AFFIRMATIVE DEFENSE No conduct of Plaintiffs / Counter-Defendants was either the legal cause or the

cause in fact of the alleged harm for which Counterclaimant seeks relief. WHEREFORE, Plaintiffs / Counter-Defendants pray for relief as follows:

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A.

That Counterclaimant Forum Shops, LLC take nothing by way of its

Counterclaim and that judgment be entered in favor of Plaintiffs / Counter-Defendants Love & Money, LLC and Phase II Chin, LLC; B. C. For an award of attorneys' fees and costs; and For such other and further relief as the Court may deem just and proper.

Dated this 10th day of November, 2009. Respectfully submitted, GORENCE & OLIVEROS, P.C. /s/ E-filed 11/10/09 Louren Oliveros, No. NM 14689 Robert J. Gorence, No. NM 981 201 12th Street, NW Albuquerque, NM 87102 Attorneys for Plaintiff Love & Money, LLC (formerly dba O.P.M.L.V., LLC) (Pro Hac Vice) C. Stanley Hunterton , No. NSB 1891 Pamela R. Lawson, No. NSB 5044 HUNTERTON & ASSOCIATES 333 South Sixth Street Las Vegas, NV 89101 Attorneys for Plaintiff Love & Money, LLC (Local Counsel)

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 10th day of November, 2009, I emailed a true and correct copy of the foregoing REPLY BY PLAINTIFFS / COUNTER-DEFENDANTS LOVE & MONEY, LLC AND PHASE II CHIN, LLC TO SECOND AMENDED COUNTERCLAIM BY FORUM SHOPS, LLC as follows: Samuel S. Lionel Charles H. McCrea, Jr. LIONEL SAWYER & COLLINS 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 [e-mail] [e-mail] Attorneys for Defendants Forum Shops, LLC, Forum Developers Limited Partnership, Simon Property Group Limited Partnership and Simon Property Group, Inc. Steve Morris MORRIS PETERSON 900 Bank of America Plaza 300 So. Fourth Street Las Vegas, Nevada 89101 [e-mail] Jason Bowles B.J. Crow BOWLES & CROW 201 Third Street, N.W., Suite 1370 P.O. Box 25186 Albuquerque, NM 87125-5186 [e-mail] [e-mail] Attorneys for Plaintiff Phase II Chin, LLC /s/ E-filed 11/10/09 Louren Oliveros Gorence & Oliveros, P.C.

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