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

Filing 408

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge James C. Mahan on 5/24/11. (Copies have been distributed pursuant to the NEF - ASB)

1

MORRIS PETERSON
Steve Morris, Bar No. 1543
2 Email: [e-mail]
Jean-Paul Hendricks, Bar No. 10079
Email: [e-mail]
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Telephone: [phone]
6 Facsimile: [phone]
7 Att:orneys for Defendants
Caesars Palace Corporation and
8 Caesars Palace Realty Corporation
UNITED STATES DISTRICT COURT
10

DISTRICT OF NEVADA

11

PHASE II CHIN, LLC and LOVE &
12 MONEY, LLC, (formerly dba
O.P.M.L.V., LLC,
13

Plaintiffs,

14

vs.
15
16 FORUM SHOPS, LLC, FORUM
DEVELOPERS LIMITED
17 PARTNERSHIP, SIMON PROPERTY
GROUP LIMITED PARTNERSHIP,
18 SIMON PROPERTY GROUP, INC.,
CAESARS PALACE CORP., and
19 CAESARS PALACE REALTY CORP.,
20

Defendants.

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CASE NO. 2:08-cv-162-JCM-GWF

) FINDINGS OF FACT AND
) CONCLUSIONS OF LAW

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The parties in this matter having appeared for a trial to the court
eginning on March 28, 2011, and having presented documentary evidence and
testimony of witnesses in this matter, the court hereby finds as follows:

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MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

FINDINGS OF FACT
1.

In 1990, defendants Caesars Palace Realty Corp., as lessor, and Forum

evelopers Limited Partnership (“Forum developers”), as lessee, entered into a

1

ground lease on the property underlying the high-end retail mall now known as

2 The Forum Shops
at Caesar’s Palace (“The Forum Shops”).
2.

On February 7, 2003 Caesars Palace Realty Corporation and Forum

developers entered into a second amended and restated ground lease (the “ground
lease”).
6

The ground lease governs the rights and responsibilities of Caesars’ and

2
Forum at all times relevant to this action.

Although the management agreement

and the Chinois sublease are “subject to” the ground lease, neither plaintiff is or has
8

ever been a party to the ground lease.
On March 18, 1997, Forum developers entered into a lease (the “lease”)

3.
10

with GGH Restaurant, LLC (“GGH”) of premises in The Forum Shops to be used
for the operation of a restaurant (the “premises”).

Plaintiff Phase II Chin, LLC

12

(“Chinois”) succeeded to GGH’s rights and obligations under the lease and, until

13

July 2009, operated a restaurant on the premises known as “Chinois.”

14

On June 20, 2002 Chinois entered into an agreement with plaintiff

4.

15

O.P.M.L.V., LLC (“OPM/Poetry”) granting OPM/Poetry the right to use a portion
3

16

of the premises

17

premises

--

--

approximately 10,000 square feet on the second floor of the

as an after-hours club to be operated Wednesday through Sunday from

18

10:00 p.m. to 6:00 a.m. the following day (the “Club”).

19

pay any money directly to defendants to operate in The Forum Shops Mall, it paid

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rent only to Chinois.

OPM/Poetry did not

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1

There are two “Caesars” entities named as defendants in this action: Caesars
24 Palace Corp. and Caesars Palace Realty Corp. They are collectively referred to herein as
the “Caesars defendants,” “Caesars Palace” or simply “Caesars.”
25
2
There are four “Forum” entities named as defendants in this action: Forum
26 3hops, LLC, Forum Developers Limited Partnership, Simon Property Group Limited
Partnership and Simon Property Group, Inc. They are collectively referred to herein as
27 the “Forum defendants,” “Forum Shops” or simply “Forum.”
28
In September 2007, O.P.M.L.V., LLC changed its name to Love & Money, LLC.
‘

MORRIS PETERSON

ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

2

1

5.

At no time did Chinois request that Forum approve a sublease

between Chinois and OPM/Poetry.
6.

At no time did Forum approve a sublease between Chinois and

OPM/Poetry.
7.

None of the defendants had any contractual relationship with

OPM/Poetry which operated the club.
8.
8

OPM/Poetry began operations on May 22, 2003 as a dance nightclub.

It ceased operations on July 26, 2009.

During all times pertinent to this case,

OPM/Poetry was known and advertised itself as a “hip-hop” club that presented
10

rap and “gangsta-rap” music along with other musical fare, such as rhythm and

11

blues.

12

9.

On October 9, 2003, Forum developers and Chinois executed an

13

amendment to the lease (the “lease amendment”) expanding Chinois’ right to use

14

the premises for the operation of “an after-hours club, with the sale of food and
alcoholic beverages for on-premises consumption, along with live and/or

16
17
18

pre-programmed music.”
10.

Generally, the OPM/Poetry club was open every Thursday through

Sunday night from 10:00 p.m. to 4:00 6:00 a.m., depending on business.
-

19

OPM/Poetry began operations as a well run nightclub.

20

that changed when defendants began to experience security incidents attributable

21

to patrons of OPM/Poetry.

22

12.

However,

From on or about the time OPM/Poetry opened until the Caesars

23

defendants began closing the fire door separating Caesars Palace from The Forum

24

hops Mall on August 17, 2007 (known as the “Won door”), the Caesars defendants

25

xperienced an increasing number of incidents that threatened the physical

26

ecurity and well-being of Caesars’ guests and employees, such as violent

27

ltercations, guest and employee complaints of violent or threatening behavior in

MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

ts casino area immediately adjacent to The Forum Shops Mall (the “forum casino”),

1

and in its guest parking facility.

2

revealed that these security incidents were attributable to unruly people going to

Investigations by Caesars security personnel

or coming from OPM/Poetry.
13.

On June 22, 2005, then Clark County Sheriff Bill Young wrote a letter

to the Nevada Gaming Control Board urging the board to hold gaming licensees
6

responsible for any violence related to gangster-rap entertainment in nightclubs
operated on property owned by a licensee.

8

14.

On February 7, 2006 the Nevada Gaming Control Board issued a

directive to all of its gaming licensees, including Caesars Palace, stating “the board
10

will hold the licensee accountable for any regulatory violations that occur within or
outside a nightclub located on the property of the licensee.”

Of particular concern

12

to the board, among other things, were incidences of violence and excessive

13

inebriation associated with nightclubs.

14

15.

Caesars Palace executives were informed by the Gaming Control

Board. in connection with the February 7, 2007 letter that they would be responsible
16

for violence emanating from Pure nightclub, located inside Caesars Palace and

17

OPM/Poetry nightclub, located in The Forum Shops on property leased to Forum

18

by Caesars.

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16.

Café Dela Spiga is a coffee shop and bar located outside but near to

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OPM/Poetry, inside The Forum Shops on property controlled by Caesars.

21

Although Café Dela Spiga is inside The Forum Shops, it is a lessee of Caesars

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Palace.

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17.

Because of the efforts of the Caesars defendants, Café Dela Spiga

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ceased serving alcoholic beverages and began closing at or near midnight

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beginning on or about March 10, 2007.

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18.

Café Dela Spiga was not the cause of violent incidents inside The

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Forum Shops, Caesars Palace forum casino, or in the guest parking structure

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because those violent incidents continued unabated after March 10, 2007.

MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

4

1

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19.

A gang-related shooting occurred on August 4, 2007 inside Caesars

Palace near the guest parking structure elevators at the rear of the forum casino.
The perpetrator of that shooting entered Caesars from The Forum Shops Mall after
patronizing or attempting to patronize OPM/Poetry.

At the time the shooter

exited from The Forum Shops premises, OPM/Poetry was the only business open
6

in the mall.
20.

In response to the shooting and other violent breaches of the peace,

8 the Caesars defendants
closed the Won door after regular Forum Shops business
hours, beginning on Friday August 17, 2007 and with the exceptions of the
10

weekends beginning Friday October 19, 2007, when extra security was provided
by OPM/Poetry, and Friday December 21, 2007, when the door malfunctioned,

12

Caesars closed the Won door on weekend nights after 1:00 a.m. from August 17,

13

2007 until OPM/Poetry closed on July 26, 2009.

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closed after The Forum Shops Mall regular business hours on weekends through

15

today.

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21.

The Won door continues to be

Caesars Palace closed the Won door because it was concerned about

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physical violence and other employee and guest-threatening security incidents

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occurring in The Forum Shops Mall, the forum casino, and the Caesars guest

19

parking structure that were attributable to people going to or coming from

20 OPM/Poetry nightclub.
21

22

Caesars was also concerned about “Gangsta’ Rap” as

stated in the February 7,2007 Gaming Control Board letter to all Nevada licensees.
22.

The Caesars Defendants offered to, and on October 19, 2007, in fact

23 did, keep the Won door open after hours because OPM/Poetry
agreed to pay for
24 the
necessary additional security to do so.
25

23.

There is no credible evidence that the defendants’ actions were

26 motivated by racism, racial animosity, or bias against African
Americans or any
27 other ethnic group, nor was there credible evidence that race
was a factor in
28
MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

5

1

Caesar’s decision to close the Won door on weekends to promote guest and

2

employee safety.
24.

Because there was no contractual relationship between defendants

and OPM/Poetry, the Caesars defendants had no obligation to provide or permit
access to OPM/Poetry patrons through the Won door, or to allow OPM/Poetry to
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advertise on Caesars Palace property.
25.

8

No evidence was presented that the Caesars defendants had any

control over or contractual duty to provide air conditioning or valet parking to
plaintiffs.

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26.

No evidence was presented that the Forum defendants had any

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contractual duty to provide air conditioning, valet parking, extra security or

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advertising to OPM/Poetry.

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27.

When the Won door was closed, Caesars Palace allowed OPM/Poetry

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patrons alternate access from the forum casino area into The Forum Shops Mall

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through a service entrance, which patrons entered from the west end of the forum

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casino near the guest parking structure elevator.

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28.

The Won door was not the only entrance into The Forum Shops Mall

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available to OPM/Poetry customers.

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from The Forum Shops Mall through other service entrances, one of which was

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nearly adjacent to OPM/Poetry, and two entrances to the mall offering valet

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parking.

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29.

Forum also permitted entry into and exit

The closure of the Won door had no effect on Chinois’ restaurant

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usiness, nor did the evidence show that closure of the door affected

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PM/Poetry’s business by reducing the number of patrons attracted to

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26

OPM/Poetry.
30.

The closure of the Won door significantly diminished the customer-

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nd security-threatening incidents in and about The Forum Shops, the forum

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asino and Caesars’ guest parking structure areas on and after August 17, 2007.

MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

6

1
2

31.

The defendants discussed lawful means to evict OPM/Poetry from

The Forum Shops Mall, but they did not succeed in doing so.

The closure of the

Won door only cut off the casual strollers or unruly people who might get into an
altercation on Forum Shops or Caesars Palace property.

The closure of the Won

door was not designed to and did not curb the hard-core patrons who wanted to
6

go to OPM/Poetry.
32.

8

OPM/Poetry operated and managed a high-end successful nightclub

in Las Vegas during its years of operation from May 2003 through July 2009, when
it closed because its lessor, Chinois, ceased doing business and declared

10

bankruptcy.
33.

There is no credible evidence that efforts of the defendants adversely

12

affected patronage of OPM/Poetry.

13

witness testified that on the night of the first undercover operation in 2008, nearly

14

a year after the Won door began to close at 1 a.m., the club was very busy, with

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75-100 people waiting in line to gain admittance.

16

OPM/Poetry’s expert Bryan Bass was to the effect that OPM/Poetry was

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successful in Las Vegas for five years prior to closing in 2009 because of its

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operating efficiency in a

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environment, even after the closure of the Won door.

20

34.

highly

One Metropolitan Police Department

competitive and

Evidence derived from

challenging economic

Evidence was presented by the plaintiffs that OPM/Poetry won a

21 Nightclub & Bar

Editor’s award in 2009 because it was one of the top 100 nightclubs

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in the country based on revenue, two years after the Won door began closing at 1

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a.m. on weekends.

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35.

Pure nightclub, which is located inside Caesars Palace between its

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sports book and main valet did not cause the violence in The Forum Shops Mall,

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the forum casino or Caesars guest parking garage that resulted in Caesars closing

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the Won door on weekend nights.

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normal schedule after the Won door was closed on August 17, 2007.

MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

Pure remained open and operating on its
7

It has

1

continued to operate since OPM/Poetry closed.

2

violence in The Forum Shops, the forum casino and Caesars guest parking

The evidence shows that

structure greatly abated after the Won door was closed and further decreased
4

.

36.
6

I

following OPM/Poetry s closing in July 2009.
Pure nightclub and OPM/Poetry nightclub are not similarly situated.

While they both presented entertainment and alcoholic beverage service, Pure is
much larger, attracts a larger audience than OPM, and is located on Caesars

8

defendants’ property, which means the Caesars Defendants control the security
outside Pure nightclub.

10

Pure, as a lessee of Caesars Palace, also generates

significant income for Caesars, while OPM/Poetry did not.
37.

Although there is evidence that the Caesars defendants and the Forum

defendants worked together to seek OPM/Poetry’s lawful removal from The
13

Forum Shops Mall, there is no evidence that these actions were undertaken by

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unlawful means or were undertaken to further an unlawful purpose.
38.

16

There is no credible evidence that plaintiffs suffered damages as a

result of the defendants’ actions.

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39.

The Won door was controlled by Caesars.

18

40.

The Caesars defendants closed the Won door because OPM/Poetry

19

would not pay for the additional security necessary to control pedestrian traffic to

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and from OPM/Poetry and thereby prevent its patrons from causing and engaging

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in fights and related physically-threatening incidents in the forum casino and

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Caesars. The door was not closed as a pretext to mask intentional racial

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discrimination by the defendants.

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26
27

MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/4749400
FAX [phone]

41.

On July 26, 2009, Chinois ceased operations, closed its business and

abandoned the leasehold premises.
42.

On July 29, 2009, Chinois filed a voluntary petition under Chapter 7 of

the Bankruptcy Code in the United States Bankruptcy Court for the District of
Nevada.
8

43.

Nowhere in Chinois’ bankruptcy petition or accompanying schedules

2

does Chinois assert that it has any claim against any of the defendants for money

3

damages.
44.

Chinois does not claim that any defendant was responsible in any way

for its closing or its bankruptcy.
6

The defendants had nothing to do with Chinois’

decision to cease doing business and close.

Chinois admits that it seeks no

money damages from the defendants in this action.
8

45.

The management agreement between Chinois and OPM/Poetry was

terminated by Chinois, under the terms of that agreement, on July 26, 2009 when
10

Chinois closed its business.
46.

OPM/Poetry ceased doing business and closed because Chinois

12

ceased doing business and

13

OPM/Poetry’s business was not caused by any act or omission of any defendant.

14
15

abandoned the Premises.

The closure

of

OPM/Poetry did not have its own liquor or operating licenses and
was operating under the licenses held by Chinois.

16

48.

OPM/Poetry is not a party to the lease or the lease amendment.

17

49.

None of the defendants did anything that caused OPM/Poetry to

18

breach or sever any contractual relationship it had with Chinois.

19

received all of the rights and benefits to which it was entitled under the

20

management agreement.

21

50.

Chinois

None of the defendants did anything that caused Chinois to breach or

22

sever any contractual relationship it had with OPM/Poetry.

23

received all of the rights and benefits to which it was entitled under the

24

management agreement.

25
26
27

MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

51.

OPM/Poetry

None of the defendants engaged in any act or omission that was the

proximate cause of any damages claimed by OPM/Poetry.
52.

Defendant Forum Shops, LLC voluntarily dismissed its second

amended counterclaim.
9

1
2

53.

If any finding of fact should more properly be deemed a conclusion of

law, it shall be so deemed.

3

CONCLUSIONS OF LAW
Based on the foregoing findings of fact, the court reaches the following
6

conclusions of law:
The Claims Asserted by Plaintiffs Against the Caesars Defendants

8

1.

The Caesars defendants decision to close the Won door did not

interfere with a contract or contract right of plaintiffs under the management
10

agreement or any other contract in a manner that would support a claim for
intentional racial discrimination under 42 U.S.C.

12
13

§ 1981 against the Caesars

defendants (plaintiffs’ fifth cause of action).
2.

No other action of the Caesars defendants interfered with a contract or

14

contract right of plaintiffs in a manner that would support a claim for intentional

15

racial discrimination under 42 u.s.c.

§ 1981 against the defendants (plaintiffs’

16 fifth
cause of action).
17

Plaintiffs have not established a claim for breach of the implied

18 covenant
of good faith and fair dealing against Caesars defendants because
19 Caesars is not a

party to the management agreement or the Forum lease.

20

4.

Plaintiffs have not produced direct evidence of discrimination

21 sufficient to support a claim for
intentional racial discrimination under 42 U.S.C.
22
23
24

§ 1981 against the Caesars defendants.
5.

ufficient to support a cause of action for intentional racial discrimination under 42

25
26
27

Plaintiffs have not established a prima facie case of discrimination

§ 1981 against the Caesars defendants.
6.

Plaintiffs do not have a claim for breach of the duty of good faith and

air dealing against the Caesars defendants because they are not and have never

28
MORRIS PETERSON
ATTORNEYSATLAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

10

1
2

been a party to a contract with the Caesars defendants (plaintiffs’ eighth cause of
action).
7.

Pure nightclub and OPM/Poetry nightclub are not similarly situated

for purposes of disparate treatment analysis under 42 U.S.C.
5
6

§ 1981.

cafe Dela Spiga restaurant and OPM/Poetry nightclub are not

8.

similarly situated for purposes of disparate treatment analysis under 42 U.S.C.

§

1981.
Plaintiffs have not established “disparate treatment” by the caesars

9.

defendants under 42 U.S.C.
10

10.

§ 1981.

The Caesars defendants did not conspire to unlawfully remove

11

OPM/Poetry from Chinois or to unlawfully diminish its business (plaintiffs’

12

seventh cause of action).

13

11.

Plaintiffs have not established that the Caesars defendants’ concern for

14

the safety and security of their patrons and employees was a pretext to mask

15

intentional racial discrimination against plaintiffs or their patrons under 42

16

U.S.C. 1981.

17
18
19

20
21
22

12.

§

Judgment should be entered in favor of the Caesars defendants and

against plaintiffs on all claims asserted by them in this action.
The Claims Asserted by Chinois Against the Forum Defendants
13.

As a result of the closing of Chinois’ business, abandonment of the

premises and bankruptcy filing

--

none of which had anything to do with any

alleged acts or omissions by Forum

--

Chinois’ claims for declaratory judgment

23

(first) and injunctive relief (fourth) are moot and should be dismissed with

24

prejudice.

25

14.

Each of Chinois’ remaining causes of action require proof of damages

26

as an essential element.

27

admitted that Forum did nothing that caused Chinois any monetary injury.

MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

Thomas Kaplan, Chinois’ senior managing parther,

also testified that Chinois is seeking no damages from Forum in this action.

He
This

1

fact is affirmed (1) in the filings Chinois has made with the bankruptcy court

2

which are devoid of any mention of this lawsuit or any claim Chinois may have
against Forum and (2) in Chinois’ responses to Forum’s written discovery requests
concerning damages where Chinois provided no information from which any
damages to it could be calculated.

6

Because Forum did nothing that caused

Chinois to suffer any monetary damages or other legally compensable injury,
Forum is entitled to judgment on all of Chinois’ remaining causes of action
(second, third, fifth, sixth, seventh and eighth).
When it filed for bankruptcy protection, Chinois had an affirmative

15.
10

duty to disclose to the bankruptcy court all assets, including all contingent and

11

unliquidated claims.

12

Forum.

13

assets include no claims

This would include the claims asserted in this action against

The schedules filed by Chinois with the bankruptcy court listing all of its
--

contingent, unliquidated or otherwise

--

against Forum.

14

Accordingly, Chinois is judicially estopped from asserting any claims against

15

Forum in this action.

16

16.

The tort of intentional interference with contract (Chinois’ second

17

cause of action) requires proof that Forum actually disrupted the contractual

18

relationship to which Chinois was a party by inducing one of the parties to breach.

19

Neither OPM/Poetry nor Chinois has ever asserted that the other breached the

20

management agreement in any way and there is no evidence to suggest that Forum

21

did anything that induced OPM/Poetry or Chinois to breach the contract in any

22

way.

23

remained in full force and effect until it terminated as a matter of course when

24

Chinois ceased doing business, abandoned the leasehold premises and declared

25

bankruptcy.

26
27
28
MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

As between OPM/Poetry and Chinois, the management agreement

17.

Chinois did not establish that Forum intentionally interfered with any

contract to which Chinois was a party.
18.

No action of Forum interfered with a contract or contract right of
12

1.

Chinois in a manner that would support a claim for intentional racial

2

discrimination under 42 U.S.C.

3

cause of action).
19.

§ 1981 against the defendants (plaintiffs’ fifth

chinois has not produced direct evidence of discrimination sufficient

to support a claim for intentional racial discrimination under 42 U.S.C.
6

agamst Forum.
20.

8

Chinois has not established a prima facie case of discrimination

sufficient to support a cause of action for intentional racial discrimination under 42

§ 1981 against Forum.

U.S.C.
10

21.

Chinois has not established “disparate treatment” by Forum under 42

§ 1981.

U.S.C.
12

§ 1981

22.

Chinois has not established that Forum’s concern for the safety and

13

security of its patrons and employees was a pretext to mask intentional racial

14

discrimination against Chinois or its patrons under 42
23.

§ U.S.C. 1981.

With respect to Chinois’ sixth (breach of contract) and eighth (breach

16

of implied covenant of good faith and fair dealing) claims, Chinois has failed to

17

meet its evidentiary burden establishing that Chinois was damaged by any act or

18

omission of Forum.

19

24.

In Nevada, an actionable civil conspiracy (Chinois’ seventh cause of

20

action) consists of a combination of two or more persons who, by some concerted

21

action, intend to accomplish an unlawful objective for the purpose of harming

22

another.

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24
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MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

Paragraph 98 of the complaint sets forth Chinois’ claim for conspiracy:

Defendants, and each of them, acted in concert, directly or
through common agents, to exert dominion and control over the other
defenaants, and eaãh of them, and through such dominion and
control, furthered the unlawful objectives of (i) improperly invoking
remedies under the Lease, including termination of the Lease; (ii)
intentionally disrupting the contractual relationships between Chinois
and O.P.M.L.V.; and (iii) improperly disrupting the contractual
relationships between Chinois and O.P.M.L.V., on the one hand, and
actual and prospective patrons of Chinois and O.P.M.L.V. on the
other, all of which has caused and will continue to cause grave
damage to plaintiffs.

25.
2

None of the three “unlawful objectives” that form the basis of Chinois’

alleged conspiracy were accomplished.

The lease was not terminated by Forum.

It was terminated by Chinois for reasons that had nothing to do with Forum.
Similarly, Forum did nothing that “disrupted” the contractual relationship between
Chinois and OPM/Poetry.
6
‘

8

That relationship remained fully intact until it

terminated as a matter of course when Chinois terminated the Lease with Forum,
abandoned the leasehold premises and declared bankruptcy.

There was no

credible evidence suggesting that Forum interfered with any prospective patrons
of OPM/Poetry.

10

26.

With respect to Chinois’ conspiracy claim, Chinois failed to meet its

11

evidentiary burden to show that Forum intended to accomplish an unlawful

12

objective for the purpose of harming Chinois.

13
14
15
16

27.

Forum engaged in no act or omission that was the proximate cause

of any damages suffered by Chinois in this case.
28.

Judgment should be entered in favor of Forum and against Chinois

on all claims asserted in this action by Chinois.

17

The Claims Asserted by OPM/Poetry Against the Forum Defendants

18

29.

19
20
21

OPM/Poetry’s first (declaratory judgment) and fourth (injunctive

elief) causes of action have been rendered moot by the closing of its business,
hich had nothing to do with any alleged acts or omissions by Forum.
30.

The tort of intentional interference with contract (OPM/Poetry’s

22

econd cause of action) requires proof that Forum actually disrupted the

23

ontractual relationship to which OPM/Poetry was a party by inducing one of the

24

arties to breach.

25

ther breached the management agreement in any way and there is no evidence to

26

uggest that Forum did anything that induced OPM/Poetry or Chinois to breach

Neither OPM/Poetry nor Chinois has ever asserted that the

27 he contract in any way.
28
MORRIS PETERSON
ATTORNEYSATLAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

As between OPM/Poetry and Chinois, the management

greement remained in full force and effect until it terminated as a matter of course
14

when Chinois ceased doing business and abandoned the leasehold premises
2

which, in turn, caused OPM/Poetry to cease doing business.
31.

4

with any contract to which OPM/Poetry was a party.
32.

6

OPM/Poetry did not establish that Forum intentionally interfered

No action of Forum interfered with a contract or contract right of

OPM/Poetry in a manner that would support a claim for intentional racial
discrimination under 42 U.S.C.

8

cause of action).
33.

10

§ 1981 against the defendants (plaintiffs’ fifth

OPM/Poetry has not established a claim for breach of the implied

covenant of good faith and fair dealing against Forum defendants because the
covenant exists by virtue of the lease and OPM/Poetry is not a party to the lease.

12

OPM/Poetry has not produced direct evidence of discrimination

13

sufficient to support a claim for intentional racial discrimination under 42 U.S.C.

14

e

1981 against Forum.

15

OPM/Poetry has not established a. prima facie case of discrimination

16

sufficient to support a cause of action for intentional racial discrimination under 42

17

U.S.C.

§ 1981 againstForum.

18

36.

19

under42U.S.C.

OPM/Poetry has not established “disparate treatment” by Forum

§ 1981.

20

OPM/Poetry has not established that Forum’s concern for the safety

21

and security of its patrons and employees was a pretext to mask intentional racial

22

discrimination against OPM/Poetry or its patrons under 42

23

38.

§ U.S.C. 1981.

With respect to OPM/Poetry’s sixth (breach of contract) and eighth

24

(breach of implied covenant of good faith and fair dealing) claims, OPM/Poetry

25

was not a party to the contract to which these claims pertain

26

Forum and Chinois.

27

one another.

MORRIS PETERSON
ATTORNEYS AT LAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

--

the lease between

OPM/Poetry and Forum are not parties to any contract with

There was no privity of contract between Forum and OPM/Poetry

and OPM/Poetry has no standing to assert a breach of any provision in the lease

1

(including the implied covenant of good faith and fair dealing).

2

With respect to OPM/Poetry’s sixth (breach of contract) and eighth
(breach of implied covenant of good faith and fair dealing) claims, OPM/Poetry
also has failed to meet its evidentiary burden establishing that it was damaged by
any act or omission of Forum.

6
‘?

8

40.

OPM/Poetry’s

§ 1981 claim for racial discrimination (fifth) is based

solely and explicitly on the “benefits or privileges” arising under the lease between
Forum and Chinois.

OPM/Poetry is not a party to that lease.

Because

OPM/Poetry is not a party to a contract with Forum, OPM/Poetry cannot assert a
10

§ 1981 for racially-motivated loss of or interference with contractual
rights. OPM/Poetry lacks standing to bring a § 1981 claim. Accordingly,

12

Forum is entitled to judgment on OPM/Poetry’s fifth cause of action.

13
14

claim under

41.

Even if OPM/Poetry had standing to assert a claim under 42 U.s.c.

§ 1981 and could seek damages thereunder for interference with prospective
business opportunities, OPM/Poetry failed to meet its evidentiary burden to show

16
17

that Forum took any action against OPM/Poetry with discriminatory intent.
42.

In Nevada, an actionable civil conspiracy consists of a combination of

18

two or more persons who, by some concerted action, intend to accomplish an

19

unlawful objective for the purpose of harming another.

20

complaint sets forth OPM/Poetry’s claim for conspiracy and is set forth above.

21

43.

Paragraph 98 of the

As noted above, none of the three “unlawful objectives” that form the

22

basis of OPM/Poetry’s alleged conspiracy (OPM/Poetry’s seventh cause of action)

23

were accomplished.

24

show that Forum intended to accomplish an unlawful objective for the purpose of

25

harming OPM/Poetry.

26
27

44.

OPM/Poetry also failed to meet its evidentiary burden to

Forum engaged in no act or omission that was the proximate cause of

any damages suffered by OPM/Poetry in this case.

28
MORRIS PETERSON
ATTORNEYSATLAW
900 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVADA 89101
702/474-9400
FAX [phone]

16

1
2
3
4
5
6

45.

Judgment should be entered in favor of Forum and against

OPM/Poetry on all claims asserted against Forum in this action by OPM/Poetry.
46.

If any conclusion of law should more properly be deemed a finding

of fact, it shall be so deemed.
Submitted by:
MORRIS PETERSON

LIONEL SAWYER & COLLINS

7
8 By:, / s/Jean-Paul Hendricks
9
10

By: Is/Charles McCrea
Samuel S. Lionel, Bar No. 1766
Charles H. McCrea, Jr., Bar No. 104
300 South Fourth Street, #170
Las Vegas, Nevada 89101

Steve Morris, Bar No. 1543
Jean-Paul Hendricks, Bar No. 10079
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101

Attorneys for Defendants
Forum Shops, LLC, Forum Developers
Limited Partnership, Simon Property
Group Limited Partnership, and Simon
Property Group, Inc.

11

Attorneys for Defendants Caesars
12 Palace Corporation and Caesars Palace
Realty Corporation
13
14
15

Let Judgment enter accordingly.

16

day of
DATED and DONE this 24thday of May, 2011.

,2011.

17
18
19

U.S. DISTRICT COURT JUDGE

20
21
22
23
24
25
26
27
28
MORRIS PETERSON
ATTORNEYS AT LAW
E00 BANK OF AMERICA PLAZA
300 SOUTH FOURTH STREET
LAS VEGAS, NEVAOA 89101
702/474-9400
FAX [phone]

17