McKenna v. David Z. Chesnoff, Chtd. P.C. et al

Filing 20

ORDER Granting 19 Stipulation to File Amended Complaint. Signed by Magistrate Judge Carl W. Hoffman on 3/26/15. (Copies have been distributed pursuant to the NEF - TR)

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 1 of 24

1 Dennis L. Kennedy
Nevada Bar No. 1462
2 Sarah E. Harmon

Nevada Bar No.8 1 06
3 Kelly B. Stout
Nevada Bar No. 12105

4 BAILEY.:. KENNEDY
8984 Spanish Ridge Avenue
5 Las Vegas, Nevada 89148-1302

Telephone: [phone]
6 Facsimile: [phone]

DKennedy§BaileyKennedy.com
7 SHarmon§BaileyKennedy.com

KStout§BaileyKennedy.com
8
Attorneys for Plaintif

9
10

UNITED STATES DISTRICT COURT

~~-" 11 DISTRICT OF NEV ADA
Q~::c
"'
~ ii . _ MCKENNA
~iz¡~. 12 MICHELLE Plaintiff,

.~ ~~~ 13 Case No. 2:14-cv-l 773-JAD-CWH
W&;:C
~"=tl:: vs.
~~jp.
ÇQ 14

DAVID Z. CHESNOFF, CHTD. P.C. D/B/A
15 CHESNOFF & SCHONFELD; DAVID Z.
CHESNOFF; AND RICHARD A.
16 SCHONFELD,
Defendants.
17
18

STIPULATION AND ORDER TO FILE AMENDED COMPLAINT
19

Michelle McKenna ("Plaintiff') and Defendants David Z. Chesnoff, Chtd. P.C.

20 Plaintiff

21 d/b/a Chesnoff & Schonfeld; David Z. Chesnoff; and Richard A. Schonfeld (collectively,

22 "Defendants"), by and through their counsel of record, hereby stipulate and agree as follows:
23

1.

Plaintiff

fied her Complaint on October 24,2014. (ECF 1.)

24

2.

Plaintiff

timely served Defendants with the Summons and Complaint on October

25 27,2014.

26 / / /
Page 1 of2

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 2 of 24

1

3.

Pursuant to the Parties' agreement, Defendants fied their Answer on December

2 12,2014. (ECF 12.)
3

4.

New events relevant to this case have occurred since Plaintiff filed her Complaint.

4

5.

Pursuant to FRCP 15(a)(2), Defendants agree that Plaintiff

may fie the Amended

5 Complaint, which is attached hereto as Exhibit A.
6 DATED this 20th day of

March, 2015.

DATED this 20th day of

March, 2015.

7

By: lsi Dennis 1. Kennedy
8 Dennis L Kennedy
Sarah E. Harmon
9
Kelly B. Stout
BAILEY.:. KENNEDY
10
8984 Spanish Ridge Avenue

~

Q ¡""
ui ~~ 11
..'" ,

~ """,
lƧ
.+.'" oor- 12
. :iZ~~
~zi!~

Las Vegas, Nevada 89148
Attorneys for P lažntif

By: lsi Brian K. Terry
Brian K. Terry
Kenneth R. Lund
THORNDAL ARMSTRONG DELK
BALKENBUSH & EISINGER
1 100 East Bridger A venue
Las Vegas, Nevada 89101

Attorneys for Defendants

ui itui 2

.."'~§' 13
~ijø-

ÇQ

14

IT IS SO ORDERED:

15

16

UNITED STATES
C.W. Hoffman, Jr.DISTRICT COURT JUDGE
United States Magistrate Judge
Dated: March 26, 2015
Dated:

17
18

19 Respectfully Submitted by:

20 BAILEY.:. KENNEDY
21 By: lsi Dennis 1. Kennedy

22

Dennis L. Kennedy
Sarah E. Harmon
Kelly B. Stout

23

24

8984 Spanish Ridge Avenue
Las Vegas, Nevada 89148-1302
Attorneys for Plaintif

25

26

27

Page 2 of2

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 3 of 24

Exhibit A

Exhibit A

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 4 of 24

;:

Q ~::= 11

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

""~ ~g¡&l

.c -(or

",0'"

.!Ï o..'D

'~~~R 12
.:. ~~~Ë
;: z"'"'

"' ~~ i§ 13 MICHELLE MCKENNA,

d",oo:i
~~j~
i:

Plaintiff,

14-cv-Ol 773-JAD-CWH

Case No. 2:

14

vs.
15

DAVID Z. CHESNOFF, CHTD. P.C. D/B/A
16 CHESNOFF & SCHONFELD; DAVID Z.
CHESNOFF; AND RICHARD A.
17 SCHONFELD,
Defendants.

JURY TRIAL DEMANDED

18
19

AMENDED COMPLAINT
20

I. JURISDICTION & VENUE.
21

22

1.

This Court has jurisdiction over this action because the amount in controversy

23 exceeds $75,000.00 exclusive of interest and costs, and the action is between citizens of different

24 states. 28 U.S.C. § 1332(a)(1).
25

2.

Venue is proper in the United States District Court for the District of

Nevada

26 because the Defendants are all subject to personal jurisdiction in, and are residents of, Nevada.
27 28 U.S.C. § 1391

(b)-(c).

Page 1 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 5 of 24

II. CASE SUMMARY.

1

2

3.

Plaintiff, Michelle McKenna ("Michelle"), was a cocktail waitress at PURE

3 Nightclub ("Pure") in Caesars Palace. On January 3, 2009, Michelle was brutally attacked by
4 Patrick Jones ("Jones"), who is the son of Caesars Vice President, Jan Jones Blackhurst. During
5 the attack, Michelle suffered a traumatic brain injury and other physical harm, which have

6 resulted in permanent physical and cognitive disabilties. Michelle retained David Z. Chesnoff

7 ("Chesnoft') and Richard A. Schonfeld ("Schonfeld") of the law firm Chesnoff & Schonfeld to
8 represent her in a personal injur lawsuit against Jones, Pure, and Caesars. However, Chesnoff,

9 who is believed to have an undisclosed financial interest in Pure, and was also representing Pure
10 executive, Steve Davidovici, in a tax evasion case during the pendency of the personal injury
;:
~ ll~ 11 action. In order to protect Chesnofts conflicting interests, Chesnoff & Schonfeld failed to name

the statute oflimitations and

~ ii~ 12 Pure or Caesars as defendants in the action prior to the expiration of

.:. ø~Ë

~~gl;
~ ~~æ 13 did not adequately investigate or prosecute Michelle's case. Consequently, Michelle recovered
~~H

i:

14 only a fraction of her damages, and now brings claims against Chesnoff & Schonfeld for legal
15 malpractice, breach of

16
17

fees.

fiduciary duty, and deceptive trade practices, and disgorgement of

III. THE PARTIES.
4.

Defendant, Chesnoff & Schonfeld, is a domestic professional corporation, formed

18 and existing under the laws of

the State of

business in Clark

Nevada with its principal place of

19 County, Nevada.

20

5.

Defendant, David Z. Chesnoff, is a resident of

21

6.

Defendant, Richard A. Schonfeld, is a resident of

22

7.

Plaintiff, Michelle, is a United States resident, and a resident of a state other than

Nevada.
Nevada.

23 Nevada.

24
25

iv. THE UNDERLYING LITIGATION.
8.

In the early morning hours of January 4, 2009, Michelle was violently attacked by

26 Patrick Jones, a guest at Pure, a Las Vegas nightclub where Michelle was a cocktail server.

27 / / /
Page 2 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 6 of 24

i

9.

Michelle thereafter retained the law firm Chesnoff & Schonfeld to represent her in

2 a personal injury action against Jones, Pure, and Caesars.

10.

3

Defendants filed a Complaint in Nevada's Eighth Judicial District Court on

Jones, Case No. A-I0-630290-C (the

4 November 28,2010, styled Michelle McKenna v. Patrick

5 "Underlying Case").

1 1. Defendants failed to adequately investigate and prosecute the underlying case,

6

7

including, but not limited to, the following acts and omissions:
a. Defendants did not bring any claims against Pure or Caesars within the

8

applicable statute of limitations;

9

b. Defendants did not conduct an adequate investigation; they failed to request

10

~
Q~~o
~ ~g¡&l

key documents from the defendant and third-parties; and they did not interview

11

....ti
~UJP~

and/or depose material witnesses;

~~R 12
.:. ~~ß
~ ~ff~

d~~ê
"" "'''

c. Defendants did not seek damages for lost wages and future care totaling

13

-e &'~

ÇQ

milions of dollars;

14
15

d. Defendants did not retain an economic expert to quantify Michelle's damages;

16

e. Defendants did not provide evidence or produce documents that were

17
18

necessary to prove the amount of

12. After four and a half

years of

Michelle's damages.

unexplained delays, virtally no communication

19 from the Defendants regarding the case, and effectively no progress, Michelle was worried about

20 her case and sought new counsel.
21

13.

Ultimately, Michelle was able to retain the law firm of Cohen & Padda, who

22 resolved the case for her.
23

14.

Even after Cohen & Padda had fied a substitution of counsel, Defendants took

24 more than a month to transfer Michelle's fie to her new counsel, which further prejudiced her

25 case.
26

15.

Defendants'

While Cohen & Padda sought to remedy and mitigate the effects of

Defendants' failures:

27 inadequate representation, it was too late to cure many of

Page 3 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 7 of 24

a. All claims against Pure and Caesars were already barred by the statute of

1

limitations;

2

b. Cohen & Padda did not have adequate time to secure the additional evidence

3

necessary to prove her claims; and

4

c. Cohen & Padda were barred from producing additional documents necessary to

5

6

Defendants' delays.

prove Michelle's claims because of

7

16. Although Michelle's expert (retained by Cohen & Padda) valued her damages as

8

more than $10,000,000.00, Defendants' errors forced Michelle to settle for $225,000.00 from

9

Blackhurst's homeowners' insurance -less than 5% of

10

17. After the settlement of

;:

Q ""
v=
-'"
"' "'00 11

her actual damages.

Michelle's claims against Jones, Chesnoff & Schonfeld

filed a motion to enforce a charging lien on Michelle's claims in the amount of$62,970.37.

""00

'" .
0'"
",,,

,.on

"'~
~ oor- 12
.=
.:. z'"
"'~

;:
"'

d
-0

ÇQ

18. After the commencement ofthis litigation, Michelle requested that the Defendants

'" "'

~ i§

oo:i

j""

13

this litigation.

withdraw the motion and/or stay the motion pending the outcome of

14

19. The Defendants refused and $62,970.37 was distributed to Chesnoff & Schonfeld

15 from Michelle's settlement funds.
16

A. KEY PLAYERS IN THE UNDERLYING CASE.

17

i. Caesars Palace

18

20.

Caesars Palace is a hotel-casino resort located in Las Vegas, Nevada.

19

21.

Upon information and belief, Caesars Palace is owned and operated by Caesars

20 Entertainment Corporation ("Caesars Entertainment") Gointly "Caesars").
21

22.

Before November 2010, Caesars Entertainment was known as Harrah's

22 Entertainment, Inc.
23

24

ii. Jan Jones Blackhurst

23.

Jan Jones Blackhurst ("Blackhurst") has been an employee of Caesars

25 Entertainment Corporation (formerly Harah's Entertainment) since 1999.

26

24.

For the eight years before joining Caesars, Blackhurst served as Mayor of

27 Vegas.

Page 4 of21

Las

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 8 of 24

1

25.

In 2009, Blackhurst was Senior Vice President of Communications and

2 Governent Relations for Harrah's Entertainment, Inc.
3

iii. Pure Nightclub

4

26.

Pure is a nightclub that is located within Caesars Palace.

5

27.

Upon information and belief, Pure was operated by Touch, LLC ("Touch") at all

6 times relevant to this case.
7

28.

Upon information and belief, Pure was managed by Pure Management Group

8 ("PMG") at all times relevant to this case.
9

29.

Upon information and belief, Steve Davidovici and Robert Frey were part owners

1 0 and co-managers of various business entities that controlled and operated Pure at all times

~
~ ¡;i~ 11 relevant to this case.
z.-~~
ZuicC"

~ ~~;a 12 iv. Plaintif Michelle McKenna

.:. ~~Ë
~ ~"'"'

~ ~~Æ 13 30. Michelle began working for PMG in approximately 2002 as a cocktail server at
-e&,H
ÇQ

14 one of its other properties.
15

31.

When Pure opened, Michelle transferred to open the new club.

16

32.

While at Pure, Michelle worked as a cocktail server and trainer.

17

33.

Michelle continued working at Pure until November 26,2012, when PMG fired

18 her due to physical and cognitive disabilities resulting from Jones' attack. i
19

v. Patrick Jones

Blackhurst and Fletcher "Ted" Jones, Jr.

20

34.

Jones is the son of

21

35.

Jones had a history of abusing alcohol and ilegal drugs.

22

36.

Upon information and belief, Jones had a history of

violent and/or aggressive

23 behavior as a teen and young adult.
24

Pure, Hakkasan Ltd, and AMG

25 i Michelle has fied suit against the subsequent owners of

26 related to her firing. She has asserted claims for employment discrimination, retaliation,
violation of the Americans with Disabilties Act, intentional inflction of emotional distress,
27 negligent hiring, negligent retention, and negligent supervision. Compl., McKenna v. Hakkasan
14-cv-01222-GMN-GWF, July 25, 2014, ECF No. 16.
Ltd, No. 2:

Page 5 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 9 of 24

1

37.

In 2009, Jones was a student at the University of Arizona.

2

38.

During the pendency ofthe personal injury action, Jones paricipated in the
his father's automotive empire, Fletcher Jones Motor Cars,

3 General Manager training program of

4 Inc., and then took a sales position at a California Toyota dealership.

5

6

B. JONES ATTACKS MICHELLE AT PURE.

39.

On January 3, 2009, Michelle was working as a cocktail waitress at Pure and

7 assigned to tables in the raised, bottle service area.
8

40.

Blackhurst had arranged reservations for her son and several friends at Pure, and

9 authorized his bil to be "comped" (i.e., charged to Caesars).
10

41.

Due to his mother's position with Caesars Entertainment, Caesars and Pure both

~

~~:!~ 11 considered Jones to be a VIP.
z ~¡¡gg

z....i
_~uiP~

42.
~~~~ 12
.:. ZOLL
~ ~~Ë
""~~~ 13 2009.
d~~æ

Jones and his friends arived at Pure at approximately 11 :00 p.m., on January 3,

~~~

ÇQ

14

43.

Jones' friends included Jon Curran, Zachary Goldberg, Michelle Issacs, and Paul

15 ("P.C.") Youngblood, among others.
16

44.

Before arriving at Pure, Jones had consumed several alcoholic beverages at his

1 7 home and in the limousine on the way to Pure.
18

45.

Keith Leavitt ("Leavitt"), Pure's Director of Customer Development, was

1 9 assigned to host Jones and his friends.

20

46.

Leavitt met Jones and his friends at the door, and he sat the group at a table

21 located in Michelle's section.
22

47.

Leavitt explained to Michelle that Jones' mother worked for Harah's and that the

23 table's bil should be charged to Blackhurst's comp number.
24

48.

While at Pure, Jones and his friends were served $3,446.02 worth of

beverages,

25 which included five bottles of liquor.
26

49.

At approximately 1 :00 a.m. on the morning of January 4,2009, Jones asked

27 Michelle to sit on his lap.

Page 6 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 10 of 24

1

50.

When Michelle refused his advances and turned to leave, Jones pulled her into his

51.

Michelle threw his hands off of her, jumped up, tured around to face him, and

2 lap.
3

4 began to explain that his conduct was inappropriate.
5

52.

Jones responded by callng her a "f***ing bitch" and making inappropriate

6 gestures.

7

53.

Michelle looked for help, but did not see a single security guard.

8

54.

Upon information and belief, Pure had fired approximately thirty (30) security

9 guards in December 2008, and the club was not adequately staffed by security.
10

55.

Upon information and belief, Caesars security oversaw Pure and was often

;:

Pure's employees and guests.

~l~~ 11 present in the club to ensure the safety and security of

~ li~
.:. ø~ß 12 56. Upon information and belief, Caesars had knowledge that Pure did not have
~~i"p.
on duty.
~~~Æ 13 adequate security staff

~~..

ÇQ

14 57. Upon information and belief, Caesars had knowledge that Pure did not conduct

15 adequate surveilance of the premises.
16

58.

Seeing Assistant General Manager, Dan Bondy, across the room, Michelle waved

17 for him to come over.
18

59.

However, before Bondy was able to make his way over to Michelle, Jones lunged

19 at her, placed his hands around her throat, and began choking and shaking her.
20

60.

Struggling against Jones and unable to breathe, Michelle blacked out and fell.

21

61.

When Bondy arrived, he wrestled Jones, who was 6' 1" tall and weighed 220

22 pounds, off of Michelle and began walking him away from Michelle.
23

62.

Bondy's grasp, using

Jones remained very aggressive - struggling to break free of

24 profanity, and threatening to use his parents' influence to have Bondy fired.
25

63.

Stil gasping for air, Michelle made her way off

the main floor while Bondy and a
the club through the back door.

26 security guard, Alex Walker, escorted Jones safely out of

27

Page 7 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 11 of 24

1

C. THE COVER-UP.

64.

2

liability for his actions.

3 and criminal

65.

4

Upon information and belief, Pure and Caesars sought to help Jones escape civil

In violation of its own procedures, Pure's security staff did not detain Jones,

5 contact the police, conduct any investigation, preserve any evidence, or properly document the

6 attack.

66.

7

Pure also attempted to keep Michelle from fiing a police report and obtaining any

8 medical treatment.

9

i. Michelle Received No Assistance from Pure.

67.

10

~
~ ~:!~

11

Following the attack, Michelle informed Pure's staff

that she wanted to file a

police report and that she had sustained serious injuries.

..." ,
~ ~¡¡gg
",0'"

~o-i'O

68. Although Bondy told Michelle that he was callng the police, neither he nor

J2~~ 12

~z~~

.:. ffvî~

W~lLZ
~tf~O

~o:~æ 13 anyone else notified the police or Caesars' security staff.

~~~

ÇQ

69. Upon information and belief, Las Vegas Metro Police Department had officers

14
15

stationed inside of Caesars Palace and Pure's security staff had the abilty to communicate with

16 both Caesars' security and Metro.
17

70.

Upon information and belief, Pure led Michelle to believe that its staffhad

18 contacted the police to prevent her from placing the call herself.
19

71.

Thinking that Pure had called the police, Michelle lay on the stockroom floor for

20 the remaining three hours of her shift waiting for the police to take her statement.
21

72.

During this time, Michelle continued having diffculty breathing, lost

22 consciousness for several short periods, and experienced severe pain in her chest, neck, and head.
23

73.

Although Michelle explained to security guard Walker that Jones had choked her

24 and she stil could not breathe, Pure did not provide Michelle with any medical attention, call an
drive her to the hospitaL.

25 ambulance, or

26

74.

Upon information and belief, Caesars always has paramedics on-site, but Pure

27 failed to contact the paramedics for her.

Page 8 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 12 of 24

75.

1

in rush

Instead, Walker told Michelle that she was just experiencing an adrenal

2 and that all she needed was a good night's sleep.

76.

3

After the club closed at 4:00 a.m., Michelle continued to wheeze heavily and was

4 so dizzy that she could not walk without assistance.

77.

5

After the lights came on, Michelle found General Manager, Ian Farr, at the main

6 bar and told him about the attack.

7
8

78. Farr stated that he was not aware of

had Pure's security staff

home.

walk Michelle to her car so she could drive herself

79. When leaving Pure, Michelle was dizzy, disoriented, and confused.

9
10

ii. Pure Helps Jones Escape.

;:

ß~!~

the incident, and notwithstanding her injuries,

11

80. If

Pure's security staffhad followed its usual procedures, they would have called

..'"
~ ~¡¡gg
~UJAfc,

~~~ 12 the police and detained Jones until offcers arrived, investigated, and documented the incident.
z'"
~Zl3~

.:. ß5 ul~

81. Moreover, even when a guest is not held for the police, Pure's policy is that the

"' ~~ i§

~-.V':i 13
t- 00 oop.

~~..

i:

14

offending guest is escorted out of

15

82. Instead, Pure's staff

16

83. After escorting Jones out of

the nightclub and handed off

to Caesars' security.

hustled Jones out ofthe club and off of

Caesars' property.

the club, Walker called his supervisor, Jeff

Wolff, on

17 the radio.
18

84.

Wolff arrived on the scene and instructed Walker to go back inside.

19

85.

Moments later, Leavitt showed up with some of Jones' friends.

20

86.

Leavitt was very concerned about the situation, and repeatedly reminded the other

21 staffthat Jones' mother was a Caesars executive and that Jones was an important person.

22

87.

When Bondy retured to the club, Leavitt and Wolffwere the only staff

that

23 remained with Jones.

24

88.

Later, Jones' friends returned to their table without Jones and reported that Jones

25 went home in a cab.

26 / / /
27 / / /
Page 9 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 13 of 24

1

89.

In addition to failing to contact Caesars' security and detaining Jones until
further violated its own procedures by failing

2 security or the police arrived, Pure's security staff

3 to adequately investigate or document the attack, which includes the following omissions:

4 a. Failing to identify potential witnesses;
5 b. Failing to take any statements from Michelle or any employees who observed

6 or paricipated in the incident, like Dan Bondy, Alex Walker, or the DJ who

7 witnessed most of the attack;
8 c. Failing to log the incident or create an incident report until January 8, 2014-

9 five days after the attack, when Pure's security policies require the report to be

10 completed the same night as the incident; and
~
~ ~;i~ 11

d. Failing to record Jones' attack (despite over 30 security cameras located

z ~¡¡gg

z....1
_~tiQ~

~~~~ 12
~Z6'u
~ .,00;:0 13
ã:uiz
~v~¡i

around the nightclub) and/or failing to preserve any footage of

.:. ff~~

'c~..-

i:

90.

the assault;

Upon information and belief, Caesars became aware of Jones' conduct no later

14 than the morning of January 4,2009.
15

91.

Caesars took no steps to notify the police or otherwise investigate the attack.

16
17

D. JONES REMAINS WELCOME AT PURE.

92.

Pure's policies dictate that a guest who physically assaults an employee or another

18 guest is "trespassed" from Pure - informed that he is not welcome on the property and that
19 returning would be in violation of

20

93.

the law.

Depending upon the severity of the assault, a guest can be "trespassed" for an

21 evening, a set period oftime, or permanently.
22

94.

Notwithstanding Jones' conduct, Pure and Caesars permitted him to return to Pure

23 only months after his attack on Michelle.

24

95.

On or about April 18,2009, Jones was again admitted to Pure as a VIP guest.

25

96.

As before, Blackhurst authorized a "comp" for Jones and several friends and

26 Leavitt made the reservations.

27 / / /
Page 10 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 14 of 24

97.

2

Shocked, Michelle ran downstairs into the employee locker room crying and very

99.

After regaining some of

section.

3

4

When Jones and his friends arived, the host seated the party near Michelle's

98.

1

upset.

5

her composure, Michelle informed a manager that Jones

6 should not be allowed into Pure.

7 100. Michelle was informed that Jones would be permitted to remain in the club, and
8 she was instructed to stay away from him.

9 101. Next, Michelle raised her concerns to General Manager, Ian Farr, who said that

10 Robert Frey had personally authorized Jones' visit.

~

the evening, Michelle was forced to work with Jones sitting

~ ~;i~ 11 102. For the remainder of

z ~~gg

z":""

.ri LiO~

~ ~~~ 12 in the next section.
"'Z'"

.:. ~ l7 ui
ej~Ë
;;

~~~Æ 13 103. Michelle was so upset that she was unable to come into work the following night.

-.~..
ÇQ 14

V. MICHELLE'S INJURIES.

15 104. On the morning of January 5, 2009, Michelle was stil experiencing severe pain
16 and made an appointment to see her regular physician.

17 105. However, Michelle's doctor was not wiling to treat her because Pure had not
18 provided her with the appropriate medical form.
19 106. Michelle immediately contacted Pure's Human Resources Department, but no one

20 returned Michelle's call until the next afternoon.
21 107. At her appointment, Pure's Director of

Human Resources tried to dissuade

22 Michelle from seeking medical treatment.
drugs at any time

23 108. Despite the fact that Michelle had never tested positive for

24 during her employment with PMG and there were no allegations that Michelle had been using
25 drugs, the Director of

Human Resources further delayed Michelle's access to treatment by

26 requiring that Michelle take a drug test before she would authorize any medical treatment.

27 / / /
Page 11 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 15 of 24

1 109. As a result, Michelle did not obtain the proper documentation until approximately
2 7:00 p.m. on January 6, 2009 - more than 48 hours after being attacked.

3 110. Pure further hindered Michelle's access to medical treatment by requiring that she
4 visit a specific clinic that was open only until 7:30 p.m.

5 111. After less than a week, Michelle received an angry call from one of Pure's

6 managers demanding that she return to work if she wanted to continue working at Pure.

7 112. Fearing for her job, Michelle returned to work.
8 1 13. At that time, Michelle was stil showing physical signs of the attack - she had

9 bruising around her neck and it was evident from her gait that she was stil in pain.
10 114. Since the date of

~
Q~::o
~~~~
z-t..~
~LLQ~

the attack, Michelle has seen more than 14 medical providers-

1 1 many of them specialists - but continues to suffer from the debiltating effects of the attack.

8;;on 12

.:. ¿;~N
ø~ß

115.

In the years since the attack, Michelle has suffered severe headaches, vertigo and

~ Zow

d;;~æ 13 dizziness, blackout/fainting spells, balance and coordination problems, blurred vision, nausea,
~~..
"' ~~ i§

ÇQ

14 and severe cognitive impairments.

15 116. Diagnostic tests later revealed that Michelle's injuries included a crushed larynx,
16 damaged

jugular veins, and a traumatic brain injury.

17 117. Based on her injuries and need for future care, Michelle's expert estimated her
18 damages in excess of $ 1 0 milion.
19

VI. MICHELLE RETAINS CHESNOFF & SCHONFELD.
Becker Gaming,

20 118. Although Michelle was acquainted with Bruce Becker, owner of

21 the two had not spoken since well before she was attacked by Jones.

22 119. On January 6, 2009, Becker called Michelle and urged her to retain Defendants
23 Chesnoff and Schonfeld to represent her in a personal injury action.

24 120. Upon information and belief, Bruce Becker and the Becker family were close,
25 long-term friends of Blackhurst, and both Blackhurst and Becker were friends of Chesnoff.

26 121. Unaware of Chesnoff and Becker's connection to the Jones family, Michelle took
27 Becker's advice and retained Chesnoff & Schonfeld.

Page 12 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 16 of 24

1 VII. CHESNOFF & SCHONFELD'S CONFLICT OF INTEREST.
2 122. At the time that Michelle retained Chesnoff & Schonfeld, Chesnoffhad at least

3 two conflcts of interest.

4 123. Upon information and belief, Chesnoff was an investor in Pure, and had a current

5 financial interest in its success.
Pure, was the subject of

6 124. Steve Davidovici ("Davidovici") is a former executive of

7 an IRS investigation into unreported "tip pool" funds that began in 2008, and was ultimately
8 convicted of criminal charges.

Davidovici began as

9 125. Upon information and belief, Chesnofts representation of

10 early as 2008 and continued through 2012.

~
ß ~:!~ 11

126.

Michelle's interest in pursuing claims against Pure was directly adverse to

z ~¡¡gg

Z....I
_~tiCl~

~~~~ 12 Davidovici's interest as a Pure executive.
""Z'"

.:. ø~Ë

~ ~gl; 13

'I ui~ 0
t:o;~,;

~~~-

ÇQ

127.

There was significant risk that Chesnofts representation ofDavidovici and his

14 own financial interest in Pure would materially limit his representation of Michelle.
15 128. As a partner in a law firm, Chesnofts conflicts are imputed to all of

the lawyers

16 within the firm.

17 129. Defendants did not secure Michelle's written, informed, consent to the conflict.

18 VIII. CHESNOFF & SCHONFELD'S INADEQUATE REPRESENTION.
19 130. Shortly after the attack, Michelle retained Chesnoff & Schonfeld to represent her
20 in an action against Jones, Pure and Caesars.
21 13 1 . During the four and a half years that Defendants represented Michelle, the case

22 was not adequately investigated or prosecuted.

23 132. On November 28,2010, Defendants fied a complaint alleging claims against
24 Jones, and several unnamed defendants.

25 133. Defendants never amended the Complaint to assert claims against Pure or
26 Caesars.

27 / / /
Page 13 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 17 of 24

1 134. When Michelle asked the Defendants to specifically name Pure and Caesars,
2 Defendants informed her that it was not necessary because they were already included - as the
3 "Doe" and "Roe" Defendants.

4 135. By the time that Michelle's subsequent counsel, Cohen & Padda, obtained leave

5 to amend the Complaint, all other claims were time-barred by the applicable statutes of

6 limitations.
7 136. After waiting almost two years to fie the Complaint, Defendants requested four

8 extensions of discovery totaling almost a year and a half.
9 137. However, Defendants did not conduct discovery designed to discover facts that

10 would support claims against Pure and Caesars and support the claims asserted against Jones,
;:

53 ~~ 11 including, but not limited to, the following:
z "'00

~ ~~
~ ~~ 12
z'"

.:. ~Ë

53 ~~ 13
.. ~:i
'; j""

a. Deposing representatives of the corporate entities that own and operate Pure

and Caesars Palace;

ÇQ

14

b. Deposing Blackhurst;

15

c. Deposing Keith Leavitt;

16

d. Deposing Jeff

17

e. Deposing Jones' friends who accompanied him to Pure on January 3,2009;

18

f. Obtaining documents relating to Caesars' responsibility for security within

19

20

Wolff;

Pure;

g. Obtaining documents relating to Caesars' and/or Pure's knowledge of Jones'

21

history of alcohol and substance abuse, and violent tendencies; and

22

h. Moving to compel compliance with subpoenas and document requests.
her records,

23 138. Although Michelle provided Defendants with copies of all of

24 Defendants failed to produce key documents that were essential to support elements of
25 Michelle's claims, including, but not limited to, the following:
26

a. Medical records relating to treatment obtained during 2009 and 2010;

27

b. Michelle's income statements for 2008 and 2009; and

Page 14 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 18 of 24

c. Michelle's tax returns for 2008 and 2009.

1

2 139. Shortly before the case settled, the Court ordered that Michelle would be

3 precluded from using any documents not properly disclosed during discovery, except for medical
4 records pertaining to ongoing treatment.

5 140. Defendants failed to secure an expert to calculate Michelle's economic damages.

6 141. Defendants' calculation of damages was limited to past medical expenses in the

7 amount of$56,129.54; unspecified damages for pain, suffering, and emotional distress; and
8 punitive damages.

9 142. Upon taking over the case, Cohen & Padda retained, Stan Smith, Ph.D., to opine

Michelle's damages.

10 on the amount of

~
Eà ~~~

11

143. Mr. Smith calculated Michelle's damages as follows:

~~A~
~Æ~ 12
z'"
..'"
~ ~~gg,

a. $5,243,928 - Loss of

wages and employee benefits;

b. $ 649,011 - Loss of

.:. z"'''
~ ~~Ë
w~wz
~CI;:o 13
~v~æ

Household/Family Housekeeping and Household

~~~

ÇQ

Management Services;

14
15

c. $1,652,471 - Cost of

16

d. $3,546,376 - Reduction of

17
18

144. However, as a result of

Life Value

Defendants' failure to disclose Michelle's financial

documents, Jones sought to strike Mr. Smith's damages opinion.

19

20

Future Life Care;

145. Jones' pending motion to strike impacted Michelle's bargaining power during
settlement negotiations, and Michelle ultimately was unable to recover the vast majority of

21 damages.

22

ix. CHESNOFF & SCHONFELD'S ATTORNEY'S LIEN

23 146. On August 19, 2014, Chesnoff & Schonfeld served Michelle with a Lien for
24 Attorney's Fees in the amount of

$62,970.37.

25 147. On October 22,2014, Chesnoff & Schonfeld fied a Motion to

26 Enforce/Adjudicate Attorney's Lien in the state court action against Jones.

27 / / /
Page 15 of21

her

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 19 of 24

1 148. On November 19,2014, Michelle requested that the Defendants withdraw their
2 Motion to Enforce/Adjudicate Attorney's Lien or defer any decision on the motion pending the

3 outcome of this case.
149. On November 24,2014, Defendants refused Michelle's request.

4

150. On November 26,2014, the state cour granted the Defendants' Motion to

5

Entry was fied on December 16,2014.
6 Enforce/Adjudicate Attorney's Lien, and Notice of

$62,970.37

151. On or about December 21,2014, a check was issued in the amount of

7

to Chesnoff & Schonfeld in satisfaction of the lien.
8

x. CLAIMS.
Cause of Action No.1: LEGAL MALPRACTICEIPROFESSIONAL NEGLIGENCE
(AGAINST ALL DEFENDANTS)

152. Michelle realleges and incorporates by reference the averments contained in all
previous paragraphs, inclusive, as though fully set forth herein.

153. Michelle and Defendants had an attorney-client relationship.
154. Chesnoff and Schonfeld each owed Michelle a duty to use the skil, prudence, and

diligence possessed by lawyers of ordinary skil and capacity in exercising and performing tasks
16 which they undertook on Michelle's behalf.
17 155. Chesnoff and Schonfeld each breached his respective duties to Michelle by acts

18 and/or omissions that include, but are not limited to, the following:
19

a. Failure to disclose the fact and/or extent of

20

b. Failure to assert claims against Caesars and Pure within the statutory period;

21

c. Failure to identify and/or assert claims against Jones, Caesars and Pure arising

22

interest;

Defendants' conficts of

out of the events at issue;

23

d. Failure to adequately investigate and prosecute Michelle's case;

24

e. Failure to communicate with Michelle regarding the status of

her case, the

25

means by which her objectives should be accomplished, and respond to

26

Michelle's questions about her case.

27 / / /
Page 16 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 20 of 24

1 156. Michelle suffered actual

loss or damages as a result of

Defendants' negligence.

2 157. Had Defendants timely brought claims against Pure and/or Caesars Palace,

3 Michelle would have been able to recover far more in damages, either through judgment or
4 settlement, than she ultimately received in settlement.

5 158. Had Defendants adequately investigated and prosecuted Michelle's case, she

6 would not have been forced to settle and would have been able to obtain a judgment against

7 Jones for far more than she received in settlement.
its partners, Mr.

8 159. Chesnoff & Schonfeld is liable for the acts and omissions of

9 Chesnoff and Mr. Schonfeld.

10

160. As a direct and proximate result of

the foregoing acts, Michelle has suffered

;:

Q~::= 11
~~Q~
~~~ 12
z'"
~:. §~ß
~ ~g¡&l
.. .-O?

damages in excess of

Cause of Action No.2: BREACH OF FIDUCIARY DUTY
(AGAINST ALL DEFENDANTS)

;: z"'"'

w..uiz 13
~&~o
~~~æ

~~~
::

14
15

16

$75,000.00, according to proof.

161 . Michelle realleges and incorporates by reference the averments contained in all

previous paragraphs, inclusive, as though fully set forth herein.

162. Michelle and Defendants had an attorney-client relationship, which is a

17 relationship in which the client has the right to trust and have confidence in the integrity and

18 fidelity of another.
19 163. Chesnoff and Schonfeld each owed Michelle the highest duty of fidelity, loyalty,
20 and honesty in representing her and prosecuting her case.
21 164. Chesnoffand Schonfeld each breached their respective duties to Michelle by

22 failing to represent her and adequately investigate and prosecute her case.

23 165. Chesnoff & Schonfeld is liable for the acts and omissions of its parners, Mr.
24 Chesnoff and Mr. Schonfeld.
25 166. Chesnoff & Schonfeld (and each of

its partners) also separately failed to ensure

26 that it had proper measures in place to ensure that its attorneys competently and diligently

27 represented their clients.
Page 17 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 21 of 24

1 167. As a direct and proximate result of the foregoing acts, Michelle has suffered
2 damaged in excess of$75,000.00, according to proof.
3

Cause of Action No.3: DECEPTIVE TRADE PRACTICES
(AGAINST ALL DEFENDANTS)

4

5 168. Michelle realleges and incorporates by reference the averments contained in all

6 previous paragraphs; inclusive, as though fully set forth herein.

them, have violated the Nevada Deceptive Trade

7 169. Defendants, and each of

8 Practices Act, NRS 598.0915(15), by knowingly making false representations by omission,
9 including:

10

~ ~::=
o
i:~ ~g¡&l
.. -.O?

a. Failing to disclose the existence of a concurrent conflct of interest and its

11

~tlO~
~ "Z'" 12
~~~

.:. ~ou.
~~Ë
~

effect on common representation;

b. Failng to disclose their divided loyalty and compromised professional
judgment in light of the conflcts of interest; and

""e;~i§ 13

d~~æ
-e~o-

::

14

c. Failing to disclose their unwilingness to competently and diligently represent
Michelle.

15

them, have violated the Nevada Deceptive Trade

16 170. Defendants, and each of

17 Practices Act, NRS 598.0923(2) by knowingly failing to disclose material facts related to the
18 representation, including:
19

20
21

22
23

a. The existence of a concurrent conflct of interest and its effect on common

representation;
b. Their divided loyalty and compromised professional

judgment in light of

the

conflcts of interest; and

c. Their unwilingness to competently and diligently represent Michelle.

24 171. Defendants, and each of them, have violated the Nevada Deceptive Trade

25 Practices Act, NRS 598.0923(3) by knowingly violating myriad regulations relating to the sale of

26 their legal services, including:

27 / / /
Page 18 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 22 of 24

1

Nevada

a. Failng to competently and diligently represent Michelle in violation of

Rules of Professional Conduct ("NRPC") 1.1 and 1.3;

2
3

b. Failing to promptly inform Michelle of, and to consult with Michelle

regarding, their litigation and trial strategy;

4
5

c. Failing to exercise independent professional judgment and to provide candid

advice in violation ofNRPC 2.1; and

6

d. Engaging in professional misconduct by violating the Nevada Rules of

7

Professional Conduct in violation of NRPC 8.4(a).

8

the violations ofNRS

9 172. Chesnoff & Schonfeld is responsible for each of

10 598.0915(15), NRS 598.0923(2), and NRS 598.0923(3) committed by Chesnoff and/or

~
Q~::=
~ ~g¡&l

1 1 Schonfeld.

Z -e--0?
.~tiO~

~ "'z'" 12
~~~

.:. 0~ß

~ ~~~
d~~æ
..&:i-

173.

Defendants each had a statutory duty to refrain from knowingly committing

13 deceptive trade practices in the course of

ÇQ

14

174.

their businesses.

As a direct and proximate result of the foregoing deceptive trade practices,

15 Michelle has suffered damages in excess of$75,000.00, according to proof.
legal counsel to prosecute this claim,

16 175. Michelle was forced to retain the services of

17 and is entitled to attorneys' fees and costs related to this action as permitted by law, including

18 under NRS 41.600(3)(c).
19

20

Cause of Action No.4: DECLARATORY JUDGMENT
(AGAINST ALL DEFENDANTS)

21 176. Michelle realleges and incorporates by reference the averments contained in all
22 previous paragraphs, inclusive, as though fully set forth herein.

23 177. Defendants have asserted a lien in the amount of $62,970.37 on the settlement
24 Michelle received in the underlying case and maintain a present right to collect.

25 178. Michelle disputes Defendants' entitlement to any fees due to Defendants' breach
26 of

their respective duties and obligations owed to Michelle.

27 179. The paries' disagreement presents an actual justiciable controversy.
Page 19 of2l

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 23 of 24

1 180. Michelle requests a declaratory judgment regarding Defendants' right to payment

Defendants' lien.

2 for legal services and the enforceabilty of

3

Cause of Action No.5: DISGORGEMENT OF FEES

(AGAINST CHESNOFF & SCHONFELD)

4

5 181 . Michelle realleges and incorporates by reference the averments contained in all

6 previous paragraphs, inclusive, as though fully set forth herein.
7 182. On or about December 21, 2014, $62,970.37 was distributed to Chesnoff &

her state cour action against Jones, in full satisfaction

8 Schonfeld from Michelle's settlement of

9 ofChesnoff & Schonfeld's attorney's lien.
183. The lien was for attorney's fees and costs incurred by Chesnoff & Schonfeld as a

10

~
Ei ~:£~ 11

~wo~
z'" 12
.:. ~~~
ø~ß
~~oii

result of

Michelle in the state court action against Jones.

its representation of

..'" ,
~ ~¡¡gg

~I)~i§ 13
i-..oo:i
l-ooo(ø.

-i~..

ÇQ

184. Because Chesnoff & Schonfeld breached its fiduciary duties to Michelle, and

engaged in professional negligence and deceptive trade practices, Chesnoff & Schonfeld are not

14 entitled to recover the fees and costs incurred in representing Michelle in the state court action.
15

16

185. Michelle requests that Chesnoff & Schonfeld disgorge the costs and fees it
received in satisfaction of

the attorney's lien, and that Michelle be refunded $62,970.37.

17
18

XI. PRAYER FOR RELIEF.
186. Michelle requests that this Court issue the following relief against Defendants,

19 and each of them:

20
21

a. An award of compensatory and consequential damages in an amount in excess

of $75,000.00, to be determined at trial;

22

b. An award of exemplary and punitive damages, according to proof;

23

c. A declaratory judgment determining Defendants' right to payment for legal

24

services rendered in connection with the underlying matter, and the

25

enforceabilty of

26
27

d. A disgorgement of

Defendants' lien;

the $62,970.37 paid to Chesnoff & Schonfeld in satisfaction

of its attorney's lien;

Page 20 of21

Case 2:14-cv-01773-JAD-CWH Document 19 Filed 03/20/15 Page 24 of 24

1

e. Award of attorneys' fees and costs; and

2

f. Any other relief as the Cour determines is just and proper.

3

4
5 DATED this XX day of

XII. JURY TRIAL DEMANDED.
Plaintiff demands a trial by jury on all issues so triable.
March, 2015.

BAILEY.:. KENNEDY
6
7
8

By: /s/
Dennis L. Kennedy
Sarah E. Harmon
Kelly B. Stout

9

8984 Spanish Ridge Avenue
Las Vegas, Nevada 89148

10

~

Attorneys for Plaintif Michelle McKenna

ß ~~~ 11
..'" ,
~ ~¡¡gg
",0'"
~ ~~;a 12

.:. §~~c
~ z"'''
""~~i§ 13

d~U':i

-o~jp.

ÇQ

14
15

16
17
18
19

20
21

22
23

24
25

26
27

Page 21 of21