Chapman v. Penn National Gaming, Inc. et al

Filing 18

ORDER Granting 17 Stipulation to Stay Case and Extend Deadlines re 1 Complaint. The 5 Motion to Consolidate is Denied as moot and the parties' 16 Stipulation is Denied as moot. Signed by Chief Judge Gloria M. Navarro on 3/9/2018. (Copies have been distributed pursuant to the NEF - SLD) Modified to edit text entry on 3/9/2018 (SLD).

Case 2:17-cv-02924-GMN-PAL Document 17 Filed 03/07/18 Page 1 of 5

1 Joel E. Tasca
Nevada Bar No. 14124
2 Lindsay Demaree
Nevada Bar No. 11949
3 Russell J. Burke
Nevada Bar No. 12710
4 BALLARD SPAHR LLP
1980 Festival Plaza Drive, Suite 900
5 Las Vegas, Nevada 89135
Telephone: [phone]
6 Facsimile: 702.471.7070
[e-mail]
7 [e-mail]
[e-mail]
8

Attorneys for Defendants

9 Penn National Gaming, Inc., Tropicana Las

Vegas Hotel and Casino, Inc., and Tropicana

10 Las Vegas, Inc.

Las Vegas, Nevada 89135

702.471.7000 FAX [phone]

BALLARD SPAHR LLP

UNITED STATES DISTRICT COURT

12
1980 Festival Plaza Drive, Suite 900

11

DISTRICT OF NEVADA

13 DUSTIN CHAPMAN, an individual, on
behalf of himself and all others similarly
14 situated,
Plaintiffs,

15
16 v.

17 PENN NATIONAL GAMING, INC., a
Pennsylvania corporation; TROPICANA
18 LAS VEGAS HOTEL AND CASINO,
INC.; a Delaware corporation;
19 TROPICANA LAS VEGAS, INC., a
Nevada domestic corporation d/b/a
20 Tropicana Las Vegas,
21
22
23
24
25
26
27
28

CASE NO. 2:17-cv-2924-GMN-PAL
STIPULATION AND ORDER TO:
(1) STAY THIS CASE PENDING A
DETERMINATION OF SUBJECT
MATTER JURISDICTION
-and(2) EXTEND DEADLINES FOR
DEFENDANTS TO RESPOND TO
PLAINTIFF’S COMPLAINT [ECF NO. 1]
AND MOTION TO CONSOLIDATE [ECF
NO. 5] (Second Request)

Defendants.
Pursuant to LR IA 6-1 and 6-2, Plaintiff Dustin Chapman (“Plaintiff”) and
Defendants Penn National Gaming, Inc., Tropicana Las Vegas Hotel and Casino,
Inc., and Tropicana Las Vegas, Inc. (together “Tropicana”), by and through their
respective counsel of record, stipulate to (1) stay this case pending a ruling on subject
matter jurisdiction in Cabal et al. v. Caesars Entertainment Corporation et al., Case
No. 2:17-cv-02841-APG-VCF (the “Caesars Case”), another case filed by the same

DMWEST #17506038 v4

Case 2:17-cv-02924-GMN-PAL Document 17 Filed 03/07/18 Page 2 of 5

1 plaintiff’s counsel, and (2) extend the current deadlines for Tropicana to respond to
2 Plaintiff’s Complaint (ECF No. 1) and Motion to Consolidate (ECF No. 5, filed
3 November 30, 2017) until after the Court makes a threshold determination of subject
4 matter jurisdiction in the Caesars Case.
5 I.

Background

6

On November 21, 2017, Plaintiff filed the instant case against Tropicana,

7 alleging that Tropicana improperly applied Clark County, Nevada’s Combined
8 Transient Lodging Tax to charges for internet access. Relatedly, counsel for Plaintiff
9 has filed at least nine additional lawsuits (the “Related Lawsuits” and, together with
10 the instant action, the “Resort Fee Lawsuits”) in this District Court that assert
11 similar claims and requests for relief against other resort defendants:

Las Vegas, Nevada 89135

702.471.7000 FAX [phone]

BALLARD SPAHR LLP

1980 Festival Plaza Drive, Suite 900

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

•

Cabal et al. v. Caesars Entertainment Corporation et al., Case No. 2:17-

•

Phelps et al. v. MGM Resorts Int’l et al., Case No. 2:17-cv-02848-APG-

•

Martinez et al. v. Las Vegas Sands Corp. et al., Case No. 2:17-cv-02859-

•

Schnitzer et al. v. Wynn Resorts, Ltd. et al., Case No. 2:17-cv-02868-

•
•
•

cv-02841-APG-VCF (filed on November 10, 2017);
CWH (filed on November 13, 2017);

APG-NJK (filed on November 14, 2017);

RFB-GWF (filed on November 15, 2017);

Bowes et al. v. Nevada Property 1 LLC, Case No. 2:17-cv-02913-GMN-

VCF (filed on November 20, 2017);

Shapiro v. Treasure Island, LLC et al., Case No. 2:17-cv-02930-APG-

CWH (filed on November 22, 2017);

Inman v. Las Vegas Resort Holdings, LLC, Case No. 2:17-cv-02950-JAD-

NJK (filed on November 28, 2017);

•

DiNino v. Four Seasons Hotels Inc., Case No. 2:17-cv-2961-JAD-GWF

•

Robinson v. Westgate Resorts Inc., Case No. 2:18-cv-95 (before Judge
Dorsey) (filed on January 17, 2018).

(filed on November 29, 2017); and

Each of the Resort Fee Lawsuits filed by counsel for Plaintiff, including the

27 instant case, contains similar allegations and requests for relief. Thus, each case will
28
DMWEST #17506038 v4

2

Case 2:17-cv-02924-GMN-PAL Document 17 Filed 03/07/18 Page 3 of 5

1 likely involve a similar determination of whether the adjudicating court has subject
2 matter jurisdiction over the action.
3 II.

The Requested Stay and Deadline Extensions Will Conserve Resources for the

4

Parties and the Court

5

To avoid duplicative legal briefing and to efficiently address the common issue

6 of subject matter jurisdiction, the parties to the Resort Fee Lawsuits have entered
7 into a separate agreement (the “Agreement”), attached hereto as Exhibit 1, to
8 efficiently determine subject matter by filing a single motion to dismiss on the issue
9 (the “Subject Matter Jurisdiction Motion”) in the first-filed case, i.e., Cabal et al. v.
10 Caesars Entertainment Corporation et al., Case No. 2:17-cv-02841-APG-VCF (the
11 “Caesars Case”). Under the Agreement, the signatory parties presently before Judge

Las Vegas, Nevada 89135

702.471.7000 FAX [phone]

BALLARD SPAHR LLP

1980 Festival Plaza Drive, Suite 900

12 Gordon have agreed to consolidate their respective cases for the sole and limited
13 purpose of allowing Judge Gordon determine the issue of subject matter jurisdiction
14 in one consolidated order. On February 22, 2018, Judge Gordon granted the parties’
15 request and consolidated various Resort Fee Lawsuits before him. 1
Additionally, the parties in the remaining cases, including Tropicana, have

16

17 collectively agreed to seek a stay of their respective cases pending a decision on the
18 Subject Matter Jurisdiction Motion in the Caesars Case. While not binding on this
19 Court, such a decision may nevertheless provide guidance, increase judicial
20 efficiency, and decrease costs to both the Court and the parties. In fact, the parties
21 have agreed to take certain actions in this litigation (as set forth more fully below)
22 that are contingent on the outcome of the Subject Matter Jurisdiction Motion in the
23 Caesars Case.
Thus, pursuant to the Agreement, Plaintiff and Tropicana, by and through

24

25 their undersigned counsel, stipulate that:
26
27
28

1

See Order Granting Stipulations (ECF No. 21), Case No. 2:17-cv-02841-APG-VCF.

DMWEST #17506038 v4

3

Case 2:17-cv-02924-GMN-PAL Document 17 Filed 03/07/18 Page 4 of 5

1.

1

All matters in the instant case shall be stayed pending a determination
of the Subject Matter Jurisdiction Motion in the Caesars Case.

2
2.

3

If Judge Gordon grants the Subject Matter Jurisdiction Motion, then

4

Plaintiff will either move this Court for a voluntary dismissal without

5

prejudice of the action or request a continued stay of the instant case

6

pending resolution of any appeal of Judge Gordon’s ruling.
3.

7

If Judge Gordon finds he has subject matter jurisdiction and denies the

8

Subject Matter Jurisdiction Motion, then Tropicana will not re-file the

9

Subject Matter Jurisdiction Motion in this case. 2
4.

10

Tropicana’s current deadline to respond to Plaintiff’s complaint (ECF

Las Vegas, Nevada 89135

702.471.7000 FAX [phone]

BALLARD SPAHR LLP

No. 1) and Motion to Consolidate Cases (ECF No. 5) is March 16, 2018.

12
1980 Festival Plaza Drive, Suite 900

11

If Judge Gordon finds he has subject matter jurisdiction and denies the

13

Subject Matter Jurisdiction Motion, then Tropicana’s deadline to

14

respond to the complaint and pending motion shall be extended to 30

15

days from the date that the court in the Caesars Case enters a final

16

order on the Subject Matter Jurisdiction Motion.
These stipulations between Plaintiffs and Tropicana will permit the efficient

17

18 determination of a common legal issue that exists in multiple, related lawsuits and
19 conserve judicial and party resources. For example, in the event Plaintiff voluntarily
20 dismisses this case, the parties and the Court may avoid needlessly expending
21 resources to brief and determine the pending motion to consolidate. Notably, a
22 stipulation requesting similar relief was recently granted by the Court in the Related
23 Lawsuit of Bowes et al. v. Nevada Property I LLC, case no. 2:17-cv-02913-GMN-VCF
24 (ECF No. 22).
25
26
As noted above, the parties recognize that this Court is not bound by Judge
Gordon’s ruling. Nothing in this stipulation shall limit any party’s ability to respond
28 to subject matter issues raised by this Court.
27

2

DMWEST #17506038 v4

4

Case 2:17-cv-02924-GMN-PAL Document 17 Filed 03/07/18 Page 5 of 5

1

Pursuant to the Agreement, filing of the Subject Matter Jurisdiction Motion

2 does not constitute a waiver of any defense or argument and shall not preclude
3 Tropicana from asserting any additional defenses or arguments at a later date,
4 including, without limitation, any defenses or motions permitted by Federal Rule of
5 Civil Procedure 12(b). These stipulations are made in good faith and not for purposes
6 of delay.
7

Dated this 7th day of March, 2018.

8 BALLARD SPAHR LLP

WOLF, RIFKIN, SHAPIRO, SCHULMAN &
RABKIN LLP

Las Vegas, Nevada 89135

702.471.7000 FAX [phone]

BALLARD SPAHR LLP

1980 Festival Plaza Drive, Suite 900

9

By: /s/ Don Springmeyer

10 By: /s/ Lindsay Demaree
Joel E. Tasca
11 Nevada Bar No. 14124
Lindsay Demaree
12 Nevada Bar No. 11949
Russell J. Burke
13 Nevada Bar No. 12710
1980 Festival Plaza Drive, Suite 900
14 Las Vegas, Nevada 89135

Don Springmeyer
Nevada Bar No. 1021
Bradley Schrager
Nevada Bar No. 10217
3556 E. Russell Road, Second Floor
Las Vegas, NV 89120-2234
Frank B. Ulmer
McCulley McCluer PLLC
1022 Carolina Blvd., Suite 300
Charleston, SC 29451

15 Attorneys for Defendants Penn National

Gaming, Inc., Tropicana Las Vegas Hotel

16 and Casino, Inc. and Tropicana Las
17

Joshua Taylor Ripley
Berger & Montague PC
1622 Locust Street
Philadelphia, PA 19103

Vegas, Inc.

18

Attorneys for Plaintiff Dustin Chapman

19
20
21
22
23
24

ORDER
In light of the above stipulation, IT IS HEREBY ORDERED that the Motion to Consolidate,
(ECF No. 5), is DENIED without prejudice as moot. The Court grants the parties leave to refile
the consolidation motion within thirty (30) days of Judge Gordon resolving the Subject Matter
Jurisdiction question in the related case. The Court further notes that it remains under a
continuing duty to independently evaluate subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(h)(3). IT IS FURTHER ORDERED that, in light of the above stipulation, the
parties' Stipulation, (ECF No. 16), is DENIED as moot.

25
26
27

9
DATED this____day of March, 2018.

28
DMWEST #17506038 v4

________________________________________
Gloria M. Navarro, Chief Judge
UNITED STATES DISTRICT COURT
5