Herrera v. American Casino & Entertainment Properties, LLC et al

Filing 16

ORDER Granting 15 Stipulation. IT IS HEREBY ORDERED that THIS ACTION IS STAYED pending a ruling on subject-matter jurisdiction in Cabral et al. v. Caesars Entertainment Corporation et al., Case No. 2:17-cv-02841-APG-VCF, and all deadlines are suspended. Signed by Judge Jennifer A. Dorsey on 5/29/2018. (Copies have been distributed pursuant to the NEF - ADR)

Case 2:18-cv-00218-JAD-PAL Document 15 Filed 05/25/18 Page 1 of 6

1 Don Springmeyer, NSB No. 1021
Bradley Schrager, NSB No. 10217
2 WOLF, RIFKIN, SHAPIRO,
SCHULMAN & RABKIN, LLP
3 3556 E. Russell Road, 2nd Floor
Las Vegas, Nevada 89120-2234
4 Tel: [phone]
Fax: [phone]
5 [e-mail]
[e-mail]
6
Patrick Madden (Admitted pro hac vice)
7 BERGER & MONTAGUE, P.C.
1622 Locust Street
8 Philadelphia, Pennsylvania 19103
Tel: [phone]
9 Fax: [phone]
[e-mail]
10 Attorneys for Plaintiff and the Proposed Class

Stuart McCluer (Admitted pro hac vice)
MCCULLEY MCCLUER PLLC
1022 Carolina Blvd., Ste. 300
Charleston, SC 29451
Tel: [phone]
Fax: [phone]
[e-mail]

11

UNITED STATES DISTRICT COURT

12

DISTRICT OF NEVADA

13 ROBERT HERRERA, an individual; on
behalf of himself and all others similarly
14 situated,

Case No.: 2:18-cv-0218-JAD-PAL

15
16

Plaintiff,

STIPULATION AND ORDER TO STAY
PROCEEDINGS AND EXTEND
DEADLINE FOR DEFENDANT TO
RESPOND TO THE COMPLAINT

17 v.
(FIRST REQUEST)
18 AMERICAN CASINO &
ENTERTAINMENT PROPERTIES, LLC, a
19 Delaware Limited Liability Company; Nevada
ECF No. 15
STRATOSPHERE GAMING, LLC, a
Limited Liability Company dba Stratosphere
20 Casino, Hotel & Tower; GOLDEN
21 ENTERTAINMENT (NV) , INC. a Minnesota
Corporation; and, GOLDEN CASINOS
22 NEVADA, LLC, a Delaware LimitedLiability Company
23

Defendants.

24
25

On February 6, 2018, Robert Herrera(“Plaintiff”), on behalf of himself and the proposed

26 Class, filed the instant case against American Casino & Entertainment Properties, LLC, a
27 Delaware Limited Liability Company; Stratosphere Gaming, LLC, a Nevada Limited Liability
28 Company dba Stratosphere Casino, Hotel & Tower; Golden Entertainment (NV) , Inc., a

Case 2:18-cv-00218-JAD-PAL Document 15 Filed 05/25/18 Page 2 of 6

1 Minnesota Corporation and; Golden Casinos Nevada, LLC, a Delaware Limited-Liability
2 Company (collectively “Stratosphere”). Plaintiff and Stratosphere, by and through their respective
3 counsel of record, stipulate to: (1) stay this case pending a ruling on subject matter jurisdiction in
4 Cabral et al. v. Caesars Entertainment Corporation et al., Case No. 2:17-cv-02841-APG-VCF
5 (the “Caesars Case”), another similar case filed by the same Plaintiff’s counsel; and (2) extend the
6 current deadlines for Stratosphere to respond to Plaintiff’s Complaint (ECF No. 1) until after the
7 Court makes a determination of subject matter jurisdiction in the Caesars Case.
8 I.

Background

9

On February 6, 2018, Plaintiff filed the instant case against Stratosphere, alleging that

10 Stratosphere improperly applied Clark County, Nevada’s Combined Transient Lodging Tax to
11 charges for internet access. Relatedly, counsel for Plaintiff has filed some fourteen additional
12 lawsuits (the “Related Lawsuits” and, together with the instant action, the “Resort Fee Lawsuits”)
13 in this District Court that assert similar claims and requests for relief against other resort/hotel
14 defendants:
15



16
17

2:17-cv-02841-APG-VCF (filed on November 10, 2017);


18
19



Martinez et al. v. Las Vegas Sands Corp. et al., Case No. 2:17-cv02859-APG-NJK (filed on November 14, 2017);



22
23

Phelps et al. v. MGM Resorts International et al., Case No. 2:17-cv02848-APG-CWH (filed on November 13, 2017);

20
21

Cabral et al. v. Caesars Entertainment Corporation et al., Case No.

Schnitzer et al. v. Wynn Resorts, Ltd. et al., Case No. 2:17-cv-02868RFB-GWF (filed on November 15, 2017);



Bowes, et al., v. Nevada Property 1 LLC, dba Cosmopolitan of Las

24

Vegas, Case No. 2:17-cv-02913-GMN-VCF (filed on November 20,

25

2017);

26



27
28

Chapman v. Penn National Gaming, Inc. et al., Case No. 2:17-cv02924-GMN-PAL (filed on November 21, 2017);



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

2

Case 2:18-cv-00218-JAD-PAL Document 15 Filed 05/25/18 Page 3 of 6

1

(filed on November 22, 2017);


2
3

Inman v. Las Vegas Resort Holdings, LLC, Case No. 2:17-cv-02950JAD-NJK (filed on November 28, 2017);



4
5

Robinson v. Westgate Resorts, Inc., Case No.: 2:19-cv-0095-JAD-CWH
(filed on January 17, 2018)



6
7

Falcone v. Gaughan South LLC, Case No. 2:18-cv-0234-GMN-GWF
(filed on February 8, 2018)



8
9

Hernandez, et al., v. FP Holdings, LP, et al., Case No. 2:18-cv-00321RFB-PAL (filed on February 21, 2018);



10
11

Mason, et al., v. HRHH Hotel/Casino, LLC, Case No. 2:18-cv-0036RFB-CWH (filed on February 28, 2018);



12
13

Hanson v. Plaza Hotel & Casino, LLC, Case No. 2:18-cv-00378-APGNJK (filed on March 1, 2018); and,



14
15

Webster, et al., v. GNLV Corp., et al., Case No. 2:18-cv-00576-KJDPAL (filed on March 29, 2018).

16 II.

The Requested Stay and Deadline Extensions Will Conserve Resources for the Parties

17

and the Court

18

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

19 matter jurisdiction, the parties to a group of the Resort Fee Lawsuits have entered into a separate
20 agreement (the “Agreement”), attached hereto as Exhibit 1, to efficiently determine subject matter
21 jurisdiction by filing a single motion to dismiss on the issue (the “Subject Matter Jurisdiction
22 Motion”) in the first-filed case, i.e., the Caesars Case. Under the Agreement, the signatory parties
23 presently before Judge Gordon have agreed to consolidate their respective cases for the sole and
24 limited purpose of allowing Judge Gordon to determine the issue of subject matter jurisdiction in
25 one consolidated order. On February 22, 2018, Judge Gordon granted the parties’ request and
26 consolidated various Resort Fee Lawsuits before him.1
27
28

1

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

3

Case 2:18-cv-00218-JAD-PAL Document 15 Filed 05/25/18 Page 4 of 6

1

Additionally, the parties in the remaining cases, including now Stratosphere, have

2 collectively agreed to seek a stay of their respective cases pending a decision on the Subject
3 Matter Jurisdiction Motion in the Caesars Case. While not binding on this Court, such a decision
4 may nevertheless provide guidance, increase judicial efficiency, and decrease costs to both the
5 Court and the parties. In fact, the parties have agreed to take certain actions in this litigation (as
6 set forth more fully below) that are contingent on the outcome of the Subject Matter Jurisdiction
7 Motion in the Caesars Case.
8

Thus, pursuant to the Agreement, Plaintiff and Stratosphere, by and through their

9 undersigned counsel, stipulate that:
10

1.

11

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

12

2.

If Judge Gordon finds the Court lacks subject matter jurisdiction and grants the

13

Subject Matter Jurisdiction Motion, then either Plaintiff will move the Court to

14

voluntarily dismiss the instant case without prejudice, or Plaintiff’s counsel (who

15

also are counsel in the Caesars Case) will appeal from Judge Gordon’s order. If

16

Plaintiff’s counsel decides to appeal, then Plaintiff will request a continuation of

17

the stay in this case, pending a resolution of the appeal. If, after appeal, the

18

applicable court determines that there is no federal jurisdiction, then Plaintiff will

19

move the Court to voluntarily dismiss this case without prejudice.

20

3.

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

21

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

22

Jurisdiction Motion in this case.2

23

4.

Stratosphere’s current deadline to respond to Plaintiff’s Complaint (ECF No. 1) is

24

May 25, 2018. Stratosphere Gaming, LLC’s deadline to respond to Plaintiff’s

25

Complaint (ECF No. 1) is May 29, 2018. If Judge Gordon finds he has subject

26

matter jurisdiction and denies the Subject Matter Jurisdiction Motion, then

27

2

As noted above, the parties recognize that this Court is not bound by Judge Gordon’s ruling. Nothing in this

28 stipulation shall limit any party’s ability to respond to subject matter jurisdiction issues raised by this Court.

4

Case 2:18-cv-00218-JAD-PAL Document 15 Filed 05/25/18 Page 5 of 6

1

Stratosphere’s deadline to respond to the Complaint shall be extended to 30 days

2

from the date that the court in the Caesars Case enters a final order on the Subject

3

Matter Jurisdiction Motion.

4

These stipulations between Plaintiff and Stratosphere will permit the efficient determination

5 of a common legal issue that exists in multiple, related lawsuits, and conserve judicial and party
6 resources. Notably, a stipulation requesting similar relief was recently granted by the Court in the
7 related lawsuit of Bowes et al. v. Nevada Property I LLC, case no. 2:17-cv-02913-GMN-VCF (ECF
8 No. 22).
9

Pursuant to the Agreement, filing of the Subject Matter Jurisdiction Motion does not

10 constitute a waiver of any defense or argument and shall not preclude Stratosphere from asserting
11 any additional defenses or arguments at a later date, including, without limitation, any defenses or
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Case 2:18-cv-00218-JAD-PAL Document 15 Filed 05/25/18 Page 6 of 6

1 motions permitted by Federal Rule of Civil Procedure 12(b). These stipulations are made in good
2 faith and not for purposes of delay.
3 Dated: May 25, 2018
4 /s/ Don Springmeyer
Don Springmeyer
5 Bradley Schrager
WOLF, RIFKIN, SHAPIRO,
6 SCHULMAN & RABKIN, LLP
3556 E. Russell Road, 2nd Floor
7 Las Vegas, Nevada 89120-2234
Tel: [phone]
8 Fax: [phone]
[e-mail]
9 [e-mail]

/s/ Robert A. Ryan
Robert A. Ryan
PISANELLI BICE PLLC
400 South 7th Street, Suite 300
Las Vegas, Nevada 89101
Telephone: [phone]
Fax: [phone]
[e-mail]
Counsel for Defendants

10 Patrick Madden
BERGER & MONTAGUE, P.C.
11 1622 Locust Street
Philadelphia, Pennsylvania 19103
12 Tel: [phone]
Fax: [phone]
13 [e-mail]
14 Stuart H. McCluer
MCCULLEY MCCLUER PLLC
15 1022 Carolina Blvd., Ste. 300
Charleston, SC 29451
16 Tel: [phone]
Fax: [phone]
17 [e-mail]
Counsel for Plaintiff and the Proposed
18 Class
ORDER
19
20

Based on the parties' stipulation [ECF No. 15] and good cause appearing, IT IS HEREBY
21 ORDERED that ORDERED.
IT IS SO THIS ACTION IS STAYED pending a ruling on subject-matter jurisdiction in
Cabral et al. v. Caesars Entertainment Corporation et al., Case No. 2:17-cv-02841-APG-VCF,
22 DATE: deadlines are suspended. Once the subject-matter-jurisdiction ruling has been made, either
and all
party may move to lift this stay.
23
_________________________________
24
U.S.UNITEDJudge Jennifer A. Dorsey
District STATES DISTRICT COURT JUDGE OR
Dated: May 29, 2018
25
MAGISTRATE JUDGE
26
27
28

6