Falcone, Ph.D. v. Gaughan South LLC

Filing 14

ORDER Granting 12 First Stipulation to Stay Case and Extend Deadline to Respond to the Complaint. Signed by Chief Judge Gloria M. Navarro on 5/22/2018. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:18-cv-00234-GMN-GWF Document 12 Filed 05/14/18 Page 1 of 5

1 Don Springmeyer, NSB No. 1021
Stuart McCluer (Admitted pro hac vice)
Bradley Schrager, NSB No. 10217
MCCULLEY MCCLUER PLLC
2 WOLF, RIFKIN, SHAPIRO,
1022 Carolina Blvd., Ste. 300
Charleston, SC 29451
SCHULMAN & RABKIN, LLP
3 3556 E. Russell Road, 2nd Floor
Tel: [phone]
Las Vegas, Nevada 89120-2234
Fax: [phone]
4 Tel: [phone]
[e-mail]
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
11
UNITED STATES DISTRICT COURT
12
DISTRICT OF NEVADA
13
L. FALCONE, Ph.D., an
14 PATRICIAon behalf of herself and all others
individual;
Case No.: 2:18-cv-0234-GMN-GWF
15 similarly situated,
STIPULATION AND ORDER TO STAY
Plaintiff,
PROCEEDINGS AND EXTEND
16
DEADLINE FOR DEFENDANT TO
RESPOND TO THE COMPLAINT
17 v.
GAUGHAN SOUTH LLC, a Nevada limited
(FIRST REQUEST)
18 liability company dba South Point Hotel,
Casino & Spa,
19
Defendant.
20
21

On February 8, 2018, Patricia L. Falcone, Ph.D (“Plaintiff”), on behalf of herself and the

22 proposed Class, filed the instant case against Gaughan South LLC, a Nevada limited liability
23 company dba South Point Hotel, Casino & Spa (“South Point”). Plaintiff and South Point, by and
24 through their respective counsel of record, stipulate to: (1) stay this case pending a ruling on
25 subject matter jurisdiction in Cabral et al. v. Caesars Entertainment Corporation et al., Case No.
26 2:17-cv-02841-APG-VCF (the “Caesars Case”), another similar case filed by the same Plaintiff’s
27 counsel; and (2) extend the current deadlines for South Point to respond to Plaintiff’s Complaint
28 (ECF No. 1) until after the Court makes a determination of subject matter jurisdiction in the
3363652v1/014500

Case 2:18-cv-00234-GMN-GWF Document 12 Filed 05/14/18 Page 2 of 5

1 Caesars Case.
2 I.

Background

3

On February 8, 2018, Plaintiff filed the instant case against South Point, alleging that

4 South Point improperly applied Clark County, Nevada’s Combined Transient Lodging Tax to
5 charges for internet access. Relatedly, counsel for Plaintiff has filed some fourteen additional
6 lawsuits (the “Related Lawsuits” and, together with the instant action, the “Resort Fee Lawsuits”)
7 in this District Court that assert similar claims and requests for relief against other resort/hotel
8 defendants:
9



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

10
11



12
13



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



16
17

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

14
15

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

18

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

19

2017);

20



02924-GMN-PAL (filed on November 21, 2017);

21
22



23
24



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



27
28

Shapiro v. Treasure Island, LLC, Case No. 2:17-cv-02930-APG-CWH
(filed on November 22, 2017);

25
26

Chapman v. Penn National Gaming, Inc. et al., Case No. 2:17-cv-

Herrera v. American Casino & Entertainment Properties, LLC, et al.,
Case No. 2:18-cv-00218-JAD-PAL (filed on February 5, 2018);



Robinson v. Westgate Resorts, Inc., Case No.: 2:19-cv-0095-JAD-CWH

2

Case 2:18-cv-00234-GMN-GWF Document 12 Filed 05/14/18 Page 3 of 5

1

(filed on January 17, 2018)


2
3

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



4
5

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



6
7

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



8
9

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

10 II.

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

11

and the Court

12

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

13 matter jurisdiction, the parties to a group of the Resort Fee Lawsuits have entered into a separate
14 agreement (the “Agreement”), attached hereto as Exhibit 1, to efficiently determine subject matter
15 jurisdiction by filing a single motion to dismiss on the issue (the “Subject Matter Jurisdiction
16 Motion”) in the first-filed case, i.e., Cabral et al. v. Caesars Entertainment Corporation et al.,
17 Case No. 2:17-cv-02841-APG-VCF (the “Caesars Case”). Under the Agreement, the signatory
18 parties presently before Judge Gordon have agreed to consolidate their respective cases for the
19 sole and limited purpose of allowing Judge Gordon to determine the issue of subject matter
20 jurisdiction in one consolidated order. On February 22, 2018, Judge Gordon granted the parties’
21 request and consolidated various Resort Fee Lawsuits before him.1
22

Additionally, the parties in the remaining cases, including now South Point, have

23 collectively agreed to seek a stay of their respective cases pending a decision on the Subject
24 Matter Jurisdiction Motion in the Caesars Case. While not binding on this Court, such a decision
25 may nevertheless provide guidance, increase judicial efficiency, and decrease costs to both the
26 Court and the parties. In fact, the parties have agreed to take certain actions in this litigation (as
27
28

1

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

3

Case 2:18-cv-00234-GMN-GWF Document 12 Filed 05/14/18 Page 4 of 5

1 set forth more fully below) that are contingent on the outcome of the Subject Matter Jurisdiction
2 Motion in the Caesars Case.
3

Thus, pursuant to the Agreement, Plaintiff and South Point, by and through their

4 undersigned counsel, stipulate that:
5

1.

6

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

7

2.

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

8

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

9

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

10

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

11

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

12

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

13

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

14

move the Court to voluntarily dismiss this case without prejudice.

15

3.

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

16

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

17

Jurisdiction Motion in this case.2

18

4.

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

19

May 18, 2018. If Judge Gordon finds he has subject matter jurisdiction and denies

20

the Subject Matter Jurisdiction Motion, then South Point’s deadline to respond to

21

the Complaint shall be extended to 30 days from the date that the court in the

22

Caesars Case enters a final order on the Subject Matter Jurisdiction Motion.

23

These stipulations between Plaintiff and South Point will permit the efficient determination

24 of a common legal issue that exists in multiple, related lawsuits, and conserve judicial and party
25 resources. Notably, a stipulation requesting similar relief was recently granted by the Court in the
26 related lawsuit of Bowes et al. v. Nevada Property I LLC, case no. 2:17-cv-02913-GMN-VCF (ECF
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-00234-GMN-GWF Document 12 Filed 05/14/18 Page 5 of 5

1 No. 22).
2

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

3 constitute a waiver of any defense or argument and shall not preclude South Point from asserting
4 any additional defenses or arguments at a later date, including, without limitation, any defenses or
5 motions permitted by Federal Rule of Civil Procedure 12(b). These stipulations are made in good
6 faith and not for purposes of delay.
7 Dated: May 14, 2018
8 /s/ Don Springmeyer
Don Springmeyer
9 Bradley Schrager
WOLF, RIFKIN, SHAPIRO,
10 SCHULMAN & RABKIN, LLP
3556 E. Russell Road, 2nd Floor
11 Las Vegas, Nevada 89120-2234
Tel: [phone]
12 Fax: [phone]
[e-mail]
13 [e-mail]

/s/ Kevin Diamond
Kevin Diamond, Esq.
Thorndal Armstrong Delk Balkenbush &
Eisinger
1100 E. Bridger Avenue
Las Vegas, NV 89125
Ph:[phone]/Fax: [phone]
[e-mail]

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

ORDER

23
24

IT IS SO ORDERED.

25
26
27

22
DATED this_____day of May, 2018.
Gloria M. Navarro, Chief Judge
UNITED STATES DISTRICT COURT

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5