Lee v. Enterprise Leasing Company-West, LLC

Filing 45

ORDERED that Ps' # 33 Motion for Partial Summary Judgment is DENIED without prejudice, and that Ds' # 41 Rule 56(d) Request for Discovery is GRANTED. Signed by Judge Larry R. Hicks on 9/10/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LYDIA LEE and CAROLYN BISSONETTE,
individually and on behalf of others similarly
situated,

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Plaintiffs,

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v.

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ENTERPRISE LEASING COMPANYWEST, a Delaware LLC; and VANGUARD
CAR RENTAL USA, LLC, a Delaware LLC,

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Defendants.

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3:10-CV-00326-LRH-WGC
ORDER

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Before the court are Plaintiffs’ Motion for Partial Summary Judgment (#33) and

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Defendants’ Opposition and Request for Order Allowing Discovery (#37/#41). Plaintiffs also filed

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a reply and opposition to the discovery request (#42), and Defendants filed a reply in support of the

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discovery request (#43).

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Plaintiffs move for partial summary judgment solely on the question of liability as to Count

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1 of the Second Amended Complaint (#11), in which they allege that Defendants violated NRS

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§ 482.31575 by quoting and charging airport concession recovery fees as unbundled surcharges on

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top of the base rate advertised and quoted to rental car customers at Nevada airports. In support,

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Plaintiffs cite this court’s order granting summary judgment in favor of the plaintiffs on this same

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issue in Sobel v. Hertz Corporation, 698 F. Supp. 2d 1218, 1228-29 (D. Nev. Mar. 17, 2010) (No.

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3:06-cv-545-LRH-RAM, #111, p. 19); and they submit documentary evidence to establish that

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Plaintiffs were charged unbundled airport concession recovery fees by these Defendants in

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conjunction with car rentals in Las Vegas.

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Defendants oppose the motion on the merits but alternatively request that the motion be

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held in abeyance or denied without prejudice under Fed. R. Civ. P. 56(d) to permit the taking of

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discovery on matters relevant to the motion. Such matters include, but are not limited to, the

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particular rental car transactions upon which Plaintiffs’ motion is based. As Defendants point out,

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no discovery has been taken in this case. Pursuant to the parties’ stipulation, as confirmed by the

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Magistrate Judge (#15), the Rule 26(f) conference was deferred until the resolution of Defendants’

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subsequently-filed Motion to Dismiss (#21)1 . And following the filing of Plaintiffs’ instant motion

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for partial summary judgment, Plaintiffs have apparently refused Defendants’ requests to continue

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this motion pending limited discovery.

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However strong the Plaintiffs’ case may be under this court’s decision in Sobel, and

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notwithstanding the fact that the instant motion is technically permissible at this early stage, the

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court finds that Rule 56(d) relief is warranted given the absence in this case of even basic discovery

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on matters fundamental to Plaintiffs’ claims and their motion, including Plaintiffs’ own rental car

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transactions. See Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes, 323 F.3d 767,

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773-74 (9th Cir. 2003) (applying former Rule 56(f)).

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IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Partial Summary Judgment

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(#33) is DENIED without prejudice, and that Defendants’ Rule 56(d) Request for Discovery (#41)

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is GRANTED.

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IT IS SO ORDERED.

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DATED this 10th day of September, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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A corrected image of the motion to dismiss was filed on October 3, 2011, as document #27.
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