JENNIFER A. DORSEY, District Judge.
Caesars Palace hotel guests Carlos Manuel Sierra and Laura Lebrija were awakened abruptly by hotel staff who let themselves into their room on the purported belief that the couple had allowed the Jacuzzi tub in their room to overflow, causing water damage to the floors below. Sierra and Lebrija deny even using tub, claim that they sustained injuries in their unceremonious rousing, and sue Caesars and its housekeeping manager Jesus Montano on various tort and contract theories. Defendants move for summary judgment in the hotel's favor on all tort claims, and in Montano's favor on the punitive damages allegations, based on a "complete lack of evidence." Doc. 53 at 4. I find that the defendants have not met their summary-judgment burden on plaintiffs' emotional distress claims; even if they had, genuine issues of material fact preclude the entry of summary judgment on these claims. I conclude that plaintiffs have failed to identify evidence to support a negligence claim against Caesars, and I grant summary judgment on that claim. I strike the punitive damages prayer on the breach-of-contract claim but decline summary adjudication of the punitive damages allegations on any remaining claim. And I find that genuine issues of fact prevent summary judgment on plaintiffs' intrusion claim.
On June 4, 2011, plaintiffs Sierra and Lebrija were staying in the Caesars Palace Hotel in Las Vegas, Nevada. Doc. 50 at 3. They allege that while they slept, "without prior notice, knocking or invitation," several Caesars employees—including housekeeping manager defendant Jesus Montano and two other Caesars employees—entered plaintiffs' hotel room, opened the curtains, stood at the foot of their bed, shouted at them, called them criminals, and threatened to have them arrested, jailed, and evicted for allegedly leaving the water on in the Jacuzzi tub in their room overnight. Id. at 3-4; Docs. 65-3; 65-4; 65-6 at 10. A call to the plaintiffs' casino host caused the alleged intruders to leave, but Montano later returned unnanounced with another Caesars employee who "threatened to evict the Plaintiffs from their hotel room and insulted them profusely." Doc. 50 at 3-4.
In deposition testimony, plaintiffs deny even using the Jacuzzi tub, see, e.g.,Docs. 65-3 at 10; 65-4 at 1; 65-6 at 10, and they allege that in addition to the anxiety, shock, and humiliation of being ambushed in their hotel bedroom by employees who falsely accused them of damage to hotel property, Sierra injured his arm, and they both suffered "among other things, emotional distress, post traumatic stress disorder, dermatitis caused by stress, mental anguish, inability to sleep, irritabilty, anxiety, psychological injuries, and physical illnesses including bronchitis." Doc. 50 at 6. Plaintiffs plead claims for negligent and intentional infliction of emotional distress, breach of contract, negligence, and intrusion. See id. at 3-12. They pray for special, compensatory, general, and punitive damages, attorney's fees, and costs. Id. at 12-13.
Defendants move for partial summary judgment on all tort claims and the punitivedamages allegations against Caesars and on the punitive damages allegations against Montano, arguing that plaintiffs lack the evidence necessary to support these claims and allegations. Id. Plaintiffs oppose the motion, responding that defendants' brief is too undeveloped to shift the burden to plaintiffs and, at the very least, the depositions of plaintiffs and key defense witnesses show that disputed issues of material fact remain. Doc. 65. I find this motion suitable for disposition without oral argument.
"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought."
Parties moving for summary judgment must satisfy Rule 56 of the Federal Rules of Civil Procedure. Subsection (c)(1) of that rule states, "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."
"If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial."
Defendants submit a "statement of facts material to this motion," as they are obligated to do under Nevada Local Rule 56-1. Doc. 53 at 4-5. They assert that their motion is based on a "complete lack of evidence to support essential elements of Plaintiffs' claims," but they do not cite any evidence to support this contention. See id. Later in the argument section of their brief, they reference deposition excerpts from four witnesses as support for the proposition that plaintiffs' evidence falls short of proving their invasion claim. Doc. 53 at 11. With respect to their request for summary judgment on the punitive damages allegations against Montano, defendants' statement of facts represents, "the facts in that regard are set forth in that section of these Points and Authorities." Id. at 5. But the punitive-damages argument cites no evidence whatsoever—just allegations from the complaint. Id. at 17-18. From those allegations, defendants baldly argue, "Plaintiffs' evidence against Montano, even if accepted as absolutely true, does not establish fraud, malice, or oppression." Id. at 18-19 (emphasis added).
The Ninth Circuit cautions that parties who do not provide pinpoint citations to evidence supporting assertions made in a statement of disputed or undisputed facts risk exclusion of that evidence because the court is not required to "paw over files without the assistance from the parties" in order to evaluate their contentions.
Plaintiffs characterize defendants' factual statement and the motion it supports as little more than "an attempt . . . to require the Plaintiffs to produce evidence supporting their claims simply by saying that the Plaintiffs have no evidence" without demonstrating the absence of a material fact. Doc. 65 at 11. Although I could deny the motion based on this procedural deficiency alone, in the interest of justice—and while cautioning counsel that future failures to comply with this district's local rules may not be so easily excused—I consider the motion on its merits.
To prove an intentional infliction of emotional distress, plaintiffs must demonstrate "(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiffs having suffered severe or extreme emotional distress and (3) actual or proximate causation."
Doc. 53 at 6. It appears that counsel's intention was to complete the first sentence to make it no longer a sentence fragment and to insert "CITES" to the record, but the placeholder nature of this incomplete argument was overlooked during final edit. The net result is that defendants have failed to carry their burden to present to the court with evidentiary support for their argument that summary judgment on plaintiffs' IIED claim is warranted.
Even if defendants had made their intended edits before filing the motion, summary judgment would remain inappropriate due to the unsettled record on the IIED facts. The deposition excerpts provided by both parties show there is a dispute over what Caesars employees said or threatened in the hotel room, and whether a factfinder would consider this conduct to be extreme or outrageous. These factual issues prevent the court from summarily adjudicating the IIED claim.
The same is true with respect to plaintiffs' negligent infliction of emotional distress claim. Defendants argue that the "same" lack of "extreme or outrageous conduct or intent to cause severe emotional distress" prevents plaintiffs from proving their NIED claim. Doc. 53 at 7-8. But neither "extreme or outrageous conduct" nor "intent to cause severe emotional distress" is an element of an NIED claim.
Defendants argue that insufficient evidence exists to establish plaintiffs' claim for intrusion upon their seclusion. Doc. 53 at 10. Citing to depositions from several Caesars employees, defendants claim that "there is no evidence that anyone from Caesars entered Plaintiffs' room for anything other than the performance of their duties related to the overflowed tub." Doc. 53 at 11.
"To recover for the tort of intrusion, a plaintiff must prove the following elements: 1) an intentional intrusion (physical or otherwise); 2) on the solitude or seclusion of another; 3) that would be highly offensive to a reasonable person."
"The question of what kinds of conduct will be regarded as a `highly offensive' intrusion is largely a matter of social conventions and expectations."
Whether the entry of Caesars employees into plaintiffs' hotel room—even if made in search of a water leak—was reasonable is not a question I can answer as a matter of law. Morse testified that Caesars employees knocked on plaintiffs' door prior to entry, but she admits that in a subsequently completed incident report, there is no mention of having knocked on the door beforehand. Doc. 68-2 at 5-6. More importantly, the manner of the employees' conduct once inside plaintiffs' room is still subject to debate. Montano testified that care was taken to wake up plaintiffs, who were in a deep sleep, after which Sierra "jumped off the bed" and aggressively confronted the employees in the room; he called security only after Sierra began cursing at him. Doc. 68-1 at 5-10. Sierra, on the other hand, testified, "I opened my eyes and I saw three individuals that I had no idea who they were. They could have been . . . thieves for what I knew. Screaming, yelling, saying that we are going to go to jail, that we had . . . been sued, that we had damages many floors of the building for having left the Jacuzzi on the entire night." Doc. 65-3 at 9. Similarly, Lebrija testified that after Caesars employees woke her up, they told her they would be suing the couple for water damage, and that plaintiffs would be taken to jail. Doc. 65-5 at 10.
The manner of the intrusion into plaintiffs' hotel room—material to resolution of whether the hotel room entry was "highly offensive"—is plainly an issue over which reasonable fact-finders could disagree. Because a genuine issue of material fact remains, defendants' motion for summary judgment on this claim must be denied.
Defendants make a compelling summary-judgment argument on plaintiffs' negligence claim, however: they contend that the law imposes no duty that is implicated by the allegations in this case and, even if there is such a duty, there is no evidence of a breach. Doc. 53 at 8-9. They claim that plaintiffs have essentially turned the obligation to avoid intentional and negligent infliction of emotional distress into duties for purposes of this negligence claim. Plaintiffs respond by noting that Nevada recognizes a "special relationship between a property owner and an invitee" to exercise "ordinary care" and "protect[] the invitee against assaults from third parties." Doc. 65-1 at 6.
Plaintiffs are half right. "In an innkeeper negligence action, a plaintiff must establish the four basic elements of negligence:`(1) duty, (2) breach, (3) proximate causation, and (4) damages."
Plaintiffs have not merely failed to establish that the conduct in their hotel room that morning was foreseeable, they ignore the requirement altogether. They don't even mention foreseeability, let alone offer evidence (or even allegations) to support the notion that Caesars reasonably foresaw the conduct that precipitated this case. See Doc. 65-1 at 5-7. Because plaintiffs have not identified evidence in the record suggesting foreseeability, Caesars is entitled to summary judgment on plaintiffs' negligence claim against the hotel.
Plaintiffs pray for punitive damages in connection with each of their claims. See Doc. 50. Defendants seek summary judgment on the punitive damages "claim,"
Paragraph 33 of plaintiffs' third amended complaint alleges that defendants' breach of contract "was in such wanton and total disregard of the obligations they owed to the Plaintiffs and constituted such a gross, reckless, oppressive, fraudulent, willful, malicious and/or outrageous disregard for the consequences of their actions and/or omissions . . . to justify an assessment of exemplary and punitive damages. . . ." Doc. 50 at 8. In Nevada, punitive damages are available only for torts involving oppression, fraud, or malice.
Caesars notes that its liability for plaintiffs' claims is premised on the acts of its employees. Punitive damages against a corporate entity that acts in an employment capacity are governed by NRS 42.007(1), which provides that in:
Caesars contends that plaintiffs have not alleged that any officer, director, or managing agent ratified the employees' conduct. Doc. 53 at 14. They focus on the plaintiffs' failure to plead such facts and offer the off-hand, conclusory comment, "[i]n any event, Plaintiffs have no such evidence." Id. at 15. In response, plaintiffs come forth with evidence that demonstrates the existence of genuine issues of material fact as to Caesars' punitivedamages liability under NRS 42.007(1).
Plaintiffs first argue that the evidence demonstrates that Caesars ratified its employees' conduct, rendering the company liable for punitive damages under NRS 42.007(1)(b). They point to testimony that demonstrates that Montano and Sanders both reported the hotel room altercation to Caesars President Gary Selesner, who did not order an investigation, even though he did overrule Sanders's recommendation that plaintiffs be evicted from the hotel. Docs. 65-2 at 4-5; 65-8 at 8-9; 65-10 at 7-8. Plaintiffs also note that the evidence indicates that Maya Lukic, Caesars Guest Services Manager and "managing agent" for Caesars, was informed of the events, promised to conduct an investigation, but failed to follow through. Doc. 65-2 at 6 (citing deposition testimony). This evidence reveals disputed issues that prevent summary adjudication of the remaining punitivedamages allegations including whether an investigation into the incident was ever performed, or whether, if performed, Caesars management ratified it by failing to discipline the employees in question. Caesars Guest Services Manager Dustin Sanders testified that he was unaware of any investigation, although he admitted that President Selesner was informed of Sanders's request to evict plaintiffs from the hotel, and Selesner denied that request. Doc. 65-8 at 6-9. Montano also testified that President Selesner received notification of the incident. Doc. 65-10 at 7-8. However, neither deponent testified that President Selesner—with full knowledge of these events—took any disciplinary action against the employees who entered plaintiffs' room. Defendants do not seriously deny that Selesner's role as President gave him ratification authority on behalf of Caesars. When these facts are construed in the light most favorable to plaintiffs, it can be inferred that Selesner, on behalf of Caesars, ratified his employees' actions. Defendants respond to the pinpoint citations to this evidence by simply referring the court back to their motion—a poor tactic in the face of record citations to deposition testimony. Genuine issues of material fact preclude summary judgment on these remaining punitive-damages allegations.
Even assuming that no Caesars management figure ratified the conduct giving rise to this suit, it is an open question whether Montano or Sanders themselves acted in a managerial capacity such that Caesars's liability under NRS 42.007(1)(c) can be inferred. Defendants argue that Montano's deposition indicates that he was a low-level employee who simply responded to complaints of an overflowing tub and did not act in a managerial capacity. Doc. 53 at 17. Similarly, they argue that the testimony of Sanders, a guest services director, undermines any conclusion that he is a managing agent under Nevada law. Id. In response, plaintiffs argue that Montano and Sanders were "Managing Agents" for Caesars such that the company acted directly through them. Doc. 65-2 at 7.
As the Nevada Supreme Court expressed in Countrywide Home Loans, Inc. v. Thichener, "Although NRS 42.007 fails to define a managing agent, [the Court has] previously . . . recognized that determining an individual's managerial capacity depends on `what the individual is authorized to do by the principal and whether the agent has the discretion as to what is done and how it is done.'"
Finally, defendants contend that the evidence is insufficient to assess punitive damages against Montano because the "evidence," even if accepted as true, is wholly selfserving and cannot constitute the basis for determining a disputed issue of material fact. Doc. 53 at 17-18. Defendants are content to claim that "Plaintiffs' version of events has varied during discovery, but can be summarized by reference to their Third Amended Complaint." Doc. 53 at 17.
Whatever this "evidence" may be, defendants have failed to cite to any admissible portion of it, and the complaint is simply not competent summary judgment evidence. Even if I were to presume that defendants mean to gesture to the deposition transcripts, these transcripts reveal a material conflict in the evidence that is properly resolved by the trier of fact: whether Montano acted with the intent to injure the plaintiffs or engaged in "despicable conduct . . . with a conscious disregard of the rights or safety of others."
Summary judgment is granted on plaintiffs' negligence claim against Caesars; plaintiffs' prayer for punitive damages in connection with their breach-of-contract claim is stricken; and the motion is denied in all other respects.
