JENNIFER A. DORSEY, District Judge.
In this legal-malpractice action, Michelle McKenna sues attorneys David Chesnoff, Richard Schonfeld, and their law firm Chesnoff & Schonfeld for how they handled her 2010 personal-injury action in Nevada state court.
McKenna alleges that she was working as a VIP cocktail waitress at the Pure nightclub inside Caesars Palace in Las Vegas, Nevada, on January 4, 2009, when she was attacked by club patron Patrick Jones, the son of then-Senior Vice President of Communications and Government Relations for Caesars Entertainment, Jan Jones Blackhurst, leaving her with traumatic brain and other injuries.
Chesnoff & Schonfeld were replaced by Cohen & Padda in July 2013.
The state court granted the motions to dismiss, holding that McKenna's claims against Caesars and Pure were untimely and did not relate back to the filing of her original complaint, and also that her claims against Pure were barred by the Nevada Industrial Insurance Act ("NIIA").
When Chesnoff & Schonfeld moved to enforce their attorneys' lien against McKenna in the state action,
Defendants move for summary judgment on the conflict-of-interest issue, McKenna's theory that Chesnoff & Schonfeld did not adequately pursue Jones, and her deceptive-trade-practices, declaratory-relief, and disgorgement claims.
The parties' briefing raised my suspicion that this court may not have subject-matter jurisdiction over this diversity case. McKenna alleged in her amended complaint that she "is a resident of a state other than Nevada," but in her affidavit in support of her opposition, she attested that she is "a resident of Clark County, Nevada."
I consider each of these matters in turn.
McKenna's assertion that she resides in Nevada caused me to question whether she was a Nevada citizen—and thus not diverse from the defendants—when she filed this diversity-based lawsuit. A natural person's state of citizenship is "determined by her state of domicile, not her state of residence. A person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return."
McKenna submits records that show that, when this action was filed in October 2014, she had moved to Arizona with the intention of making it her permanent home and that she only later moved back to Nevada. These records reflect that, when this lawsuit was filed, McKenna had leased a home in Arizona, carried an Arizona driver's license and vehicle registration, and had a job at a restaurant there, and she filed her 2014 state and federal income taxes as an Arizona resident.
I find that McKenna has satisfied her obligations under my order to show cause. I also grant McKenna's request to seal exhibits 3, 5, and 10-14 to her response. Because these exhibits contain confidential medical, financial, and personal-identifying information, the public's interest in access to these documents is outweighed by McKenna's right to privacy in this personal information.
I cannot reach the same conclusion about the defendants' summary-judgment briefing, however. The Ninth Circuit explained in Kamakana v. City & County of Honolulu that, unless a particular court record is one "traditionally kept secret," there is a "strong presumption in favor of access" to the record.
Defendants ask me to seal their summary-judgment motion. And they filed their reply brief under seal without an accompanying motion.
In an abundance of caution, and because it is possible that defendants may have some very limited information in these filings that may be subject to sealing, I will leave the motion, reply, and their attached exhibits under seal until
I now evaluate defendants' summary-judgment motion, referencing in this order only the portions of defendants' briefs and exhibits that I do not find convidential.
Summary judgment is appropriate when the pleadings and admissible evidence "show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
If the moving party satisfies FRCP 56 by demonstrating the absence of any genuine issue of material fact, the burden shifts to the party resisting summary judgment to "set forth specific facts showing that there is a genuine issue for as to the material facts"; she "must produce specific evidence, through affidavits or admissible discovery material, to show that" there is a sufficient evidentiary basis on which a reasonable fact finder could find in her favor.
The court may only consider properly authenticated, admissible evidence in deciding a motion for summary judgment.
Rule 56(d) provides "a device for litigants to avoid summary judgment when they have not had sufficient time to develop affirmative evidence."
McKenna argues that she needs additional discovery to fully respond to defendants' arguments because the parties have not yet disclosed expert witnesses, she has not received defendants' responses to her recently served written discovery, and she intends to depose third parties and obtain evidence relating to the liability of Jones, Caesars, and Pure in her underlying personal-injury action.
Defendants argue that the state court's ruling that Pure was immune from McKenna's claims by application of the NIIA makes any conflict of interest as to Pure irrelevant and prevents McKenna from litigating the viability of her claims against Pure during this malpractice action.
Citing to Lee v. City of Los Angeles, McKenna first argues that, although I may take judicial notice of the existence of the state court's order dismissing her claims against Pure, I may not take judicial notice of its contents.
McKenna overreads Lee. The Lee decision stands for the narrow proposition that a trial court may not take judicial notice of disputed facts stated in public records when ruling on a 12(b)(6) motion, without converting the motion to one for summary judgment.
McKenna does not deny that the state court granted the motion to dismiss her claims against Pure and Caesars. Nor does she deny the basis for that ruling—she just disagrees with it. Therefore, I can, and do, take judicial notice of the contents of the state court's dismissal order to ascertain whether it precludes McKenna from arguing that she had claims against Pure that were not barred by the NIIA.
Issue preclusion "bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim."
Here, the parties dispute only the fourth prong: whether the issue of the NIIA bar was "actually and necessarily litigated" in state court.
The state court's order dismissing McKenna's belated claims against Caesars and Pure was based on two fatal defects: (1) these claims were time-barred and (2) they were also barred by the NIIA as to Pure. Because either of these bases standing alone was sufficient to support the dismissal of the claims against Pure, the NIIA issue was not necessary to the dismissal. Thus, the state-court decision does not prevent McKenna from litigating in this case whether her potential claims against Pure were barred by the NIIA.
Defendants next argue that they are entitled to summary judgment on McKenna's theory that they committed legal malpractice by not competently prosecuting her claims against Jones because Cohen & Padda were the last attorneys left holding the bag. Because Cohen & Padda took over the case with adequate time to conduct or supplement any needed discovery, defendants contend that any deficiencies in the preparation of McKenna's case were proximately caused by Cohen & Padda, not by them.
But the evidence on this fault assessment is nowhere close to settled. It is undisputed that certain events occurred after Cohen & Padda took over the case: McKenna's claims against Pure and Caesars were dismissed; Jones moved to exclude the life-care-plan expert that Cohen & Padda retained and late-produced documents; and McKenna settled with Jones while his motion in limine was still pending. But the timing of these events is not necessarily indicative of who or what caused them to occur. Although Cohen & Padda produced some of McKenna's documents after the disclosure deadline,
On this record, and without weighing evidence and assessing credibility, I cannot conclude that the defendants are fault-free and that they committed no acts or omissions during their four-plus years on this case that proximately left McKenna with no choice but to settle with Jones for what she now contends is a drastic discount. Nor does the record support the singular conclusion that Cohen & Padda's representation was a superseding cause that absolves the defendants of any liability.
Nevada's Deceptive Trade Practices Act makes it a "deceptive trade practice" to commit any of the Act's enumerated offenses while in the course of a business or occupation. Section 598.0915(15) makes it a deceptive trade practice to knowingly make any false representation in a transaction, while § 598.0923(2) makes it a deceptive trade practice to fail to disclose a material fact in connection with the sale or lease of goods or services, and § 598.0923(3) makes it a deceptive trade practice to violate state or federal laws or regulations relating to the sale of goods or services.
Defendants argue that they are entitled to summary judgment on McKenna's deceptive-trade-practices claim because it is improperly based on violations of the Nevada Rules of Professional Conduct and non-existent and irrelevant conflicts of interest.
McKenna then maintains that her claims under NRS §§ 598.0915(15) and 598.0923(2) are valid,
Finally, defendants move for summary judgment on McKenna's claims for declaratory relief and disgorgement of fees, arguing that she cannot re-litigate the enforceability of defendants' attorneys' lien and that her "claim" for disgorgement is a remedy and not a true cause of action.
As alleged, and as clarified in her response to the summary-judgment motion, McKenna's declaratory-relief claim simply seeks the remedy of disgorgement based on her underlying malpractice claim and it, too, is more properly characterized as a remedy and not a true declaratory-relief claim. I therefore dismiss McKenna's "claims" for declaratory relief and disgorgement without prejudice to her ability to seek these remedies should she ultimately prevail on one of her causes of action that may justify these remedies.
Accordingly, with good cause appearing and no reason for delay, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:
McKenna's
Defendants'
As to defendants' exhibits, I decline to consider the e-mails at ECF No. 31-1 at 40-45 because they are not properly authenticated through defendants' attached affidavits or otherwise; the remaining exhibits at ECF No. 31-1 are properly authenticated and I consider them. I also take judicial notice of the state-court documents at ECF No. 31-2 at 1-27, 58-67 and ECF No. 31-3 at 2-24, 33-35. FED. R. EVID. 201. Finally, I decline to consider the fee agreement at ECF No. 31-3 at 26-28, the letter at ECF No. 31-3 at 30, and McKenna's deposition at ECF No. 31-3 at 37-42 because they are not properly authenticated.
In their reply brief, defendants argue that I should disregard McKenna's allegedly uncorroborated and self-serving affidavit. ECF No. 49 at 3-8. I do not find that the inconsistencies identified by defendants warrant disregarding McKenna's affidavit; these objections go to the weight to be given her statements by the trier of fact, not to their admissibility.
