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Vitale & Associates, LLC v. Lowden

United States District Court, D. Nevada

August 14, 2014

Vitale & Associates, LLC, Plaintiff,
Sue Lowden, et al., Defendants.

Order re: Summary Judgment Proceedings [Docs. 54, 92, 95]

JENNIFER A. DORSEY, District Judge.

This breach-of-contract action stems from Sue Lowden's unsuccessful 2010 bid to win the Republican nomination for U.S. Senate. Vitale & Associates, a Colorado consulting firm, claims that it contracted with Lowden personally to perform polling and research work for the campaign, or in the alternative that Lowden personally guaranteed her campaign's debts. See Doc. 12 at 2-3.[1] Vitale's amended complaint also seeks a declaration that the Campaign Committee was never organized as an unincorporated nonprofit organization under NRS 81.700 et seq., and thus is not entitled to the protections of that statute. Id. at 3-4. Vitale requests a second declaratory judgment that, because the Campaign Committee was underfunded and under Lowden's complete control, it served as her alter ego and cannot shield Lowden from personal liability for the debts it incurred. Id. at 4-5.

Lowden has moved for summary judgment on all claims, arguing that she never promised Vitale that she would pay the Campaign's debts. Vitale has experienced significant difficulties in filing its response to Lowden's motion, which the Court's attempt to preserve a ruling on the merits by permitting Vitale to re-file the response did not cure. Exercising its inherent authority to manage the course of litigation, the Court denies the motion for summary judgment without prejudice and with leave to refile and specific instructions regarding future briefing.


The summary judgment filings are, quite simply, a hot mess. Lowden originally moved for summary judgment on February 26, 2014. On March 6, 2014, Vitale moved for an extension of time to respond to the motion, claiming that he had a March 18, 2014, oral argument in another court. Doc. 58. The Court granted this request the next day, permitting Vitale until March 28, 2014, to file its response. Doc. 60. Vitale filed its response on March 28, 2014, Doc. 62, and Lowden filed a reply on April 14, 2014. Doc. 68. Also on that day, Lowden filed evidentiary objections to several of the documents Vitale submitted along with its response, including an affidavit of Robert Uithoven, which played a central evidentiary role in Vitale's response but which was technically defective as filed. See Doc. 67 at 1-2. On April 28, 2014, without leave of Court, Vitale filed a second "response" to the motion for summary judgment. Doc. 70. On the same day, Vitale sought leave to tender a substitute for Uithoven. Doc. 71.

On June 4, 2014, the Court adopted Magistrate Judge Ferenbach's report and recommendation disqualifying Vitale's prior counsel, John Head, from practicing pro hac vice, because Head had failed to disclose a number of ethical complaints filed against him in Colorado. Docs. 47, 86.[2] On June 16, 2014, over vigorous objection, the Court granted Vitale's limited request to tender Uithoven's supplemental affidavit. Doc. 87. In its order, the Court remarked that it "had already given Vitale an extension of time to prepare [an opposition to the motion to summary judgment], and tactics like these-when accommodations have already been made-are particularly disfavored." Id. at 2. The Court then specified that:

1. Vitale shall re-file its response to Lowden's Motion for Summary Judgment, substituting the new Uithoven affidavit for the previous one, by June 20, 2014. No other changes to the opposition are authorized;
2. Lowden will then have 14 days to file a reply to Vitale's response.
The reply shall include and incorporate into its arguments any objections to Vitale's evidentiary support; no separate objection document shall be filed.
3. No further briefing on the summary judgment issues will be permitted. When deciding the motion for summary judgment, the Court will consider only the motion, Vitale's (forthcoming) response, and Lowden's (forthcoming) reply. Lowden's objections (Doc. 67) and Vitale's response to them (Doc. 70) will be disregarded.

Id. On June 18, 2014, twelve days after the Court had disqualified Vitale's counsel from further participation in the case, Vitale's new counsel filed a petition to appear pro hac vice. Doc. 88. Then, on June 20, 2014, Vitale filed a third response to the motion for summary judgment. Doc. 89. The heading caption contained the names and addresses of three attorneys: Cynthia Callendar (Vitale's local counsel), the now-disqualified Head (introduced as "pro hac vice"), and Corey T. Zurbach (introduced as "pro hac vice admission pending."). Doc. 89. The response was signed by Zurbach. Id. at 14. There were no attachments to the filing.

On July 1, 2014, the Court granted Zurbach's petition to appear pro hac vice. Doc. 90. On July 7, 2014, Lowden filed a reply to Vitale's response, which pointed out, inter alia, that Vitale had failed to comply with the court's order by attaching its exhibits to the response. Doc. 91.

On July 15, 2014, Vitale moved to supplement its summary judgment response. Doc. 92.[3] In this filing, Zurbach represented to the court that he had been retained "just before" the summary judgment response was due, and had unsuccessfully attempted to obtain a stipulation for an extension of the response to the motion for summary judgment. Doc. 92 at 2. Zurbach also represented to the Court that the response to the motion for summary judgment "was filed by local counsel" at his direction, and that Zurbach "mistakenly believed that the exhibits had already been filed and therefore did not direct them to be refiled, " and that "[t]his mistake did not become known until [he] reviewed Defendant's reply." Id. Zurbach claims that the Defendants will suffer "no prejudice" by permitting the filing of the new exhibits, because "Defendant has been in possession of the brief and exhibits since the Response was previously filed on March 27, 2014." Doc. 92 at 3.

Lowden opposed Vitale's motion for leave, pointing out that several of the exhibits in the new filing have been altered, and that whole exhibits-such as the Affidavit of Todd Vitale, or certain emails from Head to opposing counsel-had been either excluded or added to Vitale's new response filing. See Doc. 93 at 3. In the reply, Zurbach dismisses Lowden's arguments as technicalities, representing that "the only differences to the exhibits submitted with the Motion for Leave and those submitted with original motions is that the new exhibits do not have the Vitale & Associates stamps which are a result of the software used to copy or print the ...

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