United States District Court, D. Nevada
For GNLV, Corp., Plaintiff: Lauri S. Thompson, Mark G Tratos, LEAD ATTORNEYS, Laraine M I Burrell, Greenberg Traurig, LLP, Las Vegas, NV.
For T. Warren Enterprises, Inc., formerly known as Golden Nugget Arcade, Inc., Great Vibe Entertainment, Inc., Tracie Pastore, Yabacushyanei Bennett, Defendants: Robert Joseph Behal, LEAD ATTORNEY, The Behal Law Group LLC, Columbus, OH; Thomas Martin Gonzalez, LEAD ATTORNEY, Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, FL; Vincent J. Aiello, The Law Office of Vincent J. Aiello Chtd., Las Vegas, NV.
James C. Mahan, UNITED STATES DISTRICT JUDGE.
Presently before the court is plaintiff GNLV's (hereinafter " plaintiff") motion for summary judgment against all defendants on its first, second, and third claims for relief. (Doc. # 29). Defendants T. Warren Enterprises Inc., Great Vibe Entertainment, Inc., Tracie Pastore, and Yabachushyanei Bennett, (collectively hereinafter " defendants") filed a response (doc. # 35), and plaintiff filed a reply. (Doc. # 38).
Also before the court is plaintiff's motion for summary judgment against all defendants on its seventh, eighth, eleventh, and twelfth claims for relief. (Doc. # 34). Defendants filed a response (doc. # 37), and plaintiff did not file a reply.
a. Factual background
Plaintiff GNLV is a Nevada corporation that operates the " Golden Nugget" resort hotel casinos in Las Vegas, Nevada and Laughlin, Nevada. Since the Golden Nugget opened in 1946, plaintiff, and its predecessors-in-interest have continuously used the Golden Nugget marks in connection with their hotels, casinos, and related services. . . . Defendant T. Warren Enterprises, Inc., f/k/a Golden Nugget Arcade, Inc., is an Ohio corporation that formerly operated a casino in Canton, Ohio. Defendant Great Vibe Entertainment, Inc. is an Ohio Corporation that uses the d/b/a of " Golden Nugget" and operates the establishment at issue in this case. Defendant Tracie Pastore is the managing member and sole shareholder of Nugget Holdings, LLC, the parent company of T. Warren Enterprises. Defendant Yabachushyanei Bennett is the owner of Great Vibe Entertainment, Inc.
b. Procedural background
This case stems from a previous lawsuit in which the parties reached a settlement agreement. On or about October 22, 2012, plaintiff became aware that defendants were using the Golden Nugget mark in connection with a casino in Canton, Ohio. Defendants operated a casino-style business under the name " Golden Nugget Arcade, Inc." Defendants' establishment referred to itself as " The Golden Nugget, " used the business name of " The Golden Nugget Arcade, " and had an exterior business sign that read " Golden Nugget, You Will Love It."
Plaintiff filed with this court a complaint for damages and injunctive relief for trademark infringement, unfair competition, common law trademark infringement, deceptive trade practices, intentional interference with prospective economic advantage, and business disparagement.
This court issued a temporary restraining order on November 9, 2012, finding that defendants' continued use of the Golden Nugget mark could cause plaintiff irreparable harm. On or about December 28, 2010 plaintiff entered into a settlement agreement with defendants. Through the settlement agreement, defendants agreed to immediately and permanently cease using the Golden Nugget or similar names and marks in relation to gaming services. In exchange, and in reliance of the settlement agreement, plaintiff filed a notice of voluntary dismissal. The case was dismissed and closed on January 11, 2013.
On January 16, 2013, defendants applied for and obtained a zoning permit to operate an " internet café /skilled games business" at the same address as the original Golden Nugget casino in Canton, Ohio.
On May 20, 2013, the Internal Revenue Service (" IRS") confiscated dozens of slot-like machines from the defendants' business. (Doc. # 29-6). The Canton Repository, a Canton, Ohio newspaper, reported the raid with the headline " IRS confiscates games from Golden Nugget." Id. The article lists the location of the property as 3110 Whipple Avenue NW, Canton, Oh. The address of the defendants' gaming arcade. Id.
On May 28, 2013, plaintiff filed the instant lawsuit alleging 12 claims for relief against the defendants:
1. Trademark infringement under 15 U.S.C. § 1114
2. Unfair competition under 15 U.S.C. § 1125(a)
3. Common law trademark infringement
4. Deceptive trade practices under N.R.S. 598.0903, et seq .
5. Intentional interference with prospective economic advantage
6. Business disparagement
7. Breach of contract
8. Breach of the implied covenant of good faith and fair dealing
9. Civil conspiracy
10. Intentional interference with contractual relations
11. Negligent misrepresentation
12. Fraudulent misrepresentation
2. Legal standard
The Federal Rules of Civil Procedure provide for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that " there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is " to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In determining summary judgment, a court applies a burden-shifting analysis. " When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).
Conversely, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that " the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).
In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.
At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the nonmovant is " to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50.
Plaintiff moves for summary judgment against all defendants on its first, second, third, seventh, eighth, ...