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LLC v. Shushok & McCoy, Inc.

United States District Court, D. Nevada

March 2, 2015

WMCV PHASE 3, LLC, Plaintiff,
SHUSHOK & MCCOY, INC.; et al., Defendants.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is the Motion for Summary Judgment, (ECF No. 292), filed by Plaintiff WMCV Phase 3, LLC ("WMCV"). Pro se Defendant Richard Birdwell filed a Response in opposition, (ECF No. 299)[1], to which WMCV replied, (ECF No. 304).

Also before the Court is WMCV's Motion for Default Judgment against Defendants Shushok & McCoy, Inc. ("Shushok") and Matt Turner. (ECF No. 291). To date, no response to this Motion has been filed. For the reasons stated herein, the Court will grant the Motion for Summary Judgment in part, and will grant the Motion for Default Judgment in full.


This case has a long procedural history in this Court, but for the purposes of this Order the Court will address only the details and allegations relevant to the instant Motions. This case arises out of the failure of two commercial tenants to pay rent and the subsequent wrongful acts committed by a collection agency and its employees. The aforementioned commercial tenants were Global Accents, Inc. ("Global Accents"), and Couture International, Inc. ("Couture"). The collection agency is Defendant Shushok, who employed Defendants Richard Birdwell and Matt Turner at all times relevant to this case.

WMCV owns a parcel of real property that is commonly known as the World Market Center Las Vegas. ( E.g., Order 3:17-20, ECF No. 209). Global Accents and Couture are former tenants of the World Market Center that were evicted for non-payment of rent in December 2008. ( Id. at 4:1-7). At the time of their evictions, Global Accents owed $360, 831.00 and Couture owed $695, 500.32 pursuant to their respective lease agreements. ( Id. ).

WMCV hired Defendant Shushok in 2007 as a commercial collection agent to recover debts from tenants in default. ( Id. at 4:8-9). However, this relationship ended in June 2009 when WMCV instructed Shushok to cease collection activities against its tenants, including Global Accents and Couture. ( Id. at 4:11-12). At no point during their relationship did WMCV authorize Shushok to enter into agreements with tenants on WMCV's behalf. ( Id. at 4:10-11).

In July 2009, Defendant Birdwell allegedly represented himself as "counsel" for "World Market Center Las Vegas" and negotiated an agreement with Couture that purported to release Couture from its liability to WMCV in exchange for $20, 000, which was paid directly to Shushok. ( Id. at 4:13-19).

Similarly, in August 2009, Defendant Turner allegedly represented himself as the "director" of "World Market Center Las Vegas." ( Id. at 4:20-21). Following negotiations that were conducted by Defendant Birdwell, Defendant Turner entered into an agreement with Global Accents that purported to release Global Accents from its liability to WMCV in exchange for $8, 200, which was paid directly to Defendant Shushok. ( Id. at 4:21-24); (Birdwell Deposition 78:6-25, Ex. 7 to Mot. for Summ. J., ECF No. 292-1).

WMCV received no part of the proceeds that were paid in exchange for the release of Global Accents' and Couture's obligations under their respective lease agreements. ( Id. at 5:2-3).

This case originally involved claims of breach of contract, breach of the covenant of good faith and fair dealing, and unjust enrichment asserted by WMCV against Global Accents and Couture. Through these claims, WMCV sought to recover the full amounts due under the lease agreements. Prior to trial, WMCV settled its claims against Couture. The terms of this settlement provided that Couture would pay WMCV $150, 000 in exchange for the dismissal of WMCV's claims. (Settlement Agmt. at pp. 2-3, ECF No. 292-2). As for WMCV's claims against Global Accents, following a two-day bench trial that took place on June 11 and 12, 2013, the Court found that Defendant Shushok and its employees had apparent authority to execute the agreements and release Global Accents from its debt to WMCV. As a result of this finding, the Court entered a judgment in favor of Global Accents as to all of WMCV's claims. (ECF No. 210).

Based on the allegation that Defendants Birdwell and Turner executed agreements with Global Accents and Couture despite knowing that they lacked the requisite authority, WMCV has asserted claims for (1) civil conspiracy; (2) conversion; and (3) intentional interference with contractual relations. In its Motion for Summary Judgment, WMCV argues that Defendant Birdwell has failed to raise a genuine issue of material fact as to each of the claims against him. In its Motion for Default Judgment, WMCV requests that judgment be entered against Defendants Shushok and Turner. However, the Court has already ordered that default judgment be entered against Defendant Shushok, (Order, ECF No. 82), and therefore the Court will consider this Motion only as it relates to Defendant Turner. The Court will first address the Motion for Summary Judgment, and will then discuss the Motion for Default Judgment.


A. Legal Standard

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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 (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).

In contrast, 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 (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 (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. P. 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 ...

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