United States District Court, D. Nevada
SIERRA DEVELOPMENT CO. Plaintiff,
CHARTWELL ADVISORY GROUP, LTD. Defendant. CHARTWELL ADVISORY GROUP, LTD. Counterclaimant,
SIERRA DEVELOPMENT CO., et al., Counterdefendants.
ORDER GRANTING COUNTERCLAIMANT CHARTWELL ADVISORY
GROUP, LTD'S, MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST
COUNTERCLAIM DEFENDANTS GOLDEN NUGGET, INC., GNLV CORP.,
GOLDEN NUGGET HOTELS AND CASINOS, AND PIONEER HOTEL, INC.
[DKT. # 527]
ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.
before the Court is Counterclaimant Chartwell Advisory Group,
Ltd's, Motion for Partial Summary Judgment against
Counterclaim Defendants Golden Nugget, Inc., GNLV Corp.,
Golden Nugget Hotels and Casinos, and Pioneer Hotel, Inc.
asserts three counterclaims against the Golden Nugget, Inc.,
GNLV Corp., Golden Nugget Hotels and Casinos, and Pioneer
Hotel in its Third Amended Answer and
Counterclaim. As discussed in other orders of this
Court, this case concerns taxes owed to the State of Nevada
when a gaming casino or restaurant provides a meal to a
patron or an employee on a complimentary basis.
motion concerns only tax refunds and credits for
non-gaming complimentary meal use taxes
(i.e., generally speaking, use taxes paid for
complimentary meals given to the taxpayer's own employees
or complimentary meals given to the taxpayer's customers
in circumstances where the meals were not tied to amounts
actually gambled). Unlike the use tax refund requests for
gaming-related complimentary meals which were ultimately
withdrawn as part of a settlement agreement with the State of
Nevada, these Counterclaim Defendants actually received tax
credits in amounts certain from the State of Nevada.
Hotel received a tax credit from the State of Nevada
Department of Taxation in the amount of $296, 028.
See Chartwell Mot., Ex. C(27). Brenda Canter, Rule
30(b)(6) witness for Pioneer Hotel testified that “We
did get a credit . . . [o]f the 296, 028.” See
Chartwell Mot., Ex. G, at p.139:5-7. Canter testified that
Pioneer received notice of the credit in September 2013 and
“started utilizing the credit in October.”
Id. at p. 139:9-11. Canter testified that the tax
credit has been exhausted. Id. at p. 139:14-15.
Corporation received a tax credit from the State of Nevada
Department of Taxation in the amount of $487, 705.
See Chartwell Mot., Ex. C(29). Golden Nugget
Laughlin received a tax credit from the State of Nevada
Department of Taxation in the amount of $4, 900. See
Chartwell Mot., Ex. C(30). Kenneth Kelly Roberts, Rule
30(b)(6) witness for Golden Nugget, Inc., GNLV Corp., and
Golden Nugget Hotels and Casinos, testified that, in total,
“We received $492, 605 as a tax credit.”
See Chartwell Mot., Ex. E, at p. 144:16. Roberts
testified that the tax credit was used for future sales tax
payments. “It reduced the cash we had to pay for future
sales tax, ” according to Roberts. Id. at p.
this backdrop, Chartwell moves for partial summary judgment.
The Court finds there are no genuine issues of material fact
as to the breach of contract claim for the actually-received
non-gaming complimentary meal use tax credits and grants
partial summary judgment in favor of Chartwell.
judgment is appropriate when “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);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). The evidence of the non-movant is to be
believed, and justifiable inferences are to be drawn in his
favor.” Anderson, 477 U.S. at 255 (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970)). However, the inferences that may be drawn are not
limitless. T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 632 (9th Cir.
1987). Inferences must be based on specific facts and only
“‘rational' and ‘reasonable'”
inferences may be drawn. Id.; United
Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d
1539, 1542 (9th Cir. 1989).
moving party bears the initial burden of showing there are no
genuine issues of material fact. Horphag Research Ltd. v.
Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citing
T.W. Elec. Serv., Inc., 809 F.2d at 630). The moving
party can do so by negating an essential element of the
non-moving party's case, or by showing that the
non-moving party failed to make a showing sufficient to
establish an element essential to that party's case, and
on which the party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986).
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson,
477 U.S. at 248. As a general rule, the “mere existence
of a scintilla of evidence” will be insufficient to
raise a genuine issue of material fact; there must be
evidence on which the jury could reasonably find for the
non-moving party. Id. at 252. “Summary
judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the
Federal Rules as a whole, which are designed ‘to secure
the just, speedy and inexpensive determination of every
action.'” Celotex Corp., 477 U.S. 327
(quoting Fed.R.Civ.P. 1).
CHOICE OF LAW - NEVADA STATE LAW
determine the applicable substantive law, a federal court
sitting in diversity must apply the choice-of-law rules of
the forum. Narayan v. EGL, Inc., 616 F.3d 895, 898
(9th Cir. 2010). As this Court has recently found and
discussed in other orders, although the contracts between
Chartwell and the Counterclaim defendants, Pioneer Hotel and
the Golden Nugget parties, provide that the law of
Pennsylvania is to be applied, Pennsylvania has no more than
a modest relationship to the controversy. All of the
substantial events took place in and with the State of
Nevada. Therefore, the Court finds that Nevada state law
DISCUSSION - ...