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Nevada Restaurant Services, Inc. v. City of Las Vegas

United States District Court, D. Nevada

March 31, 2017



          Gloria M. Navarro, Chief Judge United States District Court

         Pending before the Court are two Motions for Summary Judgment, one filed by Defendants City of Las Vegas (the “City”) and City Council of Las Vegas (the “City Council”) (collectively, “Defendants”) (ECF No. 27), and the other filed by Plaintiff Nevada Restaurant Service, Inc. d/b/a Dotty's (“Plaintiff”) (ECF No. 38). Both motions are fully briefed.

         I. BACKGROUND

         On March 9, 2015, Plaintiff received a temporary restricted gaming license from the City and opened Dotty's Store #110, located at 10000 West Sahara Avenue, Suite 100, Las Vegas, NV 89117. (Compl. ¶¶ 14-15, ECF No. 1). Restricted gaming licenses under Las Vegas Municipal Code § 6.40.020 allow for “not more than fifteen slot machines, incidental to the primary business at the establishment.” (Id. ¶ 9). Plaintiff's temporary restricted gaming license allowed for fifteen gaming machines. (Id. ¶ 15).

         A temporary license for such establishment becomes permanent by vote of the City Council, generally through a Consent Agenda. (Id. ¶¶ 15, 17). A permanent license for Plaintiff was placed on the April 15, 2015 Consent Agenda for the City Council. (Id. ¶ 17). Prior to the City Council meeting, the item was removed from the Consent Agenda. (Id.). The City Council revisited Plaintiff's license at several further meetings over the next few months, each time holding the permanent license in abeyance, and extending Plaintiff's temporary license. (Id. ¶¶ 21-24). During this time, from April through September of 2015, the City Council approved by Consent Agenda four other permanent restricted gaming licenses for fifteen gaming machines at establishments allegedly similar to Plaintiff. (Id. ¶ 26). Also during this time, the City Council decided to have its staff conduct a study on restricted gaming license establishments. (Id. ¶¶ 27-28, 30). On November 4, 2015, Mary McElhone (“McElhone”), Business License Section Manager for the City, presented her findings “to the [City] Council on data collected form the taverns with Restricted gaming licenses.” (Id. ¶ 29). Subsequently, on November 18, 2015, the City Council passed a motion to issue a permanent restricted gaming license to Plaintiff, but the permanent license allowed only seven gaming machines, rather than the fifteen gaming machines allowed in the temporary license and sought by Plaintiff. (See Id . ¶ 49). The permanent license was set to take effect on November 26, 2015. (Id.).

         On November 25, 2015, Plaintiff filed its Complaint in this Court, including six causes of actions: (1) Petition for Writ of Mandamus, (2) Judicial Review, (3) Equal Protection Violation, (4) Violation of 42 U.S.C. § 1983, (5) Injunctive Relief, and (6) Declaratory Relief. (See Id . ¶¶ 50-89). Plaintiff asserts that the reduction of its gaming machines from fifteen to seven was arbitrary and capricious, and that it was treated differently than other similarly situated establishments. (Id. ¶¶ 40-48).

         On the same day, Plaintiff also filed an Ex Parte Motion for Temporary Restraining Order (“TRO”) and Motion for Preliminary Injunction (ECF No. 2), to which Defendants filed a Response (ECF No. 8). Upon review, the Court found that Plaintiff failed to demonstrate irreparable harm and denied the motion without prejudice, with leave to refile by December 16, 2015. (ECF No. 10). Plaintiff timely refiled its Motion for Preliminary Injunction. (ECF No. 15). Once it was fully briefed, the Court reviewed this subsequent Motion and again determined that Plaintiff failed to demonstrate irreparable harm. (ECF No. 36).

         Defendants' instant Motion for Summary Judgment argues that their decision to reduce Plaintiff's license from fifteen to seven slot machines was a “rational response to the legitimate governmental concern over the proper use of restricted gaming licenses.” (Def. Mot. Summ. J. (“Def. MSJ”) 2:24-27, ECF No. 27). Defendants specifically assert this reduction was because “a restricted license allows gaming as an ‘incidental' use to the licensee's ‘primary business, '” but in Plaintiff's “actual business model, gaming is its primary business, and its operation as a tavern is merely incidental.” (Id. 2:21-24). Additionally, Defendants contend that “[t]he Record makes plain that City Defendants' decision to approve Plaintiffs restricted gaming license for seven slot machines is supported by substantial evidence.” (Id. 3:4-6).

         In Plaintiff's instant Motion for Summary Judge, it argues that the “undisputed facts indicate that . . . the City's actions were arbitrary and capricious as a matter of law.” (Pl. Mot. Summ. J. (“Pl. MSJ”) 14:19-21, ECF No. 38). Further, Plaintiff contends that “Defendants violated the Constitution's guarantee of equal protection by explicitly and repeatedly applying the law differently to [Plaintiff] than to similarly situation [sic] applicants for restricted gaming licenses.” (Id. 19:15-16).


         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.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). Then, “the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” Id. 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. 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, 477 U.S. at 249. 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 ...

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