United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
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.
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).
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,
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.
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).
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.
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.”
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
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).
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.
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 ...