United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
before the Court is the Motion for Summary Judgment, (ECF
Nos. 4, 8), filed by Defendant The Shops at Summerlin North,
LP (“Defendant”). Plaintiff MTO Summerlin LLC
(“Plaintiff”) filed a Response, (ECF No. 15), and
Defendant filed a Reply, (ECF Nos. 25, 27).
pending before the Court is Plaintiff's Countermotion for
Federal Rule of Civil Procedure (“Rule”) 56(d)
Discovery, (ECF No. 18). Defendant filed a Response, (ECF
Nos. 26, 28), and Plaintiff filed a Reply, (ECF No. 35).
pending before the Court are Defendant's Motion to Redact
and Seal its Motion for Summary Judgment, (ECF No. 7), and
Motion for Leave to File Redacted Reply in Support of Motion
for Summary Judgment and Redacted Response to Plaintiff's
Motion for Rule 56(d) Discovery,  (ECF No. 24).
case arises from a commercial lease dispute. (Mot. Summ. J.
(“MSJ”) 2:5, ECF No. 8). Plaintiff is a tenant
operating MTO Café in Downtown Summerlin, a commercial
development located in Las Vegas, Nevada. (Id.
2:5-6); (see Resp. 2:21-24, ECF No. 15). Defendant
owns the retail mall area of Downtown Summerlin and is
Plaintiff's landlord. (MSJ 2:6-7); (see Resp.
2:4-6). In 2014, Defendant and Plaintiff entered into a
commercial lease contract (“MTO Lease”)
containing an exclusive use provision (“Exclusive Use
Provision”), which states in pertinent part:
In the event Landlord shall lease, after the Effective Date,
space in the area of the Shopping Center bounded by the
following roads: north of Sage Park Drive, south of Summerlin
Centre Drive, west of Summa Drive and east of Pavilion Center
Drive, to an occupant other than Tenant primarily operating
as a full-service (i.e., table service, orders taken by
waitstaff and food delivered to the table) restaurant
offering primarily a breakfast menu throughout the entire day
with menus similar to tenants currently operating as Egg and
I, Broken Yolk, Hash House a Gogo, Waffle House, The
Eggworks, Bagel Café or similar establishments (the
“Permitted Merchandise”) (i) such circumstance
shall not constitute a breach or default by Landlord
hereunder; and (ii) Tenant may, after written notice to
Landlord and Landlord's failure, within sixty (60) days
after Landlord's receipt of such notice, to cause such
other occupant(s) to cease offering such Permitted
Merchandise for retail sale, reduce the then-effective
Minimum Annual Rental otherwise payable hereunder by fifty
(MTO Lease, art. VI § 6.04(a), Ex. B to MSJ, ECF No. 9);
December 2017, Makers & Finders Coffee, a restaurant
serving breakfast food and other food and beverage items,
opened in the retail mall area of Downtown Summerlin. (Resp.
4:11-5:3); (MSJ 4:18). On January 25, 2018, Plaintiff gave
notice to Defendant under the Exclusive Use Provision of the
MTO Lease, claiming that the menu of Makers & Finders
Coffee implicates the restrictions on the Permitted
Merchandise, and advised of its intent to reduce its rent by
50 percent. (Resp. 5:23-6:1). However, Defendant did not
grant the rent reduction. (See Id. 15:21-24)
April 4, 2018, Plaintiff filed its Complaint in Clark County
District Court, alleging the following claims: (1)
declaratory relief “pursuant to NRS Chapter 30, ”
Uniform Declaratory Judgment Act; (2) breach of contract; (3)
breach of the implied covenant of good faith and fair
dealing; and (4) unjust enrichment. (See Compl.
3:10-6:25, 7:9-10, ECF No. 1-2). On April 23, 2018, Defendant
removed to the District of Nevada invoking the Court's
diversity jurisdiction. (Notice of Removal ¶¶ 4-8,
ECF No. 1). On April 27, 2018, Defendant moved for summary
judgment. Plaintiff subsequently filed a Countermotion for
Rule 56(d) Discovery.
Court will first address Defendant's Motion for Summary
Judgment and Plaintiff's Countermotion for Rule 56(d)
Discovery. The Court will next consider Defendant's
Motions to Seal. Lastly, the Court will address its subject
matter jurisdiction over the instant case.