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Smith v. Craig

United States District Court, D. Nevada

September 30, 2019

LATONIA SMITH, Plaintiff,
v.
FENNEMORE CRAIG, Defendant.

          ORDER

          ELAYNA J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Presently before the Court is Defendant Fennemore Craig's (“Fennemore” or “Defendant”) Motion to Stay Discovery (ECF No. 19); Plaintiff Latonia Smith's (“Smith” or the “Plaintiff”) Motion to Compel Attendance at Deposition, Production of Documents, and Forensic Examination (ECF No. 31); Defendant's Emergency Motion to Quash, or in The Alternative, Motion for A Protective Order (ECF Nos. 36, 37); Defendant and the Nonparty Fennemore Employees' Motion to Redact and Seal Documents (ECF No. 38); Plaintiff's Motion for Leave to Add Reply (ECF No. 42); Plaintiff's Motion to Compel Samantha Radak and Deborah Gianini to Attend Deposition and Produce Documents (ECF No. 43); Nonparties Deborah Gianini and Samantha Radaks' Motion to Quash Subpoenas (ECF No. 44); Plaintiff's Motion to Strike Defendant's Reply in Support of Emergency Motion to Quash (ECF No. 50); Nonparties Jerome Bowen and Brandon Trouts' Motion to Quash, or in the Alternative, Motion for Protective Order (ECF No. 52); Plaintiff's Motion to Hold Brandon Trout and Jerome Bowen in Contempt of Court (ECF No. 53); Plaintiff's Motion to Compel Brandon Trout and Jerome Bowen to Attend Deposition (ECF No. 54): and Defendant's Motion to Extend Discovery Deadlines (ECF No. 61). For the reasons below, Defendant's Motion to Stay Discovery (ECF No. 19) is granted. All other Motions (ECF Nos. 31, 36, 37, 38, 42, 43, 44, 50, 52, 53, 54, 61) pending before this Court are denied without prejudice as moot.

         II. FACTUAL BACKGROUND

         Plaintiff alleges that when litigating a complaint filed by her mother against Caesars Entertainment Corporation and Planet Hollywood Las Vegas in the Eighth Judicial District Court, various Fennemore attorneys improperly sought temporary protective orders (“TPOs”) against Smith on behalf of Fennemore's employees and its clients. These TPOS arose from threats allegedly communicated by Smith to these entities and individuals. ECF No. 1 ¶¶ 7, 34, 43, 85. Obtaining TPOs, together with Smith's highly unusual allegations of improper conduct by Fennemore counsel during the course of state court litigation, form the basis for Smith's instant complaint.

         Plaintiff alleges five causes of action against Fennemore including civil conspiracy, slander/slander per se, defamation/defamation per se, intentional infliction of emotional distress (“IIED”), and permanent injunctive relief against Defendant. Id. ¶¶ 62-82. In response to the Complaint, Fennemore filed its Motion to Dismiss pursuant to Fed.R.Civ.P. 12 and a Special Motion to Dismiss pursuant to Nevada's Anti-Strategic Lawsuit Against Public Participation (“SLAPP”) statute, NRS 41.660. ECF Nos. 10 and 11. Thereafter, Defendant Fennemore moved to stay discovery in this action pending the disposition of its Motions to Dismiss. ECF No. 19.

         III. DISCUSSION

         A. Defendant's Motion to Stay

         Ordinarily, a dispositive motion does not warrant a stay of discovery. Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 601 (D. Nev. 2011). However, a Court may limit discovery for good cause and continue to stay discovery when it is convinced that the plaintiff will be unable to state a claim for relief. Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981) (citing B.R.S. Land Investors v. United States, 596 F.2d 353 (9th Cir. 1978)). Under certain circumstances it is an abuse of discretion to deny discovery while a dispositive motion is pending (Tradebay, 278 F.R.D. at 602) and, for this reason, a party seeking a stay of discovery carries the heavy burden of making a strong showing why the discovery process should be halted. Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997). When deciding whether to issue a stay, a court must take a “preliminary peek” at the merits of the dispositive motion pending in the case. Buckwalter v. Nevada Bd. of Medical Examiners, No. 2:10-cv-02034-KJD-GWF, 2011 WL 841391, at *1 (D. Nev. March 7, 2011). In doing so, the court must consider whether the pending motion is potentially dispositive of the entire case, and whether that motion can be decided without additional discovery. Tradebay, 278 F.R.D. at 602.

         After taking a preliminary peek at the pending motions to dismiss, the oppositions to those motions, and the replies, the Court grants Defendant's Motion to Stay Discovery because (1) Plaintiff's Complaint is a SLAPP action; (2) Plaintiff's Complaint fails to state a claim for which relief can be granted; (3) Defendant's motions to dismiss are potentially case dispositive; and (4) Defendant's motions to dismiss can be decided without discovery.

         1.Plaintiff's Complaint Is A SLAPP Action.

         “A Strategic Lawsuit Against Public Participation . . . is a meritless suit that seeks to use costly, time-consuming litigation to chill a person's constitutionally protected right to free speech.” Abbey Dental Ctr., Inc. v. Consumer Opinion LLC, No. 2:15-cv-02069-GMN-PAL, 2017 WL 3444695, at *1 (internal citation and quotation marks omitted). Nevada's Anti-SLAPP statute, NRS 41.660, “provides that a defendant may bring a special motion to dismiss within sixty days of the complaint . . ..” Moonin v. Nevada ex rel. Dept' of Public Safety Highway Patrol, 960 F.Supp.2d 1130, 1146 (D. Nev. 2013). For an Anti-SLAPP motion to be granted, the court first has to “[d]etermine whether the moving party has established, by a preponderance of the evidence, that the claim is based upon a good faith communication in furtherance of the right to petition . . . in direct connection with an issue of public concern.” Las Vegas Sands Corp. v. First Cagayan Leisure & Resort Corp., No. 2:14-cv-00424-JCM-NJK, 2016 WL 4134523, at *3 (D. Nev. Aug. 2, 2016) (internal citation omitted). “The defendant's conduct is a good[] faith communication if it falls within one of the four categories enumerated in NRS 41.637[, ] and is truthful or is made without knowledge of its falsehood.” LHF Prod., Inc. v. Kabala, No. 2:16-cv-02028-JAD-NJK, 2018 WL 4053324, *2 (D. Nev. Aug. 24, 2018). If the moving party demonstrates that its claim is based upon a good faith communication, the “burden then shifts to the plaintiff to establish by clear and convincing evidence a probability of prevailing on the claim.” Id. (internal citation omitted).

         Defendant brought its Special Motion to Dismiss pursuant to NRS 41.660 less than sixty days after Plaintiff filed her Complaint. Compare ECF Nos. 1 and 10. Further, the Court's preliminary peek at the Motions to Dismiss shows that Defendant demonstrates, by a preponderance of the evidence, that the Motion to Dismiss is based on good faith communications made in furtherance of Defendant's right to petition the court for redress. That is, Fennemore makes clear that it filed its Anti-SLAPP Motion because “[t]he entire basis for Ms. Smith's Complaint is that Fennemore's Directors and employees, as counsel for Caesars Entertainment Corporation and PHWLV, LLC, made communications to Ms. Smith during the pendency of active litigation, distributed a confidential settlement agreement, and filed ‘[temporary protective orders] against Ms. Smith in various location, '” all in the course of seeking redress from the Court. ECF No. 19 at 3:10-14. Fennemore's statements to Smith during the pendency of active litigation, distribution of the confidential settlement agreement, and filing of temporary protective orders against Plaintiff, are protected, good faith communications as “[w]ritten or oral statement[s] made in direct connection with an issue under consideration by a . . . judicial body . . ..” NRS 41.637.

         Further, as discussed below, a review of Plaintiff's Complaint and opposition to this Motion to Dismiss demonstrate Plaintiff fails to establish, by clear and convincing evidence, that she will prevail on the merits of her claims. Accordingly, Plaintiff's Complaint against Fennemore violates SLAPP, and will likely be dismissed. For this reason alone, Defendant's Motion to Dismiss is potentially dispositive of the entire case.

         2. Defendant's Motion Demonstrates that Plaintiff's Complaint Fails to State A Claim Upon Which Relief Can Be Granted.

         The Court also took a “preliminary peek” at the merits of Defendant's Motions to Dismiss and finds Defendant has made strong legal arguments that Plaintiff's Complaint fails to state claims upon which relief can be granted. As Defendant demonstrates through its Motions, Smith's Complaint is highly unlikely to survive for six reasons: (1) Fennemore is immune from liability under NRS 41.650; (2) Plaintiff's claims are barred by the absolute litigation privilege; (3) Plaintiff has not pleaded and cannot prove an actionable civil conspiracy; (4) Plaintiff has not pleaded a plausible claim for slander/slander per se or ...


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