United States District Court, D. Nevada
J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
Defendant's Motion to Stay
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.
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.
Complaint Is A SLAPP Action.
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).
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.
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.
Defendant's Motion Demonstrates that Plaintiff's
Complaint Fails to State A Claim Upon Which
Relief Can Be Granted.
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 ...