Eighth Judicial District Court Rulings
October 2022 Rulings:
Ashley Colwick v. Dicks Last Resort, et. al.
OUTCOME: GRANTED IN PART AND DENIED IN PART
DATE ORDERED: October 12, 2022
HONORABLE JUDGE LINDA BELL
Case Summary: This matter arises from a sexual assault incident that occurred on September 26, 2021. See Plaintiffs’ First Amended Complaint and Demand for Jury Trial, dated August 10, 2022. Plaintiff visited a Dick’s Last Resort restaurant and was allegedly sexually assaulted by a waiter. Id.
Defendant Dick Fremont’s Motion to Dismiss and Motion to Strike:
On September 9, 2022, Defendant filed a Motion to Dismiss and Motion to Strike arguing that the Court should dismiss Plaintiffs’ Fourth and Fifth Causes of Action and strike the screenshot reviews contained in the First Amended Complaint. According to Defendant, the Court should dismiss Plaintiffs’ claim for negligence per se because NRS 201.220, as a criminal statute, cannot form the basis for a negligence per se claim. Defendant also argues that the injury Ashley suffered is not of the type that NRS 201.220 was designed to protect against. However, the Nevada Supreme Court has only prohibited the application of negligence per se to criminal statutes in two contexts, neither of which apply here. Moreover, the unwanted and nonconsensual exposure of a woman’s breasts, such as Ashley’s in this case, is one of the types of injuries that NRS 201.220 was intended to prevent.
Next, Defendant contends that the Court should dismiss Plaintiffs’ claim for negligent infliction of emotional distress because Plaintiffs failed to plead the “physical impact” element as required under Nevada law. However, because Plaintiffs are only bringing one claim for negligent infliction of emotional distress under the bystander theory, they were not required to allege any “physical impact.”
Finally, Defendant argues that the Court should strike the screenshot reviews contained in the First Amended Complaint pursuant to NRCP 12(f). However, Plaintiffs argue that not only is granting motions to strike under NRCP 12(f) strongly disfavored, but Defendant failed to show that the screenshot reviews are unresponsive and unrelated to the claims at issue in this case.
Defendants’ Motion to Dismiss is granted as to Plaintiffs’ Fourth Cause of Action for Negligence Per Se because there is no evidence the Legislature intended to impose civil liability for violations of NRS 201.220.
Defendants’ Motion to Dismiss is denied as to Plaintiffs’ Fifth Cause of Action for Negligent Infliction of Emotional Distress because the First Amended Complaint contains allegations of all the elements of the claim as listed in Nevada case law. Defendants’ Motion to Dismiss is further denied because the screenshots of customer reviews included within the First Amended Complaint are not scandalous, immaterial, or impertinent and go to the issue of notice.
August 2022 Rulings:
Bernardez v. Las Vegas Boat Harbor, et. al.
DATE ORDERED: August 26, 2022
DISCOVERY COMMISSIONER JAY YOUNG
Case Summary: This matter arises out of a negligence and product defect incident that took place on July 1, 2018, in Clark County, Nevada, after a boat exploded at the Las Vegas Boat Harbor. See Plaintiffs’ First Amended Complaint and Demand for Jury Trial, dated March 16, 2020.
Plaintiffs’ Motion for Protective Order: On July 14, 2022, Defendant served its Notice of Intent To Serve Subpoena Duces Tecum For Records Only upon Las Vegas Metropolitan Police Department and Clark County District Attorney for August 26, 2022 at 9:00 a.m. Therein, Defendant requested documentation that is irrelevant, will not lead to the discovery of admissible evidence, and disproportionate to the needs of this case as they pertain to Plaintiff, Dayton Bernardez’s, criminal action in the Eighth Judicial District Court. On July 21, 2022, Plaintiffs served an Objection to Defendant’s subpoenas and filed a Motion for Protective Order requesting that the Court issue a protective order prohibiting Defendant from obtaining documents via subpoena duces tecum from the Las Vegas Metropolitan Police Department and the Clark County District Attorney because the information requested was irrelevant to any party’s claims or defenses and disproportionate to the needs of this case pursuant to NRCP 26(c)(1).
Ruling: Commissioner Young found that the burden placed on a non-party to produce documents that Defendant Las Vegas Boat Harbor partially already has in its possession outweighs the marginal utility of the information sought. Commissioner Young further found that the information Defendant Las Vegas Boat Harbor intended to discover is accessible through other means – such as written discovery directly to the party.
Accordingly, after considering the proportionality factors set forth under NRCP 26(b), Commissioner Young adopted Plaintiffs’ good cause analysis and found that a protective order was warranted in this circumstance because the burden associated with obtaining documents from a non-party outweighs the benefit of the information sought and thus, is not proportional to the needs of this case.
July 2022 Rulings:
Schrader v. Wynn Las Vegas, LLC, et. al.
DATE ORDERED: 7/15/22
MAGISTRATE JUDGE BRENDA WEKSLER
Case Summary: This is a putative class action that arises from Plaintiff’s employment with Defendant Wynn Las Vegas as a Massage Therapist. See Plaintiffs’ First Amended Complaint and Demand for Jury Trial, dated February 17, 2021. Plaintiff was allegedly forced to engage in sexual conduct with Defendant Stephen Wynn from approximately 2012 until June 2015 and a VIP guest from approximately 2016 until 2018. Id. Plaintiff was allegedly further subjected to co-worker harassment in 2019 and 2020. Id.
Joint Discovery Plan and Scheduling Order: The parties have different positions regarding whether bifurcation of discovery is necessary. Given the nature of the causes of action before the Court, Plaintiff believes that the bifurcation of discovery is neither appropriate nor necessary. Based on the individual claims, complex putative class assertions in this case, and broad scope of Plaintiff’s proposed classes and sub-classes, the Defendants are requesting to conduct discovery in three phases: Phase 1 — Plaintiff-related merits discovery; Phase 2 — Putative Class Member-certification related discovery; and Phase 3 — Class Member Merits-related discovery. As such, the Court has set a hearing to resolve the parties’ divergent views and proposals.
Ruling: In exercising the Court’s broad discretion to control discovery, the Court is guided by FRCP Rule 1 to ensure a just, speedy, and inexpensive determination of each action. Here, a middle ground between the parties two positions best achieves the goal of Rule 1. Magistrate Judge Weksler ordered that discovery should be bifurcated into two phases. The first phase will include discovery into the merits of Plaintiff’s claims and discovery relevant to class certification. If a class is certified, phase 2 will include all remaining discovery. Magistrate Judge Weksler made it clear that there will be some overlap between discovery that is relevant to class certification and the merits of putative class members' claims. As a result, during phase 1, the parties will be allowed to obtain discovery related to the merits of putative class members, so long as it is also relevant to class certification.