Shawn Padilla v. MGM Grand Hotel, LLC; Andrew Stevenson; Kevin Adams; Jerimiah Tipton; Does IV through X, and Rose I through X

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 SHAWN PADILLA, an individual, Case No. 2:22-cv-02109-RFB-EJY 5 Plaintiff, ORDER 6 v. 7 MGM GRAND HOTEL, LLC, a Nevada entity; ANDREW STEVENSON, an 8 individual (Doe 1); KEVIN ADAMS, an individual (Doe 2); JERIMIAH TIPTON (Doe 9 3); DOES IV through X, and Rose I through X, [10] Defendants. [11] 12 Pending before the Court is Plaintiff’s Motion for Reconsideration. ECF No. 138. The 13 Motion seeks reversal of the Court’s prior Order denying Plaintiff’s Motion to Compel that also 14 granted Defendant MGM Grand’s request for attorneys’ fees. Id. Plaintiff argues that the Court’s 15 Order was manifestly unjust when rejecting Plaintiff’s request for an in camera review raised for the 16 first time in his Reply brief. Id. at 2. Separately pending, and decided below, is MGM Grand’s 17 Memorandum of Attorneys’ Fees Pursuant to ECF No. 137. ECF No. 139. 18 I. The Reconsideration Standard 19 “Although Rule 59(e) permits a district court to reconsider and amend a previous order, the 20 rule offers an ‘extraordinary remedy, to be used sparingly in the interests of finality and conservation 21 of judicial resources.’” Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877 , 890 (9th Cir. 2000) 22 (citations omitted). Reconsideration may be granted “if the district court (1) is presented with newly 23 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if 24 there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. 25 ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations omitted); see also LR 59-1(a) (“A party 26 seeking reconsideration under this rule must state with particularity the points of law or fact that the 27 court has overlooked or misunderstood.”). 1 While manifest injustice acts as a catch-all provision, “it is not meant to allow a disappointed 2 litigant an attempt to persuade the court to change its mind.” Abdur-Rahiim v. Holland, Case No. 3 14-CV-79-DLB, 2015 WL 859117 , at *3 (E.D. Ky. Feb. 27, 2015); see also Brown v. Kinross Gold, 4 U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005) (“A motion for reconsideration is not an avenue 5 to re-litigate the same issues and arguments upon which the court has already ruled.”). In the Ninth 6 Circuit, courts have treated manifest injustice as synonymous with clear error, meaning there was a 7 “direct, obvious and observable” error. Raya v. Calbiotech, Case No. 3:18-CV-2643-WQH-AHG, [8] 2019 WL 11504688 , at *3 (S.D. Cal. Nov. 26, 2019) (collecting cases) (internal citations and 9 quotations omitted). 10 II. Discussion 11 A. The Court Denies Plaintiff’s Motion for Reconsideration. 12 1. Merits 13 The Court denied Plaintiff’s Motion to Compel based on procedural and substantive failings. 14 The Court notes the following errors made by Plaintiff leading to and ultimately appearing in 15 Plaintiff’s underlying Motion. 16 • Plaintiff served a subpoena by email to the Nevada Gaming Control Board only1 in 17 violation of Fed. R. Civ. P. 45(a)(4), which requires “before [the subpoena] is served on 18 the person to whom it is directed, a notice and a copy of the subpoena must be served on 19 each party.” Id. See also ECF No. 137 at 2, n.6. 20 • After the Board and Plaintiff exchanged objections, the two parties engaged in a 21 telephonic conference. Id. at 2. There, the Board enquired into whether MGM Grand 22 was ever served the subpoena and, after learning that they had not been, refused to move 23 forward without service to MGM Grand. Id. 24 • Plaintiff served MGM Grand a copy of the subpoena seven weeks after the initial service 25 was tendered on the Board. See id. 26 • After the parties unsuccessfully attempted to resolve the matter through the meet and 27 confer process, Plaintiff filed the underlying Motion to Compel that identified the 1 “Defendants” as the party from whom Plaintiff was seeking to compel disclosure—not 2 the Board on whom the subpoena was served. Id. at 4; ECF No. 114 at 7. 3 • The Board, the only entity possessing an unredacted copy of the Report at issue, was 4 dismissed from this matter on April 7, 2023. ECF No. 20. 5 • There was no evidence of a Request for Production served on Defendants seeking an 6 unredacted copy of the Report; hence, there was no basis upon which the Court could 7 reasonably compel Defendants to act. ECF No. 137 at 5. 8 • Even if there had been a document request propounded on the Defendants, none of the 9 Defendants possessed an unredacted copy of the Report. Id. at 6. 10 • Given no subpoena or request to produce the Report propounded on Defendants, the 11 Motion to Compel failed because it was directed solely to the “Defendants.” Id. 12 • Plaintiff requested the Court conduct an in-camera review of the Report for the first time 13 in his Reply brief, which did not afford the Defendants or the Board an opportunity to 14 respond. Id. at 4, 6. 15 • Plaintiff said NRS 463.120 was “irrelevant” to their request because the statute only 16 applies to communications between the licensee and an agent of the Board in connection 17 with its “regulatory, investigative, or enforcement authority,” but failed to explain why 18 the information contained within an incident report that investigated a theft would not fit 19 the “quintessence of the statutory protections.” See id. at 7. 20 Plaintiff’s Motion for Reconsideration recycles many of the arguments found in his Reply in 21 support of the Motion to Compel. Plaintiff argues that his failure to send a copy of the subpoena to 22 MGM Grand was an “inadvertent error” which was cured by the subsequent service and the good 23 faith meet and confer. See ECF No. 138 at 4-5. Plaintiff submits that during the meet and confers, 24 the parties discussed case law and the potential for in camera review. Id. at 5. Plaintiff argues that 25 NRS 463.120 is not “a per se bar on disclosure.” Id. Plaintiff cites three cases, originally discussed 26 in his Reply brief, standing for the proposition that NRS 463.120 does not mandate blanket 27 confidentiality and allows for in camera review. Id.; see also ECF No. 130 at 3. 1 Plaintiff has not identified any clear error in the Court’s Order. Plaintiff does not argue that 2 the Court erred in finding there was nothing to compel from the Defendants. Instead, Plaintiff 3 focuses on the Court’s decision not to compel the Report from the Board. Before noting the statutory 4 privileges, the Court held that “[t]o the extent Plaintiff seeks an order compelling the NGCB to 5 produce documents, the Motion fails because Plaintiff seeks only to compel document production 6 from the ‘Defendants.’” ECF No. 137 at 6. Plaintiff disregards this fundamental flaw in his 7 argument. Plaintiff says he “should have been clearer” regarding from whom he sought to compel 8 production of the incident Report (ECF No. 138 at 6). While this may have eliminated some of the 9 reasons for denying the Motion to Compel, the fact remains that the Motion sought to compel 10 documents from Defendants—MGM Grand and the individual agents—and the subpoenas are not 11 directed to Defendants. In sum, Plaintiff provides no basis to reconsider the Court’s decision, let 12 alone a basis for finding clear error. 13 Moreover, Plaintiff has not shown how the Court committed an error when it decided not to 14 adopt arguments raised for the first time in Reply. Matthys v. Barrick Turquoise Ridge, Inc., Case 15 No. 3:20-cv-00034-LRH-CLB, 2023 WL 6383312 (D. Nev. Sept. 29, 2023), appeal dismissed sub 16 nom. Bruce v. Barrick Turquoise Ridge Inc., Case No. 23-2552, 2024 WL 4491875 (9th Cir. May 17 30, 2024). Indeed, when reviewing a denial of a motion for reconsideration, the Ninth Circuit has 18 found no clear error when a district court declined to adjudicate arguments raised for the first time 19 in a reply brief. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (motion for reconsideration). 20 Plaintiff is also factually incorrect when he asserts that his Reply in support of the Motion to 21 Compel “substantively relied on the cases referenced and cited by the Nevada AG’s Office and 22 Defendant MGM in support of an in-camera review.” ECF No. 138 at 4. First, Plaintiff did not 23 provide the Court with a citation where the information could be found. Second, upon reviewing 24 the briefing, the undersigned finds only a single reference to one case Plaintiff relies upon, which 25 cited the legal standard for requesting discovery from a nonparty (ECF No. 129 at 7). 26 Further, Plaintiff does not alleviate the Court’s concerns about the statutory privilege 27 established under NRS 463.120 (4) and (6). In fact, Plaintiff’s Motion for Reconsideration offers 1 No. 144 at 3. Plaintiff does not address the plain text of the statute that encompasses the information 2 he is seeking and instead skips to three cases in which a court granted in camera review. In re Smith, [3] 397 B.R. 124 (Bankr. D. Nev. 2008); Laxalt v. McClatchy, 116 F.R.D. 455 (D. Nev. 1986); and 4 Donrey of Nevada, Inc. v. Bradshaw, 798 P.2d 144 (1990). 5 What Plaintiff fails to address—and cannot reasonably dispute—is that NRS 463.120 was 6 revised after In re Smith and Laxalt were decided.2 In particular, the legislature added the language 7 found at subsection six in 2017. 2017 Nev. Stat., ch. 567, § 1.4, at 4065. This change was recognized 8 by the Nevada Supreme Court in 2018. Okada v. Eighth Jud. Dist. Ct. in & for Cnty. of Clark, 408 9 P.3d 566 (Nev. 2018) (noting that the petition presented the Nevada Supreme Court “with the first 10 opportunity to consider the application of the new gaming privilege in NRS 463.120(6)…”). 11 Moreover, “when the Legislature substantially amends a statute, it is ordinarily presumed that the 12 Legislature intended to change the law.” Pub. Employees’ Benefits Program v. Las Vegas Metro. 13 Police Dep’t, 179 P.3d 542, 554 (Nev. 2008). By adding a section mandating that any information 14 a licensee or applicant provides to the Board in connection with the Board’s “regulatory, 15 investigative, and enforcement authority” is confidential and privileged, it is logical to conclude the 16 Nevada Legislature intended to change the law as applied in Laxalt and In re Smith. 17 Even if the Court were to accept Plaintiff’s argument in his Reply in support of the Motion 18 to Compel, Plaintiff has never shown how he met the standard set forth in Laxalt. In Laxalt, the 19 court noted that the assigned Magistrate Judge found the four-part test often relied on in cases of 20 governmental privilege to be helpful. 116 F.R.D. at 459 . That test considered the relevance of the 21 evidence, the availability of other evidence, the government’s role in the litigation, and “the extent 22 to which disclosure would hinder frank and independent discussion regarding the agencies 23 contemplated decisions and policies.” Id. Plaintiff has not met this standard. Rather, the thrust of 24 Plaintiffs argument seems to be that because courts have permitted in camera review in the past, this 25 Court should do the same. The Court rejects this argument and finds no basis to reconsider its 26 decision. [27] 1 In sum, the Court finds Plaintiff has not identified a direct, obvious and observable error 2 regarding the Court’s decision to deny Plaintiff’s Motion to Compel. Plaintiff has not demonstrated 3 manifest injustice. For these reasons, Plaintiff’s Motion for Reconsideration is denied. 4 2. Attorneys’ Fees 5 Unless the moving party’s positions were substantially justified, or an award would 6 otherwise be unjust, courts must award attorneys’ fees to a party that successfully defends against a 7 motion to compel. V5 Techs. v. Switch, Ltd., 334 F.R.D. 306 , 314 (D. Nev. 2019), aff’d sub nom. 8 V5 Techs., LLC v. Switch, Ltd., Case No. 2:17-cv-2349-KJD-NJK, 2020 WL 1042515 (D. Nev. Mar. 9 3, 2020) (citing Fed. R. Civ. P. 37(a)(5)(B)). Substantial justification requires there to be “a genuine 10 dispute on matters on which reasonable people could differ as to the appropriate outcome.” Roberts 11 v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 609 (D. Nev. 2016) (citing Pierce v. Underwood, 487 U.S. 12 552, 565 (1988)). It is the losing party’s burden to demonstrate that their request was substantially 13 justified. Fed. R. Civ. P. 37(a), Advisory Comm. Notes, 1970 Amend. 14 Plaintiff requests this Court reconsider its decision to grant MGM Grand attorneys’ fees for 15 responding to the underlying Motion to Compel. ECF No. 138 at 9-10. Plaintiff argues that he 16 believed in good faith that in camera review was required by caselaw and thus MGM Grand’s 17 request for fees should have been denied. Id. Plaintiff suggests his belief was based on a robust 18 discussion with the other parties, and he genuinely believed the Court would grant his Motion. Id. 19 at 2, 10. 20 As discussed above, there is a laundry list of issues establishing Plaintiff’s errors when 21 seeking Court intervention. Plaintiff’s good faith belief that he would win motion practice does not 22 equate to substantial justification. As was clear in the Court’s prior Order, there is no justification 23 for Plaintiff’s Motion to Compel when the facts are examined and the law is applied to those facts. 24 See ECF No. 137. 25 B. The Court Grants MGM Grand $2,122.50 in Attorneys’ Fees. 26 Having granted MGM Grand an award of attorneys’ fees incurred in preparing its response 27 in opposition to Plaintiff’s Motion to Compel, the Court must now consider the reasonable amount 1 attorneys’ fees. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). “The ‘lodestar’ is 2 calculated by multiplying the number of hours the prevailing party reasonably expended on the 3 litigation by a reasonable hourly rate.” Id.; see also McGrath v. Cnty. of Nevada, 67 F.3d 248 , 252 4 (9th Cir. 1995). The requesting party “has the burden of submitting billing records to establish that 5 the number of hours it has requested are reasonable.” Gonzalez v. City of Maywood, 729 F.3d 1196 , 6 1202 (9th Cir. 2013). The Court should exclude from the lodestar calculation hours that were not 7 “reasonably expended,” including hours that are “excessive, redundant, or otherwise unnecessary.” 8 Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); see also Ballen v. City of Redmond, 466 F.3d 736 , 9 746 (9th Cir. 2006). If the Court determines some requested fees should be excluded as 10 unreasonable, the Court may exclude bill entries pursuant to an hour-by-hour analysis. See 11 Gonzalez, 729 F.3d at 1203 . “The number of hours to be compensated is calculated by considering 12 whether, in light of the circumstances, the time could reasonably have been billed to a private client.” 13 Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). 14 The lodestar amount is a presumptively reasonable fee. Camacho v. Bridgeport Financial, 15 Inc., 523 F.3d 973, 982 (9th Cir. 2008). Although presumptively reasonable, the Court may adjust 16 the lodestar amount based on the Kerr factors to account for factors that have not been subsumed in 17 the lodestar calculation. Id. For example, the Court may exclude hours arising from overstaffing, 18 duplication, excessiveness or that are otherwise unnecessary. See, e.g., Hensley, 461 U.S. at 434 ; 19 see also Cruz v. Alhambra School Dist., 601 F.Supp.2d 1183, 1191 (C.D. Cal. 2009). 20 The Kerr factors include: (1) the time and labor required, (2) the novelty and the difficulty 21 of the questions involved, (3) the skill required to perform the legal service properly, (4) the 22 preclusion of other employment by the attorney due to the acceptance of the case, (5) the customary 23 fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or 24 circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and 25 ability of the attorney, (10) the “undesirability” of the case, (11) the nature and length of the 26 professional relationship with the client, and, (12) awards in similar cases. Kerr v. Screen Extras 27 Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). Further, Local Rule 54-14(b) requires a party seeking 1 attorneys’ fees to include: (1) a reasonable itemization and description of the work performed and 2 (2) an itemization of all costs sought to be charged as part of the fee award. 3 When determining the reasonable hourly rate to be applied to an award of attorneys’ fees, 4 the Court must consider the “prevailing market rates in the relevant community” and compare the 5 rates of “lawyers of reasonably comparable skill, experience, and reputation” to the rates requested 6 in the case before the Court. Soule v. P.F. Chang’s China Bistro, Inc., Case No. 2:18-cv-022397 GMN-GWF, 2019 WL 3416667 , at *1 (D. Nev. July 26, 2019) (internal citation omitted). This is a 8 two-step process. The first step requires the Court to “calculate the lodestar amount by” multiplying 9 “the number of hours reasonably expended on the” motion at issue “by a reasonable hourly rate.” [10] Id. (citations omitted). The second step requires the Court to consider adjusting the lodestar amount 11 upward or downward, something done “only on rare and exceptional occasions, ... using a multiplier 12 based on factors not subsumed in the initial calculation of the lodestar.” Id. citing Van Gerwen v. 13 Guarantee Mut. Life Co., 214 F.3d 1041 , 1045 (9th Cir. 2000) (internal brackets removed). 14 Here, Defendants seeks $275 an hour for Lawrence J. Semenza, III, $250 an hour for Katie 15 L. Cannata, and $150 an hour for paralegals Olivia A. Kelly (“Kelly”) and Angie L. Barreras 16 (“Barreras”). ECF No. 139 at 15. The Court finds that the rates are reasonable and generally in line 17 with, if not below, market rates for Clark County, Nevada. Thus, the issue is whether the hours 18 billed are reasonable. 19 With respect to the request for reimbursement of fees incurred by paralegals Kelly and 20 Barreras, the billing statement is vague when stating they worked “on the opposition.” Further, the 21 Court finds Kelly’s “review” of Plaintiff’s Motion to Compel duplicative of attorney work. Thus, 22 the Court declines to award $195.00 in fees incurred on June 6 and 20, 2025 for work performed by 23 paralegals Kelly and Barreras. 24 The Court finds the descriptions of work and hours billed by Ms. Cannata and Mr. Semenza 25 reasonable except for the entries on June 9 and 17, 2025 that reference counsel “strategize[d]” in 26 apparent preparation for drafting the Opposition to the Motion to Compel. The time entries for 27 strategizing total .4 hours billed by Ms. Cannata and .5 hours billed by Mr. Semenza. Plaintiff need 1 awards 7.5 hours for work performed by Ms. Cannata on June 9, 10, 13, 16, 17, and 20, 2025 and .9 2 hour for work performed by Mr. Semenza on June 16 and 20, 2025. 3 The total award of fees is as follows: 4 $250 per hour x 7.5 hours for Ms. Cannata = $1,875.00; and 5 $275 per hour x .9 hour for Mr. Semenza = $247.50, for a total award of $2,122.50.3 6 III. Order 7 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration of 8 Order Denying Plaintiff’s Motion to Compel and Granting MGM Grand’s Request for Attorneys 9 Fees (ECF No. 138) is DENIED. 10 IT IS FURTHER ORDERED that MGM Grand’s Memorandum of Attorneys’ Fees is 11 GRANTED to the extent that Plaintiff must pay MGM Grand Hotel, LLC the total amount of 12 $2,122.50 in attorneys’ fees incurred reasonably related to the Motion to Compel denied at ECF No. 13 137. 14 IT IS FURTHER ORDERED that the fee award must be paid no later than thirty days from 15 the date of this Order unless a stay of this Order is granted by the Court. 16 IT IS FURTHER ORDERED that MGM Grand’s request for attorneys’ fees and sanctions 17 for responding to Plaintiff’s Motion for Reconsideration is DENIED. 18 DATED this 3rd day of November, 2025. [20] ELAYNA J. YOUCHAH 21 UNITED STATES MAGISTRATE JUDGE [26] 3 Regarding MGM Grand’s request for attorneys’ fees for its opposition to the Motion for Reconsideration and other sanctions, the Court exercises its discretion and finds that no sanctions against Plaintiff are warranted. See Bartech [27] Sys. Int’l, Inc. v. Mobile Simple Sols., Inc., Case No. 2:15-cv-02422-MMD-NJK, 2018 WL 1785869 (D. Nev. Apr. 13,