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Sample Opposition to Summary Judgment Motion and NRCP 56(f) Request for Additional Time to Conduct Discovery

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SAMPLE OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; AND NRCP 56(f) REQUEST FOR TIME TO CONDUCT DISCOVERY

POINTS AND AUTHORITIES

I. FACTS

This case arises out of Plaintiff Robert  being approached by employees of Defendant restaurant , while dining at the  Restaurant, to purchase wine, paying over $100,000 for that wine, and then being told no wine was available and that his moneys could not be refunded.  See, Amended Complaint on file herein, and, see also, the Affidavit of Robert  attached as Exhibit “A” hereto.  For obvious reasons, Plaintiff named Defendant Restaurant as one of the Defendants under the theory of respondeat superior.  No discovery has yet been taken and no Answer has yet been filed by Restaurant.  Instead, Restaurant has now moved to dismiss or in the alternative for summary judgment, using arguments and exhibits that subject its motion to being treated as a premature, pre-discovery, motion for summary judgment, rather than a motion to dismiss.  For the reasons set forth below, this Motion should be denied at least until Plaintiff has been able to conduct discovery.

II. LEGAL ANALYSIS

A. Rule 56(f) Request for Time to Conduct Discovery.

Where matters outside of the pleadings are presented to the court in a Rule 12(b)(5) motion (such as the three affidavits submitted with S’s motion to dismiss), then the court will treat the motion as one for summary judgment and it will be disposed of under Rule 56. Stevens v. McGimsey, 99 Nev. 840, 673 P.2d 499 (1983), and MacDonald v. Kassel, 97 Nev. 305, 629 P.2d 1200 (1981).

Plaintiff hereby requests, pursuant to NRCP 56(f) additional time to take the depositions of the key witnesses in this dispute. Plaintiffs’ Motion is premature in that no merits discovery has occurred. Indeed, the lawsuit was only filed on October 23, 2012, and, instead of filing an Answer, Defendant filed its instant Motion, such that no Rule 16.1 early case conference has even been held yet, and discovery has not yet even been allowed to commence. Pertinent discovery of key witnesses is needed to help resolve the following genuine issues of material fact:

(1) Whether Kyle and George were acting within the course and scope of their employment at Restaurant when they approached customers in the Restaurant having meals to ask if they were interested in purchasing wines for use during dinner and/or after dinner for offsite consumption or resale;

(2) Were Kyle and George were acting within the course and scope of their employment at the Restaurant to sell wine when they called and emailed wine customers during their work hours at Restaurant and while still on restaurant premises? See G. Mark Albright affidavit, paragraphs10 through 15.

(3) Whether management was aware that restaurant sommeliers and wine stewards were approaching customers in the restaurant inquiring if they were interested in purchasing wine for use on premises and off premises and/or for resale;

(4) When did management become knowledgeable about the alleged scheme being perpetrated by George and Kyle, and how did the scheme work;

(5) Were any of the restaurant management level employees or owners aware that the employees at restaurant had been requested to gather up used wine bottles, corks, and foils for Kyle and George which were then apparently provided to further a counterfeit wine scheme;

(6) If the restaurant owners and managers claim to have been unaware of this scheme, how do they explain their ignorance in light of potential witnesses who have contacted the undersigned counsel for Plaintiff and advised that the collection of empty bottles, and used corks and foils was so ubiquitous and conspicuous that it is unlikely that the management and owners could have been ignorant thereof, and it is instead more likely that the management level employees and/or owners were participating in the scheme or obtaining a kick back for playing ball;

(7) Whether any of the bottles and wines that were provided to restaurant customers offsite, were actual inventory of the restaurant or were all counterfeit wines generated from the counterfeit wine ring headed up by Rudy Kurniawan in California (perhaps the largest counterfeit wine scam in history);

(8) Who at the restaurant participated in the counterfeit wine scam, and how was Tom associated with Rudy Kurniawan;

(9) What steps did the restaurant take to investigate the background of its employees Kyle and George before hiring them, and what facts were revealed by that background check that would have made this particular scheme foreseeable to restaurant? For example, were any managers or owners aware that Kyle and George may have been involved in similar counterfeit wine schemes and offsite sale schemes at their prior places of employment in Las Vegas, such that it would have been foreseeable to restaurant that such conduct would continue at the restaurant (an important question of fact for purposes of respondeat superior analysis), as well as negligent hiring and retention;

(10) Would it be reasonable for an owner or management level employee at the restaurant to foresee that their wine stewards would be selling wines to dinner customers for both onsite consumption and/or offsite consumption, and if there was an illegal sales ring, where and how did it function;

(11) When other victims of the scam, such as an owner of wines in California, contacted S to complain of having been victimized by the scam, did S investigate these complaints, or did it instead cover-up such claims in a manner which allowed the scam and illegal profits to continue;

(12) Was S as the employer in the best position to assume such risks and protect their unsuspecting dinner customers; and

(13) Were the off-site sales negotiated during Kyle and George’s work hours at S? Were emails sent to and from Kyle while he was working at S?

As stated in the sworn Affidavit of Robert , attached hereto as Exhibit “A,” Robert is the managing partner of V Partners LLC, a private equity investment firm. Id. para. 1. In early 2012, Robert visited the S Restaurant in Las Vegas, Nevada and met with its manager, George , and its wine steward/sommelier, Kyle, one evening while having dinner in the restaurant. Id. para. 4. The wine stewards approached Robert and indicated to him during his dinner in the restaurant that the wines were not only available during his meal but were also available at wholesale prices and could be shipped to him in Texas for his personal and business use. Id. para. 5. Robert reasonably assumed and believed that the wine stewards were acting in the course and scope of their employment at and were acting for and on behalf of their employer at all times during these negotiations to procure wine for his personal and business use and consumption on-site or off-site. Id. para. 6. During May 9 and 10, 2012, Robert ordered thirty-two (32) units of wine for a total purchase price of $107,800.00. Id. para. 7. Robert agreed to wire the purchase proceeds to a Wells Fargo Bank account number 6556524012, using routing number 321270742 and wire routing number 121000248. He reasonably assumed and believed that this was an S account and that the wine sommeliers were authorized to use the account in order to sell him S wines for and on behalf of the restaurant. Id. para. 8. The wine, however, was never received by Plaintiff.

On October 16, 2012, Kyle sent an email to Robert indicating that he had no money with which to repay him and that he had no wine to send him. Id. para. 9. Kyle told M in an email that the funds had been sent to Tom Chang who worked for Rudy Kurniawan, who was recently arrested by federal authorities for running a multi-million dollar counterfeit wine ring. Therefore Robert filed suit against the Defendants on or about October 24, 2012. Id. para. 10. Robert was informed by Kyle that his purchase proceeds may have been delivered to Tom Chang and/or Rudi Kurniawan, who are also named defendants in these proceedings. It is Robert’s understanding that Rudi Kurniawan was recently arrested by federal authorities for running a large wine counterfeit ring, perhaps one of the largest in history. Id. para. 11. Robert assumed that when he ordered the wine that he was purchasing the wine from Restaurants since both George and Kyle were employed by the restaurant when they met and discussed his purchase of wine from them, during their business hours and on site at the restaurant. Id. para. 12. Robert assumed that since both George and Kyle were employees of the restaurant, who approached him while he was dining at the restaurant, they had authority to negotiate with customers of the restaurant to sell wine in the normal course and scope of their business as wine sommeliers to customers of the restaurant. Id. para. 13. ….

Based on the foregoing, and because this case was only recently filed and movant has not yet even filed an Answer, no discovery has yet even been allowed to commence, and Plaintiff’s attorneys therefore need time to conduct adequate discovery in this matter, including depositions of key witnesses, including but not limited to:

(a) the named parties herein;
(b) Current and former employees at S;
(c) William a former wine steward at the restaurant;
(d) John , owner of B Wine , who also is in a similar situation as Robert in that he also was approached at dinner in S by the wine stewards to buy S wine for offsite use and consumption or re-sale;
(e) Other customers of S and the Defendants, to ascertain answers to numerous material questions of fact, including but not limited to those listed heretofore on page 2 of this opposition brief:
(f) Rudy Kurniawan and Tom to trace the Plaintiff’s funds etc. Press reports indicate police found a wine factory in Kurniawan’s home and that Rudy Kurniawan was an expert at concocting fake wines by mixing younger and less valuable wines that mimicked the taste, color and character of rare and expensive wines. See, Wine Spectator, September 12, 2012;
(g) Any witnesses who might know whether S, as the employer, was in the best position to assume the risk of offsite sales by its wine stewards rather than S’s unsuspecting dinner customers;
(h) Any witnesses who might known whether the wine stewards were acting in the course and scope of their employment when selling wines to S customers;
(I) Any witnesses who might know whether the acts of S wine stewards were foreseeable such that it would be fair to include the losses among the costs of the employers business of selling wines; and
(j) Electronic discovery to ascertain if Kyle sent emails to Plaintiff while working at S.

B. Plaintiffs’ Motion Should Be Denied Because Defendants have not Had an Opportunity to Take discovery on the Pertinent Issues.

Entry of summary judgment is proper only “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (emphasis added).

Nevada Rule of Civil Procedure 56(f) allows the Court to refuse summary judgment, continue a hearing or “make such other order as is just” when a party opposing summary judgment demonstrates that it cannot “for reasons stated present by affidavit facts essential to justify the party’s opposition.” Nev. R. Civ. P. 56(f); see also Texas Partners v. Conrock Co., 685 F.2d 1116, 1119 (9th Cir. 1982) (reversing summary judgment where plaintiffs were not afforded opportunity to proceed with discovery). Rule 56(f) provides a device for litigants to avoid summary judgment when they have not yet had sufficient time to develop affirmative evidence. Burlington Northern Santa Fe Ry. Co. v. The Assiniboine, 323 F.3d 767, 773 (9th Cir. 2003); Aviation Ventures, Inc. v. Joan Morris, Inc., 110 P.3d 59, 62-63, 121 Nev. 113 (Nev. 2005) (finding court abused its discretion by not permitting the non-movant to engage in discovery pursuant to Rule 56(f) to allow it an opportunity to marshal facts to oppose a motion for summary judgment).

The timing of a summary judgment motion is particularly significant when considering a Rule 56(f) request for more time. Thus, where a summary judgment motion is brought early in the litigation, a Rule 56(f) motion for additional time should be granted as a matter of course. Burlington Northern, 323 F.3d at 774. In Burlington Northern, the Ninth Circuit reviewed the trial court’s grant of a motion for summary judgment filed by plaintiff less than one month after the plaintiff initiated suit. The Ninth Circuit reversed, holding that the defendant’s Rule 56(f) motion should have been granted insofar as the discovery sought was dispositive of a pivotal question in the action. Id. On the issue of timing, the Ninth Circuit counseled: “Where … a summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule 56(f) motion fairly freely.” Id. at 773.

Nevada courts agree with the Ninth Circuit and readily find that it is an abuse of discretion to refuse a party discovery to oppose a summary judgment motion where either the requesting party has not been dilatory or the case is at an early stage of the proceedings. See, e.g., Halimi. H.R. Blacketor, 105 Nev. 105, 106, 770 P.2d 531 (1989); Harrison v. Falcon Products, Inc., 103 Nev. 558, 560, 746 P.2d 642 (1987); Aviation Ventures, 110 P.3d at 62-63

A Rule 56(f) request for time to conduct discovery should be granted where the party making the request: (1) submits an affidavit setting forth the specific facts that they hope to obtain from discovery (as both Plaintiff and his counsel have done here); (2) that the facts sought exist (as Plaintiff’s counsel’s initial investigation demonstrates); and (3) that these facts are essential to oppose summary judgment (as is the case here). State of Cal. v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998); Aviation Ventures, 110 P.3d at 62 (“a motion for a continuance under NRCP 56(f) is appropriate only when the movant expresses how further discovery will lead to the creation of a genuine issue of material fact”). Due to the infancy of this action, the specificity required of Plaintiff in describing the facts likely to be discovered is not a stringent requirement. See Burlington Northern, 323 F.3d at 774 (explaining that, “where… no discovery whatsoever has taken place, the party making a Rule 56(f) motion cannot be expected to frame its motion with great specificity as to the kind of discovery likely to turn up useful information, as the ground for such specificity has not yet been laid”).

Plaintiff satisfies these requirements here. First, Plaintiff has submitted an affidavit from both himself and his counsel describing the facts likely to be produced during discovery. These facts include the name of a specific witness who has contacted the undersigned counsel with specific testimony from him and other witnesses that needs to be elicited during sworn depositions. These depositions will include, Kyle , George , William and Andy , owner of B Wines in California.

Second, as set forth in the sworn Declaration of G. Mark Albright, Esq., the existence of these facts is not speculative. A number of different potential witnesses have been in contact with Mr. Albright and disclosed the existence of numerous fact questions as set forth on the attached Declaration of G. Mark Albright, Esq., attached as Exhibit “B” hereto.

Rule 56(f) of the Nevada Rules of Civil Procedure is identical to the language of its federal counterpart that existed prior to the recent December 1, 2007 amendment and, thus, reliance on federal law interpreting Rule 56(f)is proper. In re Phillip A.C., I, 149 P.3d 51, 55 (Nev. 2006) (recognizing federal decisions involving the Federal Rules of Civil Procedure as persuasive authority on Nevada’s corresponding rules). Additionally, the recent federal amendment provides no substantive change to the rule itself. The Rule was amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.”)

Because B Wines is in California, Robert resides in Texas, and George has apparently moved to Florida, the subpoenas for the necessary depositions may need to be issued from at least three or four different courts. Accordingly, Plaintiff requests at least 120 days to conduct discovery before the pending Motion for Summary Judgment, which should be denied at this time, may be refiled.

C. Questions of Fact Exist Regarding Respondeat Superior.

One of the central legal issues in this matter is:  When is an employer responsible for the acts of an employee?  Under the general rule of respondeat superior, an employer may be held legally liable for the bad acts of its employees whenever the acts are committed in the course and scope of the employment of the employee. Under the theory of respondeat superior an employer may in some circumstances be found liable, not only for an employee’s negligent acts, but also for an employee’s intentional and criminal acts. The employer may be responsible in cases where the employee injures another co-worker, customer, or even an innocent bystander.  The key questions in respondeat superior cases are whether the employee was acting in the course and scope of his employment at the time the injury or wrongful act occurred, as opposed to being involved in a completely and truly independent venture, and whether the conduct was foreseeable to the employer.  These are questions of fact, not law, on which discovery and fact finding are required, not premature legal dismissals.

The Nevada Supreme Court in Prell Hotel Corp. vs. Antonacci, 86 Nev.390, 469 P.2d 399 (1970), was  faced with a case where a guest of the Aladdin Hotel and Casino was knocked unconscious by a blackjack dealer in the course of a game.  The guest subsequently sued the casino. The Plaintiff’s guest had become angry during a game and had called the dealer a nasty name.  The dealer then dealt one card to each player around the table and then hit the plaintiff spontaneously and with no warning.  The dealer did not leave his position behind the 21 table to accomplish the assault and battery.  In discussing intentional torts and the doctrine of respondeat superior, the Court noted that although previously an intentional tort would not typically fall within the scope of employment, it now deemed this old position inflexible and arbitrary, noting that that view had been gradually eroded and that the concept of scope of employment had been enlarged by the law.  The Court held that only if the employee’s tort is truly an independent venture, and not committed in the course of the very task assigned to him, could the employer generally escape liability (citing Chapman v. City of Reno, 85 Nev.365 (1969).  Otherwise, the employer could be liable for any tort committed in the course and scope of the employee’s employment.  Here, Kyle was a wine steward selling wine to restaurant customers, the very task assigned to him by the restaurant.

In 1996, the Nevada Supreme Court addressed this issue again in the case of Rockwell v. Sun Harbor Budget Suites, 112 Nev.1217, 925 P.2d 1175 (1996). In the Rockwell case, Sun Harbor, which operated the Budget Suites, contracted with Bigelow Management to provide security to its apartments. In 1993 a security guard provided by Bigelow shot a tenant, killing her after the woman ended a relationship that the two had been engaged in. The woman’s husband sued Sun Harbor who claimed that the security guard was not an employee and so they could not be held liable for his tortious conduct. The Court noted that an employer can be held vicariously responsible only for the acts of his employees not someone else. However, the Court reaffirmed that the respondeat superior liability does attach when the employee is under the control of the employer, and when the act is within the scope of the employment (citing Molino v. Asher, 96 Nev.814, 817, 618 P.2d 878, 880 (1980)). Therefore the court held that an actionable claim on a theory of respondeat superior requires proof that (1) the actor at issue was an employee and (2) the action complained of occurred within the scope of the actor’s employment. The Court noted that, generally, whether an employee is acting within the scope of his or her employment is a question of fact for the trier of fact! The Court further noted that an employer may be held liable for even the intentional acts of an employee, where that act or tort occurred within the scope of the tasks assigned to the employee.

The Nevada legislature eventually codified the respondeat superior tests in NRS 41.745. Thereafter, in 2005, the Nevada Supreme Court again addressed this issue in Wood v. Safeway Inc., 121 Nev.724, 121 P.3d 1026 (2010). In this case, Jane Doe, a mentally handicapped adult worked at Safeway as a clerk, where a janitor employed by Action Cleaning, which had been contracted to provide janitorial services to Safeway, allegedly raped Doe several times, and consequently Doe’s guardians filed suit on her behalf attempting to hold Safeway and Action Cleaning liable for the janitor’s tortious conduct. The District Court granted Action Cleaning’s motion for summary judgment concluding that Doe’s claims were barred because the janitor’s intervening criminal acts were a superseding cause precluding liability under NRS 41.745. On appeal, the Court noted that NRS 41.745 addresses specific circumstances in which an employer is not liable for harm or injury caused by an employee’s intentional conduct as follows:

1. An employer is not liable for harm or injury caused by the intentional conduct of an employee if the conduct of the employee:

(a) was a truly independent venture of the employee;
(b) was not committed in the course of the very task assigned to an employee; and
(c) was not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his employment.

For the purposes of this subsection, conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury.

In examining this Statute, the Court explained that:

If the willful tort is committed in the course of the very task assigned to the employee, then it is appropriate to extend liability to the employer.

The Court noted that before NRS 41.745 was enacted, it had earlier held that an employee’s intentional conduct relieves an employer of liability when the employee’s tort is truly an independent venture of its own and not committed in the course of the very tasks assigned to him. The Court found that those two earlier observations were essentially codified into NRS 41.745(1)(a) and (b). Applied to the rape in question, the Court held that Doe’s assailant was not acting on behalf of Action Cleaning when he sexually assaulted Doe. Moreover, the Court found that the sexual assault was not committed in the course of the tasks assigned to him as a janitor. The Court concluded that his sexual assault of Doe was an independent venture outside of the course and scope of his employment. However, since the statute also requires an element of foreseeability, the Court noted that whether an intentional act is reasonably foreseeable depends upon “whether one has reasonable cause to anticipate such act, and the probability of injury resulting therefrom.”

The Court held that “foreseeability” as a test of respondeat superior, merely means that in the context of the particular enterprise, an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer in its line of business. Here, not only was wine sold to restaurant customers in the course and scope of employment, but the evidence indicates the owners knew or should have known of Kyle’s propensity to make illegal sales to restaurant customers off-site, making it extremely foreseeable.

The modern rationale for respondeat superior is closely related to the test applied in worker’s compensation cases for determining whether an injury arose out of or in the course of employment. The Safeway Court found there was no genuine issue of material fact regarding the foreseeability of Doe’s assailant’s conduct. He had no prior criminal history and Action Cleaning had required proof of identification, checked employment references and check for proper immigration forms for every employee. Further, Action Cleaning’s manager had never received complaints of sexual harassment before regarding this employee in the past ten years. Therefore, under the specific facts and circumstances of the case, the Court held that it was not reasonably foreseeable to Action that Action Cleaning’s employee would sexually assault a Safeway employee. Consequently under NRS Chapter 41, Action Cleaning was held not liable for the intentional conduct of its employee in that case.

Applying the facts of the instant case to the vicarious liability cases in Nevada, it is clear that numerous material questions of fact exist that bar and preclude any consideration of summary judgment at this time. There are a number of witnesses that need to be deposed who may, apparently, testify that the acts of George and Kyle, as employees of S Restaurant, were indeed committed within the very course and scope of their employment assigned by their employer, selling wine to S customers. Specifically, George and Kyle as wine stewards or sommeliers at the S, were responsible for providing wine to the S customers. The witnesses will testify, including Robert, the Plaintiff herein, as well as the owners of B Wines in California, that both of them had been approached while having dinner at S, specifically to purchase wine, both for consumption at the restaurant during dinner and also to be shipped to their residences and places of business after dinner. Robert and Andy of B Wines, both assumed that since the wine sommeliers at S were approaching them in the restaurant to purchase wine, both for dinner and for consumption or sale afterwards, that the offsite sales and shipments were authorized by S’s owners and managers. Considering the nature and scope of the wine sommeliers’ employment, this was completely and reasonably foreseeable since it was within the scope of their employment to sell wine to S customers. Moreover, other witnesses are expected to testify that wine was often sold off premises, both to hotel guests and restaurant guests, by the wine sommeliers at S. Moreover, these are all questions of fact.

There is also a question of fact to what extent the management of the S knew or should have known of this conduct by its employees. Witnesses are expected to testify that this activity had been going on not only for many months previously at S(by Kyle and George), but also at their prior places of employment at other restaurants in Las Vegas. There are questions of fact as to whether S’s managers and owners knew or should have known of the alleged propensity of their wine sommeliers to sell wines for offsite consumption at prior Las Vegas restaurants and at S, purportedly in violation of their privileged liquor licenses. If so, it falls well within any definition of foreseeability under respondeat superior tests.

There is no requirement that an employee’s act benefit an employer for respondeat superior to apply. Perez v. Van Groningen & Sons, 719 P.2d 676 (Cal. 1986). The plaintiff need not demonstrate that the assault was committed for the purpose of accomplishing the employee’s assigned tasks. Id. If the injury is one of the risks inherent in the enterprise, “the employer could be held liable for its employee’s” actions. Id. The fact that the act may have been unauthorized or wrongful “will not show a departure from the service of the principal as will absolve the latter if the act was committed while the agent was still occupying himself with the principal’s business with the scope of his employment.” Id. The law imposes the risk of injury arising out of the employment on the defendant “as a cost attendant to doing business.” Id.

Another witness informed the undersigned that Kyle had been fired for running a similar scheme while employed at the Stripsteak Restaurant in the Mandalay Bay Hotel. This raises questions of fact as to whether the restaurant conducted a sufficient background check before hiring these employees. Had it done so, it appears that, unlike the Action Cleaning defendant, this Defendant would have been able to learn of the foreseeability of its employees’ wrongful conduct.

Moreover, two former employees of S have contacted the undersigned to indicate that all employees at S had been asked to gather up empty wine bottles, corks and foils for Kyle L and George. This raises numerous questions of fact regarding whether these materials were being used in furtherance of the wine forgery and/or wine counterfeit ring recently discovered by federal officials, resulting in the arrest of Rudy Kurniawan in California. Defendant Kyle told Plaintiff that the missing funds had been sent to Rudy Kurniawan. There are questions of fact regarding whether, and to what extent, Kyle and George may have been involved in that conspiracy and if materials were gathered at S in furtherance of any counterfeit wine conspiracy either in Las Vegas, Los Angeles, or both.

An article from Culture Magazine in July of 2012, entitled “A Vintage Crime,” reports that Rudy Kurniawan was arrested by FBI agents on March 8, 2012, at his home in Arcadia, California, and charged with multiple counts of wire and mail fraud, notably in connection with the attempted sale of rare vintage wines. Apparently, when agents entered Kurniawan’s house, they discovered a large and sophisticated counterfeiting factory, with scores of bottles being converted to knock-offs, and thousands of fake labels for the most prestigious wines from burgundy and bordeaux. It appears that Kurniawan may have sold millions of dollars worth of counterfeit wines and scammed some of the world’s biggest collectors. It is potentially the largest case of wine fraud in world history, and may have left the entire market for rare and old wines irredeemably corrupted. Pages Id. 2 and 3. The FBI agents affidavit for a search warrant of wine indicates that Kurniawan’s home had bags filled with corks, foil used to cover corks, wine bottles and wine labels. USA v. Rudy Kurniawan, Southern Dist. of New York, 12-CR-00376-RMB.

It appears that a number of questions of fact surround exactly how the counterfeit wine scam actually worked. For example, there are material questions of fact regarding whether Kyle and George , together with the assistance of various S employees, gathered up empty wine bottles, corks, foils and labels, and shipped them to Rudy Kurniawan or his agents in Los Angles where the bottles would be filled with cheap wines. There are issues regarding whether counterfeit wines would be shipped back to Kyle and George at the restaurant for resale to customers

In order to determine the breath, width and depth of the counterfeit wine conspiracy, it will be necessary to conduct some discovery relative to the names of the employees on staff, while the conspiracy was being perpetrated and then depose them to discover the extent and depth of the conspiracy and the knowledge, whether actual or legally capable of being imputed, to the managers and owners at the restaurant. Subpoenas will likely be necessary since the undersigned counsel has discovered in telephone conversations with former sommeliers at the S, that they are not readily willing to consent to participate in discovery proceedings since it could easily impact their current positions at other Las Vegas restaurants.

D. The Standard For Summary Judgment Mandates That The Court Deny Defendant’s Motions For Summary Judgment.

On a motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, all doubts are resolved against him, and his supporting documents, if any, are carefully scrutinized by the Court. See Ottenheimer v. Real Estate Div. of the Nevada Dept. of Commerce, 91 Nev. 338, 535 P.2d 1284 (1975); Daugherty v. Wabash Life Ins. Co., 87 Nev. 32, 38 (1971). Further, summary judgment may be granted only if the pleadings, admissions, depositions, answers to interrogatories and affidavits establish that no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. Montgomery v. Ponderosa Constr., Inc., 101 Nev. 416, 705 P.2d 652 (1985). The party opposing summary judgment is entitled to have the evidence and all inferences therefrom accepted as true. Jones v. First Mortgage Co. of Nevada, 112 Nev. 531, 915 P.2d 883 (1996); Johnson v. Steel, 100 Nev. 181, 182-183 (1984).

In Wood v. Safeway, 121 Nev. 724, 121 P.3d 1026 (2005), the Nevada Supreme Court clarified the “slightest doubt” standard, holding that:

A factual dispute is genuine when the evidence is such that a rational trier of fact could return a verdict for the nonmoving party.

Id. at 724, 1026. As shown below, taking into consideration the Wood standard, Defendant’s Motion must fail because Plaintiff has clearly demonstrated that there are material issues of fact that, depending on what more is learned during discovery, could allow a jury to return a verdict in its favor for all claims at issue.

E. The Standard For A Motion to Dismiss Under NRCP 12(b)(5) Mandates That The Court Deny Defendant’s Motion to Dismiss.

Dismissal of Plaintiff’s claims is improper if Plaintiff can prove any set of facts that would entitle it to relief. In reviewing whether dismissal is proper under NRCP 12(b)5, the Court “must regard all factual allegations in the complaint as true, and all inferences must be drawn in favor of the plaintiff.” Schneider v. County of Elko, 75 P.3d 368, 370 parallel etc. (Nev. 2003). “A complaint will not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff could prove no set of facts which, [if true], would entitle him or her to relief.” Blackjack Bonding v. City of Las Vegas Municipal Court, 116 Nev. 1213, 1217, 14 P.3d 1275, 1278 (2000). As shown herein, Plaintiff has asserted proper causes of action and, depending on the outcome of numerous questions of fact or which discovery is needed, it is readily conceivable that Plaintiff will be able to establish facts that entitle it to relief.

CONCLUSION

For the reasons stated above, it is abundantly evident that numerous questions of fact exist which preclude summary judgment. Defendant employees were apparently participating in a large counterfeit wine ring during work hours while on work premises. Apparently customers were contacted on premises and negotiations continued via email and cell phone while wine stewardswere still working on the premises. Bottles, corks and foils were collected on the restaurant premises. Moreover, pursuant to NRCP 56(f), it is clear that substantial discovery should be conducted by the parties before a summary judgment motion is again submitted for consideration herein by any party to these proceedings.

DATED this _____day of _________, 20__.

ALBRIGHT, STODDARD, WARNICK & ALBRIGHT

____________________________________________

G. MARK ALBRIGHT, ESQ.

Nevada Bar No. 001394

801 South Rancho Drive, Suite D-4

Las Vegas, Nevada 89106

(702) 384-7111

Attorneys for Plaintiff

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.