Francis v. Wynn Las Vegas Llc
| Decision Date | 06 October 2011 |
| Docket Number | No. 54605.,54605. |
| Parties | Joseph FRANCIS, Appellant,v.WYNN LAS VEGAS, LLC, d/b/a Wynn Las Vegas, Respondent. |
| Court | Nevada Supreme Court |
OPINION TEXT STARTS HERE
The Law Office of Gary M. Pakele and Gary M. Pakele, Reno, for Appellant.Pisanelli Bice PLLC and Todd L. Bice and Debra L. Spinelli, Las Vegas, for Respondent.Before SAITTA, C.J., HARDESTY and PARRAGUIRRE, JJ.
In this appeal, we address several issues arising from a civil litigant's invocation of his Fifth Amendment privilege against self-incrimination. The salient issue we consider is how, in response to a civil litigant's request for accommodation of his or her privilege, the district court should proceed in order to prevent the opposing party from being unfairly disadvantaged. As it pertains to this matter, we address whether the district court abused its discretion in refusing to permit appellant to withdraw his invocation and in denying his request to reopen discovery.
Following the lead of well-established federal precedent, we conclude that in response to a civil litigant's request for accommodation of his or her privilege, the district court should balance the interests of the invoking party and the opposing party's right to fair treatment. After reviewing the particular considerations that bear on striking this balance in the instant case, we conclude that the district court did not abuse its discretion in refusing to permit appellant to withdraw his invocation or in denying his request to reopen discovery. We further conclude that the district court did not abuse its discretion in denying appellant's NRCP 56(f) motion, nor did it err in granting respondent summary judgment.
In 2007, during a trip to Las Vegas, appellant Joseph Francis signed two casino markers 1 in favor of respondent Wynn Las Vegas, LLC, d.b.a. Wynn Las Vegas for $2.5 million and $300,000. At the conclusion of Francis's trip, he had $800,000 on his front money account, comprised of a $600,000 wire transfer and $200,000 in casino chips. Wynn applied this $800,000 to Francis's outstanding markers, leaving a balance of $2 million due and owing.
While Francis was incarcerated in Reno on an unrelated matter, he persuaded Wynn to delay collection, but no payment from Francis was forthcoming after his release. In e-mails that Francis sent to representatives for Wynn, he acknowledged the debt and stated his intention to pay, but he claimed that he was entitled to an unspecified discount. Francis never paid Wynn any portion of the $2 million balance.
In June 2008, Wynn sued Francis for breach of contract, conversion, unjust enrichment, and breach of the covenant of good faith and fair dealing. Francis answered the complaint and asserted numerous affirmative defenses and counterclaims for, among other things, breach of contract, conspiracy, and extortion. The parties stipulated to a scheduling order and a discovery plan whereby discovery would close by April 6, 2009. Wynn produced initial disclosures of over 100 documents. Francis produced only a letter from Wells Fargo that stated his bank account had been closed.
In September 2008, Wynn referred Francis to the Clark County District Attorney's office, which initiated a criminal prosecution against Francis. The criminal complaint charged Francis with theft and passing a check with intent to defraud. The complaint stated that the charges arose from his failure to pay Wynn the balance due on the casino markers.
Meanwhile, discovery in the civil matter proceeded. Although nothing in the record indicates that Francis had sought accommodation from the district court regarding his concern that he would incriminate himself by answering questions during his deposition, when Wynn deposed him, he asserted his Fifth Amendment privilege to nearly every question:
[WYNN'S COUNSEL]. Have you ever been to the Wynn hotel and casino?
[FRANCIS]. I respectfully decline to answer based upon my right to remain silent as guaranteed ... by the Fifth Amendment of the United States Constitution and the State of Nevada.
Q. Have you ever been in the state of Nevada before?
A. I respectfully decline to answer based upon my right to remain silent as guaranteed by the Constitutions of the United States of America and the State of Nevada.
Q. How much money do you believe that you owe the Wynn hotel and casino?
A. I respectfully decline to answer based upon my right to remain silent as guaranteed by the Constitutions of the United States and the State of Nevada.
There's a pending criminal action, sir.
Another representative excerpt of Francis's deposition is as follows:
[WYNN'S COUNSEL]. Are there any witnesses that have knowledge about your claimed pain, suffering, and emotional distress?
[FRANCIS]. Right to remain silent.
Q. Are you married?
A. Right to remain silent.
Q. Does anyone live in your home with you?
A. Right to remain silent.
Q. Do you have a father?
A. I think everyone has a father. Yes.
Q. Okay. Is he living?
A. Right to remain silent.
Q. What's his name?
A. Right to remain silent.
Q. Do you have a mother?
A. Yes. I believe everyone does.
Q. What's her name?
A. Right to remain silent.
After several hours of similar answers from Francis, the deposition concluded with Francis's counsel giving Wynn vague indications that Francis would try to promptly cure his deposition. Francis, however, made no attempt to cure his deposition or waive his privilege, and as stipulated by the parties' discovery plan, discovery closed on April 6, 2009. Around this time, Francis filed a motion with the discovery commissioner to reopen discovery, asserting that discovery should be extended because the case was still in its infancy.
In May 2009, Wynn filed a motion for summary judgment, accompanied by numerous affidavits and other documentary evidence showing that Francis owed $2 million and refuting the allegations contained in Francis's counterclaims. Wynn's motion pointed out that Francis had conducted no discovery—he took no depositions, hindered Wynn's ability to depose him, produced only a single document, and propounded no interrogatories. Thus, Wynn asserted that it was entitled to summary judgment based not only upon Francis's bad faith assertion of privilege but his failure to present any evidence contradicting Wynn's evidence.
Francis opposed Wynn's motion for summary judgment, asserting that a genuine issue of material fact existed regarding the amount that he owed Wynn because he was entitled to a discount and Wynn had failed to mitigate its damages. In addition, he argued that discovery should be reopened because the discovery commissioner had recommended that discovery be extended. Francis's opposition also stated that he “may still cure any defects with regard to assertions of 5th Amendment privilege,” and indicated that he had informed Wynn that he would cure his deposition. Francis submitted no affidavits or other evidence to rebut the evidence contained in Wynn's motion for summary judgment. Finally, Francis sought an NRCP 56(f) continuance to conduct discovery to oppose Wynn's motion. Francis's attorney submitted an affidavit in support of the NRCP 56(f) motion, stating that she wished to subpoena bank records and depose two individuals. She did not explain why Francis had not subpoenaed these records or deposed these individuals during discovery.
On June 8, 2009, during the hearing on Wynn's motion for summary judgment, Francis's counsel gave vague indications that Francis would like to withdraw his privilege. The district court stated, in pertinent part:
[Y]ou can't use the 5th Amendment as a sword and a shield. You can't sit in a deposition and—what's your father's name? Right to remain silent. Do you have a cell phone? Right to remain silent. That's the most ridiculous exercise of the 5th Amendment I think I've ever seen.
Thereafter, the district court indicated that discovery would not be reopened and granted summary judgment against Francis on all claims and counterclaims. It found that Francis owed Wynn $2 million on the unpaid markers. The court determined that Francis had produced no evidence rebutting Wynn's evidence and that he had improperly asserted the Fifth Amendment privilege throughout his deposition. It also denied Francis's NRCP 56(f) motion for a continuance, noting that Francis had provided no explanation for his failure to undertake discovery or adequately explain how extending discovery would produce a genuine issue of material fact. This appeal followed.
Whether the district court abused its discretion in refusing to permit Francis to withdraw his invocation or in denying his request to reopen discovery
Francis asserts that the district court penalized him for exercising his Fifth Amendment privilege against self-incrimination because it did not give him an opportunity to withdraw his privilege. He also contends that although his assertion of the privilege was overbroad, the district court should have accommodated his privilege by granting his request to reopen discovery.2 We disagree.
Standard of review
Determining how to proceed in response to a civil litigant's request for accommodation of his or her Fifth Amendment privilege against self-incrimination is a matter within the discretion of the district court. S.E.C. v. Graystone Nash, Inc., 25 F.3d 187, 194 (3d Cir.1994); S.C. Johnson & Son, Inc. v. Morris, 322 Wis.2d 766, 779 N.W.2d 19, 27 (2009).Determining how to proceed in response to a civil litigant's request for accommodation of his or her privilege
The Fifth Amendment privilege against self-incrimination may be invoked in both criminal and civil proceedings. Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). Exercise of the privilege may not be penalized. Spevack v. Klein, 385 U.S. 511, 515, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). Nonetheless, an invocation “is not a substitute for relevant...
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