Harper v. Nev. Prop. 1, LLC

• Decision Date: 05 August 2021
• Docket Number: Case No.: 2:19-cv-02069-GMN-VCF
• Citation: 552 F.Supp.3d 1033
• Parties: Mitchell HARPER, Plaintiff, v. NEVADA PROPERTY 1, LLC d/b/a Cosmopolitan of Las Vegas, et al., Defendants.
• Court: U.S. District Court — District of Nevada

552 F.Supp.3d 1033

Mitchell HARPER, Plaintiff,

v.NEVADA PROPERTY 1, LLC d/b/a Cosmopolitan of Las Vegas, et al., Defendants.

Case No.: 2:19-cv-02069-GMN-VCF

United States District Court, D. Nevada.

Signed August 5, 2021

Jenny L. Foley, HKM Employment Attorneys LLP, Bradley Sims, Las Vegas, NV, for Plaintiff.

Daniel I. Aquino, Jackson Lewis P.C., Lisa A. McClane, Fisher & Phillips, LLP, Las Vegas, NV, for Defendant Nevada Property 1, LLC.

ORDER

Gloria M. Navarro, United States District Judge

Pending before the Court is the Report and Recommendation ("R&R") of United States Magistrate Judge Nancy J. Koppe, (ECF No. 71), which recommends that Defendant Nevada Property 1, LLC's ("Defendant's") Motion to Enforce Settlement, (ECF No. 41), be GRANTED.

1 A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B) ; D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1) ; D. Nev. IB 3-2(b). Where a party fails to object, however, the Court is not required to conduct "any review at all ... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge's report and recommendation where no objections have been filed. See, e.g., United States v. Reyna–Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003).

Here, no objections were filed, and the deadline to do so, August 3, 2021, has passed. (See Report and Recommendation, ECF No. 71).

Accordingly,

IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 71), is ACCEPTED AND ADOPTED in full.

IT IS FURTHER ORDERED that Defendant's Motion to Enforce Settlement, (ECF No. 41), is GRANTED.

ORDERS

[Docket Nos. 40, 41, 64]

REPORT AND RECOMMENDATION

[Docket No. 41]

Nancy J. Koppe, United States Magistrate Judge

Pending before the Court is Defendant's motion to enforce settlement and for sanctions. Docket No. 41. Plaintiff filed a response and Defendant filed a reply. Docket Nos. 44, 47. The Court held an evidentiary hearing on the motion. See Docket No. 62; see also Docket No. 70 (transcript). Following that hearing, Defendant filed paperwork evidencing the fees for which it seeks recovery. Docket No. 64. Plaintiff filed a response and Defendant filed a reply. Docket Nos. 65, 66. Also pending before the Court is a motion to seal. Docket No. 40. The parties filed subsequent documents under seal and the Court ordered them to make a proper showing for each document. Docket No. 57. The parties filed a joint supplement. Docket No. 59. The motion to seal is properly resolved without a hearing. See Local Rule 78-1.

For the reasons discussed more fully below, the Court issues orders (1) GRANTING in part and DENYING in part Defendant's motion for sanctions and (2) GRANTING in part and DENYING in part the motion to seal. The undersigned also RECOMMENDS that Defendant's motion to enforce settlement be GRANTED .¹

I. BACKGROUND

On December 3, 2019, this case was assigned to the Early Neutral Evaluation Program and the undersigned was assigned to the case as the settlement judge. Docket No. 2.² Upon Defendant's appearance a few months later, the undersigned set the early neutral evaluation. Docket No. 11. The early neutral evaluation was continued twice, Docket Nos. 17, 22, and was eventually held on September 10, 2020, Docket No. 29. After roughly three hours at the early neutral evaluation, a settlement was placed on the record that included the material terms of "confidentiality" and "no admission of any liability or wrongdoing." See Docket Nos. 29, 39.³

The Court ordered the parties to file dismissal papers by October 8, 2020. Docket No. 29. On October 8, 2020, Defendant filed a motion to extend that deadline as the written settlement agreement had not yet been executed. See Docket No. 31. The Court granted the motion to extend. Docket No. 32. On November 4, 2020, Defendant filed a status report indicating that defense counsel had been advised that "Plaintiff has some concerns about the agreement which counsel is trying to resolve, but resolution has been complicated by some communication difficulties between Plaintiff and his counsel." Docket No. 34. The Court again extended the deadline to file dismissal papers. Docket No. 35.

On November 12, 2020, Plaintiff's counsel sent an email to defense counsel indicating that she had "spoken with [Plaintiff] at length. He no longer wants to settle. I explained the possible outcomes of that decision (including that you'd likely file a Motion to Enforce), and he's adamant that he does not want to settle and will not sign the agreement." Evid. Hrg. Def. Ex. 8 at 4 (NVP1-0067). That same day, Plaintiff's counsel made similar representations in a joint status report:

On September 10, 2020[,] the parties reached a confidential resolution of the above-referenced matter.... A written document memorializing the parties’ agreement has been exchanged; however, Plaintiff has told his counsel that despite having agreed to resolve this matter and confirmed the key terms of the agreement on the record with the Court, he no longer wishes to settle.

Docket No. 36 at 1. Hence, Plaintiff's counsel unequivocally represented that a binding settlement had been reached but that Plaintiff no longer wished to settle.

The parties’ status report also asked the Court to schedule a "status conference and require Mr. Harper's participation." Id. at 2. The Court declined to set that status conference that appeared aimed at having the Court explain the law to Plaintiff, which is the job of his attorney. See Docket No. 37 at 1 n.1. Instead, the Court instructed Plaintiff's counsel to address with her client the binding legal authority that appeared to govern the scenario being described. See id. (citing Doi v. Halekulani Corp. , 276 F.3d 1131, 1137-38 (9th Cir. 2002) ). To facilitate those discussions, the Court again extended the deadline to file dismissal papers. Id.

Plaintiff continued to refuse to sign the settlement agreement. As a result, Defendant filed the motion to enforce settlement and for sanctions that is now before the Court. Docket No. 40.⁴ Plaintiff's response to the motion did not include evidentiary support, in the form of a declaration or otherwise, for the representations being made in that brief. As such, the Court ordered Plaintiff to file a proper declaration attesting to those representations. Docket No. 48.⁵ Plaintiff responded by filing a rambling, evasive, and generally non-responsive "written statement" that did not comply with 28 U.S.C. § 1746. Docket No. 52. The Court again ordered Plaintiff to file a statute-compliant declaration that directly addressed the representations made in the responsive brief. Docket No. 53. Plaintiff then filed a declaration. Docket No. 55.

On April 9, 2021, the Court held an evidentiary hearing on the matter. Docket No. 62.

II. MOTION TO SEAL

Before addressing the substance of the parties’ dispute, the Court begins with the administrative matter of determining which (if any) aspects of the judicial record should remain secret from the public. In conjunction with the motion to enforce and for sanctions, Defendant filed a motion to seal. Docket No. 40; see also Docket No. 41 (sealed motion with exhibits). In addition, the parties made several further filings under seal without an accompanying motion to seal. Docket Nos. 44 (responsive brief and exhibit), 47 (reply brief), 49 (notice of meet and confer), 50 (supplemental declaration), 51 (certificate of service), 52 (supplemental written statement), 54 (certificate of service), 55 (supplemental declaration and certificate of service). The Court ordered a supplement from the parties, Docket No. 57, which they filed along with proposed redactions, Docket No. 59.

A. Standards

There is a strong presumption of public access to judicial records.

Kamakana v. City & County of Honolulu , 447 F.3d 1172, 1178 (9th Cir. 2006). A party seeking to file documents under seal bears the burden of overcoming that presumption. Pintos v. Pac. Creditors Ass'n , 605 F.3d 665, 678 (9th Cir. 2010).

The standard applicable to a motion to seal turns on whether the underlying materials are submitted in conjunction with a dispositive or a non-dispositive motion. Whether a motion is "dispositive" turns on "whether the motion at issue is more than tangentially related to the merits of a case." Center for Auto Safety v. Chrysler Group, LLC , 809 F.3d 1092, 1101 (9th Cir. 2016). The parties assert in this case that the motion to enforce settlement should be considered "dispositive" for purposes of their sealing request. See Docket No. 59 at 2.⁶ The Court agrees that the motion to enforce is properly treated as being dispositive in nature.

Parties "who seek to maintain the secrecy of documents attached to dispositive motions must meet the high threshold of showing that ‘compelling reasons’ support secrecy." Kamakana , 447 F.3d at 1180. The Ninth Circuit has indicated that " ‘compelling reasons’ sufficient to outweigh the public's interest in disclosure and justify sealing court records exist when such ‘court files might have become a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.’ " Id. at 1179 (quoting Nixon v. Warner Commc'ns Inc. , 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) ). "The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records." Id.

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