Nissenbaum v. NNH Cal Neva Services Co.

983 F. Supp. 2d 1234, 2013 WL 6158694, 2013 U.S. Dist. LEXIS 166691
CourtDistrict Court, D. Nebraska
DecidedNovember 22, 2013
DocketNo. 3:11-CV-00253-LRH-WGC
StatusPublished

This text of 983 F. Supp. 2d 1234 (Nissenbaum v. NNH Cal Neva Services Co.) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nissenbaum v. NNH Cal Neva Services Co., 983 F. Supp. 2d 1234, 2013 WL 6158694, 2013 U.S. Dist. LEXIS 166691 (D. Neb. 2013).

Opinion

ORDER

LARRY R. HICKS, District Judge.

Before the Court is Defendants NHH Cal Neva Services Co., LLC’s (“NHH”) Motion for Summary Judgment. Doc. # 72.1 Plaintiff Susan B. Nissenbaum (“Nissenbaum”) filed an Opposition (Doc. # 78), to which the Canyon Entities replied (Doc. # 79).

I. Factual Background

This case concerns Nissenbaum’s employment at the Cal Neva Resort, Spa and Casino (the “Cal Neva”) in Lake Tahoe, California and Nevada. Nissenbaum began work at the Cal Neva as an employee of Sentry Hospitality of Nevada (“Sentry”) on February 16, 2005. See Doc. # 73, Ex. 3; see also Doc. # 73, Ex. 2. At that time, the Cal Neva was owned by Namcal, LLC (“Namcal”). See Doc. # 73, Ex. 3. Pursuant to the Management Agreement between Namcal and Sentry, dated February 15, 2005 (the “Management Agreement”), Sentry was the manager of the Cal Neva. Doc. # 73, Ex. 2. On November 6, 2007, Canpartners Realty Holding Company IV, LLC’s (“Canpartners”) made a $25,000,000 loan (the “Loan”) to Namcal. See Doc. #73, Ex. 1 (Bosworth Dep.), p. 107; see also Doc. # 73, Ex. 4. The Loan was secured by the Cal Neva property. See Doc. # 78, Ex. 5. In order to secure repayment of the Loan, Namcal executed and delivered to Canpartners various security instruments, as is customary in commercial real estate lending practice. See Doc. # 72, p. 6; see also Doc. # 78, p. 2. Of particular relevance here, Namcal and Canpartners executed an Assignment of Management Agreement, Security Agreement and Subordination Recognition Agreement (the “Subordination Agreement”). Doc. #73, Ex. 4. In December, 2008, following Namcal’s default on the Loan, Canpartners recorded a Notice of Default and Election to Sell under the California and Nevada Deed of Trust. See Doc. # 72, p. 8. Thereafter, Canpartners sought the appointment of a receiver to oversee management and control of the Cal Neva until the time of foreclosure. See Doc. # 73, Ex. 1 (Bosworth Dep.), pp. 77-78; see also Doc. # 78, Ex. 8 (Canpartners’ Motion for Appointment of Receiver). On February 5, 2009, Michael McPherson (“McPherson”) was appointed by the Washoe County District Court to act as Receiver of the Cal Neva. Doc. # 74, Ex. 9. The receivership order granted McPherson broad authority to “take possession of the [Cal Neva] and hold, manage, and maintain [it] ..., preserving it from loss, material injury, destruction, substantial waste, .or loss of income therefrom.” Id. at 2.

On April 8, 2009, Canpartners foreclosed on the Cal Neva, and its subsidiary, Can-partners Cal Neva, became the new owner through trustee sales conducted in both California and Nevada. Id. at 183; Doc. # 74, Ex. 10. Later that same day, pursuant to its rights under the Subordination Agreement, Canpartners terminated the Management Agreement between Namcal and Sentry, effective April 9, 2009. Doc. [1237]*1237# 74, Ex. 10. Also on April 8, 2009, Can-partners Cal Neva and NHH executed the Amended and Restated Management Agreement (the “NHH Management Agreement”), pursuant to which NHH took over management of the Cal Neva. Doc. # 74, Ex. 11. On April 9, 2009, Ernie Catanzaro (“Catanzaro”) of NHH sent a letter to William Jackson (“Jackson”) of Sentry, then General Manager of the Cal Neva, informing him that NHH would not be retaining him or Nissenbaum. Doc. # 74, Ex. 12.

Also on April 9, 2009, Catanzaro and Robert Marcil (“Marcil”), both representatives of NHH, visited the Cal Neva to prepare for the transition in management from Sentry to NHH. See Doc. # 73, Ex. 8 (Nissenbaum Dep.), p. 190 (explaining that the visit was to facilitate the transition). On that same day, Marcil briefly interacted with Nissenbaum, asking several human resource related questions and gathering some human resource materials. See id. at 190-91. Also on April 9, 2009, both Catanzaro and Marcil informed Nissenbaum that she was no longer employed at the Cal Neva.2 See id. at 191-92. NHH officially took control of the Cal Neva on April 10, 2009, at midnight. See Doc. # 78, p. 7 (Nissenbaum conceding that “the parties affirmatively decided the [NHH] Management Agreement would be effective on [sic] April 8, 2009, and that NHH Cal Neva would officially take physical control of the property on April 10, 2009, a minute after midnight”).

On April 3, 2009, Nissenbaum, through counsel, sent a letter .to various representatives from Namcal, Sentry, and others, complaining of gender discrimination, unequal pay, and demanding payment for lost wages. Doc. # 75, Ex. 16. The letter was not addressed to any representative of NHH. See id. On April 10, 2009, Nissenbaum filed a complaint with the Nevada Equal Rights Commission, alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Equal Pay Act of 1963 (“Equal Pay Act”). See Doc. # 27, ¶ 50. Nissenbaum’s complaint was subsequently forwarded to the United States Equal Employment Opportunity Commission (the “EEOC”). See generally id. The EEOC ultimately terminated its investigation on both claims without issuing any findings of fact or conclusions of law. See id. at ¶ 51, ¶ 52.

On December 20, 2011, Nissenbaum, through prior counsel, filed a First Amended Complaint (“FAC”), naming NHH as a defendant. See id. In the FAC, Nissenbaum alleges two causes of action — the first for equal pay discrimination in violation of the Equal Pay Act, 29 U.S.C. § 206(d)(1), and Nevada’s Equal Pay Act, N.R.S. 608.017, and the second for discrimination in violation of Title VII, 42 U.S.C. § 2000e-2, and Nevada’s anti-discrimination statute, N.R.S. 613.330. See id. at ¶¶ 53-74. In addition to compensatory damages, Nissenbaum also seeks punitive damages against NHH. See id. at pp. 16-17. On May 3, 2013, NHH filed the present Motion for Summary Judgment on the issue of joint employer liability. Doc. # 72.

II. Legal Standard

Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, affidavits or declarations, stipulations, admissions, and other materials in the record show that “there is no genuine issue as to any material fact [1238]*1238and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Cnty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir.2001).

The moving party bears the initial burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett,

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Bluebook (online)
983 F. Supp. 2d 1234, 2013 WL 6158694, 2013 U.S. Dist. LEXIS 166691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nissenbaum-v-nnh-cal-neva-services-co-ned-2013.