SS Management, LLC v. Douglas County, et al.

• Court: District Court, D. Nevada
• Decided: April 22, 2026
• Docket: 3:25-cv-00555
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 SS MANAGEMENT, LLC, Case No. 3:25-CV-00555-CLB

5 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 6 v. [ECF No. 9] 7 DOUGLAS COUNTY, et al.,

8 Defendants.

9 10 Before the Court is Defendants Douglas County, Wesley Rice, Mark Gardner, 11 Danny Tarkanian, Sharla Hales, and Nathan Tolbert’s (collectively referred to as 12 “Defendants”) motion to dismiss Plaintiff SS Management, LLC’s (“SS Management”) 13 complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 9.) SS 14 Management responded, (ECF No. 18), and Defendants replied. (ECF No. 19). For the 15 reasons stated below, Defendants’ motion to dismiss, (ECF No. 9), is granted. 16 I. BACKGROUND 17 SS Management is the owner of property in Douglas County categorized as “adult 18 revue” that includes gaming establishments, showrooms, and areas open to public use. 19 (ECF No. 1 at 3.) This case concerns an alleged regulatory taking based on Douglas 20 County’s enforcement of Ordinance No. 2024-1640, which requires “businesses 21 categorized as ‘adult revue’ to obtain an unlimited gaming license and operate exclusively 22 in designated showrooms or managed by gaming licenses,” as well as for Douglas 23 County’s alleged failure to comply with NRS 237’s Business Impact Statement (“BIS”) 24 requirements. (Id. at 3-4.) SS Management initiated this case on October 7, 2025 by filing 25 a complaint asserting the following claims: 26 /// 27 /// 1 (1) Regulatory Taking under City of Las Vegas v. 180 Land Co., LLC, 546 P.3d 1239 (Nev. 2024) and Lucas v. South Carolina Coastal Council, 505 U.S. 2 1003 (1992) (“Claim 1”) 3 (2) Failure to provide Procedural Due Process under the Fourteenth Amendment (“Claim 2”) 4 (3) Violation of the Equal Protection Clause of the Fourteenth Amendment 5 (“Claim 3”) 6 (4) Violation of the First Amendment (“Claim 4”) 7 (5) Violation of the Tahoe Regional Planning Agency Bi-State Compact (“Bi- State Compact”) (“Claim 5”) 8 (6) Writ of Mandamus (“Claim 6”) 9 10 (Id. at 5-9.) SS Management seeks monetary damages, declaratory relief, a writ of 11 mandamus requiring Defendants to provide a BIS, and an order enjoining the 12 enforcement of Ordinance No. 2024-1640. (Id. at 9-10.) 13 On January 30, 2026, Defendants filed a motion to dismiss for failure to state a 14 claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 15 12(b)(6). (ECF No. 9.) Defendants argue the entirety of the complaint should be dismissed 16 for failure to state a claim and that Defendants Wesley Rice, Mark Gardner, Danny 17 Tarkanian, Sharla Hales, and Nathan Tolbert (collectively referred to as “Douglas County 18 Commissioners”) should be dismissed based on legislative immunity.1 (Id.) Defendants 19 further request the Court take judicial notice of certain facts in the public record, including 20 minutes from meetings of the Douglas County Commission, the BIS prepared by Douglas 21 County for Ordinance 2024-1640, and the Bi-State Compact. (ECF Nos. 9, 10, 11.) 22 SS Management responded, arguing the complaint should not be dismissed, the 23 Douglas County Commissioners are not shielded by immunity, and the Court cannot 24 accept extrinsic documents as proof of Defendants’ statutory compliance. (ECF No. 18.) 25 Defendants replied, reiterating the arguments made in the motion to dismiss. (ECF No. 26 19.)

27 1 As the complaint is dismissed in its entirety for the reasons stated below, the Court declines to analyze at this juncture whether the Douglas County Commissioners 1 II. LEGAL STANDARD 2 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 3 on the grounds that a complaint “fail[s] to state a claim upon which relief can be 4 granted.” A complaint challenged “by a Rule 12(b)(6) motion to dismiss does not need 5 detailed factual allegations” but requires plaintiff to provide actual grounds for relief. Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Generally, a motion to dismiss 7 pursuant to Rule 12(b)(6) tests the “legal sufficiency of the claim.” Conservation Force v. 8 Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 9 732 (9th Cir. 2001)). In assessing the sufficiency of a complaint, all well-pleaded factual 10 allegations must be accepted as true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and 11 “view[ed] . . . in the light most favorable to the” nonmoving party. Lemmon v. Snap, Inc., 12 995 F.3d 1085, 1087 (9th Cir. 2021). 13 The Ninth Circuit has found two principles apply when deciding whether a 14 complaint states a claim pursuant to Rule 12(b)(6). First, to be entitled to the presumption 15 of truth, the allegations in the complaint “may not simply recite the elements of a cause 16 of action, but must contain sufficient allegations of underlying facts to give fair notice and 17 to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 18 1216 (9th Cir. 2011). Second, so that it is not unfair to require the defendant to be 19 subjected to the expenses associated with discovery and continued litigation, the factual 20 allegations of the complaint, which are taken as true, “must plausibly suggest an 21 entitlement to relief.” Id. (emphasis added). Dismissal is proper only where there is no 22 cognizable legal theory or an “absence of sufficient facts alleged to support a cognizable 23 legal theory.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 965 (9th Cir. 2018) 24 (quoting Navarro, 250 F.3d at 732). 25 A court can grant a motion to dismiss for failure to state a claim with leave to 26 amend. Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1113 27 (9th Cir. 2013). Courts should “freely give” leave to amend when there is no “undue delay, 1 party by virtue of . . . the amendment, [or] futility of the amendment....” Fed. R. Civ. P. 2 15(a)(2). Usually, leave to amend is only denied when it is clear the deficiencies of the 3 complaint cannot be cured by amendment. See Chubb Custom Ins. Co. v. 4 Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). Whatever the reason, the court 5 must provide an explanation for denying a party leave to amend. Sharkey v. O’Neal, 778 6 F.3d 767, 774 (9th Cir. 2015). 7 III. DISCUSSION 8 Before addressing each claim, the Court will first discuss Defendants’ request for 9 judicial notice. (ECF Nos. 9, 10, 11.) Generally, district courts may not consider material 10 outside the pleadings when assessing the sufficiency of a complaint under Rule 12(b)(6) 11 of the Federal Rules of Civil Procedure. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 12 988, 998 (9th Cir. 2018) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 13 2001)). However, Courts may consider matters outside the pleadings subject to the 14 incorporation by reference doctrine or judicial notice under Federal Rule of Evidence 201. 15 See id. Rule 201 permits a court to take judicial notice of an adjudicative fact if it is “not 16 subject to reasonable dispute.” Id. (quoting Fed. R. Evid. 201(b)). A fact is “not subject to 17 reasonable dispute” if it is “generally known,” or “can be accurately and readily determined 18 from sources whose accuracy cannot reasonably be questioned.” Id. (citing Fed. R. Evid. 19 201(b)(1)-(2)). Accordingly, “[a] court may take judicial notice of matters of public record 20 without converting a motion to dismiss into a motion for summary judgment.” Id. (quoting 21 Lee, 250 F.3d at 689). But a court cannot take judicial notice of disputed facts contained 22 in such public records. Id. 23 Thus, the Court takes judicial notice of when Ordinance 2024-1640 was adopted 24 (November 7, 2024) and became effective (November 21, 2024).2 Daniels-Hall v. 25 National Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010) (finding it appropriate to take 26 judicial notice of information “made publicly available by a government entities (the school 27 2 Douglas County, Municode, https://library.municode.com/nv/douglas_county/ 1 districts)”). The Court also takes notice that a BIS was prepared for Ordinance 2024- 2 1640.3 Id. However, the sufficiency of the BIS under NRS Chapter 237 is disputed, and 3 consequently the Court cannot take judicial notice of whether the BIS satisfies 4 Defendants’ statutory obligations. The Court further takes notice of the Bi-State 5 Compact.4 6 With these judicially noticed facts in mind, the Court now addresses each claim in 7 turn. 8 A. Regulatory Takings – Claim 1 9 SS Management first alleges a claim for a regulatory taking in violation of the Fifth 10 and Fourteenth Amendment. (ECF No. 1 at 5.) “The Takings Clause of the Fifth 11 Amendment states that ‘private property [shall not] be taken for public use, without just 12 compensation.’ ” Knick v. Twp. of Scott, Pennsylvania, 588 U.S. 180, 184 (alteration in 13 original) (quoting U.S. Const. amend. V). “The Supreme Court has recognized two broad 14 categories of takings: physical takings and regulatory takings.” Pakdel v. City & Cnty. of 15 San Francisco, 636 F. Supp. 3d 1065, 1071 (N.D. Cal. 2022) (citing Cedar Point Nursery 16 v. Hassid, 594 U.S. 139, 148-49 (2021)). 17 A claim for regulatory takings encompasses restrictions by a government on “a 18 property owner’s ability to use” her “own property.” Cedar Point, 594 U.S. at 149 (citing 19 Tahoe-Sierra Pres. Council v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 321–23 (2002)). 20 There are three types of regulatory takings: Loretto, Lucas, and Penn Central takings. 21 See Bridge Aina Le’a, LLC v. Land Use Comm’n, 950 F.3d 610, 625 (9th Cir. 2020) 22 (internal citations omitted). In this case, SS Management specifically alleges a Lucas 23 claim. (ECF No. 1 at 5 (“The ordinance deprives Plaintiff of the economically beneficial 24 use of its property, equivalent to a categorical taking under Lucas v. South Carolina 25 3 Meetings, https://douglascountynv.granicus.com/ViewPublisher.php?view_id=1 (last visited April 14, 2026) (select the ‘2024’ tab, click on ‘Board of County 26 Commissioners’, scroll down to the October 17, 2024 meeting, and click on the link for ‘Agenda Packet’). 27 4 The Compact, https://www.trpa.gov/wp-content/uploads/documents/archive/1/ 1 Coastal Council, 505 U.S. 1003 (1992).”).) “The Lucas rule applies to regulations that 2 completely deprive an owner of all economically beneficial us[e] of her property.” Bridge 3 Aina, 950 F.3d at 626 (citing Lingle, 544 U.S. at 539; Lucas, 505 U.S. at 1019) (internal 4 quotation marks omitted) (emphasis in original). 5 In the complaint, SS Management alleges “[t]he ordinance limits Plaintiff’s ability 6 to lease its property and caps its highest and best use, undermining the economic viability 7 of the property.” (ECF No. 1 at 4.) SS Management also alleges that “[a]s a direct result 8 of Defendants’ actions, Plaintiff has incurred significant financial losses, including lost 9 revenue, diminished property value, and operational disruptions[.]” (Id. at 5.) Thus, SS 10 Management does not allege they have been deprived of all economically beneficial use 11 of the property, which is insufficient to assert a Lucas takings claim. See Tahoe-Sierra, 12 535 U.S. at 330 (“Anything less than a ‘complete elimination of value,’ or a ‘total loss,’ ... 13 would require the kind of analysis applied in Penn Central.”). SS Management argues in 14 response to the motion to dismiss that the complaint plausibly alleges a taking under the 15 Penn Central test. (ECF No. 18 at 15-17.) However, as noted above, the complaint 16 specifically alleges a claim for takings under Lucas.5 (ECF No. 1 at 5.) Thus, as currently 17 pled, the complaint does not allege a takings claim under Penn Central. Consequently, 18 Claim 1 is dismissed without prejudice and with leave to amend, because the Court 19 agrees that SS Management could plausibly amend its complaint to allege a claim for 20 takings under Penn Central. 21 B. Procedural Due Process – Claim 2 22 In Claim 2, SS Management alleges Defendants deprived them of their procedural 23 due process rights by failing to comply with NRS Chapter 237, which sets forth the 24 requirement to prepare a BIS along with the process for objecting to a BIS. (ECF No. 1 at 25 6.) “The Fourteenth Amendment’s Due Process Clause protects persons against 26

5 The complaint also references the Nevada Supreme Court case City of Las 27 Vegas v. 180 Land Co., LLC, 546 P.3d 1239 (Nev. 2024), which concerned a Lucas style taking where a regulation deprived 180 Land Co. of all economic value of 35 acres of 1 deprivations of life, liberty, or property [without due process of law]; and those who seek 2 to invoke its procedural protection must establish that one of these interests is at stake.” 3 Wilkinson v. Austin, 545 U.S. 209, 221 (2005). However, “[f]ederal due process does not 4 necessarily entitle a plaintiff to the same procedures provided by state law.” Roybal v. 5 Toppenish Sch. Dist., 871 F.3d 927, 933 (9th Cir. 2017) (distinguishing what process is 6 due under federal law is “determined by context” and is analyzed under the three-part test 7 set forth in Mathews v. Eldridge, 424 U.S. 319 (1976)). Accordingly, when “the state- 8 created protections reach beyond that guaranteed by federal law,” the violation of 9 procedure mandated by state law may not form a cause of action under § 1983. Id.; see 10 also Lovell, 90 F.3d at 370 (“To the extent that the violation of a state law amounts to the 11 deprivation of a state-created interest that reaches beyond that guaranteed by the federal 12 Constitution, Section 1983 offers no redress.”). 13 Therefore, to state a claim for violation of procedural due process under § 1983, a 14 plaintiff must allege facts showing: “(1) a deprivation of a constitutionally protected liberty 15 or property interest, and (2) a denial of adequate procedural protections.” Tutor-Saliba 16 Corp. v. City of Hailey, 452 F.3d 1055, 1061 (9th Cir. 2006) (citations omitted). “This is 17 because the wrong is the deprivation of procedure without due process; the wrong occurs 18 only if the state provides no remedy to redress a procedural violation.” Keller v. Los Osos 19 Community Services Dist., 39 Fed. Appx. 581, 583 (9th Cir. 2002) (emphasis original) 20 (citing Zinermon, 494 U.S. at 125-26). Ordinarily, due process of law requires an 21 opportunity for “some kind of hearing” and opportunity to be heard prior to the deprivation 22 of a significant property interest. Mathews, 424 U.S. at 333; Memphis Light, Gas and 23 Water Division v. Craft, 436 U.S. 1, 19 (1978) (citations omitted). 24 Here, the allegations fall short of alleging a denial of adequate procedural 25 protection for multiple reasons. First, the claim fails because SS Management does not 26 explain how Defendants’ alleged failure to comply with NRS Chapter 237 constitutes 27 deprivation of its procedural due process rights guaranteed by the Constitution, rather 1 1061; Roybal, 871 F.3d at 933. SS Management specifically alleges “[b]y failing to 2 conduct a meaningful BIS, Defendants deprived Plaintiff of the opportunity to challenge 3 the economic impact of Ordinance No. 2024-1640 before its adoption, violating Plaintiff’s 4 right to notice and a meaningful opportunity to be heard.” (ECF No. 1 at 6.) However, SS 5 Management merely concludes Defendants’ failure to comply with state procedural 6 requirements deprived them of their due process rights, failing to explain why. Courts 7 have found that procedural due process claims fail on this ground alone. See, e.g., Grant 8 v. Corral, Case No. 2:19-cv-01495-MCE-CKD (PS), 2021 WL 826203, at *10 (E.D. Cal. 9 Mar. 4, 2021) (“As plaintiff has not elected to advance any argument on this point, beyond 10 the allegations of his complaint, the court does not find this a sufficient basis for 11 establishing a constitutionally inadequate process.”). 12 Next, SS Management does not allege that challenging a BIS was the only way to 13 raise concerns about the ordinance before the Douglas County Board of Commissioners. 14 In fact, SS Management’s response to the motion to dismiss reveals SS Management did 15 receive notice of the intention to introduce Ordinance 2024-1640, that counsel “for 16 affected business owners” submitted a formal written objection to the proposed 17 ordinance, and counsel for SS Management “objected orally and in person during public 18 comment at the July 18, 2024 [Board of Commissioners] meeting[.]” (ECF No. 18 at 8.) 19 SS Management therefore acknowledges it was provided “some kind of hearing” and 20 opportunity to be heard prior to the enactment of Ordinance 2024-1640. Mathews, 424 21 U.S. at 333. 22 Furthermore, even if the Court assumed that violating NRS Chapter 237 did 23 constitute a proper procedural due process claim, the complaint does not sufficiently 24 allege a violation of NRS Chapter 237. The complaint does not specifically allege how 25 Defendants failed to comply with NRS Chapter 237, rather it merely concludes 26 “Defendants failed to comply with NRS Chapter 237’s requirements for conducting a 27 proper [BIS] prior to adopting Ordinance No. 2024-1640.” (ECF No. 1 at 5.) This is 1 (the complaint “may not simply recite the elements of a cause of action but must contain 2 sufficient allegations of underlying facts to give fair notice and to enable the opposing 3 party to defend itself effectively.”) 4 Additionally, the complaint acknowledges the existence of a BIS and the objection 5 procedure under NRS 237.100 but does not allege SS Management was deprived of the 6 opportunity to file an objection under NRS 237.100. (See ECF No. 1 at 6.) Based on the 7 objection procedure in NRS 237.100, the state appears to have provided adequate 8 procedural protection by creating redress for precisely this kind of alleged procedural 9 violation. Keller, 39 Fed. Appx. at 583 (due process violation occurs “only if the state 10 provides no remedy to redress a procedural violation.”). Thus, SS Management has not 11 properly alleged a claim for violation of procedural due process under § 1983 because 12 the allegations do not demonstrate a denial of adequate procedural protections. Tutor- 13 Saliba Corp., 452 F.3d at 1061 14 Claim 2 is therefore dismissed without prejudice and with leave to amend, because 15 SS Management could amend its complaint to add specific allegations showing why 16 Defendants failure to comply with the procedural protections of NRS 237.100 deprived 17 SS Management of its procedural due process rights. 18 C. Equal Protection – Claim 3 19 Before analyzing Claim 3, the Court must first clarify discrepancies between the 20 contents of the third and fourth causes of action and their respective titles. The third cause 21 of action, which is labeled as a claim for violation of the Equal Protection clause of the 22 Fourteenth Amendment, also confusingly contains allegations that Defendants violated 23 the First Amendment. The third cause of action states, in full: 24 37. Plaintiff incorporates all preceding allegations as though fully set forth herein.

25 38. Ordinance No. 2024-1640’s requirement that only adult revues must be owned, managed, or controlled by the holder of an unlimited gaming license is a content- 26 based regulation that discriminates against certain forms of protected speech in violation of the First Amendment. 27 39. The ordinance unlawfully favors one group of speakers over others by allowing 1 constituting speaker discrimination.

2 40. Content-based restrictions are presumptively invalid under Reed v. Town of Gilbert, 576 U.S. 155 (2015), and fail strict scrutiny. 3 41. The ordinance further violates Plaintiff’s Equal Protection rights by arbitrarily 4 imposing restrictions on adult revues while exempting other types of theatrical presentations at protected “showrooms.” 5 42. As a direct result of Defendants’ actions, Plaintiff has incurred significant financial 6 losses, including lost revenue, diminished property value, and operational disruptions, entitling Plaintiff to just compensation. 7 8 (ECF No. 1 at 6-7.) This claim therefore incorporates elements of Equal Protection claims 9 and First Amendment claims. However, the fourth cause of action is labeled as a claim 10 for violation of the First Amendment but contains no discussion whatsoever of that 11 amendment. The fourth cause of action states, in full: 12 43. Plaintiff incorporates all preceding allegations as though fully set forth herein.

13 44. Article 6(j) of the Bi-State Compact establishes legal standing for any aggrieved person to file an action alleging violations of the Compact or agency regulations. 14 45. Plaintiff qualifies as an aggrieved person under the Compact, as it owns property 15 directly affected by the challenged ordinance and has actively participated in administrative proceedings. 16 46. Legal actions arising under the Compact may be brought in state or federal courts 17 of competent jurisdiction, with venue proper in the judicial district where the real property is situated. 18 47. As a direct result of Defendants’ actions, Plaintiff has incurred significant financial 19 losses, including lost revenue, diminished property value, and operational disruptions, entitling Plaintiff to just compensation. 20 21 (Id. at 7.) This claim clearly concerns the Bi-State compact. Thus, the Court will examine 22 the third cause of action as alleging claims under the Equal Protection Clause (Claim 3) 23 and First Amendment (Claim 4). The Court will analyze the fourth cause of action together 24 with the fifth as Claim 5, as they both concern alleged violations of the Bi-State Compact. 25 The Court now turns to Claim 3. “The Equal Protection Clause of the Fourteenth 26 Amendment commands that no State shall ‘deny to any person within its jurisdiction the 27 equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 1 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). “To state a claim under 42 2 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment 3 a plaintiff must show that the defendants acted with an intent or purpose to discriminate 4 against the plaintiff based upon membership in a protected class.” Barren v. 5 Harrington, 152 F.3d 1193, 1194 (9th Cir.1998), cert. denied, 525 U.S. 1154 (1999). The 6 United States Supreme Court has also recognized “successful equal protection claims 7 brought by a ‘class of one,’ where the plaintiff alleges that [he] has been intentionally 8 treated differently from others similarly situated and that there is no rational basis for the 9 difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see 10 also SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). 11 As outlined above, the allegations concerning the Equal Protection clause are very 12 brief and are intertwined with allegations concerning the First Amendment. In the 13 complaint, SS Management does not allege it is a member of a protected class. SS 14 Management does allege other entities with unlimited gambling licenses, as opposed to 15 SS Management’s unrestricted license, are not affected by Ordinance 2024-1640. (ECF 16 No. 1 at 4.) However, SS Management does not actually allege there was no rational 17 basis for such distinction, which is required for a class of one claim. (See id.) Furthermore, 18 although SS Management alleges those other entities operate large casinos, as SS 19 Management does, the allegation that the other entities possess a different gambling 20 license indicates they are not “similarly situated.” Village of Willowbrook, 528 U.S. at 564. 21 Consequently, the Court finds the complaint does not contain allegations sufficient 22 to support a claim that Defendants violated the Equal Protection clause, and Defendants’ 23 motion to dismiss as to the Equal Protection claim is granted. The Equal Protection claim 24 is therefore dismissed without prejudice and with leave to amend to permit SS 25 Management opportunity to attempt to cure these deficiencies. 26 D. First Amendment – Claim 4 27 The Court will now turn to the First Amendment claim, which is also predicated on 1 2024-1640’s requirement that only adult revues must be owned, managed, or controlled 2 by the holder of an unlimited gaming license is a content-based regulation that 3 discriminates against certain forms of protected speech in violation of the First 4 Amendment.” (ECF No. 1 at 6.) SS Management then alleges the ordinance unlawfully 5 favors one group of speakers over another by allowing only certain groups to operate 6 adult revues. (Id.) 7 In the First Amendment context, “purely expressive activit[ies]” are a form of 8 “speech” and are “entitled to full First Amendment protection.” Anderson v. City of 9 Hermosa Beach, 621 F.3d 1051, 1059 (9th Cir. 2010). “[T]he Supreme Court. . . ha[s] 10 recognized various forms of entertainment and visual expression as purely expressive 11 activities, including. . . topless dancing. . .” Id. at 1060. Content-based laws that target 12 speech based on its communicative content are “are presumptively unconstitutional and 13 may be justified only if the government proves that they are narrowly tailored to serve 14 compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); 15 see United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000) (holding 16 “a content-based speech restriction ... can stand only if it satisfies strict scrutiny”). 17 Discrimination based on viewpoint is “an egregious form of content discrimination.” 18 Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). “[L]aws 19 favoring some speakers over others demand strict scrutiny when the legislature’s 20 speaker preference reflects a content preference.” Turner Broadcasting System, Inc. v. 21 FCC, 512 U.S. 622, 658 (1994); see Sorrell v. IMS Health Inc., 564 U.S. 552, 565 22 (2011) (applying strict scrutiny to content-and speaker-based restriction). 23 In the complaint, SS Management does not allege Ordinance 2024-1640 was 24 enacted because Defendants prefer those entities who hold unlimited gambling licenses 25 over SS Management or entities holding unrestricted licenses. (See ECF No. 1.) SS 26 Management does not make any allegations whatsoever as to the intent of Defendants, 27 rather only concluding the ordinance “unlawfully favors one group of speakers.” (Id. at 1 “when they reflect the government’s preference for the substance of what the favored 2 speakers have to say (or aversion to what the disfavored speakers have to say).” Turner, 3 512 U.S. at 658. Thus, based on the allegations in the complaint, Ordinance 2024-1640 4 is not subject to strict scrutiny. The ordinance is therefore valid if it bears a rational 5 relation to a legitimate governmental purpose. Regan v. Taxation With Representation 6 of Washington, 461 U.S. 540, 547 (1983). In relation to the First Amendment claim, SS 7 Management does not allege the ordinance is not rationally related to a legitimate 8 governmental purpose. (See ECF No. 1.) Consequently, SS Management has failed to 9 sufficiently plead a claim violation of the First Amendment based on the enactment of 10 Ordinance 2024-1640. 11 The Court therefore grants Defendants motion to dismiss as to SS Management’s 12 First Amendment claim with leave to amend because SS Management could amend its 13 complaint to allege facts sufficient to state a claim. 14 E. Violation of Bi-State Compact – Claim 5 15 Next, Defendants argue SS Management’s claims under the Bi-State Compact 16 should be dismissed because they are untimely and fail as a matter of law. (ECF No. 9 at 17 10-12.) The Court will first address the timeliness of SS Management’s complaint. 18 Both parties acknowledge the deadline to file actions alleging a violation of the Bi- 19 State compact is 65 days after discovery of the cause of action. (ECF No. 9 at 10, ECF 20 No. 18 at 10.) The Court has taken judicial notice that Ordinance 2024-1640 was adopted 21 on November 7, 2024, and became effective on November 21, 2024. (ECF No. 9 at 10- 22 11, ECF No. 18 at 8.) Thus, legal action alleging violations of the Bi-State compact based 23 on Ordinance 2024-1640 were due on or before January 25, 2025. However, the 24 complaint in this case, Case No. 3:25-cv-00555-CLB (“Case 3”) was not filed until October 25 7, 2025. (ECF No. 1.) 26 SS Management first argues that its claims under the Bi-State compact are not 27 untimely because the complaint relates back to a previous complaint filed before the 1 by attorney Jordan Laub (“Laub”) on January 14, 2025, and was apparently initiated 2 without filing any initial pleadings. See Case 1. Laub filed only a certificate of interested 3 parties on behalf of SS Management on January 16, 2025. Case 1 at ECF No. 1. Although 4 SS Management states that a complaint was filed on January 6, 2025, the case was not 5 open on that date and therefore that could not be possible. Based on the failure to provide 6 accurate contact information and any initial pleadings, Case 1 was eventually closed on 7 January 29, 2025, because “Counsel has failed to properly file his initial case opening 8 documents. Counsel may initiate a new case by properly filing his opening documents 9 and paying his filing fee correctly in the new case opening.” Case 1, ECF No. 2. 10 On January 30, 2025, Laub initiated a second case, Case No. 3:25-cv-00062- 11 MMD-CLB (“Case 2”), and did file initial pleadings. The complaint in Case 2 is labeled 12 with the case number for Case 1. Case 2, ECF No. 1. On June 27, 2025, three attorneys 13 with Greenberg Traurig, LLP, Eric V. Rowen, Scott D. Bertzyk and Elliot T. Anderson, filed 14 a notice of appearance as counsel of record for Plaintiff. Case 2, ECF No. 29. That same 15 day, Anderson filed a notice of voluntary dismissal without prejudice under Federal Rule 16 of Civil Procedure 41(a)(1). Case 2, ECF No. 30. Under Rule 41(a)(1), a plaintiff “has an 17 absolute right to dismiss” an action and the “dismissal is effective on filing and no court 18 order is required.” Com. Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F3d 1074, 1078 19 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.1997)). 20 Consequently, the case was automatically closed without a court order. 21 Laub then filed a motion for reconsideration and to strike the notice of dismissal, 22 arguing the attorneys for Greenberg Traurig did not have authority to file the notice of 23 dismissal and failed to properly substitute counsel per the Court’s Local Rules. Case 2, 24 ECF No. 32. The Court denied the motion on September 12, 2025, finding the Greenberg 25 Traurig attorneys did not seek to substitute themselves for Laub as counsel of record and 26 therefore validly filed notices of appearance in the case. (Case 2, ECF No. 41.) The Court 27 further noted the “dispute as to whether counsel indeed has authority to act on behalf of 1 parties, but that dispute does not affect the Court’s reliance on the notice of appearance, 2 and then the Notice of Dismissal, to close the case.” (Id.) 3 Assuming for the sake of argument that a complaint was filed in Case 1 on January 4 14, 2025, the date Case 1 was opened, SS Management pursued legal action under the 5 Bi-State compact on day 54 of the 65-day window. Again, assuming for the sake of 6 argument that the deadline was tolled until September 12, 2025, the date the Court denied 7 SS Management’s motion for reconsideration and to strike the notice of dismissal in Case 8 2, SS Management would have had another 11 days, or until September 23, 2025, to file 9 the case within the deadline. However, Case 3 was not initiated until October 7, 2025. 10 Therefore, the deadline under the Bi-State compact ran before the complaint was filed in 11 this case, Case 3. 12 SS Management next argues that if the complaint is technically untimely, they are 13 entitled to equitable tolling of the deadline such that the initiation of Case 3 on October 7, 14 2025, was not untimely. (ECF No. 18 at 8-10.) As it applies to equitable tolling, the 15 Supreme Court has been clear one such rule that limits a court’s equitable powers is that 16 “a litigant is entitled to equitable tolling of a statute of limitations only if the litigant 17 establishes two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that 18 some extraordinary circumstance stood in his way and prevented timely filing.’” 19 Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 256 (2016) 20 (quoting Holland v. Florida, 560 U.S. 631, 639 (2010)). Both elements must be met for a 21 litigant to be entitled to equitable tolling. Id. (citing Pace v. DiGuglielmo, 544 U.S. 408, 22 418 (2005) (holding, without resolving litigant’s argument that he had “satisfied the 23 extraordinary circumstance test,” that, “[e]ven if we were to accept [his argument], he 24 would not be entitled to relief because he has not established the requisite diligence”). 25 The diligence required for equitable tolling purposes is “reasonable diligence,” not 26 “maximum feasible diligence.” Holland, 560 U.S. at 653 (citing Lonchar v. Thomas, 517 27 U.S. 314, 323 (1996); Starns v. Andrews, 524 F.3d 612, 618 (5th Cir. 2008)). The 1 miscalculation that leads a lawyer to miss a filing deadline, does not warrant equitable 2 tolling. Holland, 560 U.S. at 651-52 (quoting Irwin v. Department of Veterans Affairs, 498 3 U.S. 89, 96 (1990); citing Lawrence v. Florida, 549 U.S. 327, 336 (2007)). 4 The Supreme Court’s decision in Holland is instructive in analyzing SS 5 Management’s argument that equitable tolling applies. In Holland, the Supreme Court 6 found the plaintiff demonstrated reasonable diligence because he: 7 wrote his attorney numerous letters seeking crucial information and providing direction; he also repeatedly contacted the state courts, their 8 clerks, and the Florida State Bar Association in an effort to have [his attorney]—the central impediment to the pursuit of his legal remedy— 9 removed from his case. And, the very day that Holland discovered that his AEDPA clock had expired due to [his attorney’s] failings, Holland prepared 10 his own habeas petition pro se and promptly filed it with the District Court. 11 560 U.S. at 653 (emphasis original). 12 The allegedly “improper voluntary dismissal” was entered in Case 2 on June 27, 13 2025, and the complaint Case 3 was filed on October 7, 2025. (ECF No. 1.) Thus, unlike 14 the plaintiff in Holland, SS Management waited over 100 days to file the complaint in Case 15 3. Even if the Court considered the unsuccessful motions to reconsider and strike the 16 notice of dismissal in calculating the timeframes at issue, SS Management waited 25 days 17 between the order denying the motion on September 12, 2025 in Case 2, and filing the 18 complaint in Case 3. The Court takes judicial notice that the complaint is almost identical 19 to the previous complaint, therefore it does not appear that the period between resolution 20 of Case 2 and filing Case 3 was spent re-drafting or substantially altering the complaint. 21 Compare Case 2, ECF No. 1, with Case 3, ECF No. 1. Furthermore, unlike the pro se 22 inmate plaintiff in Holland, the representative for SS Management, Laub, is an attorney 23 himself. See Case 2, ECF No. 32 at 6 (motion filed and signed by Laub stating “SS 24 Management, LLC is a Nevada limited liability company with a multi-member structure. 25 Jordan K. Laub is the managing member and principal responsible for this litigation.”). 26 Therefore, the Court finds SS Management was not reasonably diligent. 27 In addition, the Court finds SS Management fails to establish extraordinary 1 The dismissal of Case 1 clearly does not rise above the level of “garden variety claim[s] 2 of excusable neglect” because the conduct consists of an attorney failing to comply with 3 the administrative tasks of filing a complaint to properly initiate an action with this Court. 4 Holland, 560 U.S. at 651-52. Neither does the apparent conflict over who had authority to 5 file a notice of voluntary dismissal in Case 2. Consequently, the Court finds SS 6 Management is not entitled to equitable tolling and therefore the portions of the complaint 7 raising claims under the Bi-State compact are dismissed with prejudice, because SS 8 Management cannot cure this deficiency through amendment and thus amendment would 9 be futile. 10 F. Writ of Mandamus – Claim 6 11 In its final claim, SS Management alleges they are entitled to a writ of mandamus 12 ordering Defendants to rescind Ordinance 2024-1640 due to their failures to comply with 13 the procedural mandates of Nevada law or enjoin enforcement until compliance with NRS 14 Chapter 237 is achieved. (ECF No. 1 at 8-9.) Defendants argue SS Management is not 15 entitled to writ of mandamus relief because there is no legal or factual basis for the 16 requested relief because a BIS was prepared. (ECF No. 9 at 12.) SS Management does 17 not include any argument as to its claim for writ of mandamus in its response to the motion 18 to dismiss. (See ECF No. 18.) 19 The federal mandamus statute invests district courts with “original jurisdiction of 20 any action in the nature of mandamus to compel an officer or employee of the United 21 States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. 22 “The writ of mandamus is a ‘drastic and extraordinary’ remedy [that is] ‘reserved for really 23 extraordinary causes.’” In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011) (quoting Ex 24 parte Fahey, 332 U.S. 258, 259-60 (1947)). Because they are extraordinary remedies, 25 mandamus writs “are appropriate only when a federal officer, employee, or agency owes 26 a nondiscretionary duty to the plaintiff that is ‘so plainly prescribed as to be free from 27 doubt.’ ” Stang v. I.R.S., 788 F.2d 564, 565 (9th Cir. 1986) (quoting Pescosolido v. Block, 1 petitioner demonstrates (1) it’s right to that relief is “clear and certain[,]” (2) the agency or 2 officer’s “duty is ‘ministerial and so plainly prescribed as to be free from doubt[,]’ ” “and 3 (3) no other adequate remedy is available.” Or. Nat. Res. Council v. Harrell, 52 F.3d 1499, 4 1508 (9th Cir. 1995) (quoting Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986)). And 5 “[t]he extraordinary remedy of mandamus lies within the discretion of the trial court, even 6 if the three elements are satisfied.” Id. (citing Fallini, 783 F.2d at 1345). 7 Here, the Court takes judicial notice of the fact that a BIS was prepared for 8 Ordinance 2024-1640. However, it is not clear whether the BIS complied with NRS 9 Chapter 237. Thus, the Court cannot find Defendants had a nondiscretionary duty to SS 10 Management that is “so plainly described as to be free from doubt.” Stang, 788 F.2d at 11 565. Rather, it is clearly disputed whether Defendants properly performed their duties. 12 Additionally, the duty SS Management claims Defendants failed to perform was clearly 13 not “ministerial.” Or. Nat. Res. Council, 52 F.3d at 1508. 14 Thus, SS Management is not entitled to the extraordinary remedy of a writ of 15 mandamus and this claim is dismissed with prejudice, because SS Management could 16 not amend its complaint to show they are undoubtedly entitled to relief and Defendants’ 17 duty was not ministerial. In re Van Dusen, 654 F.3d at 840. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1| IV. CONCLUSION 2 IT IS THEREFORE ORDERED that Defendants’ motion to dismiss, (ECF No. 9), is GRANTED. 4 IT IS FURTHER ORDERED that the complaint, (ECF No. 1), is dismissed as 5 | follows: 6 e Claims 1, 2, 3, and 4 are DISMISSED WITHOUT PREJUDICE and WITH 7 LEAVE TO AMEND; 8 e Claims 5 and 6 are DISMISSED WITH PREJUDICE and WITHOUT LEAVE 9 TO AMEND. 10 IT IS FURTHER ORDERED that an amended complaint is due on or before May 22, 2026. 12 DATED: April 22, 2026.

14 15 UNITED STATES MAGISTRATE JUDGE

16 17 18 19 20 21 22 23 24 25 26 27 28 40