Adelson v. Hananel, No. 2:2006cv01590 - Document 240 (D. Nev. 2009)

Court Description: ORDER Denying 222 Motion for Summary Judgment. Signed by Judge Edward C. Reed, Jr on 8/26/09. (Copies have been distributed pursuant to the NEF - ASB)
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Adelson v. Hananel Doc. 240 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 8 9 10 11 12 SHELDON G. ADELSON, an individual, ) ) Plaintiff, ) ) vs. ) ) MOSHE HANANEL, ) ) Defendant. ) ) ) 2:06-CV-1590-ECR-PAL Order 13 14 Now before the Court is Defendant’s motion for summary judgment 15 (#222), filed on July 15, 2009. This motion comes late in the 16 game — trial of this matter is set for October 6, 2009. The 17 Magistrate Judge granted (#225) Defendant’s motion (#221) to extend 18 the deadline for filing such motions, so the motion for summary 19 judgment (#222) is timely. 20 For the reasons set forth below, Defendant’s motion for summary 21 judgment (#222) will be denied. 22 23 24 I. Background Plaintiff Sheldon G. Adelson (“Adelson”) is an entrepreneur and 25 a resident of Nevada. Defendant Moshe Hananel (“Hananel”) is a 26 former employee of one of Adelson’s companies and a resident of 27 Israel. Adelson and Hananel have been involved in litigation with 28 1 one another in various courts, both in the United States and Israel, 2 since 2003. 3 The present case constitutes the re-filing in Nevada of similar 4 claims first brought in the United States District Court for the 5 District of Massachusetts, which were dismissed for lack of personal 6 jurisdiction over Hananel. Adelson’s Complaint (#1) was filed on 7 December 11, 2006, asserting claims for defamation and “civil 8 harassment” against Hananel. The parties have since engaged in 9 extensive discovery, among other things, and the case is now nearly 10 ready for trial. The Court entered the pretrial order (#226) on 11 July 15, 2009, and trial is set for October 6, 2009. The pretrial 12 order (#226) indicates that Adelson will assert only his claim for 13 defamation at trial.1 14 The motion for summary judgment (#222) now before the Court 15 also was filed on July 15, 2009, together with a separately filed 16 memorandum of points and authorities (#223). Hananel opposed (#234) 17 the motion (#222), and Adelson replied (#237). 18 19 II. Summary Judgment Standard 20 Summary judgment allows courts to avoid unnecessary trials 21 where no material factual dispute exists. N.W. Motorcycle Ass’n v. 22 U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). The court 23 must view the evidence and the inferences arising therefrom in the 24 light most favorable to the nonmoving party, Bagdadi v. Nazar, 84 25 26 1 27 Adelson’s opposition to the present motion confirms that Adelson no longer asserts a claim for civil harassment. (See P.’s Opp. at 4 n.3 (#234).) 28 2 1 F.3d 1194, 1197 (9th Cir. 1996), and should award summary judgment 2 where no genuine issues of material fact remain in dispute and the 3 moving party is entitled to judgment as a matter of law. 4 CIV. P. 56(c). FED . R. Judgment as a matter of law is appropriate where 5 there is no legally sufficient evidentiary basis for a reasonable 6 jury to find for the nonmoving party. FED . R. CIV . P. 50(a). Where 7 reasonable minds could differ on the material facts at issue, 8 however, summary judgment should not be granted. Warren v. City of 9 Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 S.Ct. 10 1261 (1996). 11 The moving party bears the burden of informing the court of the 12 basis for its motion, together with evidence demonstrating the 13 absence of any genuine issue of material fact. 14 Catrett, 477 U.S. 317, 323 (1986). Celotex Corp. v. Once the moving party has met 15 its burden, the party opposing the motion may not rest upon mere 16 allegations or denials in the pleadings, but must set forth specific 17 facts showing that there exists a genuine issue for trial. 18 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Anderson Although the 19 parties may submit evidence in an inadmissible form - namely, 20 depositions, admissions, interrogatory answers, and affidavits 21 only evidence which might be admissible at trial may be considered 22 by a trial court in ruling on a motion for summary judgment. FED . 23 R. CIV. P. 56(c); Beyene v. Coleman Security Services, Inc., 854 24 F.2d 1179, 1181 (9th Cir. 1988). 25 In deciding whether to grant summary judgment, a court must 26 take three necessary steps: (1) it must determine whether a fact is 27 material; (2) it must determine whether there exists a genuine issue 28 3 1 for the trier of fact, as determined by the documents submitted to 2 the court; and (3) it must consider that evidence in light of the 3 appropriate standard of proof. Anderson, 477 U.S. at 248. Summary 4 judgment is not proper if material factual issues exist for trial. 5 B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 6 1999). “As to materiality, only disputes over facts that might 7 affect the outcome of the suit under the governing law will properly 8 preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. 9 Disputes over irrelevant or unnecessary facts should not be 10 considered. Id. Where there is a complete failure of proof on an 11 essential element of the nonmoving party’s case, all other facts 12 become immaterial, and the moving party is entitled to judgment as a 13 matter of law. Celotex, 477 U.S. at 323. Summary judgment is not a 14 disfavored procedural shortcut, but rather an integral part of the 15 federal rules as a whole. Id. 16 17 18 III. Analysis Hananel’s motion (#222) and accompanying memorandum of points 19 and authorities (#223) assert that he is entitled to summary 20 judgment on Adelson’s claim for defamation. Hananel’s arguments 21 boil down to two basic contentions: (1) Adelson’s claims are barred 22 by the applicable statute of limitations; and (2) Adelson cannot 23 establish the damages element of a defamation claim. We will 24 address these two contentions separately. 25 A. 26 We may reject Hananel’s arguments relating to the statute of Statute of Limitations 27 limitations with celerity because we have already rejected them 28 4 1 twice before. On January 16, 2008, we ruled from the bench that the 2 two-year statute of limitations on Adelson’s defamation claim was 3 equitably tolled during the pendency of the previous action in the 4 District of Massachusetts, and the present action thus was timely 5 filed. (See Decl. of Ronald D. Kent, Ex. 8 (Transcript of Jan. 16, 6 2008 Hearing) at 5-10 (#235).) On March 6, 2008, we issued a Minute 7 Order (#125) denying Hananel’s motion for reconsideration (#107) of 8 that issue. 9 As Hananel notes, our previous rulings on the statute of 10 limitations issue related to a motion to dismiss, whereas the 11 present motion seeks summary judgment. 12 (#223).) (See P.’s Memo. at 19-20 Hananel fails to describe any specific reason, however, 13 why the current procedural posture of the case should make a 14 difference in our analysis, and we cannot discern any. There do not 15 appear to be any “contradicted facts” (id. at 19) that we previously 16 presumed to be true — as appropriate in ruling on a motion to 17 dismiss, but not a motion for summary judgment — that are relevant 18 to the equitable tolling analysis. 19 Thus, Hananel’s motion (#222) will be denied with regard to the 20 issue of the statute of limitations for the reasons stated at the 21 hearing on January 16, 2008, and our Minute Order of March 6, 2008 22 (#125). 23 B. 24 A federal court sitting in diversity must apply the substantive Defamation 25 law of the forum state in which it resides. Vacation Village, Inc. 26 v. Clark County, Nev., 497 F.3d 902, 913 (9th Cir. 2007) (citing 27 Hanna v. Plumer, 380 U.S. 460, 465 (1965)). 28 5 Under Nevada law, “an 1 action for defamation requires the plaintiff to prove four elements: 2 ‘(1) a false and defamatory statement . . . ;(2) an unprivileged 3 publication to a third person; (3) fault, amounting to at least 4 negligence; and (4) actual or presumed damages.’” Clark County Sch. 5 Dist. v. Virtual Educ. Software, Inc., ---P.3d---, No. 50313, 2009 6 WL 2414820, at *6 (Nev. Aug. 6, 2009) (quoting Pope v. Motel 6, 114 7 P.3d 277, 282 (Nev. 2005)). If the defamatory communication 8 “imputes a ‘person’s lack of fitness for trade, business, or 9 profession,’ or tends to injure the plaintiff in his or her 10 business, it is deemed defamation per se and damages are presumed.” 11 Id. (quoting K-Mart Corp. v. Washington, 866 P.2d 274, 282 (Nev. 12 1993)). In determining whether a statement constitutes defamation 13 per se, words “are to be taken in their plain and natural import 14 according to the ideas they convey to those to whom they are 15 addressed; reference being had not only to the words themselves but 16 also to the circumstances under which they were used.” Talbot v. 17 Mack, 169 P. 25, 29 (Nev. 1917). 18 Hananel argues that summary judgment is appropriate here 19 because Adelson failed to adequately plead damages and has produced 20 no evidence relating to damages. This argument, in turn, depends on 21 the premise that any allegedly defamatory statements at issue could 22 not be considered defamation per se, so damages are not presumed. 23 Only a single allegedly defamatory statement is at issue. The 24 statement is a quote attributed to Hananel in a newspaper article 25 published in the Las Vegas Sun on February 18, 2004. 26 Ex. B (#223).) (D.’s Memo, The article is about a lawsuit Hananel had brought 27 against Adelson in Israel alleging breach of contract. 28 6 Adelson, 1 through a spokesperson, apparently “characterized Hananel as a 2 disgruntled former employee and an opportunist who is using the 3 press and the media ‘to extort a settlement.’” (Id.) Hananel 4 responded to that characterization, according to the author of the 5 article, with the statement at issue in this case: “Regarding 6 opportunism, the only opportunist here is Mr. Adelson, who uses the 7 fact that I’m blind now to expel me from my rights.” 8 (Id.) Hananel argues that this statement could not constitute 9 defamation per se because “the defamatory meaning is not apparent on 10 its face . . . a person of ordinary intelligence would require 11 extrinsic facts and evidence, namely the history of the events and 12 the various lawsuits between the parties and substantive issues 13 included therein, to understand the alleged defamatory nature of the 14 statement.” 15 (D.’s Memo at 10-11 (#223).) We disagree. Under Nevada law, mere innuendo may not be considered 16 defamation per se. Talbot, 169 P. at 31-32 (noting that “language 17 or terms which are not libelous per se . . . cannot be made so 18 through the function or force of an innuendo”). A statement, 19 however, that directly imputes to the plaintiff “dishonesty, lack of 20 fair dealing, want of fidelity, integrity, or business ability,” 21 even in general terms and without supporting details, is considered 22 defamation per se. Id. at 30. For example, in Talbot, the Nevada 23 Supreme Court discussed the following snippet of doggerel from an 24 earlier Minnesota defamation case: “Slippery Sam, your name is 25 pants.” Id. at 33 (quoting Peterson v. W. Union Tel. Co., 67 N.W. 26 646, 646 (Minn. 1896)). This statement was considered “on its face 27 fairly susceptible of a libelous meaning,” id., even though none of 28 7 1 the details underpinning the assertion that “Sam” was “slippery,” in 2 the sense of being “dishonest and apt to play one false,” id., are 3 immediately discernible, and the precise meaning of “your name is 4 pants” is enigmatic. 5 Here, the precise meaning of the statement that Adelson “uses” 6 the fact that Hananel is blind to “expel [him] from [his] rights” is 7 somewhat unclear, and it is not even apparent which “rights” are 8 being referenced. At trial, the meaning of the statement would be a 9 for the jury to decide. See Branda v. Sanford, 637 P.2d 1223, 1225 10 (Nev. 1981) (noting that if an allegedly defamatory statement is 11 “susceptible of different constructions, one of which is defamatory, 12 resolution of the ambiguity is a question of fact for the jury”). 13 Taking reasonable inferences in Adelson’s favor, however, as we must 14 on a motion for summary judgment, this statement on its face may 15 fairly be understood to impute to Adelson a lack of fair dealing and 16 perhaps dishonesty or lack of integrity. Under Clark County and 17 Talbot, such a statement regarding a plaintiff, such as Adelson, 18 whose business would (again, taking reasonable inferences in 19 Adelson’s favor) tend to be injured thereby, is deemed defamation 20 per se. 21 We conclude the statement at issue here is susceptible to a 22 construction that would be deemed defamation per se under Nevada 23 law. Thus, if the jury were to agree that the statement should be 24 so construed, damages would be presumed. 25 2414820, at *6. See Clark County, 2009 WL Hananel’s challenges to the sufficiency of 26 Adelson’s pleadings and evidence regarding damages therefore fail. 27 28 8 1 2 IV. Conclusion For the third time, we repeat our ruling that Adelson’s 3 defamation claim was timely filed because the statute of limitations 4 was equitably tolled during the pendency of the previous action in 5 the District of Massachusetts. Further, the allegedly defamatory 6 statement at issue in this case is susceptible to a construction 7 that would be considered defamation per se under Nevada law. If the 8 jury were to find that the statement should be so construed, damages 9 would be presumed. Hananel’s challenges to the sufficiency of 10 Adelson’s pleadings and evidence regarding damages, therefore, do 11 not provide an appropriate basis for entry of summary judgment in 12 his favor. 13 14 IT IS, THEREFORE, HEREBY ORDERED THAT Defendant’s Motion for 15 Summary Judgment (#222) is DENIED. 16 17 18 DATED: August 26, 2009. 19 ____________________________ UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 9