Montag v. Venetian Casino Resort ( 2015 )

 a party opposing a motion for summary judgment cannot "present by
affidavit facts essential to justify the party's opposition, the court may
refuse the application for judgment or may order a continuance." "The
decision to grant or deny a continuance of a motion for summary judgment
to allow further discovery is reviewed for an abuse of discretion." Choy v.
Ameristar Casinos, Inc., 127 Nev. Adv. Op. No. 78, 265 P.3d 698, 700
(2011).
We conclude that the district court abused its discretion by not
permitting further discovery. Montag's request for additional discovery in
her opposition to Venetian's motion for summary judgment was sufficient
for purposes of an NRCP 56M continuance. See Aviation Ventures, Inc. v.
Joan Morris, Inc., 121 Nev. 113, 118, 110 P.3d 59, 62 (2005) (stating that a
continuance under NRCP 56(f) is appropriate if the movant sets forth how
further discovery will create a genuine issue of material fact and the
movant does not possess a dilatory motive). There is no indication that
Montag's request for further discovery was made with a dilatory motive.
Id. at 118-19, 110 P.3d at 62-63. In addition, further discovery may create
a genuine issue of fact for three reasons.
First, whether Montag is a third-party beneficiary of certain
contracts turns on, among other things, whether those contracts exist and
whether the parties to those contracts intended her to be a beneficiary.
Cf. Lipshie v. Tracy Inv. Co., 93 Nev. 370, 379, 566 P.2d 819, 824 (1977)
(stating the rule that "there must clearly appear a promissory intent to
benefit the third party"). Montag's request for discovery falls well within
this category. Discovery could easily uncover facts showing that the
contracts exist and that the mandatory gratuity was intended to benefit
servers like Montag.
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Second, the timeliness of Montag's consumer fraud claim is
determined by "the data of the discovery of facts which in the exercise of
proper diligence would have enabled the plaintiff to learn of the fraud."
Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1306 (9th Cir. 1992)
(quoting Howard v. Howard, 69 Nev. 12, 22, 239 P.2d 584, 589 (1952)). It
is unclear, without further discovery, whether Montag's termination date
is the time at which the statute of limitations began to run.
Third, Montag's standing to sue for consumer fraud depends
on her ability to demonstrate that she was harmed by her employer's
alleged deceptive trade practices. Del Webb Cmtys., Inc. v. Partington, 652
F.3d 1145, 1152-53 (9th Cir. 2011).
As we have recently noted, "[a] district court must not elevate
promptness and efficiency over fairness and due process by entering
summary judgment before claims are properly before it for decision."
Renown Reg? Med. Ctr. v. Second Judicial Dist. Court, 130 Nev. Adv. Op.
No. 80, 335 P.3d 199, 202 (2014) (internal quotation omitted). Granting
summary judgment at this early stage of the proceedings was an abuse of
discretion. We have no need to consider Montag's other arguments.
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
j.
Parraguirre
J.
Douglas
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cc: Hon. Susan Johnson, District Judge
Leon Greenberg Professional Corporation
Haygood, Cleveland, Pierce & Thompson, LLP
Eighth District Court Clerk
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