Snell & Wilmer L.L.P. v. Serenbetz

MOTION for Summary Judgment

D. Neb.January 6, 2017

LAXALT & NOMURA, ATTORNEYS AT l-AW 9600 GATEWAY DRIVE RENO, NEVADA 89521 2 3 4 5 6 7 8 9 WAYNE A. SHAFFER (SBN 1519) JANICE HODGE JENSEN (SBN 563) LAXALT & NOMURA, LTD. 9600 Gateway Drive Reno, Nevada 89521 Tel: 775-322-1170 Fax: 775-322-1865 wshaffer@laxal t -nomura. com j j ensen(a{laxalt -nomura.com Attorneys for Cross-Defendants Snell & Wilmer, LLP and Craig Denney UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 1 o SNELL & WILMER, LLP, an Arizona Limited Liability Partnership, Case No.: 3: 16-CV -00129-MMD-VPC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, vs. CLAY SERENBETZ, an individual, Defendants. CLAY SERENBETZ, an individual, Cross-Complainant, vs. CRAIG DENNEY, an individual, SNELL & WILMER, LLP, an Arizona Limited Liability Partnership, and DOES 1 thru 50, inclusive, Cross-Defendants. CROSS-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SNELL & WILMER, LLP and CRAIG DENNEY, by their attorneys Laxalt & Nomura, Ltd., move this Court pursuant to Fed. R. Civ. P. 12(b)(6) and 56 for an Order granting summary judgment in their favor on the Amended Cross-Complaint. It is clear that Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 1 of 12 LAXALT & NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 Cross-Complainant SERENBETZ has no viable claim upon which relief can be granted and 2 Cross-Defendants are entitled to judgment in their favor as a matter of law. 3 This Motion is made and based upon the allegations of the Amended Cross-Complaint, 4 the Points and Authorities which follow, the discovery responses of Cross-Complainant, the 5 Declaration of Cross-Defendant Craig Denney, and such other presentations as the Court may 6 consider. 7 DATED this 6th of January, 2017. 8 LAXALT &NOMURA, LTD. 9 10 11 12 13 14 15 By: _ _....:::___-==:::!::-----"'--~:::....r-.,.t,.L-------1 W A YNE x.::sHAFFER ( 1519) JANICE4-f6DGE JENS N (SBN 563) 9600 Gateway Drive Reno,Nevada 89521 Tel: 775-322-1170 Fax: 775-322-1865 Attorneys for Cross-Defendants Snell & Wilmer, LLP & Craig Denney 16 POINTS AND AUTHORITIES 17 I. 18 Factual and Procedural Background 19 Snell & Wilmer, LLP (SNELL & WILMER) filed a Complaint against its former client, 20 Clay Serenbetz (SERENBETZ), for recovery ofunpaid legal fees in the sum of$95,847.28 on 21 March 7, 2016. In response, on July 7, 2016, SERENBETZ filed an Answer to the Complaint 22 and also filed a "Cross-Complaint" against SNELL & WILMER and attorney Craig Denney 23 (DENNEY) alleging 1) legal malpractice, 2) public disclosure of private facts, and 3) breach of 24 fiduciary duty. Each of the claims was based either upon an alleged disclosure of 25 SERENBETZ' private and confidential financial information or improper ex-parte 26 communications. (Original Cross-Complaint ~~7, 9). 27 On August 22, 2016, SNELL & WILMER and DENNEY filed a Motion to Dismiss, 28 challenging the legal sufficiency of the allegations of the Cross-Complaint. Following an 2 Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 2 of 12 LAX.ALT 8: NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 initial case management conference, the parties conducted written discovery while that Motion 2 was pending. (ECF No. 27.) On November 14, 2016, SERENBETZ served discovery 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 responses to DENNEY'S Interrogatories and Request for Production of Documents. On December 1, 2016, SNELL & WILMER and DENNEY filed a Motion for Summary Judgment as to SERENBETZ' Cross-Complaint. Before briefing was completed on the Motion for Summary Judgment, on December 13, 2016 the Comt held a hearing on the Motion to Dismiss. The Court granted the Motion to Dismiss but SERENBETZ was granted leave to amend his Cross-Complaint. In light of the dismissal, the Court found the original Motion for Summary Judgment to be moot but without prejudice to file another motion if an amended cross complaint were to be filed (ECF No. 32). An Amended Cross-Complaint was filed on December 23, 2016 (ECF No. 33). The Amended Cross-Complaint abandons the "public disclosure of private facts" claim and deletes the claim of any ex parte communications. SERENBETZ' claims are now limited to what he terms "legal malpractice" and "breach of fiduciary duty." The only clarification provided in the Amended Cross- Complaint (and consistent with the discovery responses) is that SERENBETZ' entire claim is based upon a single email communication sent from DENNEY to Judge McKibbon's court administrator, Paris Rich, on August 24, 2015. Contrary to the Court's admonition to SERENBETZ at the December 13th hearing, no allegation or evidence is offered to show "how the alleged conduct caused cross-plaintiff to suffer damages to establish the essential elements of ... [his] claims." (See Transcript of Hearing attached hereto as Exhibit "1" and incorporated herein by reference at 8:12-14.) Based upon the Amended Cross-Complaint and SERENBETZ' discovery responses, it is clear that SERENBETZ has no viable claim upon which relief can be granted and SNELL & WILMER and DENNEY are entitled to have judgment entered in their favor. Ill Ill Ill Ill 3 Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 3 of 12 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAXAL.T & NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 II. The Summary Judgment Standard SNELL & WILMER and DENNEY challenge the legal sufficiency of the claims made against them. As reliance is placed in part upon SERENBETZ' discovery responses as well as other documentation, the challenge is to be decided under the standard of Rule 56. Fed.R.Civ.P. 12(d). Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a genuine factual issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56( e). While all justifiable inferences must be viewed in the light most favorable to the nonmoving party, the nonmoving party may not rest upon the mere allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit or other evidentiary materials provided by Rule 56( e), showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual issues of controversy in favor of the nonmoving party where the facts specifically averred by that party contradict facts specifically averred by the movant. Lzijan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). Conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat summary judgment. Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 (9th Cir. 1995) "[U]ncorroborated and self-serving testimony," without more, will not create a "genuine issue" of material fact precluding summary judgment. Villiarimo v. Aloha Island Air Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). Where, as here, the factual context makes the claim implausible, the non-moving party must come forward with more persuasive evidence than would otherwise be necessary to show 4 Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 4 of 12 LAxALT & NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that there is a genuine issue for trial. Kalinauskas v. Wong, 808 F. Supp. 1469 (D. Nev. 1992); Rudberg v. State of Nevada, 896 F. Supp. 1017 (D. Nev. 1995). There is no genuine issue for trial; summary judgment should enter in favor of Cross-Defendants. III. Undisputed Facts As alleged by SERENBETZ, he retained SNELL & WILMER to represent him against criminal charges filed against him. Amended Cross-Complaint at ~ 6. After engaging the services of SNELL & WILMER, he refused to pay his attorneys for the legal services provided on his behalf. See Declaration of Craig Denney, attached as Exhibit "2" and incorporated herein by reference. SNELL & WILMER withdrew as his counsel, and asserted a lien on the file. SERENBETZ' new counsel was advised of the lien. After SERENBETZ retained new counsel, DENNEY received an inquiry from the Court, asking about the file 1• In response to that inquiry from the Court, Denney emailed the Court Administrator, with a copy to Cross- Complainant's new counsel, explaining that a lien had been asserted against the file for unpaid legal fees. The entire email reads: Paris, Hello, my colleague Carrie Parker said you called regarding US v. Serenbetz and left a message regarding the file. The reason our lawfirm has not turned over Mr. Serenbetz's file is because we have asserted an attorney's lien on the file pursuant to NRS 7.055. On July 22, 2015, I informed Mr. Serenbetz and his new counsel (Brian Newman) that our firm was asserting an attorney's lien on the file based on the unpaid legal fees ($82,000) that Mr. Serenbetz owes our law firm for numerous hours of legal work completed during the months of May and June 2015. 1 The Court docket reflects that on the same day DENNEY received an inquiry from the Court, the Court also granted SERENBETZ' new counsel's request for a continuance of SERENBETZ' sentencing, based upon new counsel's representation that "prior counsel [SNELL & WILMER] has not yet turned over Mr. Serenbetz's file to new counsel." See Order attached as Exhibit "3," and incorporated herein by reference. SERENBETZ' new counsel, Brian Newman, was well aware of the reason why SNELL & WILMER had not delivered the file, as he had been copied on an email advising SERENBETZ of his debt and that a lien would be asserted. See email chain regarding the debt, attached as Exhibit "4" and incorporated herein by reference. However, Mr. Newman apparently did not advise the Court of the reason why SNELL & WILMER had not "turned over" the file, implying that the file retention was improper. 5 Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 5 of 12 LAXALT 81: NOMURA, ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 See Exhibit 4. I signed off on the substitution of counsel last month. I see in the stipulation to continue sentencing that the defendant filed does not mention the reason for our firm withholding the file. As oftoday's date, we have not received payment from Mr. Serenbetz for the unpaid invoices. Please let me know if there are any other questions or a hearing is necessary. SERENBETZ' Amended Cross-Complaint and his discovery responses establish that the single and isolated communication upon which he bases his claims was this email from DENNEY to the Court Administrator, in response to the Court's inquiry about the file. The only document produced by Cross-Complainant as supporting his allegations in the Cross- Complaint is the single email quoted above. See Cross-Complainant's Response to Requests for Documents, attached hereto as Exhibit "5" and incorporated herein by reference. This email will not support Cross-Complainant's claims and judgment should enter in favor of Cross- Defendants. IV. Each of Serenbetz' Claims Fail as a Matter of Law and Judgment Should be Entered in Favor of Cross-Defendants. There are at least three (3) separate bases for entry of judgment in favor of the Cross- Defendants: 1) the Amended Cross-Complaint fails to plead the requisite appellate or post- conviction relief, 2) there is no duty to not reveal a debt of a former client, and 3) no actual damages are alleged to have been sustained by Cross-Complainant. Each of these bases presents a legal question for the Court; no factual issues remain. Summary Judgment in favor of Cross-Defendants is mandated. 1. The claims of "legal malpractice" and "breach of fiduciary duty" are duplicative and should be considered one claim. 26 In each of SERENBETZ' claims, he asserts that Cross-Defendants improperly 27 disclosed to the Court the debt for legal services provided. The Nevada Supreme Court, in 28 Stalk v. Mushkin, 125 Nev. 21, 199 P. 3d 838 (2009) found that "a claim for breach of 6 Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 6 of 12 L.AXALT & NOMURA, ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 fiduciary duty arising from an attorney-client relationship is a legal malpractice claim .... " 2 Therefore, the gravamen of SERENBETZ' claim is that Cross-Defendants should not have 3 disclosed his debt, whether called a legal malpractice claim or a breach of fiduciary duty claim. 4 The allegations should be considered as one claim. 5 6 2. The Claim fails as a matter of law as the requisite allegation of appellate or post-conviction relief is absent from the Amended Cross-Complaint. 7 SERENBETZ was charged in a criminal action (see Amended Cross-Complaint at~ 6) 8 and SNELL & WILMER defended him as private counsel. The Nevada Supreme Court has 9 held that in a claim for legal malpractice against private criminal defense counsel plaintiff must 1 O plead that he has obtained appellate or post-conviction relief in order to overcome a motion for 11 summary judgment or a motion to dismiss. Morgana v. Smith, 110 Nev. 1025, 879 P. 2d 735 12 (1994). No such allegation was contained in the Amended Cross-Complaint and in his 13 discovery responses SERENBETZ admits he has not obtained such relief. When asked to 14 describe any post-conviction relief he had obtained, SERENBETZ responded "The 15 Responding Party has not obtained any post-conviction relief in the Underlying Action." See 16 Response to Interrogatories, attached hereto as Exhibit "6," at Response to Interrogatory No. 17 13. Absent an allegation or evidence that he has obtained appellate or post-conviction relief, 18 SERENBETZ' claim fails as a matter of law. 19 20 3. The Claim fails as a matter of law as there was no duty owed to SERENBETZ not to disclose his debt to SNELL & WILMER. 21 A necessary element of SERENBETZ' claim, whether it is called a legal malpractice 22 claim or a breach of fiduciary duty claim, is a duty owed. Whether a defendant owes a plaintiff 23 a duty of care is a question of law. Scialabba v. Brandise, 112 Nev. 965, 921 P. 2d 928 (1996); 24 Kusmirek v. MGM Grand Hotel, 73 Fed. Supp. 2d 1222 (1999). Cross-Defendants owed 25 SERENBETZ no duty not to disclose his debt, in response to the Court's inquiry about the file. 26 SERENBETZ makes a passing reference in the Amended Cross-Complaint to 27 "professional conduct obligations." The Nevada Supreme Court has held that such alleged 28 violations do not create a private right of action. Mainor v. Nault, 120 Nev. 750, 101 P.3d 308 7 Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 7 of 12 LAXALT 8: NOMURA, ATTORNEYS AT LAW 9800 GATEWAY DRIVE RENO, NEVADA 89S2t (2004). In his discovery responses, SERENBETZ claims a violation of the Nevada Rules of 2 Professional Conduct, Rules 1.6(a) and 1.8(b ). These rules preclude the revelation of 3 information "relating to the representation" of a client, unless the client gives informed 4 consent. The rules do not preclude the disclosure of a debt owed by a former client. 5 SERENBETZ' only support for his allegation of breach of the rules of professional 6 conduct is the single email to Ms. Rich. The email did not include any information "relating to 7 the representation of the client" as required by Rules 1.6(a) and 1.8(b). The email simply 8 advised Ms. Rich, in response to her inquiry, that a lien was being asserted against the file due 9 to the debt owed SNELL & WILMER. 10 In analyzing a claimed privilege based upon confidential communications, the Ninth 11 Circuit Court of Appeals has held that attorney billing statements are not protected by the 12 attorney-client privilege. Clarke v. American Commerce National Bank, 974 F. 2d 127 (91h 13 Cir. 1992). Under the attorney-client privilege, confidential communications made by a client 14 to an attorney to obtain legal services are protected from disclosure. However, not all 15 communications between attorney and client are confidential or privileged. The amount of the 16 fee is not considered a confidential communication. Thus, the amount of the debt is neither 17 confidential.2 As this information was not "confidential" there was no duty not to disclose it. 18 As there was no legal duty not to disclose SERENBETZ' debt, the claim fails as a 19 matter oflaw. 20 21 4. The claim fails as SERENBETZ had failed to allege or support any actual damage. 22 An element of a claim for either legal malpractice or breach of fiduciary duty is actual 23 damage. SERENBETZ provides no facts to show a plausible "actual loss or damage" 24 proximately caused by the single email communication with Ms. Rich. He does not allege his 25 sentence (after a guilty plea) was impacted by the email; he does not allege any out-of-pocket 26 27 28 2 In this very action, SERENBETZ has denied the debt to SNELL & WILMER. See ~ 7 of SERENBETZ' Answer to ~ 8 of the Complaint. If SERENBETZ is denying the debt, it cannot be his own "private and confidential financial information." 8 Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 8 of 12 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAXAL.T Be: NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 loss due to the email; he does not allege any actual damage or loss. When given the opportunity to respond to DENNEY'S request for a detailed description of his alleged harm or damage, SERENBETZ simply responded that he "suffered prejudice, shame and embarrassment"3 due to the allegedly negligent conduct of the Cross-Defendants. See Exhibit "6," at Response to Interrogatory No. 7. No measurable damage is described, which is a necessary element of SERENBETZ' claim, whether called legal malpractice or breach of fiduciary duty. SERENBETZ' claim of "shame and embarrassment" is one for emotional distress. Generally, such claimed damages are not recoverable in a legal malpractice claim in Nevada. Where suit against a lawyer is premised upon ordinary negligence, and no "extreme and outrageous" conduct is alleged, there can be no recovery for mental anguish or emotional distress. See, Selsnick v. Horton, 96 Nev. 944, 945-46, 620 P. 2d 1256, 1257 (1980). See also, Kahn v. Morse & Mowbray, 121 Nev. 464, 117 P. 3d 227 (2005) (claim for negligent infliction of emotional distress cannot be premised upon an attorney's negligence in malpractice case; emotional distress is not a foreseeable consequence of an attorney's general negligence). SERENBETZ was asked by Interrogatory to describe in detail how the alleged negligent conduct of Cross-Defendants resulted in harm or damage. He vaguely responded that he "suffered prejudice, shame and embarrassment due to the negligent conduct of Cross- Defendants." When asked to state the amount of damages he claims, SERENBETZ asserts "$100,000" (surprisingly close to the unpaid attorneys' fees of $95,847.28). See Exhibit "6," at Response to Interrogatory No. 12. When asked to "state and describe separately and in detail each single item and expense, loss or financial damage which is claimed to have been incurred or which is believed will be incurred" by SERENBETZ, he responded that he is asserting "general damages in the amount of $1 00,000." He fails to provide any factual information to support his claim that the single email caused him to suffer "prejudice, shame 3 It is difficult to imagine that SERENBETZ suffered "shame and embarrassment" from the disclosure of the debt that would compare to the shame and embarrassment of his criminal conviction, based upon his guilty plea, for possession of child pornography. 9 Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 9 of 12 LAXALT 6: NOMURA, ATTORNEYS AT l.AW 9600 GATEWAY DRIVE RENO, NEVADA 89521 and embarrassment." Absent this required element of damages, SERENBETZ' claim fails as a 2 matter oflaw. 3 ~ 4 Conclusion and Relief Requested 5 SERENBETZ has failed to allege or to produce any admissible evidence that there is a 6 genuine issue of fact for trial. In addition to the legal insufficiency of the Cross-Complaint, 7 which would justify dismissal of the case, SERENBETZ' discovery responses reveal the total 8 absence of any legally viable claim. The email was admittedly sent by DENNEY, in response 9 to an inquiry from the Court as to why the file was being withheld. The email did not contain I 0 any information "related to the representation" of SERENBETZ'; it asserted a debt owed for 11 legal services rendered. The email was simply a response to a question posed by the Court, 12 explaining why the file had not been turned over to SERENBETZ' new counsel (who was well 13 aware of lien upon the file, but failed to disclose that to the Comi). The email does not provide 14 a legal basis for SERENBETZ' claim. 15 SNELL & WILMER and DENNEY respectfully request their Motion be granted and 16 judgment enter in their favor. 17 DATED this 6th day of January, 2017. 18 LAXALT & NOMURA, LTD. 19 20 21 22 23 24 25 Attorneys for Cross-Defendants Snell & Wilmer, LLP and Craig Denney 26 27 28 10 Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 10 of 12 LAXALT & NOMURA. ATTORNEYS AT l-AW 9600 GATEWAY DRIVE RENO, NEVADA 89521 CERTIFICATE OF SERVICE 2 Pursuant to FRCP 5(b) and Section IV of the District of Nevada Electronic Filing 3 Procedures, I hereby certify that I am an employee of Laxalt & Nomura, Ltd., and that I caused 4 to be served a true and correct copy of the foregoing by E-Service by filing the foregoing 5 CROSS-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT with the Clerk of Court 6 using the CM/ECF system, which will electronically mail the filing to the following email 7 addresses: 8 William E. Peterson 9 SNELL & WILMER wgeterson@.swlaw.com 10 Nathan G. Kanute II SNELL & WILMER 12 nkanute@.swlaw.com 13 Gregory E. Coyer Okabe & Haushalter 14 gcoyer@.coyerlaw.com 15 Kevin Gerry 16 The Law Offices of Kevin Gerry kevingetTy@earthlink.net 17 18 DATED this 6th day of January, 2017. 19 20 21 An Employee of Laxalt & Nomura, Ltd. 22 23 24 25 26 27 28 II Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 11 of 12 INDEX OF EXHIBITS 2 3 EXHIBIT DESCRIPTION PAGES 4 1 Transcript of Hearing 11 5 2 Declaration of Craig Denney 1 6 7 3 Order Granting Stipulation to Continue Sentencing 3 8 4 Email Chain 3 9 5 Cross-Complainant's Response to Requests for Documents 10 10 6 Cross-Complainant's Response to Interrogatories 14 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 l.AXALT Bt NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE 12 RENO, NEVADA 89521 Case 3:16-cv-00129-MMD-VPC Document 35 Filed 01/06/17 Page 12 of 12 EXHIBIT "1" Transcript of Hearing Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 1 of 12 1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEFORE THE HONORABLE MIRANDA M. DU, DISTRICT JUDGE ---ooo--- Snell & Wilmer, LLP, an Arizona Limited Liability Partnership, Plaintiff, No. 3:16-cv-0129-MMD-VPC December 13, 2016 1 7 -vs- United States District Court 400 S. Virginia Street 8 9 10 11 12 13 14 Clay Serenbetz, an individual, Defendant. Reno, Nevada 89501 TRANSCRIPT OF MOTION TO DISMISS 15 A P P E A R A N C E S: 16 17 18 19 20 21 FOR THE PLAINTIFF: FOR THE DEFENDANT: Wayne Shaffer Nathan Kanute Attorneys at Law Kevin Gerry Attorney at Law 22 Proceedings recorded by mechanical stenography produced by computer-aided transcript 23 24 Reported by: 25 KATHRYN M. FRENCH, RPR, CCR NEVADA LICENSE NO. 392 CALIFORNIA LICENSE NO. 8536 KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 2 of 12 2 1 Reno, Nevada, Tuesday, December 13, 2016, 9:15 a.m. 2 ---OoO--- 3 4 THE CLERK: 3:16-cv-129-MMD-VPC, Snell & Wilmer, 5 LLP versus Clay Serenbetz. 6 Counsel, please enter your appearance for the 7 record. 8 MR. KANUTE: Good morning, Your Honor. 9 Nathan Kanute on behalf of the plaintiff, Snell & Wilmer. 10 MR. SHAFFER: Wayne Shaffer, Your Honor, here 11 on behalf of the counter -- or cross-defendants, Snell & 12 Wilmer, and Craig Denney. 13 MR. GERRY: Good morning, Your Honor. Kevin 14 Gerry on behalf of the defendant and cross-complainant, 15 Serenbetz. 16 THE COURT: Good morning, counsel. 17 I set this hearing on the cross-defendants' Motion 18 to Dismiss Cross-Complaint, which is docket number 19. For 19 the record, I have reviewed the response and the reply briefs, 20 and that's docket number 23 and 25. When I set this hearing, 21 I thought I would have some questions for counsel but, in 22 fact, I don't. If you have any additional comments that you 23 would like to offer in addition to the briefs you've already 24 submitted, you may do so. 25 So, let me hear from the parties. KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 3 of 12 3 1 MR. SHAFFER: On behalf of my client, Snell & 2 Wilmer and Craig Denney, we'll stand by our motion and reply, 3 Your Honor. 4 THE COURT: And Snell & Wilmer filed a Motion 5 For Summary Judgment on a cross-complaint that's not yet fully 6 briefed, is that right? 7 MR. SHAFFER: That is correct, Your Honor. 8 I'm glad that the Court is aware of that. We brought that 9 up to the magistrate judge at a recent case conference. 10 What had happened was the Complaint was filed with 11 answer and cross-complaint. I appeared on behalf of the 12 cross-defendants, which was Snell & Wilmer; and, a new party, 13 relatively speaking, Mr. Denney. 14 THE COURT: Mr. Denney. Yes. 15 MR. SHAFFER: We appeared before the magistrate 16 and as this court, I'm sure, is quite aware, the magistrate 17 judge wanted to know where we were at, wanted to begin 18 discovery in light of motions to dismiss -- and I know the 19 view of the Court -- and at that point, we stated we felt, 20 our inclination was we would like to get a ruling on the 21 Motion to Dismiss. We felt very strongly on it. But, the 22 Court did provide us with a limited discovery and written 23 discovery, which we had represented may assist or be of 24 some value, actually, from my point of view, further justify 25 why we did not need active discovery in this case pending KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 4 of 12 4 1 the motion. As a result of the written discovery, the 2 responses to that suggested to us a good basis, not only 3 on the Motion to Dismiss, but filing a Motion For Summary 4 Judgment in light of the responses that we received. 5 So, that's where we're at. We did have a recent 6 case conference and a Minute Order was issued by the 7 magistrate judge. She was aware that this hearing would 8 be held. And as I pointed out to her, and I would certainly 9 re-emphasize to this court, we had filed a Motion For Summary 10 Judgment, and was hoping that the District Court would at 11 least be aware, so that they would know what is going on. 12 But, we did not withdraw the Motion to Dismiss. We think 13 it's well-founded. 14 THE COURT: Thank you. 15 MR. GERRY: Thank you, Your Honor. Mr. Gerry 16 on behalf of the Serenbetz parties. 17 I would agree with what Mr. Shaffer said in terms of 18 where we are procedurally. And in terms of arguing the Motion 19 to Dismiss, I have nothing further to add. I do believe some 20 of the issues have been addressed in the interim via written 21 discovery and I don't want to get into that vis-a-vis 22 pending -- 23 THE COURT: Well, are there claims that you 24 can see that, even if I grant leave to amend, that your client 25 would not be amending based on the written discovery? KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 5 of 12 5 1 MR. GERRY: I'm-- no, I don't 2 THE COURT: Because I can tell you that my 3 ruling is that the Complaint fails to state a claim pursuant 4 to -- and I'm going to dismiss the claim pursuant to Rule 5 12(b) (6). But, because I can't find that amendment would 6 be futile, I'm going to allow leave to amend. 7 Now that you have the benefit of the Motion For 8 Summary Judgment and limited written discovery, I wonder if 9 your client will be conceding that some of the claims you're 10 not going to amend -- 11 MR. GERRY: I can't -- 12 THE COURT: -- now that you have the benefit of 13 discovery and a Motion For Summary Judgment. 14 In other words, for example, the public disclosure 15 of private fact claim, I agree with the cross-defendant 16 that unless there were disclosure to more than one or two 17 individuals, you can't establish that claim. You can't 18 state that claim. Would your client be conceding to that 19 claim or are you going to amend that claim again? 20 MR. GERRY: If I could just backup a second and 21 I will get to the answer. 22 In terms of the limited written discovery, at the 23 Case Management Conference prior to the most recent one, 24 we did discuss these issues, and I believe the order regarding 25 the limited discovery was that the discovery was to be KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 6 of 12 1 addressed at the motions to dismiss issues. Since then, the 2 summary judgment motion has been filed. There are slightly 3 different issues that have arisen in that regard, in part 4 based on the pleading, and in part based on the discovery 5 responses, that will require me to conduct a limited amount 6 of discovery in order to properly oppose the Motion for 7 Summary Judgment. 8 And I suppose, given that answer in response to 9 the Court's question, yes, what I would like to do is conduct 10 that limited discovery. If, in fact, the discovery leads me 11 to the facts that would justify an amendment on the public 12 disclosure prior to facts claim, I will. In other words, 13 specifically if I find there are disclosures beyond which 14 we are already aware of, then, yes, that would justify an 15 amendment to the pleadings. But, at present -- 16 THE COURT: But, wouldn't you have to have some 17 good faith basis to assert the claim? 18 In other words, you have control of the facts and 19 knowledge of the facts as the cross-plaintiff. And if 20 you're representing to me that you don't have all the facts 21 when you assert the claims, then I would be concerned. 22 MR. GERRY: I believe I have the facts to 23 assert the disclosure to a single person. What I do not 24 have knowledge or awareness of is whether it went beyond 25 that single person. KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 6 Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 7 of 12 7 1 THE COURT: All right. 2 MR. GERRY: Thank you. 3 THE COURT: Mr. Shaffer, do you have any 4 response? 5 MR. SHAFFER: At this stage, Your Honor, I'm 6 scratching my head a bit on procedure, but without anymore 7 information, I would be inclined that -- I guess if there 8 is the dismissal, then, Mr. Gerry, it sounds, will have leave 9 to amend. Our position, at least based on the knowledge that 10 we have gleaned from the written discovery, is that our Motion 11 For Summary Judgment, likely, will be, again, well-founded. 12 And at least our view, at this point, is it will be futile to 13 have even limited discovery based on our anticipated the 14 anticipated Amended Complaint, because I'm not aware of any 15 new claims that would be brought. 16 So I guess, procedurally, we'll have to see what 17 the Amended Complaint will hold for us and then we can act 18 accordingly. 19 THE COURT: All right. Thank you. 20 Let me give you my ruling and then I'll tell you 21 what I'm going to do with the Motion For Summary Judgment. 22 I think counsel know the standard under Rule 23 12(b) (6), as well as the standard articulated in Ashcroft 24 versus Iqbal. And under Iqbal, legal conclusions are not 25 entitled to the assumption of truth and nor is recital of KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 8 of 12 8 1 conclusory statements. And I, here, agree with the 2 cross-defendants that the cross-complaint failed to state 3 a claim. 4 The Cross-Complaint contained conclusionary 5 allegations to support the elements of the claims. For 6 example, the Cross-Complaint makes conclusory allegations 7 about cross-defendants' violations of their professional 8 conduct, and that defendants engaged in improper ex parte 9 communications. The Cross-Complaint fails to allege how 10 cross-defendants violated their professional conduct, the 11 nature and content of the alleged ex parte communications, 12 and how the alleged conduct caused cross-plaintiff to suffer 13 damages to establish essential elements of each of the three 14 claims. 15 I also agree that cross-plaintiff fails to allege 16 facts to support the essential elements of the Public 17 Disclosure Private Fact claim, including what private facts 18 were disclosed and who it was disclosed to. And without 19 more specific allegations, I cannot determine whether factual 20 allegations in the Complaint allege a possible claim for 21 relief. 22 And so for these reasons, the Motion to Dismiss is 23 granted. But as I stated earlier, I also cannot find that 24 amendment is futile. Under Rule 15, I think the Court has to 25 give leave to amend and so I will do so. KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 9 of 12 9 1 So, the Motion to Dismiss, which is docket number 2 19, is granted. The cross-plaintiff will be given leave 3 to amend, and an Amended Complaint, if one is to be filed, or 4 an amended cross-complaint must be filed within 10 days. And 5 if it's not filed within 10 days, then the cross -- the claims 6 in the Cross-Complaint will be dismissed with prejudice. 7 As I said earlier, I did look at the motion, the 8 cross -- the motion on the Cross-Complaint, Motion For Summary 9 Judgment on the Cross-Complaint, which is docket number 29. 10 I'm going to deny that motion as moot, but without prejudice 11 to the cross-defendants filing the Complaint -- filing it 12 again, should an Amended Complaint to be filed. 13 I do caution Mr. Gerry, though, that -- as I said, 14 now that you have the benefit of the Motion For Summary 15 Judgment, and what facts the cross-defendants are articulating 16 in support of the motion, I think that should help you decide 17 what claims you're going to amend. And if there's no-- if 18 you don't have the facts to support the claims, and can't 19 articulate the facts to comply with Rule 12(b) (6) standards, 20 then perhaps you shouldn't amend because you're going to be 21 looking at another motion for summary judgment. 22 I will try to do my best to remember this case. 23 When the motion is filed, I'll try to consider it on an 24 expedited basis should we have to go through this process 25 again. KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 10 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 All right. Thank you. MR. GERRY: Thank you, Your Honor. MR. SHAFFER: Thank you, Your Honor. MR. KANUTE: Thank you, Your Honor. (Court Adjourned.) KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 10 Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 11 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -oOo- I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. 11 \s\ Kathryn M. French December 13, 2016 KATHRYN M. FRENCH, RPR, CCR Official Reporter KATHRYN M. FRENCH, RPR, CCR (775) 786-5584 DATE Case 3:16-cv-00129-MMD-VPC Document 35-1 Filed 01/06/17 Page 12 of 12 EXHIBIT "2" Declaration of Craig Denney Case 3:16-cv-00129-MMD-VPC Document 35-2 Filed 01/06/17 Page 1 of 2 L.A.XAL-T &: N O M U RA. A TTORNEYS AT Lt.w 9000 GATEWAY DRIVE RC:NO, N II:VAOA 8 952.1 1 DECLARATION OF CRAIG DENNEY 2 1. I am an adult, competent to testify to the contents of this Declaration if called 3 upon to do so. 4 2. Commencing in July 2012, as a member of Snell & Wilmer, LLP, I represented 5 Clay Serenbetz in connection with the investigation and defense of a criminal prosecution filed 6 against him in Reno, Nevada, entitled United States v. Serenbetz; USDC Case No. 3:15-CR- 7 001 -HDM. 8 3. I represented Mr. Serenbetz until August 2015, when Brian Newman substituted 9 in as counsel for him. 10 4. In the summer of 2015, I communicated with Mr. Serenbetz about his 11 outstanding debt to Snell & Wilmer, LLP for the legal services provided to him. I advised Mr. 12 Serenbetz and Mr. Newman that we would be asserting an attorney lien against his file. 13 5. On August 24, 2015, I was advised that Judge McKibben's courtroom 14 administrator Paris Rich had left a message, asking about the file. I responded to Ms. Rich's 15 inquiry by email, advising that the files were being retained because the firm was asserting a 16 lien on the files based upon Mr. Serenbetz' unpaid legal fees. The email was copied to Mr. 17 Serenbetz' new counsel, Brian Newman. 18 6. Mr. Serenbetz's files, much of which contained duplicative material already in 19 his possession, were transferred to Mr. Serenbetz's new attorneys a little over a week after the 20 e-mail was sent to Ms. Rich. 21 I declare under penalty of perjury that the foregoing is true and correct. 22 w~ . DATED this __ t day of January, 2017. 23 24 25 26 27 28 Case 3:16-cv-00129-MMD-VPC Document 35-2 Filed 01/06/17 Page 2 of 2 EXHIBIT "3" Order Granting Stipulation to Continue Sentencing Case 3:16-cv-00129-MMD-VPC Document 35-3 Filed 01/06/17 Page 1 of 4 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Case 3:15-cr-00001-HDM-VPC Document 38 Filed 08/24/15 Page 1 of 3 RYAN OKABE for OKABE & HAUSHALTER 1230 Rosecrans Ave Floor 3, Manhattan Beach, CA 90266 (310) 543-7708 email: southbaylawyer.com CA State Bar #208935 BRIAN A. NEWMAN for OKABE & HAUSHALTER 3838 Carson Street, Suite 300/302 Torrance, California 90053 (424) 275-4014; Fax: (424) 275-4015 Email: jjnewbee.newman@gmail.com State Bar #89975 CA State Bar #208935 Attorneys for Defendant Clay Serenbetz UNITED STATES DISTRICT COURT DISTRICT OF NEVADA UNITED STATES OF AMERICA, Plaintiff, vs. CLAY SERENBETZ, Defendant. CASE NO.: 3:15CR-00001-HDM-VCF ORDER GRANTING STIPULATION ~~~ TO CONTINUE SENTENCING [SECOND REQUEST] 22 It IS HEREBY STIPULATION AND AGREED by and through Brian A. 23 Newman of the Law Offices of Okabe & Haushalter, counsel for CLAY 24 SERENBETZ; DANIEL G. BODGEN, United States Attorney, and CARLA 25 HIGGINBOTHAM, Assistant United States Attorney, counsel for the 26 UNITED STATES OF AMERICA; that defendant Clay Serenbetz's 27 sentencing hearing currently scheduled for September 23, 2015 at 28 Case 3:16-cv-00129-MMD-VPC Document 35-3 Filed 01/06/17 Page 2 of 4 Case 3:15-cr-00001-HDM-VPC Document 38 Filed 08/24/15 Page 2 of 3 11:00 a.m. be continued for ninety (90) days, to December 1, 2015 2 at 10:30 a.m. 3 Continuance is necessary because: 4 1. The Law Offices of Okabe & Haushalter substituted into 5 the case on August 12, 2015 (the date the substitution order was 6 signed) . 7 2. Prior counsel has not yet turned over Mr. Serenbetz's 8 file to new counsel. 9 3. New counsel needs additional time to obtain prior 10 counsel's file, analyze the presentence report, conduct research 11 on the sentencing issues, and prepare and file a sentencing 12 position with the Court. 13 4. Mr. Serenbetz is amenable to this request for a 14 continuance. Defense counsel has discussed the justifications 15 for continuing the sentencing hearing with him. Mr. Serenbetz is 16 not in custody. 17 5. This is the first request for a continuance made by new 18 counsel, although prior counsel made one request for a 19 continuance that was granted on July 8, 2015. 20 6. The current sentencing date, September 23, 2015, is set 21 on the Jewish High Holy Day, which is celebrated by defense 22 counsel. 23 I I 24 II 25 II 26 II 27 II 28 II 2 Case 3:16-cv-00129-MMD-VPC Document 35-3 Filed 01/06/17 Page 3 of 4 Case 3:15-cr-00001-HDM-VPC Document 38 Filed 08/24/15 Page 3 of 3 1 This request for a continuance is not for the purpose of 2 unnecessary delay. A miscarriage of justice would occur by 3 failing to grant this request, thus denying Mr. Serenbetz's 4 counsel adequate time necessary for effective preparation, taking 5 into account the exercise of due diligence. 6 7 DATED: August 21, 2015 Is/ Brian A. Newman 8 9 10 BRIAN A. NEWMAN for Law Offices of Okabe & Haushalther Attorneys for Defendant Clay Serenbetz 11 DATED: August 21, 2015 Is/ Carla Higginbotham 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CARLA HIGGINBOTHAM Assistant United States Attorney (VIA EMAIL AUTHORIZATION] t~®~] ORDER IT IS HEREBY ORDERED that Defendant Clay Serenbetz's sentencing hearing now scheduled for September 23, 2015 at 11:00 a.m. in United States District Court, District of Nevada, Reno Courthouse, Courtroom 4 is hereby continued to December 1, 2015 at 10:30a.m. The delay in the proceedings is granted to provide the Defendant and defense counsel reasonable time necessary for effective preparation for sentencing, taking into account the exercise of due diligence. The ends of justice would best be serviced by this continuance of the hearing date. IT IS SO ORDERED. IT IS SO ORDERED this 24 th day of August, 2015. HOWARD D. McKIBBEN, Senior United States District Judge 3 Case 3:16-cv-00129-MMD-VPC Document 35-3 Filed 01/06/17 Page 4 of 4 EXHIBIT "4" Email Chain Case 3:16-cv-00129-MMD-VPC Document 35-4 Filed 01/06/17 Page 1 of 4 -------------------Subject: FW: United States v Serenbetz Importance: High From: Denney, Craig Sent: Monday, August 24, 2015 2:12PM To: Paris Rich@nvd.uscourts.gov Cc: Denney, Craig; Brian Newman (jjnewbee.newman@qmail.com) Subject: United States v Serenbetz Importance: High Paris, Hello, my colleague Carrie Parker said you called regarding US v. Serenbetz and left a message regarding the file. The reason our lawfirm has not turned over Mr. Serenbetz's file is because we have asserted an attorney's lien on the file pursuant to NRS 7 .055. On July 22, 2015, I informed Mr. Serenbetz and his new counsel (Brian Newman) that our firm was asserting an attorney's lien on the file based on the unpaid legal fees ($82,000) that Mr. Serenbetz owes our law firm for numerous hours of legal work completed during the months of May and June 2015. I signed off on the substitution of counsel last month. I see in the stipulation to continue sentencing that the defendant filed does not mention the reason for our firm withholding the file. As of today's date, we have not received payment from Mr. Serenbetz for the unpaid invoices. Please let me know if there are any other questions or a hearing is necessary. Craig S. Denney Snell & Wilmer L.L.P. 50 W. Liberty Street, Suite 510 Reno,Nevada 89501 Office: 775-785-5411 Fax: 775-785-5441 Mobile: 775-830-2432 cdenney@swlaw.com www.swlaw.com Snell & \\lilnt~r Denver, Las Vegas, Los Angeles, Los Cabos, Orange County, Phoenix, Reno, Salt Lake City, Tucson From: Denney, Craig Sent: Wednesday, July 22, 2015 5:06 PM To: Clay Serenbetz Cc: Denney, Craig; Byrne, Pat; Brian Newman Subject: United States v Serenbetz 1 Case 3:16-cv-00129-MMD-VPC Document 35-4 Filed 01/06/17 Page 2 of 4 Clay: Your new attorney Brian Newman has contacted me to sign off on the substitution of counsel form in the federal criminal case in Nevada. I will sign offthe form. You currently owe Snell & Wilmer approximately $82,000 in fees for legal services in May and June. Our firm intends to assert an attorneys lien on the firm's case file pursuant to Nevada law. Please provide prompt payment of the unpaid fees that are currently owed to the firm. I will ask my assistant to begin to make copies of the file to be released to your new counsel pending your payment of the two unpaid invoices. Please confirm receipt of this message. Thank you. Craig Denney Snell & Wilmer L.L.P. \VWw.swlaw.com Begin forwarded message: From: Brian Newman Date: July 22, 2015 at 4:55:48 PM MDT To: Subject: United States v Serenbetz Mr. Denney: This law firm has been retained to represent Clay Serenbetz. Attached is a substitution of attorney form. I called your office earlier and left a message that we are sub'ing in. Please sign the form and return it to me so that I can file it with the court. Also, please forward your file to me at your earliest convenience. Thank you, Brian A. Newman Brian A. Newman for Law Offices of Okabe & Haushalter 3838 Carson Street, Suite 300/302, Torrance, California 90053 (424) 275-4014; FAX: (424) 275-4015 1230 Rosecrans Ave Floor 3, Manhattan Beach, CA 90266 (3] 0) 543-7708 IF YOU HAVE NOT RECEIVED ALL OF THE PAGES, PLEASE CALL AS SOON AS POSSIBLE: (424) 275-4014 THIS MESSAGE AND ANY FILES TRANSMITTED WITH IT IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader ofthis message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, disclosure, distribution or copying of the information transmitted by this communication is strictly prohibited and may be subject to legal restriction or sanction, therefore, if you have received this communication in error, please notify this office immediately by telephone to arrange for the return or destruction 2 Case 3:16-cv-00129-MMD-VPC Document 35-4 Filed 01/06/17 Page 3 of 4 of the original message and all copies. THANK YOU. Law Offices ofOkabe & Haushalter 3838 Carson Street, Suite 300/302, Torrance, California 90053, (424) 275-4014; FAX: (424) 275- 40 15; 1230 Rosecrans Ave Floor 3, Manhattan Beach, CA 90266, (31 0) 543-7708. 3 Case 3:16-cv-00129-MMD-VPC Document 35-4 Filed 01/06/17 Page 4 of 4 EXHIBIT "5" Cross-Complainant's Response to Requests for Documents Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 1 of 11 OKABE & HAUSHAL TER 1 Gregory E. Coyer (Nevada State Bar #1 0013) 2 600. Tonopah Drive, Suite 22() Las Vegas, Nevada 89106 3 Telephone: (702) 802-3088 gcoyer@coyerlaw. com 4 THE LAW OFFICES OF KEVIN GERRY 5 Kevin Gerry (California State Bar #129690) 711 N. Soledad Street 6 Santa Barbara, California 93103 Telephone: {310) 383-1724 7 E-Mail: kevingerry@earthlink.net 8 Attorneys for Defendant and Cross-Complainant Clay Serenbetz 9 10 11 12 13 14 15 16 17 18 19 20 21 f-2 23 24 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA NELL & WILMER, LLP, an Arizona imited Liability Partnership, Plaintiff, vs. LAY SERENBETZ, an individual, Defendant. LAY SERENBETZ, an individual, Cross-Complainant, vs. RAIG DENNEY, an individual, SNELL Case No.: 3:16-CV-00129-MDM-VPC CROSS-COMPLAINANT'S RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) 25 WILMER, LLP, an Arizona Limited 26 iability Partnership, and DOES 1 thru 50, nclusive, 27 28 Cross-Defendants. 1 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 2 of 11 1 2 3 4 5 6 7 8 Pursuant to Federal Rule of Civil Procedure 26(b)(2) and Federal Rule of Civil Procedure 34(b)(2), Defendant and Cross-Complainant Clay Serenbetz (hereinafter "Responding Party") hereby serves this Response to the Requests for Documents served by Cross-Defendant Craig Denney as follows: INTRODUCTION 9 A. No Prejudice To Admission Of Evidence Due To Incomplete Discovery 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Discovery in this case has just begun. Therefore, Responding Party's Responses to these Requests for Documents are made without prejudice to Responding Party's right to introduce any and all evidence of any kind in the proceedings in this action. The Responding Party specifically reserves the right to introduce at trial or any subsequent proceeding any evidence from any witness, even if the evidence has not been provided in these responses whether as the result of mistake, oversight, inadvertence, misinterpretation, or otherwise. B. Right To Supplement or Modify Responses The Responding Party is responding in good faith to the Requests for Documents as he interprets and understands them. The Responding Party is engaged in a continuing investigation in an attempt to locate and/or confirm the presence or absence of additional information and/or documentation. Therefore, Responding Party reserves the right to amend and/or supplement these Responses to Requests for Documents if new or more accurate information becomes available or if errors are discovered in these responses. These Responses to Requests for Documents are given without prejudice and Responding Party 27 . reserves the right to rely upon at any subsequent proceeding, any subsequently discovered 28 information, documents and/or evidence. 2 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 3 of 11 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. No Admissions A response to any of the Requests for Documents, other than an explicit admission thereto, does not constitute an admission by the Responding Party that he agrees with any characterization or definition contained therein, or that the information sought relevant to or is likely to lead to the discovery of admissible evidence. Except for facts explicitly admitted herein, no admission of any nature whatsoever is to be implied by or inferred from any response stated anywhere in this document. In responding to the Requests for Documents and unless otherwise stated herein, Responding Party does not waive, concede or admit to the relevancy, materiality or admissibility of any information sought by these discovery requests or any responses thereto. D. Privileged or Protected Material The Responding Party objects to each and every Interrogatory on the grounds, and to the extent, that it calls for the production of information and/or documentation which contains information (a) that is protected from discovery pursuant to the attorney-client privilege, the attorney work product doctrine and/or the right of privacy; (b) that was prepared in anticipation of litigation; or (c) that is otherwise protected from disclosure under the Jaws of the State of Nevada and/or the United States. RESPONSES TO REQUESTS FOR DOCUMENTS REQUEST NO.1: All documents referenced in any of your responses to Interrogatories served contemporaneously with this Request. 3 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 4 of 11 1 2 3 4 5 RESPONSE TO REQUEST NO.1: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. 6 7 8 REQUEST NO. 2: All documents alleged to have been disclosed by Cross-Defendants to third parties 9 which contain your private and confidential financial information as set forth in paragraph 7 10 11 12 13 14 15 16 17 18 19 of your Cross-Complaint. RESPONSE TO REQUEST NO.2: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. REQUEST NO. 3: All documents alleged to have been disclosed by Cross-Defendants to third parties 20 which contain your private and confidential financial information as set forth in paragraph 21 21 22 23 24 25 26 27 28 of your Cross-Complaint. RESPONSE TO REQUEST NO. 3: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. 4 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY {FIRST SET} Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 5 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 REQUEST NO. 4: All documents which contain alleged improper ex-parte communications made by Cross-Defendants with a Judicial Officer in the Underlying Case as set forth in paragraph 9 of your Cross-Complaint. RESPONSE TO REQUEST NO.4: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. REQUEST NO. 5: All documents to support your allegation that Cross-Defendants publicized private and 14 confidential financial information of and concerning you as set forth in paragraph 12 of your 15 16 17 18 19 20 21 22 23 24 Cross-Complaint. RESPONSE TO REQUEST NO. 5: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. REQUEST NO. 6: All documents which reflect any alleged benefit received by Cross-Defendants as set 25 forth in paragraph 7 of your Cross-Complaint. 26 27 28 5 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 6 of 11 2 3 4 5 6 7 8 9 10 11 12 13 RESPONSE TO REQUEST NO. 6: Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party does not possess any documents responsive to this Request. REQUEST NO. 7: All documents which reflect any damages you claim were caused as a result of Cross- Defendants' alleged negligence, recklessness and violations of the Rules of Professional Conduct. RESPONSE TO REQUEST NO.7:, Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States ·District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party 14 will produce a copy of said document concurrently with this Response. 15 16 17 REQUEST NO. 8: All documents which reflect damages you claim as a result of Cross-Defendants' 18 alleged publication of private and confidential financial information of and concerning you. 19 RESPONSE TO REQUEST NO.8: 20 21 22 23 Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party 24 will produce a copy of said document concurrently with this Response. 25 26 27 28 REQUEST NO. 9: All documents which reflect damages you claim as a result of Cross-Defendants' alleged disclosure of your private and confidential financial information to third parties. 6 RESPONSE TO REQUESTS FOR DOCU~ENTS FROM CROSS-DEFENDANT CRAIG DENNEY {FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 7 of 11 2 3 4 5 RESPONSE TO REQUEST NO. 9: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 REQUEST NO. 10: All documents which reflect any post-conviction relief you have obtained in the underlying action. RESPONSE TO REQUEST NO. 10: Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party does not possess any documents responsive to this Request. Dated: November 14, 2016 , ESQ.,- Attorney for C ss-Complainant Clay Serenbetz 7 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 8 of 11 1 2 VERIFICATION BY PARTY 3 Snell & Wilmer, LLP v Clay Serenbetz and Related Cross-Action 4 United States District Court Case No. 3:16-CV-00129 5 6 7 I, Clay Serenbetz, declare: 8 9 10 11 12 13 14 15 I am a party to the above-entitled action and I know the contents of the foregoing Responses to Requests for Production of Documents from Cross-Defendant Craig Denney (First Set). The Responses to Requests for Production of Documents from Cross-Defendant Craig Denney (First Set) are true based on my own personal knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true. 16 I declare under penalty of perjury that the above is true and correct and that this 17 verification is executed this November 1'-{, 2016, in Devens, Massachusetts. 18 19 20 21 22 23 24 25 26 27 28 Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 9 of 11 From: Date: Mon. Aug 24, 2015 at 3:00PM Subject: Re: United States v Serenbetz To: Cc: "Denney, Craig" , "Brian N.ewman Thanks, Craig. At this point, the Court has no other questions. Thanks. From "Denney, Craig" Cc ''Denney, Craig" , "Brian Newman Date: 08/24/2015 02:12 Subject: United States v Serenbetz Paris, Hello, my colleague Carrie Parker said you called regarding US v. Serenbetz and left a message regarding the file. The reason our lawfirm has not turned over Mr. Serenbetz's file is because we have asserted an attorney's lien on the file pursuant to NRS 7.055. On July 22. 2015, I informed Mr. Serenbetz and his new counsel (Brian Newman) that our firm was asserting an attorney's lien on the file based on the unpaid legal fees ($82,000) that Mr. Serenbetz owes our law firm for numerous hours of legal work completed during the months of May and June 2015. I signed off on the substitution of counsel last month. I see in the stipulation to continue sentencing that the defendant filed does not mention the reason for our firm withholding the file. As of today's date, we have not received payment from Mr. Serenbetz for the unpaid invoices. Please let me know if there are any other questions or a hearing ls necessary. Craig S. Denney Snell & Wilmer L.L.P. 50 W. Liberty Street, Suite 510 Reno,Nevada 89501 Office: 775-785-5411 Fax: 775-785-5441 Mobile: 775-830-2432 cdenney@swlaw.com www.swlaw.com cid:image002.png@01 CE6D01.CAEF7 A50 Denver, Las Vegas, Los Angeles, Los Cabos, Orange County, Phoenix, Reno, Salt Lake City, Tucson Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 10 of 11 ( '"~ .... PROOF OF SERVICE ' I ·[ 2 3 I, the undersigned, certify and declare that I am over the age of 18 years, employed in 4 the County of Santa Barbara, State of California, and not a party to the above-entitled cause. 5 On November 14, 2016, I served a true copy of the: 6 7 8 9 10 11 12 13 14 15 16 CROSS-COMPLAINANT'S RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) by personally delivering it to the person (s) indicated below in the manner as provided in Federal Rule of Civil Procedure 5(b); by depositing it in the United States Mail in a sealed envelope with the postage thereon fully prepaid to the following: Nathan G. Kanute, Esq. Snell & Wilmer, LLP 50 West Liberty Street, Suite 510 Reno, NV 89501-1961 nkanute@swlaw .com Plaintiff Snell & Wilmer, LLP 17 Wayne A. Shafer, Esq. Cross-Defendants Snell & Wilmer and Craig Denney Laxalt & Nomura, Ltd. 18 9600 Gateway Drive Reno, NV 89521 19 wshaffer@laxalt-nomura.com 20 21 22 Gregory E. Coyer Okabe & Haushalter 600 Tonopah Drive, Suite 220 Las Vegas, Nevada 89106 gcoyer@coyerlaw.com Defendant and Cross-Complainant Clay Serenbetz 23 24 25 26 I hereby certify under the penalty of perjury that the foregoing is true and correct. 27 28 Dated this 141h day of November, 2016 By:~ RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-5 Filed 01/06/17 Page 11 of 11 EXHIBIT "6" Cross-Complainant's Response to Interrogatories Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 1 of 15 OKABE & HAUSHAL TER 1 Gregory E. Coyer (Nevada State Bar #10013) 2 600 Tonopah Drive, Suite 220 Las Vegas, Nevada ·a91 06 3 Telephone: (702) 802-3088 gcoyer@coyerlaw.com 4 THE LAW OFFICES OF KEVIN GERRY 5 Kevin Gerry (California State Bar #129690} 711 N. Soledad Street 6 Santa Barbara, California 931 03 Telephone: (310) 383-1724 7 E-Mail: kevingerry@earthlink.net 8 Attorneys for Defendant and Cross-Complainant Clay Serenbetz 9 10 11 12 13 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 14 ~NELL & WILMER, LLP, an Arizona 15 .... imited Liability Partnership, 16 17 vs. Plaintiff, 18 ~LAY SERENBETZ, an individual, 19 20 Defendant. 2I CLAY SERENBETZ, an individual, 22 Cross-Complainant, 23 vs. 24 PRAIG DENNEY, an individual, SNELL 25 ~WILMER, LLP, an Arizona Limited 26 ,_iability Partnership, and DOES 1 thru 50, nclusive, 27 Cross-Defendants. 28 Case No.: 3:16-CV-00129-MDM-VPC CROSS-COMPLAINANT'S RESPONSE TO INTERROGATORIES FROM CROSS- DEFENDANT CRAIG DENNEY (FIRST SET) 1 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 2 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Pursuant to Fed~ral Rule of Civil Procedure 26(b)(1) and Federal Rule of Civil Procedure 33(b), Defendant and Cross-Complainant Clay Serenbetz (hereinafter "Responding Party") hereby responds to the Interrogatories served by Cross-Defendant Craig Denney as follows: INTRODUCTION A. No Prejudice To Admission Of Evidence Due To Incomplete Discovery The Discovery in this case has just begun. Therefore, Responding Party's Responses to these Interrogatories are made without prejudice to Responding Party's right to introduce any and all evidence of any kind in the proceedings in this action. The Responding Party specifically reserves the right to introduce at trial or any subsequent proceeding any evidence from any witness, even if the evidence has not been provided in these responses whether as the result of mistake, oversight, inadvertence, misinterpretation, or otherwise. 16 17 18 19 20 21 22 ?"" _ _, 24 25 26 27 28 B. Right To Supplement or Modify Responses The Responding Party is responding in good faith to the Interrogatories as he interprets and understands them. The Responding Party is engaged in a continuing investigation in an attempt to locate and/or confirm the presence or absence of additional information and/or documentation. Therefore, Responding Party reserves the right to amend and/or supplement these Responses to Interrogatories if new or more accurate information becomes available or if errors are discovered in these responses. These Responses to Interrogatories are given without prejudice and Responding Party reserves the right to rely upon at any subsequent proceeding, any subsequently discovered information, documents and/or evidence. 2 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY {FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 3 of 15 1 2 3 4 5 6 7 C. No Admissions A response to any of the Interrogatories, other than an explicit admission thereto, does not constitute an admission by the Responding Party that he agrees with any characterization or definition contained therein, or that the information sought relevant to or is likely to lead to the discovery of admissible evidence. Except for facts explicitly admitted herein, no admission of any nature whatsoever is to be implied by or inferred from any response stated anywhere in 8 this document. In responding to the Interrogatories and unless otherwise stated herein, 9 10 11 12 13 Responding Party does not waive, concede or admit to the relevancy, materiality or admissibility of any information sought by these discovery requests or any responses thereto. D. Privileged or Protected Material The Responding Party objects to each and every Interrogatory on the grounds, and to the 14 extent, that it calls for the production of information and/or documentation which contains 15 16 17 18 19 20 21 22 ')"' _, 24 25 information (a) that is protected from discovery pursuant to the attorney-client privilege, the attorney work product doctrine and/or the right of privacy; (b) that was prepared in anticipation of litigation; or (c) that is otherwise protected from disclosure under the laws of the State of Nevada and/or the United States. RESPONSES TO INTERROGATORIES INTERROGATORY NO.1: With regard to your allegation that Cross-Defendants disclosed your "private and confidential financial information to third parties" set forth in paragraph 7 of your Cross- 26 27 Complaint: 28 3 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 4 of 15 1 a) Describe in detail the financial information that you claim was private and confidential 2 information that was disclosed to third parties; 3 b) For each alleged disclosure of private and confidential financial information made to third 4 parties, state the date(s) that each disclosure took place, the manner that each disclosure took 5 place (for example letter, e-mail or spoken word) and the identity by name, address and 6 7 telephone number of each "third party" that received the disclosure; and 8 c) Identify each document disclosed by Cross-Defendants to each third party which contained 9 your "private and confidential financial information" by author, date of disclosure, how the 10 11 12 13 14 15 16 17 document was disclosed and to whom the document was disclosed. RESPONSE TO INTERROGATORY N0.1: a) The private and confidential information is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party has produced a copy of said document 18 with the Response to Requests for Documents seNed concurrently herewith. 19 b) The disclosure is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom 20 Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, 21 22 23 on August 24, 2015 re: United States v Serenbetz. c) The Responding Party has produced a copy of said document concurrently with the 24 Response to Requests for Documents seNed concurrently herewith. 25 26 27 28 4 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 5 of 15 1 2 3 4 5 6 7 8 9 10 11 INTERROGATORY NO.2: Describe what benefit you allege was received by Cross-Defendants in the disclosure of your private and confidential financial information to third parties as set forth in paragraph 7 of the Cross-Complaint. RESPONSE TO INTERROGATORY NO.2: The Responding Party asserts that the Cross-Defendants attempted to obtain a benefit or advantage in their efforts towards the collection of their legal bill. INTERROGATORY NO. 3: With regard to your allegation that Cross-Defendants "engaged in improper ex-parte communications with the Judicial Officer in the Underlying Case" set forth in paragraph 9 of the 12 13 Cross-Complaint: 14 a) Describe in detail each allegedly improper ex-parte communication; 15 16 17 18 b) For each occurrence of each allegedly improper communication with the Judicial Officer, state the date(s) that each communication took place, the manner that each communication took place (for example letter, e-mail or spoken word) and the identity by name 19 of each Judicial Officer to whom the communication was made; 20 c) Identify each document which contains an allegedly improper ex-parte communication made 21 22 23 with the Judicial Officer by author, date of disclosure, how the document was disclosed and to whom the document was disclosed: 24 d) Identify by name, address and telephone number, each person believed to have been 25 present at the time each allegedly improper ex-parte communication took place; and 26 e) Identify by name, address and telephone number each person that you contend should have 27 been provided notice of each allegedly improper ex-parte communication. 28 5 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 6 of 15 1 2 3 4 5 6 RESPONSE TO INTERROGATORY NO.3: a) The improper ex-parte communication is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party has produced a copy of said document 7 with the Response to Requests for Documents served concurrently herewith. 8 9 10 11 b) The improper ex-parte communication is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. c) The E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. 12 13 McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United 14 States v Serenbetz. 15 16 17 18 19 d) The parties set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben. Responding Party is presently unaware of the names, addresses, telephone numbers, e-mail addresses and/or any other identification or contact information regarding additional persons that received the aforementioned information. 20 e) The Responding Party asserts that the communication is improper even with notice given 21 22 23 due to the private and confidential subject matter of the communication. INTERROGATORY NO.4: 24 With regard to your allegation that Cross-Defendants "publicized private and confidential 25 financial information of and concerning Cross-Complainant Clay Serenbetz" as set forth in 26 paragraph 12 of your Cross-Complaint: 27 28 6 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 7 of 15 a) Describe in detail the financial information that you claim was private and confidential 2 information which was publicized; 3 4 5 b) For each alleged publication of private and confidential financial information, state the date(s) that each publication took place, the manner that each publication took place (for example letter, e-mail or spoken word} and the identity by name, address and telephone 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 number of each person that received the publicized information; c) Identify each document believed to have been -publicized" which contained private and confidential financial information of and concerning you by author, date of disclosure, how the document was disclosed and to whom the document was disclosed: and d) Describe the alleged publicity that took place with regard to the publication of any private and confidential financial information of and concerning you, including the nature of the publicity, the number of persons that received the information, and identify by name, address and telephone number each person believed to have received such information. RESPONSE TO INTERROGATORY NO. 4: a) The private and confidential information is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party has produced a copy of said document concurrently with the Response to Requests for Documents served concurrently herewith. b) The publication information is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. 7 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 8 of 15 2 3 4 5 c) The E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. d) The private and confidential information that the Responding Party is allegedly in debt to a well known criminal defense attorney and a well known criminal defense law firm is originally 6 7 set forth in the is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom 8 Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b )(2), Responding Party has produced a copy of said document concurrently with the Response to Requests for Documents served concurrently herewith. Responding Party is presently unaware of the names, addresses, telephone numbers, e-mail addresses and/or any other identification or contact information regarding additional persons that received the aforementioned information. INTERROGATORY NO. 5: With regard to your allegation that Cross-Defendants used Cross-Complainant Clay Serenbetz's private and confidential information for their own benefit and best interests by disclosure of the information to third parties as set forth in Paragraph 21 of your Cross- Complaint: a) Describe in detail the financial information that you claim was private and confidential information that was disclosed to third parties; b) For each alleged disclosure of private and confidential financial information made to third parties, state the date(s) that each disclosure took place, the manner that each disclosure took 8 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 9 of 15 1 place (for example letter, e-mail or spoken word) and the identity by name, address and 2 telephone number of each -third party" that received the disclosure; and 3 c) Identify each document disclosed by Cross-Defendants to each third party which contained 4 your "private and confidential financial information" by author, date of disclosure, how the 5 6 7 8 9 10 11 12 13 document was disclosed and to whom the document was disclosed. RESPONSE TO INTERROGATORY NO. 5: a) The private and confidential information is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party has produced a copy of said document concurrently with the Response to Requests for Documents served concurrently herewith. 14 b) The publication information is set forth in the E-Mail from Craig Denney to Paris Rich, 15 16 17 Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. 18 c) The E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. 19 McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United 20 States v Serenbetz. 21 INTERROGATORY NO. 6: 22 23 Describe what benefit you allege was received by Cross-Defendants in the disclosure of 24 your private and confidential financial information to third parties as set forth in paragraph 21 of 25 the Cross-Complaint. 26 27 28 9 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 10 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE TO INTERROGATORY NO. 6: The Responding Party asserts that the Cross-Defendants attempted to obtain a benefit or advantage in their efforts towards the collection of their legal bill. INTERROGATORY NO.7: Describe in detail how the alleged negligent conduct of Cross-Defendants resulted in harm or damage to you. RESPONSE TO INTERROGATORY NO.7: The Responding Party suffered prejudice, shame and embarrassment due to the negligent conduct of Cross-Defendants in disclosing Responding Party's private and confidential financial information to third parties. INTERROGATORY NO. 8: Identify each Rule of Professional Conduct that you claim was violated by any Cross-Defendant and describe the conduct claimed to be in violation of each such Rule. RESPONSE TO INTERROGATORY NO. 8: Nevada Rule of Professional Conduct 1.8(b), which states that a "lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent." Responding Party asserts that the disclosure of the Responding Party's private and confidential financial information to third parties without the Responding Party's authorization or informed consent is a violation of Nevada Rule of Professional Conduct 1.8(b). Nevada Rule of Professional Conduct 1.6(a) imposes a duty on all lawyers not to reveal information relating to the representation of their clients to anyone unless there is 10 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 11 of 15 1 an applicable exception. (McKay v. Board of County Commissioners (1987) 103 Nev. 490; 2 Todd v. State (1977) 113 Nev. 18). Nevada Rule of Professional Conduct 1.6 restricts the 3 4 5 6 7 8 9 10 11 12 13 lawyer from revealing all information relating to the representation of the client. (see the State Bar of Nevada's Standing Committee on Ethics and Professional Responsibility- Formal Opinion No. 41 (2009). The Responding Party asserts that the disclosure of the Responding Party's private and confidential financial information to third parties without the Responding Party's authorization or informed consent is a violation of Nevada Rule of Professional Conduct 1.6(a). INTERROGATORY NO. 9: State the amount of damages, if any, you allegedly sustained as the result of Cross-Defendants' alleged negligence, recklessness and 14 violations of the Rules of Professional Conduct. 15 16 17 18 19 RESPONSE TO INTERROGATORY N0.9: $100,000.00. INTERROGATORY NO. 10: Identify the amount of damages, if any, you sustained as the result 20 of Cross-Defendants' alleged publication of private and confidential financial information 21 22 23 24 25 26 27 28 of and concerning you. RESPONSE TO INTERROGATORY NO. 10: $100,000.00. INTERROGATORY NO. 11: Identify the amount of damages, if any, you sustained as the result of Cross-Defendants' alleged disclosure of your private and confidential financial information to third parties. 11 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 12 of 15 1 2 3 4 5 RESPONSE TO INTERROGATORY N0.11: $100,000.00. INTERROGATORY NO. 12: State and describe separately and in detail each single item and expense, loss or financial damage which is claimed to have been incurred or which is believed will be incurred 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 solely by reasons of the claims referred to in the Cross-Complaint. RESPONSE TO INTERROGATORY NO. 12: The Responding Party asserts general damages in the amount of $1 0 0, 0 0 0. 0 0. INTERROGATORY NO. 13: Describe any post-conviction relief you have obtained in the Underlying Action and how such relief was necessitated by the conduct of Cross-Defendants. RESPONSE TO INTERROGATORY N0.13: The Responding Party has not obtained any post-conviction relief in the Underlying Action. Dated: November 14, 2016 KEVIN GERR' ES ., -Attorney for Defendant and . ss- \omplainant Clay Serenbetz '\\ 12 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY {FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 13 of 15 1 VERIFICATION BY PARTY 2 3 Snell & Wilmer, LLP v Clay Serenbetz and Related Cross-Action 4 United States District Court Case No. 3:16-CV-00129 5 6 7 I, Clay Serenbetz, declare: 8 9 I am a pa1ty to the above-entitled action and I know the contents of the foregoing 1 o Responses to Interrogatories from Cross-Defendant Craig Denney. The Responses to 11 12 13 14 15 Interrogatories from Cross-Defendant Craig Denney are true based on my own personal knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true. 16 I declare under penalty of perjury that the above is true and correct and that this 17 verification is executed this November Jj_, 2016, in Devens, Massachusetts. 18 19 20 21 22 23 24 25 26 27 28 ~£;-~ / Clay Serenbetz Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 14 of 15 PROOF OF SERVICE '/ -~ : .. ·:. : . ..,· .... · ' 2 3 I, the undersigned, certify and declare that I am over the age of 18 years, ·employe~~·fn 4 the County of Santa Barbara, State of California, and not a party to the above-entitled cause. 5 On November 14, 2016, I served a true copy of the: 6 7 8 9 CROSS-COMPLAINANT'S RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) by personally delivering it to the person (s) indicated below in the manner as provided in 10 11 12 Federal Rule of Civil Procedure 5(b); by depositing it in the United States Mail in a sealed envelope with the postage thereon fully prepaid to the following: 13 Nathan G. Kanute, Esq. 14 Snell & Wilmer, LLP 15 50 West Liberty Street, Suite 510 Reno, NV 89501-1961 16 nkanute@swlaw.com 17 Wayne A. Shafer, Esq. Laxalt & Nomura, Ltd. 18 9600 Gateway Drive Reno, NV 89521 19 wshaffer@laxalt-nomura.com 20 21 22 ?"' _ _, 24 Gregory E. Coyer Okabe & Haushalter 600 Tonopah Drive, Suite 220 Las Vegas, Nevada 891 06 gcoyer@coyerlaw.com Plaintiff Snell & Wilmer, LLP Cross-Defendants Snell & Wilmer and Craig Denney Defendant and Cross-Complainant Clay Serenbetz 25 I hereby certify under the penalty of perjury that the foregoing is true and correct. 26 27 28 Dated this 14th day of November, 2016 ~ By: -----···----·--·~----------------- RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 35-6 Filed 01/06/17 Page 15 of 15