Las Vegas Sands, LLC v. Nehme
632 F.3d 526
| 9th Cir. | 2011Background
- Nehme, a California resident, is a repeat Venetian gambler who obtained a Nevada credit line under a credit application that authorized future marks; line later increased to $500,000.
- On Sept 5, 2005, Nehme signed a $500,000 casino marker payable to the Venetian and exchanged it for chips, subsequent to prior credit extensions.
- Venetian submitted the $500,000 marker to Bank of America for payment on Jan 5, 2006; the bank dishonored for insufficient funds, leaving $499,000 due after applying a safekeeping credit.
- A Bennett letter dated Feb 8, 2005, requested cancellation of all of Nehme’s credit lines; the USPS return receipt (dated Feb 11, 2005) suggested Venetian may have received it.
- The district court excluded the Bennett letter and return receipt as unauthenticated, granted summary judgment to Venetian; the Ninth Circuit reversed, ruling the court applied the wrong standard for authentication and remanded for proper consideration of the evidence.
- Key holding: error in evidentiary ruling was not harmless; on remand, correct standard should be applied to determine whether the Bennett letter and return receipt raise triable issues regarding Nehme’s contract/UCC defenses to the marker.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authentication of Bennett letter and return receipt | Nehme argues documents are admissible via contents-based authentication | Venetian contends documents require personal knowledge authentication | Abuse of discretion; proper Rule 901(b)(4) authentication may admit them on contents |
| Triable issues on defenses to liability | Bennett letter shows cancellation breach; UCC/common-law defenses may discharge the marker | Venetian argues no defense or the holder-in-due-course status defeats defenses | Triable issues remain; evidence could support material breach/related defenses |
| Relation of marker to credit agreement | Marker may be part of same transaction as credit agreement; breach of cancellation could discharge marker | Marker and credit line may be separate transactions | Question of fact; district court must assess whether marker related to the credit application under Nevada law |
Key Cases Cited
- Orr v. Bank of Am., NT & SA, 285 F.3d 764 (9th Cir. 2002) (summary-judgment evidence authentication; abuse of discretion if standard misapplied)
- United States v. Hinkson, 585 F.3d 1247 (en banc, 9th Cir. 2009) (defining abuse of discretion; misapplication of legal standard)
- Nguyen v. State, 14 P.3d 515 (Nev. 2000) (standard industry procedures; markers as advance debt obligations under Nevada law)
- In re Miller, 292 B.R. 409 (Bankr. BAP 2003) (casino markers are enforceable debts; relation to credit applications under Nevada law)
- Kennewick Irr. Dist. v. United States, 880 F.2d 1018 (9th Cir. 1989) (contract interpretation; avoid illusory promises; reasonable interpretations favored)