Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 1 of 17
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`Plaintiff
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`Baluma, S.A.,
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`v.
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`Benjamin Sriqui,
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`Defendant
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`Case No.: 2:20-cv-01424-JAD-EJY
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`Order Granting Motion for Summary
`Judgment and Closing Case
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`[ECF No. 23]
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`This case is just one card in the deck of breach-of-contract actions brought by Baluma,
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`S.A. d/b/a/ Enjoy Punta del Este Resort & Casino in this district to recover unpaid casino
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`markers it issued at its South American property.1 In this action, the casino contends that one of
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`its patrons, Benjamin Sriqui, agreed to pay back the $100,000 that the casino lent him, but when
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`the debt came due, Sriqui attempted to shift the blame onto another person who he claims was
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`supposed to cover his outstanding balance. The casino now moves for summary judgment on its
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`contract claims and on Sriqui’s counterclaims. Sriqui contends that discrepancies within certain
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`documents create genuine issues of material fact for a jury’s resolution. I grant the motion
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`because I find that no genuine and material factual disputes exist about Sriqui’s obligations under
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`the markers and that he has not met his burden to demonstrate that he’s an intended third-party
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`beneficiary entitled to recover on his counterclaims.
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`1 Baluma, S.A. v. Patel, 2:20-cv-01398-KJD-VCF; Baluma, S.A. v. Penner, 2:20-cv-01551-APG-
`BNW; Baluma, S.A. v. Huang, 2:20-cv-01547-GMN-VCF; Baluma, S.A. v. Davydov, 2:20-cv-
`01552-KJD-NJK; Baluma, S.A. v. Mengle, 2:20-cv-01568-KJD-VCF; Baluma , S.A. v. Poff,
`2:20-cv-01642-JCM-DJA; Baluma, S.A. v. Chow, 2:20-cv-01752-KJD-EJY.
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 2 of 17
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`The Enjoy Punta del Este resort maintains a casino that allows its patrons to play on the
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`Background
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`house’s dime, so long as the customers promise to repay the debt. Sriqui was one such gambler.
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`But unlike many vacationers, Sriqui visited the resort on junkets led by Johnny Chow.2
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`According to Sriqui, the casino’s relationship with himself and Chow was simple—Chow would
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`act as a junket representative and invite players, like Sriqui, to the casino to gamble on the
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`casino’s dime.3 Sriqui would show up, sign the credit applications, take out markers against his
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`credit line, and bet at Chow’s direction.4 After he was done betting, he was free to enjoy the
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`resort.5 And when he left, the loan—one way or another—was repaid.6
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`In January 2019, Sriqui filled out another credit application7 that granted him privileges
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`to use up to $100,000 from his line of credit at the resort.8 To access that line of credit, Sriqui
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`signed credit instruments known as markers. Throughout the year, he returned to Uruguay with
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`Chow by his side and drew from his credit line. And by the end of his 2019 trips, he had signed
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`nine markers and gambled away all $100,000 of that advance.9 Though he “fully expected [the
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`2 ECF No. 28-2 at ¶ 3 (Sriqui declaration).
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`3 See ECF No. 28-1 at 21:19–25, 22:1–3 (Sriqui deposition).
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`4 See id. at 26:3–9.
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`5 Id. at 53:6–11.
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`6 Accord id. at 53:12–15; ECF No. 28-2 at ¶ 5.
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`7 ECF No. 23-1 (credit application).
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`8 ECF No. 23-2 at ¶ 4 (Sriqui’s RFAs); see ECF No. 23-3.
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`9 See ECF Nos. 5; 23-2 at ¶¶ 8–18; 28-2 at ¶ 6.
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 3 of 17
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`casino] to be paid back for any amount taken out,”10 Sriqui didn’t pay back the money.11
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`Instead, he believed that someone else at some point would cover the bill,12 because that’s
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`simply how it had always worked.13
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`This time was different. When each marker’s due date came and went without repayment
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`from Sriqui, the casino sued him for his outstanding balance, asserting claims for breach of
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`contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment.
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`After I denied Sriqui’s personal-jurisdiction motion to dismiss in early February,14 he lodged
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`four counterclaims against the casino: (1) setoff, (2) recoupment, (3) breach of contract, (4)
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`breach of the implied covenant of good faith and fair dealing.15 The casino now moves for
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`summary judgment on all claims, largely relying on Sriqui’s responses to the requests for
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`admission that the casino served on him under Federal Rule of Civil Procedure 36. Because I
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`find that the casino has shown that no genuine issues of material fact prevent summary judgment,
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`I grant its motion.
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`10 ECF No. 28-1 at 107:5–6; see also id. at 16:6–12 (“So, like, I certainly intended on the lines
`being paid, but as throughout history of the trips, we were there five, six, seven, times, I don’t
`know, I’m not sure, the lines were always paid out and not ever by me. I was never privy to any
`of the profit. I could play at the tables. I was never privy to any of the loss from the tables. This
`was all Johnny.”).
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`11 ECF No. 23-2 at ¶ 21 (“Admit that I have not repaid any amount under the Casino Markers,
`but deny that the funds as contained in the Casino Markers were a loan to me.”).
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`12 See ECF No. 28-1 at 13:23–25 (“I fully expected the line to be paid back, however, not by
`me.”).
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`13 See, e.g., id. at 37:17–25, 38:26 (“But as far as before we left, like, when I’d fly out, I would—
`I always assumed that the lines were squared, like, completely by Johnny.”); ECF No. 28-2 at
`¶ 5.
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`14 ECF No. 18 (order denying motion to dismiss).
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`15 ECF No. 22 (Sriqui answer).
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 4 of 17
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`I.
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`Legal standard
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`Discussion
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`Summary judgment is appropriate when the pleadings and admissible evidence “show
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`that there is no genuine issue as to any material fact and that the movant is entitled to judgment
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`as a matter of law.”16 “By its very terms, this standard provides that the mere existence of some
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`alleged factual dispute between the parties will not defeat an otherwise properly supported
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`motion for summary judgment; the requirement is that there be no genuine issue of material
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`fact.”17 A fact is material if it could affect the outcome of the case.18
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`On summary judgment, the court must view all facts and draw all inferences in the light
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`most favorable to the nonmoving party.19 So the parties’ burdens on an issue at trial are critical.
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`When the party moving for summary judgment would bear the burden of proof, “it must come
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`forward with evidence [that] would entitle it to a directed verdict if the evidence went
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`uncontroverted at trial.”20 If it does, the burden shifts to the nonmoving party, who “must
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`present significant probative evidence tending to support its claim or defense.”21 But when the
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`moving party does not bear the burden of proof on the dispositive issue at trial, it is not required
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`to produce evidence to negate the opponent’s claim—its burden is merely to point out the
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`evidence that shows the absence of a genuine material factual issue.22
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`16 See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)).
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`17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
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`18 Id. at 249.
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`19 Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).
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`20 C.A.R. Transp. Brokerage Co. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000)
`(quoting Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)).
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`21 Id.
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`22 Celotex, 477 U.S. at 323.
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 5 of 17
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`II.
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`Baluma’s breach-of-contract claim
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`The parties do not dispute that Baluma gave Sriqui money to gamble with. So to succeed
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`on its breach-of-contract claim, the casino need only demonstrate that a valid contract exists,
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`Sriqui materially breached it, and the casino was damaged because of that breach.23 The casino
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`contends that Sriqui’s admissions and the markers he signed demonstrate that it’s entitled to
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`recovery. Sriqui maintains that the documents that the casino relies on to evince a contract are
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`inconsistent, and he argues that factual disputes about Chow’s role preclude summary judgment.
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`A.
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`A valid contract exists
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`“An enforceable contract requires ‘an offer and acceptance, meeting of the minds, and
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`consideration.’”24 Both credit applications and markers that permit patrons to draw against their
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`casino credit lines with a promise to repay that amount may constitute a valid contract.25 And a
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`“casino marker and a credit application agreement may be, but need not be, part of the same
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`transaction.”26
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`The casino relies on the January 2019 credit application, June 2019 draw request, and
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`various markers to demonstrate a valid contract between itself and Sriqui.27 Though Sriqui does
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`not deny that he executed some markers for a total of $100,000, he maintains that the markers
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`23 Richardson v. Jones, 1 Nev. 405, 408 (1865); see Rivera v. Peri & Sons Farms, Inc., 735 F.3d
`892, 899 (9th Cir. 2013) (citation omitted).
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`24 Anderson v. Sanchez, 373 P.3d 860, 863 (Nev. 2016) (citing May v. Anderson, 119 P.3d 1254,
`1257 (Nev. 2005)).
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`25 Cf. Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 536–37 (9th Cir. 2011) (discussing a
`casino’s obligations under a bilateral marker contract in Nevada); see Morales v. Aria Resort &
`Casino, LLC, 995 F. Supp. 2d 1176, 1181 (D. Nev. 2014) (“Moreover, both the credit application
`and the markers are contracts, under which Morales had a duty to pay.”).
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`26 Las Vegas Sands, 632 F.3d at 537.
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`27 ECF No. 23 at 6.
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 6 of 17
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`that the casino offers are an inaccurate demonstration of the amounts he would have requested to
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`reach that $100,000 threshold.28 And he argues that those can’t be the correct markers because
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`the dates listed on them are in October 2019 and January 2020—not during the summer when the
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`casino claims Sriqui signed them.29 Neither inconsistency demonstrates a genuine and material
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`factual dispute over the validity of the contract.
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`Key to this analysis are Sriqui’s Rule 36 admissions. Federal Rule of Civil Procedure 36
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`permits a party to “serve on any other party a written request to admit . . . the truth of any matters
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`within the scope of Rule 26(b)(1) relating to: the facts, the application of law to fact, or opinions
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`about either.”30 “A matter admitted under this rule is conclusively established unless the court,
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`on motion, permits the admission to be withdrawn or admitted,”31 but a party must move to
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`withdraw or amend his answers in order to receive such relief.32 Because facts admitted under
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`Rule 36 are conclusively established, they “may be relied on as the basis for granting summary
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`judgment.”33
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`Through his Rule 36 responses, Sriqui admits that he filled out the credit application in
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`January34 that gave him marker-signing privileges;35 in June, he requested to draw down his line
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`28 ECF No. 28-1 at 74:5–24.
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`29 ECF No. 28 at 5:10–14.
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`30 Fed. R. Civ. P. 36(a)(1)(A).
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`31 Id. at (b).
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`32 Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007) (citing In re Carney, 258 F.3d 415,
`419 (5th Cir. 2001)).
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`33 Id. (citing O’Campo v. Hardisty, 262 F.2d 621, 624 (9th Cir. 1958)).
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`34 ECF No. 23-2 at ¶¶ 1–3.
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`35 Id. at ¶ 4.
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 7 of 17
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`of credit;36 and that he then signed nine markers37 totaling $100,00038 from the line of credit that
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`he applied for in January.39 Importantly, he also admits that the nine markers offered are the
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`“true and correct copies of the [c]asino [m]arkers [that he] signed.”40 Despite those admissions,
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`Sriqui now contends that he never would have asked for the amounts listed on the casino floor,
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`relying on his deposition testimony and a new declaration.41 But Sriqui has not moved to
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`withdraw his admissions, and merely submitting a declaration that contradicts his admissions is
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`insufficient to create a genuine issue of fact in this circuit.42 His Rule 36 admissions thus
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`conclusively establish that the credit application, draw request, and markers are a valid contract
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`between him and the casino.43
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`Sriqui also relies on the Ninth Circuit’s decision in Las Vegas Sands, LLC v. Nehme for
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`the proposition that whether a credit application and a marker are part of the same transaction is
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`36 Id. at ¶¶ 5–7.
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`37 Id. at ¶¶ 9–17.
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`38 Id. at ¶ 18.
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`39 See id. at ¶ 8.
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`40 Id.
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`41 ECF Nos. 28-2 at ¶ 6; 28-1 at 107:1–10. Although the casino submits a declaration to explain
`where and when Sriqui signed the markers, I need not and do not consider it because the casino
`offers it for the first time in reply. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996)
`(“[W]here new evidence is presented in a reply to a motion for summary judgment, the district
`court should not consider the new evidence without giving the non-movant an opportunity to
`respond.”) (brackets and citation omitted)).
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`42 See Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975) (characterizing
`an affidavit that contradicted earlier deposition testimony as “sham issues [that] should not
`subject the defendants to the burden of trial”).
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`43 Even if I ignored Sriqui’s admission that the markers produced were true and correct, his
`speculation about the dates are belied by the record—the dates on the markers are not the dates
`he signed them, they’re the dates that the markers were due. See ECF Nos. 23-5 at 2–4; 23-6 at
`¶ 9 (noting the due dates for repayment).
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 8 of 17
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`a question of fact.44 But his admissions render that holding inapposite to this dispute. The Las
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`Vegas Sands court was confronted with a credit application that imposed certain obligations on
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`the casino, and which was signed a year before the player executed a marker.45 In assessing
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`common gaming practices, the Ninth Circuit noted that it’s possible for a credit application and
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`casino marker to be single or separate transactions, so triable issues existed there about whether
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`the application and marker were one transaction.46 Unlike the gambler in Las Vegas Sands who
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`presented evidence from which a jury could conclude that the marker and application—though
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`months apart47—were part of a single transaction, Sriqui admitted that the markers produced
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`were “signed in connection with [his] line of credit with the Casino.”48 Even construing that
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`admission in his favor, Sriqui has not pointed to anywhere in the record from which I could draw
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`a reasonable inference that he had another line of credit with the casino at that time that he could
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`have gambled with. So I find that the casino has met its burden to establish this element.49
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`B.
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`Sriqui breached the agreement when he failed to repay the markers.
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`A party breaches a contract when he materially fails “to perform ‘a duty arising under or
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`imposed by [an] agreement.’”50 The record unequivocally establishes that Sriqui has not repaid
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`44 ECF No. 28 at 13–14.
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`45 Las Vegas Sands, LLC, 632 F.3d at 530–31.
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`46 Id. at 536.
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`47 Id. at 537.
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`48 ECF No. 23-2 at ¶ 8 (emphasis added).
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`49 Though Sriqui argues that he had various expectations about who would cover his obligations
`under the contract, he does not argue that those obligations prevented a valid meeting of the
`minds between him and the casino.
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`50 State Dep’t of Transp. v. Eighth Jud. Dist. Ct. in and for Cnty. of Clark, 402 P.3d 677, 682
`(Nev. 2017) (citation omitted).
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 9 of 17
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`the money that the casino gave him to gamble with.51 Sriqui contends that someone must have
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`paid off his credit line, and satisfied his obligation to perform, because the casino paid Chow
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`commissions in 2019.52 But even viewing the evidence he relies on in the light most favorable to
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`Sriqui, I find that the record is insufficient to create genuine issues of fact about his breach.
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`The commission structure for representatives like Chow depends on whether the credit
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`used by the players whom he brings to the resort is repaid or not.53 According to that agreement,
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`representatives would not be paid commission “until all credit instruments have been paid in full
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`by the applicable customer.”54 Sriqui submits Chow’s commission statements from 2019 that list
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`(1) the commission he is due, (2) the outstanding markers, and (3) the commission paid.55 He
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`maintains that, because Chow was paid some commission while Sriqui had an outstanding
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`balance, Sriqui could not have breached the contract.
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`Sriqui’s argument relies on a misreading of the commission agreement. Under that
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`agreement, the only commissions that the casino would withhold are those associated with “the
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`applicable customer” with an outstanding credit instrument to be paid.56 Chow’s commission
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`statements confirm that reading—they list both the commission he was due and the commission
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`51 See ECF Nos. 23-2 at ¶ 21 (“Admit that I have not repaid any amount under the [c]asino
`[m]arkers, but deny that the funds as contained in the Casino Markers were a loan to me.”).
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`52 See ECF No. 28 at 9, 15. Sriqui does not raise this argument under his accord and satisfaction
`affirmative defense, which requires proof (1) of a dispute over an unpaid sum, (2) of a payment
`offered to settle that dispute, and (3) that the creditor understood the payment was in satisfaction
`of the debt. Pierce Lathing Co. v. ISEC, Inc., 956 P.2d 93, 97 (Nev. 1998) (citation omitted).
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`53 ECF No. 23-7 at 6.
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`54 Id. at 6, 14.
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`55 See, e.g., ECF No. 28-3 at 2.
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`56 ECF No. 23-7 at 6, 14.
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 10 of 17
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`he was paid.57 So the fact that Chow received some commission during this time period does not
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`mean that he received commission for the bets that Sriqui placed. And while I must draw factual
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`inferences in Sriqui’s favor, I “need not draw inferences that are based solely on speculation.”58
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`Because Sriqui has not provided a factual basis for me to infer that Chow’s commissions in 2019
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`were based on Sriqui’s actions, I find that his breach is beyond genuine dispute.
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`C.
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`Damages
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`“[C]ontract damages are prospective in nature and are intended to place the nonbreaching
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`party in as good a position as if the contract had been performed.”59 Despite acknowledging that
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`he “signed for and accepted $100,000” from the casino60 and didn’t pay it back, Sriqui argues
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`that it’s unclear what the casino is owed or is “suing on.”61 He first relies on an email from a
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`casino employee in June 2019 that he maintains lists his available credit as $90,000 with a “loss”
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`of around $18,000.62 But the record does not demonstrate that the money that Sriqui attributes as
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`a “loss” had anything to do with his credit line.63 And though that email indicates that Sriqui
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`only had $90,000 available to him as of June 2019, “when [he] started playing,”64 another
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`spreadsheet that he offers demonstrates that his total “credit limit” was $100,000, with $10,000
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`57 See, e.g., ECF No. 28-3 at 5 (noting a $40,000 difference in commission due and commission
`paid).
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`58 LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1136 (9th Cir. 2009); Barnes v. Arden
`Mayfair, Inc., 759 F.2d 676, 680–81 (9th Cir. 1985) (internal quotation marks and citation
`omitted).
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`59 Colorado Env’ts, Inc. v. Valley Grading Corp., 779 P.2d 80, 84 (Nev. 1989).
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`60 ECF No. 23-2 at ¶ 18.
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`61 ECF No. 28 at 13.
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`62 ECF No. 28 at 14 (citing ECF No. 28-6).
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`63 See ECF Nos. 28-6 (listing the $18,807 as “Theo”); 23-7 at 14 (defining “Theoretical Win” of
`the company).
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`64 ECF No. 28-5 at 15:16–23.
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 11 of 17
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`pending at the beginning of his June trip.65 While the email may present an issue of fact, the
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`record demonstrates that the issue is not a genuine one because the ultimate amount Sriqui
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`borrowed and received from the casino was $100,000—despite his inability to access that full
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`amount at the start of one trip. Even if I disregarded the other evidence that Sriqui provides, this
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`email obfuscates the crux of this dispute, leaving this disputed fact immaterial to the outcome of
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`the case; the parties agree that, at some point, Sriqui’s credit limit was $100,000 and that he,
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`through the markers, borrowed that full amount. The casino’s claim does not center on how
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`much was available to Sriqui in June, it centers on how much he ultimately drew down
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`throughout 2019 under his January application and whether he paid that amount back.
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`Sriqui also offers one of the casino’s spreadsheets that indicates that he had $51,000 in
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`losses and $49,000 in unused credit.66 He maintains that this discrepancy shows that the casino
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`cannot demonstrate that “Sriqui incurred $100,000.00 in losses while at the casino.”67 But
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`whether Sriqui was a successful gambler with the casino’s money has no effect on how much he
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`borrowed. As the casino’s representative testified at his deposition, Sriqui “asked for a credit of
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`$100,000 in chips[,] and the casino registered that he only lost in chips $51,000.”68 So while it’s
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`unclear what Sriqui did with the remaining chips, the value of the casino’s claim is not
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`dependent on his gambling losses, it’s dependent on the total amount that he borrowed.
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`To establish a genuine issue of fact on this issue, Sriqui would have to show that he did
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`not sign markers that totaled $100,000. But as Sriqui’s admissions make clear, he was permitted
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`65 ECF No. 28-8 at 2.
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`66 ECF No. 28 at 14 (citing ECF No. 28-4).
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`67 Id.
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`68 ECF No. 28-5 at 9:2–4.
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 12 of 17
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`to—and did—borrow $100,000 from the casino.69 The various charts that he provides do not
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`create a genuine issue of fact about how much the casino was damaged. At best, they show that
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`less than $100,000 was available to him at some point and that he didn’t lose the full $100,000
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`during 2019. Based on this record, I find that Baluma has met its obligation on summary
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`judgment and that Sriqui has not presented evidence to create a triable issue. So I grant the
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`casino’s motion on its breach-of-contract claim and direct the Clerk of Court to enter judgment
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`for the casino and against Sriqui on this claim in the amount of $100,000.70
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`III. Baluma cannot recover on its remaining claims.
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`The casino also lodges a claim for the contractual71 breach of the implied covenant of
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`good faith and fair dealing, and alternatively, a claim for unjust enrichment. While the casino
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`recognizes that it cannot recover for both unjust enrichment and breach of contract,72 it argues
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`that it’s still entitled to recovery under a good-faith-and-fair-dealing claim if it’s successful on its
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`claim for breach of contract. But under Nevada law, a claim for contractual breach of the
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`implied covenant of good faith and fair dealing requires proof that the defendant breached its
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`duty of good faith and fair dealing by acting in a manner unfaithful to the purpose of the
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`69 ECF No. 23-2 at ¶ 5.
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`70 Though the casino continually references interest that it’s owed under the markers, it has not
`demonstrated what that interest calculation would be, so I enter judgment only on the amount
`that it has proven.
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`71 ECF No. 29 at 14 (“Here, Plaintiff’s claim for breach of the implied covenant of good faith
`and fair dealing sounds in contract, not in tort, and therefore does not require a special
`relationship.”).
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`72 Id. at 14–15; see Leasepartners Corp. v. Robert L. Brooks Tr. Dated Nov. 12, 1975, 942 P.2d
`182, 187 (Nev. 1997) (“An action based on a theory of unjust enrichment is not available when
`there is an express, written contract, because no agreement can be implied when there is an
`express agreement.”).
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 13 of 17
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`contract.73 So a contractual breach of the implied covenant requires the plaintiff to show that the
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`breaching party complied with the express terms of the contract but deliberately and intentionally
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`contravened the intention and spirit of the contract.74 Because the casino has shown that Sriqui
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`did not comply with the contract’s terms by not paying back the amount he owed, the casino
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`cannot recover under for a contractual breach of good faith and fair dealing. So I deny its motion
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`for summary judgment on its remaining claims, and I dismiss them.
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`IV.
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`Sriqui’s counterclaims
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`Sriqui lodges counterclaims against the casino for setoff, recoupment, breach of contract,
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`and breach of the implied covenant of good faith and fair dealing. The casino argues that Sriqui
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`cannot produce any evidence to support his counterclaims because he’s not a party to, nor an
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`intended third-party beneficiary of Chow’s commission agreement with the casino.75 Sriqui does
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`not point to any evidence in the record to support his counterclaims. Instead he argues that the
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`inconsistencies within the record about the casino’s contract claim require a trial to determine
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`whether setoff is appropriate.76 But Sriqui’s job to resist summary judgment on his
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`counterclaims is to come forward with specific facts that show a genuine issue for trial,77 and
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`Sriqui has not met that burden.
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`73 See Perry v. Jordan, 900 P.2d 335, 338 (Nev. 1995) (citing Hilton Hotels Corp. v. Butch Lewis
`Prods., Inc., 808 P.2d 919, 923 (Nev. 1991)).
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`74 Hilton Hotels Corp., 808 P.2d at 923.
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`75 I deny the casino’s footnoted request to exclude the independent agreement under Rule 37(c).
`This request violates this district’s local rules that govern discovery motions like this one, see
`L.R. 26-6, and any prejudice that the casino might incur from its late discovery is tempered by
`the casino’s use of the agreement in support of its motion.
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`76 ECF No. 28 at 16.
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`77 Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248.
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 14 of 17
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`A.
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`Neither setoff nor recoupment is warranted.
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`“Setoff is a doctrine used to extinguish the mutual indebtedness of parties who each owe
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`a debt to one another.”78 To demonstrate that setoff is appropriate, both parties must have valid
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`and enforceable debts against each other.79 While setoff may arise when the claims underlying
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`the debts are “entirely unrelated[,]” “each party” must be “mutually indebted to one another.”80
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`Sriqui maintains that he traveled to Uruguay as a guest of Chow and that Chow had an
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`agreement with the casino for commission payments based on the players he brought. He argues
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`that he has a valid and enforceable debt against the casino “in the form of uncredited expenses
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`[the casino] agreed to cover . . . includ[ing] airfare, lodging, food, and beverages.”81 And he
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`claims that the casino had a history of waiving his debts “as part of its payments to” Chow for
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`Chow’s commissions.82 Neither basis shows an enforceable debt against Baluma.
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`Sriqui does not offer any evidence to quantify the various costs the casino didn’t cover.
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`Nor does the record demonstrate that the casino ever failed to cover that amount.83 He also fails
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`to show that his history of nonpayment with the casino wipes out any debt that he owes. As
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`78 Aviation Ventures, Inc. v. Joan Morris, Inc., 110 P.3d 59, 63 (Nev. 2005).
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`79 Id.
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`80 Id.
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`81 ECF No. 22 at 7.
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`82 Id. If the debt Sriqui claims that he’s owed arises from the casino’s commission agreement
`with Chow, his argument is misplaced. Under that agreement, Chow doesn’t get paid for
`Sriqui’s bets until the amount Sriqui uses of his credit is paid off. See ECF No. 23-7 at 6, 14.
`Because Sriqui has not demonstrated that his debt was paid off, Chow couldn’t claim any
`commission payments—even if Sriqui’s right that the casino owes Chow a large sum of
`commissions.
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`83 As Sriqui testified at his deposition, he never thought that the casino was deducting his airfare
`or food and lodging from his credit line—they were merely comps that the resort provided “big
`enough players.” ECF No. 28-1 at 99:4–19, 101:16–25.
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 15 of 17
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`Sriqui makes clear, the casino has never sought repayment from him on his previous markers.84
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`That means that even if the casino’s prior acts of settling his debts with another person was a
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`valid debt, it’s not an outstanding one because the casino has never “ma[de] [a] demand on [him]
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`for payment amounts.”85
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`Unlike setoff, “recoupment is ‘[a] right of the defendant to have a deduction from the
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`amount of the plaintiff’s damages, for the reason that the plaintiff has not complied with the
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`cross-obligations or independent covenants arising under the same contract.’”86 So the
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`counterclaim “must arise out of the same transaction.”87 Sriqui’s alternatively pled recoupment
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`counterclaim rests on the same theory: his expectation that Chow would repay his debt evinces
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`an enforceable debt against the casino. But Sriqui has not pointed to any obligation under the
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`contract that Baluma has not complied with and that would entitle him to a reduction in damages,
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`so recoupment is similarly unavailable here.
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`At their core, Sriqui’s affirmative defenses are that because the casino never attempted to
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`enforce the contracts that he signed in the past, it shouldn’t be able to enforce this one now. But
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`as Sriqui makes clear in his deposition, he doesn’t believe that the casino just forgot about the
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`money it was owed—he just assumed Chow would pay the debt for him. So it appears that any
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`indebtedness or indemnity that Sriqui may assert would be against Chow, who Sriqui did not sue
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`in this litigation.88 Even if Sriqui had demonstrated factual disputes to preclude summary
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`84 ECF No. 28-2 at ¶ 5.
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`85 Id.
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`86 Schettler v. RalRon Capital Corp., 275 P.3d 933, 941 (Nev. 2012) (citation omitted).
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`87 Id. (citation omitted).
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`88 This is true despite Sriqui acknowledging that Chow had guaranteed his debt. ECF Nos. 28-7
`(guaranty agreement); 28-1 at 42:1–4 (“Q: So it’s your understanding that he signed some sort of
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`Case 2:20-cv-01424-JAD-EJY Document 30 Filed 08/25/21 Page 16 of 17
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`judgment for the casino, his counterclaims are wholly separate from that contract dispute, and
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`those disputes would not prevent summary judgment on his counterclaims.
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`B.
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`Sriqui has not shown that he’s an intended third-party beneficiary.
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`Sriqui’s remaining counterclaims for breach of contract and breach of the implied
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`covenant of good faith and fair dealing stem f