Argued and Submitted, San Francisco, California:
November 6, 2013.
As Corrected September 29, 2014.
Appeal from the United States District Court for the District of Nevada. Philip M. Pro, Senior District Judge, Presiding. D.C. No. 2:11-cv-01562-PMP-PAL.
Nevada State Law
The panel reversed the district court's dismissal, due to failure to exhaust claims before the Nevada Gaming Control Board, of Konstantin Zoggolis's Nevada state law breach of contract and recoupment claims concerning gambling debts that Zoggolis owed to Wynn Las Vegas.
The panel held that Zoggolis was not required to exhaust his claims before the Gaming Control Board because the markers that underlay this case were credit instruments. The panel also held that because the markers were credit instruments, Zoggolis' claims did not trigger the Gaming Control Board's exclusive jurisdiction over a " gaming debt that is not evidenced by a credit instrument" under Nev. Rev. Stat. § 463.361(2). The panel concluded that Zoggolis's claims must be resolved in the same manner as any other dispute involving the enforceability of a negotiable instrument. The panel expressed no view on the outcome of the proceedings on remand.
Gary Logan, Las Vegas, Nevada, for Plaintiff-Appellant.
Lawrence J. Semenza III, Semenza & Semenza, LLP, Las Vegas, Nevada, for Defendant-Appellee.
Before: Andrew J. Kleinfeld, Sidney R. Thomas, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Rawlinson.
RAWLINSON, Circuit Judge:
Appellant Konsantin Zoggolis (Zoggolis) challenges the district court's dismissal of his state law breach of contract and recoupment claims concerning gambling debts that Zoggolis owed to Appellee Wynn Las Vegas (Wynn). Zoggolis contends that the district court erred in dismissing his complaint due to Zoggolis' failure to exhaust his claims before the Nevada Gaming Control Board. Because Zoggolis' gambling debts were evidenced by credit instruments in the form of markers, we reverse the district court's dismissal of Zoggolis' claims.
In his Complaint, Zoggolis alleged that he entered into a credit agreement with Wynn for a $150,000 credit line. The credit agreement provided that " [b]efore drawing on [his] line of credit, if granted, [Zoggolis] agree[d] to sign credit instruments (i.e. checks) in the amount of the draw." Zoggolis also " authoriz[ed] [Wynn] to complete any of the following missing items on these credit instruments: (1) the name of a payee; (2) any missing amounts; (3) a date; (4) the name, account, number and/or address and branch of any banks and financial institutions and (5) any electronic encoding of the above items." Zoggolis agreed that " each draw against [his] credit line [was] a separate advance of money by [Wynn]. If ...