Cohen v. Turrentine et alRESPONSE TO ORDER TO SHOW CAUSED. Nev.April 8, 20151 2 3 4 5 6 1 B 9 10 11 I2 13 74 15 I6 I1 1B I9 20 2I 22 23 24 25 26 21 2B MICHAEL N. BEEDE, ESQ. Nevada State Bar No. 13068 THE LAW OFFICE OF MIKE BEEDE, PLLC 2300 W Sahara Ave., Suite 420 Las Vegas, NV 89102 Teleplrone (7 02) 47 3 -8406 Facsimile (7 0D 832-0248 mike@legallv.com Attorney for Plaintiff LINITED STATES DISTRICT COURT DISTRICT OF NEVADA LES COHEN" vs. Plaintiffs, GLYNIS TURRENTINE; ANd SLNTRUST MORTGAGE. INC.: and U.S. Bank National Association as Trustee for JP Alt 2006-42; and Monterey at the Las Vegas Countr.v Clubl and Las Vegas International Country Club Estates; DOES 1 through 10, inclusive, ROE CORPORATIONS. I through 10. inclusive. Defendants. CASE NO. 2:l 5-CV-00412-GMN-GWF PLAINTIFF LES COHEN'S RESPONSETO ORDER TO SHOW CAUSE AS'I'O WHY THE COURT SHOULD NOTREMAND THIS ACTION TO CLARK COUNTY DISTRICT COURT FOR FAILURE TO SATISFY THE DIVERSITY JURISDICTION REQUIREMENTS sET FORTH IN 28 U.S.C. $1322 TO: THE LINITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA Plaintiff, Les Cohen, ("Cohen"), b1'and through its counsel of record, The Law Otfice of Mike Beede, PLLC, hereby responds to the Court's Order to show cause as to why the Court should not remand this action to Clark County' District Court for failure to satisfy the diversity jurisdiction requirements set forth in 28 U.S.C. S1322, This Response is based on the Memorandum of Points and Authorities herein. all papers on file with this Courl, any documents incorporated by reference or attached to the pleadings, and any oral argument that this Court may entertain. Case 2:15-cv-00412-GMN-GWF Document 12 Filed 04/08/15 Page 1 of 6 1 2 3 4 5 6 1 B 9 10 11 !2 13 ).4 15 L6 L1 1B I9 20 2L 22 23 24 25 26 21 2B MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION There is a lack of diversity amongst the Defendants in this action as the prior owner of the subject property, Glynis Turrentine ("Tunentine") is a Nevada resident. Additionally Monterey at the Las Vegas Country Club ("Montere,v") and Las Vegas International Countr;" Club Estates ("Estates") are Nevada corporations, Defendant's or.vn Petition fbr Remor al concedes that Turrentine, Monterey and Estates are Nevada residents as is Cohen. Each of these Defendants potentially holds interests adverse to those of the Plaintiff relative to the subject property and as such they are all necessary parties to this action. Defendant's allegations that Ms. Turrentine, Monterel'. and Estates fbr the pulposes of defeating diversity is wholly without merit, as they are real parties in interest with claims adverse to the Plaintilf in the subject property. II. FACTUAL SUMMARY This action concerns the title to real propertv located in Clark County, Nevada, and commoniy known as746 Oakmont Ave. #707. Las Vegas. Nevada 89109 (the "Subject Property"). Cohen acquired his interest in the Subject Property by virtue of a Grant Bargain and Sale Deed granted by DML Investment Group, LLC ("DML"). DML's interest arose by virtue of a foreclosure sale conducted on Ma,n- 23.2014 by Monterey and Estates pursuant to NRS 116. Cohen seeks a judicial determination pursuant to SFR Investments Pool / v. LlS. Bank.334 P.3d 408 Nev. 20f4\ and NRS 116.3116 that the interests of all Defendants were extinguished following the foreclosure sale. III. LEGAL STANDARI) Cases filed in state court may be remol'ed to federal court if the federal coutl would have had original jurisdiction over the action if it had been originally brought in federal court. 28 U.S,C. $ l44l(a). Federalcourlshavejurisdictionoversuitsbetweencitizensofthedifferent states in which the amount in controversy exceeds $75,000. 28 U.S.C. $ 1332(a). "The removal statute is strictly construed against removaljurisdiction." Provincial Gov't o.f Marinduque \'. Placer Dome, [nc.,582 F.3d 1083, 1087 (9th Cir.2009). "The defendant bears the burden of establishing that removal is proper." 1d Case 2:15-cv-00412-GMN-GWF Document 12 Filed 04/08/15 Page 2 of 6 1 2 3 4 5 6 1 B 9 10 11 I2 13 I4 15 L6 I1 1B I9 2A 2I 22 23 24 25 26 21 2B IV. Argument Complete diversity of citizenship is required for this Court to assert diversity jurisdiction over this case pursuant to 28 U.S,C. $1322. Defendant urges that complete diversity exists in the instant case because Turrentine, Montere-v and Estates are "fraudulently joined defendantfs]." This simply cannot be. as Cohen has brought this action for the court to make a final determination as to all potential interests in the Subject Properly. Suntrust Response at 4:15. All potential interest holders. far from being fraudulentll,' joined" are necessary parties. The Supreme Court has noted that. ''A judgment or decree arnong parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." Martin et. al. v. Wilks et. a|490 US 755. 762 (1959). Without participation by Turrentine, Monterey, and Estates Cohen cannot obtain a final determination as to his rights in the Subject Property, and ultimately cannot obtain clear title to the extent that title insurance would be issued by any reasonable title insurer. Defendant argues that Cohen's complaint fails to allege a cause of action against Turrentine, Monterey and Estates. This is not the case as Paragraph l3 of Cohen's Complaint cleariy states, "Plaintifftook title to the Propertl'fiee and clear of alljunior liens and encumbrances affecting title to the Propertl', including the Firsl Deed of Trust, the Second Deed of Trust, and assessments or other fees claimed by Monterey at the Las Vegas Country Club and Las Vegas International Country Club Estates accruing prior to the date of the Deed, and any claim to title of the Property that ma1'be asserled to b1'Defendants." Paragrapl'r 22 of the complaint states, "Upon information and belief. the Defendants herein assert claims to the Property adverse to that of the Plaintiffs." Paragraph 23 seeks a declaration from the court that plaintiff owns the property free and clear of any lien or encumbrance claimed by "any and all defendants" In each paragraph, as in the rest of Cohen's complaint Defendants collectively' refers to all named defendants including Turrentine. Monterel' and Estates. The suggestion that Turrentine or either HOA are fraudulently joined defendants simpll ignores the plain facts in this case and the causes of action pled by Plaintiff. Defendant Suntrust alleges, through the citation of unreported cases decided prior to SFR v US Bank" that because Plaintiff believes that Turrentine's interest is extinguished, that she is a fraudulentll Case 2:15-cv-00412-GMN-GWF Document 12 Filed 04/08/15 Page 3 of 6 1 2 3 4 5 6 1 B 9 10 11 T2 13 I4 15 76 I1 1B I9 2A 2I 22 23 24 25 26 21 2B joined party. However, Plaintiff seeks in his complaint to quiet title as to all parties who may' have an adverse claim against the subject propertlr. Turrentine may have an adverse claim. The validity of Turrentine's claim is mirrored by the validity of SunTrust's potential claim, Tunentine was the undisputed owner of the real proper-ty prior to the foreclosure sale under NRS 116. Admittedly, it is Plaintiff's contention that Turuentine's interest was extingr,rished through that foreclosure. However, an adjudication of that claim is necessary to establish clear title to the property. Plaintiff similarly claims that SunTrust may have had a valid deed of trust associated with the subject propefi,v. but that interest. if any'. was also extinguished through the foreclosure sale as decided in SFR Invs. Pool l, LLC r'. Li.S. Bank, \i.A.,334 P.3d 408,,+17. 2014 Nev. LEXIS 88,26, 130 Nev. Adv. Rep. 75 (Nev, 2014). Surely an allegation that a party's interest has been extinguished cannot render that party fraudulently joined. Rather, as pled in Plaintiff s complaint. Cohen seeks a declaration of rights from the Eighth Judicial District court pursuant to NRS 40.010 and NRS 30.030. u,hich reads "Courts of record within their respective jurisdictions shall have po\\'er to declare rights, status and other legal relations whether or not fuither relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for." (emphasis added) Plaintiff seeks and requires a declaratory' judgment against all named defendants because a// defendants' interests were extinguished through the foreclosure sale, and such a declaration is necessary to obtain marketable title to the subject properly. Plaintiff s first cause of action is for a declaratory judgment against all parties" including Turrentine and both HOA Defendants. The exclusion of Turrentine from this action would materially impair the Plaintiff s rights under NRS 30.030 and NRS 40.010. and thus Turrentine cannot be deemed a fraudulently joined pafty. The additional claim that the HOA Defendants are somehow fraudulently joined is either disingenuous or misinformed. While Plaintiff is actively attempting to settle the subject claims with those defendants, they are still proper parties. Plaintiff. while unable to disclose the contents of settlement negotiations, has been in contact u'ith both pafiies, u'hich are represented by counsel. Plaintiff has agreed'uvith these parties that no responsive pleading would be required until this action has either been remanded to the Eighth Judicial District Case 2:15-cv-00412-GMN-GWF Document 12 Filed 04/08/15 Page 4 of 6 1 2 3 4 5 6 1 B 9 10 11 I2 13 74 15 76 I1 1B 79 2A 2I 22 23 24 25 25 21 2B Court or a final order as to the instant order to show cause is issued. This, however, does not i any way limit the necessity of those parties in the instant action, To sr.rggest otherw,ise rvould deter settlement negotiations and judicial ef ficiency, Turrentine, Monterey at the Las Vegas Countr.v Club; and Las Vegas International Country Club E,states are each citizens of Nevada, are necessary and proper parlies to the instant action. and oreclude removal on the basis of dir.,ersitv iurisdiction. V. CONCLUSION Def-endant has failed to meet its burden in showing that complete diversity of citizenship exists. Therefore removal was improper, and this court must remand the instant case to the Clark County District Court. Dated this j- day of April. 2015. THE LAW OFFICE OF MIKE BEEDE, PLLC ,' ,i | -,ftsY: .' t ,' Michael N. Beede, Esq. Nevada State Bar No. 13068 2300 W Sahara Ave.. Suite 420 Las Vegas. NV 89102 Telephone (7 02) 41 3 -8406 Facsimile (l 02\ 832-0248 Attornev for Plaintiff Case 2:15-cv-00412-GMN-GWF Document 12 Filed 04/08/15 Page 5 of 6 1 2 3 4 5 6 1 B 9 10 11 72 13 I4 15 76 11 1B 19 2A 2I 22 23 24 25 26 21 2B CERTIFICATE OF SERVICE Pursuant to FRCP 5(b) I certifl' that on the Eighth day of April, 2015,1 electronically transmitted the foregoing PLAINTIFF LES COHEN'S RESPONSE TO ORDER TO SHOW CAUSE AS TO WHY THE COURT SHOULD NOT REMAND THIS ACTION TO CLARK COLNTY DISTRICT COURT FOR FAILURE TO SATISFY THE DIVERSITY JUzuSDICTION REQUIREMENTS SET FORTH N 28 U.S.C. $1322 to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants Cynthia L. Alezander, Esq, Nevada Bar No. 6718 Taylor Anello, Esq. Nevada Bar No. 12881 Snell & Wilmer L.L.P. 3883 Howard Hughes Parkway" Suite 1100 Las Vegas, NV 89169 Email: Calexander@swlaw.com tanello@swlaw.com Attorneys for SunTrust Mortgage, Inc. /s/ Michael N. Beede An Emolovee of The Law Office of Mike Beede. PLLC Case 2:15-cv-00412-GMN-GWF Document 12 Filed 04/08/15 Page 6 of 6
