Sussex et al v. Turnberry/MGM Grand Towers, LLC et al

MOTION to Compel Arbitration

D. Nev.July 17, 2008

1 MORRIS PICKERING & PETERSON 2 Steve Morris, No. 1543 Akke Levin, No. 9102 Jean-Paul Hendricks, No. 10079 900 Bank of America Plaza 4 300 South Fourth Street Las Vegas, Nevada 89101 5 Telephone: (702) 474-9400 6 Facsimile: (702) 474-9422 WOOD, SMITH, HENNING & BERMAN LLP Janice Michaels, No. 6060 8 7670 West lake Mead Boulevard, Suite 250 Las Vegas, Nevada 89128-6652 9 Telephone: (702) 222-0625 Facsimile: (702) 253-6225 10 Attorneys for Defendants 11 Turnberry/MGM Grand Towers, LLC, MGM Grand, Inc., Turnberry/Harmon 12 Ave., LLC., and Turnberry Associates 13 14 UNITED STATES DISTRICT COURT 15 DISTRICT OF NEVADA 16 MARY ANN SUSSEX; MITCHELL PAE; ) CASE NO: 2:08-cv-00773-RLH-PAL MALCOLM NICHOLL and SANDY )17 SCALISE; ERNESTO VALDEZ, SR. and ) ERNESTO VALDEZ, JR; JOHN ) MOTION TO COMPEL18 HANSON and ELIZABETH HANSON, ) ARBITRATION 19 ) Plaintiffs, ) 20 v. ) ) 21 TURNBERRY/MGM GRAND TOWERS,) LLC; MGM GRAND, INC., doing ) 22 business as MGM MIRAGE; ) TURNBERRY/ HARMON AVE., LLC; )23 TURNBERRY ASSOCIATES; and DOES 1) 24 through 100, inclusive, ) Defendants. Defendants Turnberry/MGM Grand Towers, LLC, MGM Grand, 27 Inc., Turnberry/Harmon Ave., LLC, and Turnberry Associates (“Defendants”) 28 MORRIS PICKERING PETERSON ATTORNEYS AT LAW 900 BANK OF AMERICA PLAZA 300 SOUTH OURTH STREET AS VEGAS, NEVADA B90 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 1 of 22 hereby move the Court for an order to compel arbitration and for a stay of these 2 judicial proceedings. The Motion is based on NRS 38.206, NRS 38.219, NRS 38.221, 9 U.S.C. § 24, the papers and pleadings on file, the attached exhibits, and the points and authorities that follow. I. INTRODUCTION 6 The Court should compel the Sussex Plaintiffs to arbitrate their claims. The Sussex Plaintiffs each purchased luxury condominiums pursuant to 8 Purchase and Sale Agreements (“PSAs”) which contained arbitration provisions. As described below, their purported claims arise out of these PSAs, which they 10 seek to rescind. Their claims therefore must be arbitrated. 11 Notably, this is not the first such lawsuit by the same attorneys, and 12 must be recognized for what it is: An effort to avoid what the Nevada state court 13 previously ordered arbitration pursuant to the arbitration provision in the PSAs. Plaintiffs’ First Amended Class Action Complaint is the second of three 15 actions filed by the same attorneys in violation of the express arbitration 16 agreement in the PSAs, which requires Plaintiffs to submit “any dispute” related 17 to the PSAs to binding arbitration. The Eighth Judicial District Court of Nevada, 18 the Honorable Mark Denton, earlier compelled the first group of 46 plaintiffs to 19 submit to arbitration and stayed the court action pending completion of 20 arbitration. Ignoring and seeking to evade complying with this order, Plaintiffs’ 21 attorneys filed two additional lawsuits - (1) this putative class action 22 complaint; and (2) another “group” complaint on behalf of an additional 54 plaintiffs. 24 . .Consistent with the the policy of the Federal Arbitration Act to 25 . . .enforce arbitration agreements like any other contracts, the court s role is limited 26 to determining whether (1) the arbitration agreement exists; (2) the claims fall 27 within the scope of the arbitration clause; and (3) the clause is valid. Lfescan, Inc. 28 MORRIS PICKERING PETERSON ATTORNEYS AT LAW 900 SANK OF AMERICA PLAZA Page 2 of 22 300 SOUTH FOURTH STREET LAS VEGAS. NEVADA ASIOI 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 2 of 22 1 z’. Premier Diabetic Services, Inc., 363 F.3d 1010, 1012(9th Cir. 2004); see also NRS 2 38.219 (1)-(2) (court shall decide whether arbitration agreement exists and whether controversy is subject to it); 9 U.S.C. § 4 (court must order arbitration in accordance with the terms of the arbitration agreement if the clause is valid and the “making of [it] . . . is not in issue”). “If the answer is yes to [these] questions, 6 the court must enforce the [arbitrationi agreement.” Lfescan, Inc., 363 F.3d at 1012 (citing to Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130(9th 8 Cir. 2000)) (emphasis added). Here, the arbitration provision in the PSAs is broad, providing that 10 “[t]he parties agree to submit to arbitration any dispute related to this agreement... 11 including, but not limited to, any dispute related to the.. . enforceability of this agreement. . .“ PSA, § 24.10 (emphasis added). All of Plaintiffs’ claims, including 13 their purported statutory securities claims, “touch” upon the PSAs. More than 14 that, Plaintiffs’ claims are directly related to the PSAs because Plaintiffs: 15 (1) allege that the PSAs are unenforceable under federal and state security 16 statutes; (2) seek to rescind the PSAs; and (3) claim that they relied on alleged 17 oral misrepresentations as to the economic benefits of the units despite the 18 express written disclaimers to the contrary in the PSA. See Sussex Compl. II, 19 Dkt. No. # 14, ¶9J 42,44-46, 49-50, 54-55, 60-62, 68-72, 83-88, 91-94, 98-107, and 20 109-115. 21 Finally, none of Plaintiffs’ arguments to resist arbitration have merit. 22 These self-proclaimed investors are not unsophisticated consumers victimized by adhesion contracts. Each plaintiff purchased one or more luxury hotel 24 condominium units at prices ranging between $400,000 and $900,000 per unit. 25 Two years after expressly agreeing that “no representations [had been] made 26 concerning the economic benefits” from the unit and that “oral representations 27 cannot be relied on,” these speculators now want out of the contract and the 28 MORRIS PICKERING PETERSON ATTORNEYS AT LAW 900 ANKOF AMEFOCA PLAZA Page 3 of 22 300 SOUTH FOURTH STREET LAS VEGAS, NEVADA 89OI 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 3 of 22 1 arbitration clause they signed, bread, approved, and accepted,” claiming that 2 they were fraudulently induced to enter into the PSAs by alleged oral representations. If there is any significant public policy involved” here, as Plaintiffs claim, it is the policy that Plaintiffs should be bound by the arbitration provision to which they agreed. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 6 219-21 (1985) (FAA’s primary policy is to hold parties to the arbitration contract to which they agreed). 8 IL FACTS The Signature at MGM Grand (“Signature’) is a luxury 10 condominium hotel project developed and sold by defendant Turnberry/MGM 11 Grand Towers, LLC (“Turnberry”). Declaration of Violet Duff (exhibit omitted), 12 Exhibit A hereto, ¶ 2; Declaration of Dan Riordan, Exhibit B hereto, ¶ 2; see also 13 Class Action Complaint (“Compi.”), Exh. A to Notice of Removal (Dkt. No. #1), at 14 2.1 Signature was developed under an approved Public Offering Statement, 15 subject to a Declaration of Covenants, Conditions and Restrictions and 16 Reservation of Easements for the Condominium. See, e.g., Condominium Unit 17 Purchase and Sale Agreement (“PSA”) for Unit 1811-C, Exhibit C hereto.2 Between January 2004 and October 2005 Turnberry markete an 19 sold Signature condominium units under the PSAs. See, e.g., PSA, Exh. C. Each 20 PSA “contains identical terms and conditions,” Duff Deci., Exh. A, ¶ 3, although 21 some buyers, such as Plaintiff Mary Ann Sussex, negotiated amendments to their 22 23 24 The declarations of Dan Riordan and Violet Duff bear the caption of, and were submitted in, KJH & RDA Investor Group, LLC et al v. Turnberry/MGM Grand 25 Towers, LLC et al, Case No. A547024, the first Signature case filed by Plaintiffs’ attorneys in the Eighth Judicial District Court of Nevada. 26 27 2The Signature at MGM Grand was formerly known as The Residences at MGM Grand. 28 MORRIS PICKERING E PETERSON ATTORNEYS AT LAW 900 RANK OF AMERICA PLAZA Page 4 of 22 300 SOUTH FOURTH STREET LAS VEGAS, NEVADA 89101 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 4 of 22 1 PSA. See Riordan Dccl., Exh.B, 9J 3; Assignment and Assumption Agreement, 2 Exhibit Dhereto. By entering into the PSAs, the purchasers expressly acknowledged that the Signature unit was not being offered or purchased as an investment. Section 23.1 of the PSA states: 6 BUYER ACKNOWLEDGES THAT NEITHER SELLER NOR ANY OF ITS 7 EMPLOYEES, AGENTS, BROKERS OR SALES AGENTS HAVE REPRESENTED OR OFFERED THE UNIT AS AN INVESTMENT 8 OPPORTUNITY OR APPRECIATION OF VALUE OR AS A MEANS OF OBTAINING INCOME FROM THE RENTAL THEREOF. BUYER 9 FURTHER ACKNOWLEDGES THAT NEITHER THE SELLER NOR ANY OF ITS EMPLOYEES, AGENTS, BROKERS OR SALES AGENTS 10 HAVE MADE ANY REPRESENTATIONS AS TO THE RENTAL OR OTHER INCOME FROM THE UNIT OR AS TO ANY OTHER 11 ECONOMIC BENEFIT, INCLUDING POSSIBLE ADVANTAGES FROM THE OWNERSHIP OF THE UNIT UNDER FEDERAL OR STATE TAX 12 LAWS, TO BE DERIVED FROM THE PURCHASE OF THE UNIT. 13 Exh, C, section 23.1 (caps and emphasis in the original). Every purchaser and these Plaintiffs affirmed that”no representations have been or are made concerning the economic benefits to be 16 derived from the rental or resale of the Unit” and that their “primary inducement” 17 for purchasing the condominium unit was “the unit itself. . . ,“ not its investment 18 or earnings potential. PSA, § 32, 36. The purchasers expressly agreed that they could not rely on oral representations to the contrary: ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS 21 CORRECTLY STATING THE REPRESENTATIONS OF THE SELLER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE 22 MADE TO THIS AGREEMENT AND THE DOCUMENTS REQUIRED BY NEVADA REVISED STATUTES CHAPTER 116.... 23 24 Id. (caps and emphasis in the original); see also id., § 329 (“No broker, salesperson, 25 or other person has been authorized to. . . make any representations other than 26 those contained in writing. . . [and I if given or made, such. . . representations 27 must not be relied upon as having been authorized by Seller.. . .“); itt., § 48 28 MORRIS PICKF RINC E PETERSON ATTORNEYS AT LAW 900 RANK OF AMERKA PLA7A Page 5 of 22 300 SOUTH FOURTH STRFET LAS VEGAS, NEVADA SWO 7o2/W74 9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 5 of 22 1 (integration clause declaring any and all previous and current understandings 2 and agreements between the Buyer and Seller. . are not part of the contract). The purchasers also received, read, approved, and accepted section 24.10, which requires the Plaintiffs to submit uany dispute relating to th[e] Agreement to arbitration, ItL, § 24.10 (emphasis added>; §4. The arbitration 6 terms appears in the main body of the PSA, in the same font style and size as the other terms printed on page 9, and reads in full: 8 24.10 Arbitration. The parties agree to submit to arbitration any 9 dispute related to this Agreement (including, but not limited to, anydispute related to the interpretation or enforceability of this 10 Agreement) and agree that the arbitration process shall be theexclusive means for resolving disputes which the parties cannot 11 resolve. The laws of the State of Nevada shall apply to thisAgreement. Any arbitration hereunder shall be conducted under the 12 Dispute Resolution Rules of the American Arbitration Association(“AAA”) as modified herein. Arbitration proceedings shall take 13 place in Las Vegas, Nevada before a single arbitrator who shall be alawyer. The prevailing party shall be reimbursed for all expenses of 14 arbitration, including arbitration fees and attorneys’ fees and costs.All arbitration proceedings shall be confidential. Neither party shall 15 disclose any information about the evidence produced by the otherparty in the arbitration proceedings, except in the course of judicial, 16 regulatory, or arbitration proceeding, or as may be demanded by government authority. Before making any disclosure permitted by 17 the preceding sentence, a party shall give the other party reasonable advance written notice of the intended disclosure and an 18 opportunity to prevent disclosure. In connection with anyarbitration provisions hereunder, each party shall have the right to 19 take the deposition of two (2) individuals and any expert witnessretained by the other party. Additional discovery may be had only 20 where the arbitrator so orders, upon a showing of substantial need.Only evidence that is directly relevant to the issues may be obtained 21 in discovery. Each party bears the burden of persuasion of anyclaim or counterclaim raised by that party. The arbitration 22 provisions of this Agreement shall not prevent any party from obtaining injunctive relief from a court of competent jurisdiction to 23 enforce the obligations for which such party may obtain provisional relief pending a decision on the merits by the arbitrator. Each of the 24 parties hereby consents to the jurisdiction of Nevada courts for such purpose. The arbitrator shall have authority to award any remedy 25 or relief that a court of the State of Nevada could grant in conformity to applicable law except that the arbitrator shall have no authority to 26 award punitive damages. Any arbitration award shall be accompanied by a written statement containing a summary of the 27 issues in controversy, a description of the award and an explanation 28 ?jQRRIS PICKERING PE FERSON ATTORNEYS AT LAW 900 BANK OF AMEROA PLAZA Page 6 o 22 300 SOUTH FOURTH STREET LAS VEGAS NEVADA S9TOI 7O2/47W94OO FAX 702/474 9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 6 of 22 1 of the reasons for the award. The arbitratofs award shall be final 2 and judgment may he entered upon such award by any court. Id., § 24.10. Plaintiffs initialed page 9 to signify their agreement to arbitrate any dispute” and forego their right to a trial by the court or a jury trial. Id.; see also § 46 (buyers should seek legal advice if they fail to understand any of the terms). 6 1. The KJHAction. 7 On August 27, 2007, Plaintiffs’ attorneys filed the first of three actions 8 in the Eighth Judicial District Court of Nevada, notwithstanding the arbitration provision in the PSA. See KJH & RDA Investor Group, LLC et al v. Turnberry/MGM Grand Towers, LLC eta!, Case No. A547024 (“KJH Compi.”), Exhibit E, ¶ 1. The KJH 11 Complaint alleges that all 46 plaintiffs were “fraudulently induced” into 12 purchasing “the air rights” to condominium hotel units as “investment securities” 13 at the Signature at MGM Grand based on alleged oral or extemporaneous written 14 representations by certain sales representatives to particular plaintiffs. Id. at 2. The KJH Complaint sets forth claims for: (1) violation of NRS 90.460 (unlawful sale 16 of unregistered security); (2) violation of NRS 90.570 (unlawful sale of 17 unregistered security by means of scheme to defraud); (3) Fraudulent 18 Misrepresentation; (4) Negligent Misrepresentation; (5) Fraud in the Inducement; and (6) Fraudulent Concealment. See id. 20 Turnberry successfully moved to compel arbitration and to stay the 21 KJH court action. See Decision filed December 20, 2008 (“Decision”), Exhibit F 22 hereto; see also February 13, 2008 Order Staying Action and Compelling 23 Arbitration”), Exhibit G. The KJH court found no procedural or substantive 24 unconscionability and noted: 25 Clearly, the genesis of this dispute concerns purchase agreements entered into by the parties which contain agreements to arbitrate. The fact that 26 plaintiffs seek, in part, to plead themselves out of such agreements does not mean that the Court can disregard them as a threshold matter. That issue of 27 the merits and how they relate to arbitrability should come before the arbitrator. 28 MORRIS PICKERINC PETERSON ATTORNEYS AT LAW 900 BANK OF AMERICA PLAZA Page 7 of 22 300 SOUTH FOURTH STREET AS VEGAS, NEVADA 89101 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 7 of 22 1 Decision, Exh. F, at 4:3-10. 2 The KJH Plaintiffs did not submit their claims to arbitration, but filed a petition for writ of mandamus with the Nevada Supreme Court to challenge the Order Compelling Arbitration, which remains to he decided. 2. The Sussex Class Action Complaint. 6 On February 22, 2008 P’aintiffs’ attorneys filed the second of three actions, Mary Ann Sussex et a! v. Turnberry/MGM Grand Towers et a!., Case No. 8 A557730. See Exhibit E to Notice of Removal (Dkt. No. #1). The initial complaint was not styled as a class action complaint, see id., nor was the First Amendment to 10 Complaint (Amendment”) filed on April 15, 2008, which merely substituted three Roe corporations with named defendants. See Exhibit F to Notice of 12 Removal, On May 7, 2008, the Plaintiffs filed a First Amended Class Action 13 . .. . 3Complaint. See Exhibit A to Notice Of Removal. Defendants were 14 simultaneously served with the initial complaint, the Amendment, and the First 15 Amended Class Action Complaint(Sussex Complaint F’) on May 14, 2008. See 16 Exhibits B, C, and D to Notice of Removal, 17 The Sussex Complaint traces the general allegations of the KJH 18 Complaint verbatim and, with one exception, makes the same claims as the KJH 19 Complaint. Compare KJH Compi., Exh. E, ¶91 1-14, and 61-71, wit/i Sussex Compl. I, 20 Exhibit A to Notice Of Removal, ¶9J 1-14, and 20-31. The Sussex Plaintiffs allege 21 that they are bringing the action not only on behalf of themselves, but also on 22 23 24 The name of the Sussex Class Action Complaint suggests Plaintiffs previously filed a class action, which they amended on May 7, 2008. Defendants 25 are not aware of, nor were they served with, a class action complaint other than 26 the one served on them on May 14, 2008. 27 The Sussex Plaintiffs also make a claim for violation of NRS Chapter 598 et seq. (deceptive trade practices). See Sussex Compi., at 24. 28 MORRIS PICkERING g PETERSON ATTORNEYS AT LAW 900 RANK OF AMERICA PLAZA Page 8 of 22 300 SOUTH FOURTH STREET LAS VEGAS, NEVADA 89101 702/474 9400 FAX 702/474 9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 8 of 22 1 behalf of hundreds of similarly situated persons ‘spread throughout the United 2 States.” Sussex Compi. I, at 2, and ¶ 34(a), at 17. On June 13, 2008, Turnberry/MGM removed the Sussex action to this court pursuant to the Class Action Fairness Act of 2005 (“CAFA”). Notice Of Removal, Dkt. No, #1. 5 3. The Berkeley Action. 6 A week after Turnberry/MGM removed the Sussex action to this court, Plaintiffs’ attorneys filed a third group action on behalf of 54 plaintiffs. See 8 Ross Berkeley et al. v. Turnberry/MGM Grand Towers, LLC et al., Case No. A565873 (“Berkeley Complaint”), Exhibit H hereto. They did so despite the fact that (1) the 10 PSA contains an arbitration clause; (2) the district court had already compelled 11 the KJH Plaintiffs to arbitration; and (3) these 54 plaintiffs were already included 12 among the proposed class members in the Sussex Class Action who were 13 “geographically spread throughout the United States. Like the Sussex Complaint, 14 the Berkeley Complaint is near identical to the KJH Complaint, making the same 15 general allegations and legal claims. Coinpare Berkeley Compl., Exh. H, with KJH 16 Compl.ExhE. 17 4. The Sussex Amended Federal Class Action Complaint On July 2, 2008, the Sussex Plaintiffs once more amended their 19 Complaint. See Amended Federal Class Action Complaint (“Sussex Compl. II”), 20 Dkt. No. # 14. Plaintiffs added one claim under the Securities Act of 1933 and one 21 . . under the Securities Exchange Act of 1934 to their seven state law claims, id. at 1- 22 2, ¶j 41-52, and restated their class allegations, id. ¶9J 37-40. They allege in this 23 complaint that “Defendants cannot compel arbitration” because: (1) the case is a 24 class action; (2) each plaintiff’s damages are in excess of $50,000; (3) the terms of the PSA are unenforceable under NRS 90.480(1); (4) the contract is illegal in Nevada; (5) “[tjhe sale of unregistered SECURITIES renders the entire contract 27 unenforceable as a matter of law and public policy”; (6) the arbitration provision 28 MORRIS PICKERING Ei PETERSON ATTORNEYS AT LAW 900 BANK OF AMERICA PLAZA Page 9 of 22 300 SOUTH FOURTH STREET LAS VEGAS, NEVADA 89IO 702/474 9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 9 of 22 1 is procedurally and substantively unconscionable, Id. at 1-2, ¶(ff 34-36. For the 2 reasons that follow, Plaintiffs are incorrect, and the Court should compel the Sussex plaintiffs to arbitrate their claims. IlL ARGUMENT A. The Court’s Jurisdiction Under the FAA and UAA. 6 The Court has jurisdiction to compel arbitration under both Nevad&s Uniform Arbitration Act of 2000 (UAA) and the Federal Arbitration 8 Act (“FAA”), 9 U.S.C. § I et seq. The UAA is applicable to all arbitration agreements made after October 1, 2001, NRS 38.216(1), and permits a party to file 10 a motion to compel in the court where the “proceeding involving a claim 11 referable to arbitration under an alleged agreement to arbitrate is pendingH or “in 12 any court as provided in NRS 38.246.” NRS 38.221(5) (emphasis added>. The FAA applies to arbitration clauses that are part of a written contract “evidencing a transaction involving commerce.” 9 U.S.C. §2. The words 15 “involving commerce” are to be broadly construed and cover all transactions that 16 in fact affect interstate commerce “even if the parties did not contemplate an 17 interstate commerce connection,” Allied-Bruce Terminix Companies, Inc. v. Dobson, 18 513 U.S. 265, 282 (1995). There is no doubt that the hundreds of purchase and sale 19 agreements for the sale of hotel condominium units - each priced between $400,000 and $900,000 - by purchasers “geographically spread throughout the 21 United States” in fact affect interstate commerce, in fact Plaintiffs admit this. See 22 Sussex Compl II, ¶43 (alleging defendants made use of “instruments. . . in 23 interstate commerce. . . “); compare, e.g., Wolff v. Westwood Management, LLC, 503 F. 24 Supp. 2d 274, 280 (D. D.C. 2007) (court had “no trouble concluding that the 25 investment in a multi-million dollar office building located in the District of 26 . . . . . . . Columbia while owned by entities in Maryland involves interstate commerce ). 27 28 MORRIS PICKERINC f PETERSON ATTORNEYS AT LAW 900 BANK OF AMERICA PLAZA Page 10 of 22 300 SOUTH FOURTH STREET A5 VEGAS, NEVADA S9IO 702/474 9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 10 of 22 1 Although the FAA “does not create any independent federal- 2 question jurisdiction under 28 U.S.C. § 1331. . .,“ Moses H. Cone Memorial Hospital z’. Mercury Constr. Corp., 460 U.S. 1, 25 n.32 (1983), this Court has subject matter jurisdiction over this putative class action pursuant to 28 U.S.C. § 1332(d), the Class Action Fairness Act of 2005 (“CAFA”). The Sussex Plaintiffs filed a class 6 action on behalf of “hundreds” of “similarly situated persons” spread across the United States. Sussex Compi. I, ¶ 34(a). The $5,000,000 amount in controversy is 8 met because each plaintiff alleges damages in excess of $50,000. Sussex Compl. I, Caption, at 2, and ¶ 30. There is minimal diversity in that at least one plaintiff is 10 diverse from one defendant. Plaintiffs allege that plaintiffs Malcom I. Nichol and 11 Sandy Scalise are citizens of California. Sussex Compi. I, ¶ 16. Defendant 12 Turnberry/MGM is, and is alleged to be, a Nevada limited liability company. See 13 Sussex Compi. I, 1 20. 14 B. The Sussex Plaintiffs Should Be Compelled to Arbitrate Their is Claims. 16 “Contracts to arbitrate are not to be avoided by allowing [Plaintiffs] 17 to ignore the contract and to resort to the courts.” Southland Corp. v. Keating, 465 18 U.S. 1, 7 (1984); accord, e.g., Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219-21 19 (1985) (noting that the principal purpose of the FAA is to hold parties to their 20 private agreements they have made). Where, as here, the plaintiffs refuse to 21 submit a dispute to arbitration, the defendants may “petition any United States 22 district court. . . for an order directing that such arbitration proceed in the 23 manner provided for in such agreement.” 9 U.S.C. §4; MRS 38.221(1) (party may 24 25 Although none exist, Plaintiffs would bear the burden of proof on the 26 applicability of an exception under 28 U.S.C. § 1332(d). E.g., Serrano v. 180 27 Connect, Inc., 478 F.3d 1018, 1024 (9th Cir. 2007); Hart v. FedEx Ground Package System Inc., 457 F.3d 675, 680 (7th Cir. 2006). 28 \IGRRIS PICKERING P I[TERSON ATTORNEYS AT LAW 900 RANK OF AMERICA PLAZA Page 11 of 22 300 SOUTH FOURTH STREET LAS VEGAS. NEVADA 89 DI 7O2/474940O FAX 702/4749?422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 11 of 22 1 move the court to compel arbitration by ‘showing an agreement to arbitrate and 2 alleging another person’s refusal to arbitrate pursuant to the agreement.. .“). Consistent with the FAA’s policy to enforce arbitration agreements like any other contracts, the court’s role is limited to determining whether (1) the arbitration agreement exists; (2) the claims fall within the scope of the arbitration 6 clause; and (3) the clause is valid. Lfescan, Inc. v. Premier Diabetic Services, Inc., 363 F.3d 101.0,1012(9th Cir. 2004); see also NRS 38.219 (1)-(2) (court shall decide 8 whether arbitration agreement exists and whether controversy is subject to it); 9 U.S.C. § 4 (court must order arbitration in accordance with the terms of the 10 arbitration agreement if the clause is valid and the “making of [it] . . . is not in 11 issue”). “If the answer is yes to [these] questions, the court must enforce the 12 [arbitration] agreement.” Lifescan, Inc., 363 F.3d at 1012 (citing to Chiron Corp. i’. 13 Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)) (emphasis added).6 14 15 ________________________ 16 6 The fact that the KJH action is before the Supreme Court on the KJH 17 Plaintiffs’ petition for writ of mandamus, and another, similar lawsuit is also pending in state court does not justify a stay of the instant proceedings pending 18 the resolution of the state litigation. MOSeS H. Cone Memorial Hosp. v. Mercury 19 Const. Corp., 460 U.S. 1, 22-23 (1983) (district court’s stay of the federal proceeding held “plainly erroneous in view of Congress’s clear intent, in the 20 Arbitration Act, to move the parties to an arbitrable dispute out of court and into 21 arbitration as quickly and easily as possible”); accord, e.g., Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir. 1991) (district court erroneously believed that it 22 lacked jurisdiction to determine the arbitrability of the second action in federal 23 court based on a similar state court action); cf Southland Corp. V. Keating, 465 U. S. 1, 11-12 (1984) (“to delay review of a state judicial decision denying enforcement 24 of an arbitration contract until the state litigation has run its course would defeat 25 the core purpose of a contract to arbitrate”). 26 27 28 \IORRIS PICKERING 6 PETERSON ATTORNEYS A LAW 900 BANH OF AMERiCA PLAZA Page 12 of 22 300 SOUTH FOURTH STREET LAS VEGAS, NEVADA 89101 702/47403400 FAX 702/47403422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 12 of 22 1 This means that courts are not to engage in an analysis of whether 2 the contract in which the arbitration clause appears is enforceable, which is an issue for the arbitrator. NRS. 38.219(3) (“arbitrator shall decide. . . whether the contract that contains a valid arbitration clause is enforceable”); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,444-45 (2006) (the issue of whether the 6 contract as a whole” is enforceable is exclusively the province of the arbitrator); Whiteside, 940 F.2d at 102 (distinguishing the issue of whether a dispute is 8 covered by a written arbitration agreement from issues “presented when resolving the dispute on the merits’). Yet this is precisely what Plaintiffs ask the 10 Court to do when they claim that arbitration is foreclosed because the terms of the PSA are “unenforceable under NRS 90.840, section 1.” Compi., ¶ 35. 12 1. Securities Claims are Arbitrable. 13 Plaintiffs allege that arbitration of their claims is precluded under 14 NRS 90.840(1), see Sussex Compl. I, ¶ 31; Sussex Compl. II, ¶ 35, but they overlook 15 the fact that the FAA preempts any state statute that purports to invalidate 16 arbitration clauses. Allied-Bruce Terininix Companies, Inc. v. Dobson, 513 U.S. 265, 17 265-66 (1995); Southland Corp. v. Keating, 465 U.S. 1, 11-12 (1984). NRS 90.840(1), 18 moreover, does not address the validity of arbitration clauses but merely states 19 that a party cannot obtain relief on a contract made in violation of the Securities 20 Act. Enforcement of an arbitration clause is not granting relief on the contract: “By 21 agreeing to arbitrate a statutory claim, a party [merely] . . . submits to their 22 resolution in an arbitral, rather than a judicial, forum....” Mitsubishi Motors 23 Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). 24 Amending their complaint to state federal securities law claims, as 25 the Plaintiffs did on July 2, 2008, does not immunize their claims from arbitration. 26 Agreements to submit disputes arising under the federal securities acts to 27 arbitration are enforceable under the FAA. Rodriguez de Quijas v. 28 MORRIS PICK[ RING PFTERSON Page 13 of 22 300 SOUTH FOURTH STREET LAS vEGAS. NEVADA S9101 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 13 of 22 1 Slwarson/Anierican Express, Inc., 490 U.S. 477, 486 (1989) (resort to the arbitration 2 process does not inherently undermine any of the substantive rights afforded to petitioners under the Securities Act [of 1933]”); Shearson/Arnerican Express Inc. v. McMahon, 482 U.S. 220, 233 (1987) (agreements to arbitrate [Securities] Exchange Act [of 1934] claims [are] ‘enforce[ablej . . . in accord with the explicit provisions 6 of the Arbitration Act’ “). As discussed below, there is no doubt that the arbitration agreement 8 exists, that Plaintiffs’ claims are directly related to the purchase and sale agreements they signed and agreed to, and that the arbitration clause is valid. 10 Because Plaintiffs’ unsupported allegations concerning the illegality of the PSAs are immaterial to this motion, and nothing precludes the arbitration of Plaintiffs’ 12 putative class action, Plaintiffs should be compelled to arbitration. 13 2. The Existence of an Arbitration Provision (Section 24.10) is 14 Undisputed. 15 Plaintiffs cite a number of grounds to claim exemption from 16 arbitration, but the “making of the arbitration agreement” is not one of them. For 17 example, they do not claim that they did not sign the PSAs or that the signatories 18 had no authority to accept the contract terms on their behalf. Cf. Three Valleys 19 Muiz. Water Dist. v. E.F. Hutton & Co., Inc., 925 F.2d 1136, 1138-42 (9th Cir. 1991) 20 (ordering evidentiary hearing where plaintiffs contended that they never gave 21 authority to the individual who had signed the contracts on their behalf). 22 Plaintiffs admit that the arbitration clause was included in the PSA they signed. 23 Sussex Compi. II, ¶ 35. Thus the Court need not “proceed summarily to the trial” 24 of this non-issue. Cf 9 U.S.C. § 4 (“If the making of the arbitration agreement... 25 be in issue, the court shall proceed summarily to the trial thereof”). 26 27 28 MORRIS PICKFRING PETERSON 900 R::%wLAZA Page 14 of 22 300 SOUTH FOURTH STREET LAS VEGAS, NEVADA 99IO 702/474 9400 FAX 702/474 9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 14 of 22 1 3. Plaintiffs’ Fraud and Securities Claims Are Subject to 2 Arbitration. 3 Arbitration clauses are to be construed liberally in favor of 4 arbitration. Mikohiz Gaming Corp. v. McCrea, 120 Nev. 248, 252, 89 P.3d 36, 39 (2004). All doubts concerning the arbitrability of the subject matter of a dispute 6 should be construed in favor of arbitration. International Ass’ii of Firefighters, Local No. 1285 v. City of Las Vegas, 104 Nev. 615, 618-619, 764 P.2d 478, 480 (1988). 8 Where arbitration clauses purport “to cover all disputes arising in connection with the agreement, factual allegations need only ‘touch matters covered by the 10 contract containing the arbitration clause....’t’Law Offices of Bradley]. Hofland, 11 P.C. z’. McFarling, 2007 WL 1074096 at *4 (D. Nev. April 1, 2007). Clauses 12 providing for arbitration of” ‘[amy controversy or claim arising out of or relating 13 to this Agreement.. .‘ [are] broad enough to encompass [claims] that. . . the... 14 agreement... [was] procured by fraud,” Prima Paint Corp. v. Flood & Conklin Mfg. 15 Co., 388 U.S. 395, 406 (1967) (quoting the arbitration clause at issue). 16 The arbitration clause in the PSA, section 24.10, is broad, providing 17 that “[tjhe parties agree to submit to arbitration any dispute related to this agreement 18 . . including, but not limited to, any dispute related to the. . . enforceability of this 19 agreement.. . (emphasis added). All Plaintiffs’ claims, including their statutory 20 securities claims, “touch” upon the PSAs. More than that, Plaintiffs’ claims are 21 directly related to the PSA because Plaintiffs: (1) allege that the PSAs are 22 unenforceable under federal and state security statutes, e.g., Sussex Compl. II, 23 ¶91 44, 42, 45, and 62; (2) seek to rescind the PSAs, e.g., id., ¶9J 45, 88, and 116; and 24 (3) claim that they relied on alleged oral misrepresentations as to the economic 25 benefits of the units despite the express written disclaimers to the contrary in the 26 PSA, e.g., id., ¶9J 46, 49-50, 54-55, 60-61, 68-72, 83-87, 91-94, 98-107, and 109-115. 27 28 MORRIS PICKERING PEEERSON ATTORNEYS AT LAW 900 BANK OF AMEWCA PLAZA Page 15 of 22 300 SOUTH FOURTH STREET LAS VEGAS, NEVADA 99O 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 15 of 22 1 a. Plaintiffs’ Putative Class Action Alleçations Do Not Affect 2 Arhitrability.7 3 There is no support for Plaintiffs’ assertion that arbitration is 4 foreclosed “because. . . this is a class action complaint....” Sussex Compi II, ¶ 34. Nothing in the FAA or UAA prohibits the arbitration of Plaintiffs’ putative class 6 action. Shroyer v. New Gingular Wireless Services, Inc., 498 F.3d 976, 990-91 (9th Cir. 2007) (party offered “no authority or support for. . . its argument that. . .the Federal Arbitration Act. . . disfavor[s] class arbitration. . . class arbitrations further the FAA’s purpose of encouraging alternative dispute resolution”). The 10 question of whether an arbitration provision permits class arbitration is a matter 11 of construction of the arbitration provision. Green Tree Fin. Corp. V. Bazzle, 539 12 U.s. 444, 453 (2003). It is for the arbitrator to decide in the first instance. Unlike 13 “gateway” matters for the court to decide (such as the existence or validity of the 14 arbitration agreement or its scope), the determination of whether class arbitration 15 is available (only) concerns “what kind ofarbitration proceeding the parties agreed 16 to.” Id, at 452 (emphasis in the original). 17 4. Section 24.10 is Not Unconscionable. 18 Under both the FAA and the UAA, there is a presumption that the 19 arbitration clause is valid. See 9 U.S.C. § 2 (arbitration agreements “shall be valid, 20 irrevocable, and enforceable” except where grounds exist to revoke the 21 arbitration provision) (emphasis added); NRS 38.219(1) (to same effect). This 22 presumption expresses a strong public federal policy in favor of arbitration 23 agreements. Perry v, Thomas, 482 U.S. 483, 489 (1987) (“Section 2 is a congressional 24 25 71n making this argument, Defendants do not acknowledge that the Sussex Plaintiffs have properly pleaded a class action complaint or that the action may 26 be properly maintained as a class action, It is Defendants’ position that the 27 Plaintiffs have not properly stated a class action and that the action could not be properly maintained as a class action. 28 MORRIS PICKFRING PETERSON ATTORNEYS AT LAW 900 BANK OF AMERICA PLAZA age o 300 SOUTH FOUR7H STREET LAS VEGAS, NEVADA 89101 702/474 9400 FAX 7O2/4749422 I Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 16 of 22 1 declaration of a liberal federal policy favoring arbitration agreements, 2 notwithstanding any state substantive or procedural policies to the contrary”); Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 226 (1987) (federal courts are to ‘rigorously’ enforce arbitration agreements); see also, e.g., Mikohn Gaming Corp. v. McCrea, 120 Nev. 248,252,89 P.3d 36,39(2004> (Nevada’s version of the 6 Uniform Arbitration Act. . . clearly favors arbitration”) (emphasis added); Hamm v. Arrowcreek Homeowners’ Ass’n, 124 Nev. Adv. Op. No. 28 (May 15, 2008) at 12 (to same effect). State contract law determines whether an arbitration agreement is 10 unconscionable. See Doctor’s Assocs. v. Casarotto, 517 U.S. 681, 686-687 (1996). 11 Under Nevada law, an arbitration clause is procedurally unconscionable “when a party lacks a meaningful opportunity to agree to the clause terms either 13 [a] because of unequal bargaining power, as in an adhesion contract, or 14 [bj because the clause and its effects are not readily ascertainable upon a review of 15 the contract.” D.R. Horton v. Green, 120 Nev. 549,554,96 P.3d 1159, 1162 (2004). An arbitration clause is substantively unconscionable if it would unfairly favor 17 one party over the other. See id. at 554,96 P.3d at 162-63 (arbitration agreement is 18 unconscionable where the remedy lacks a “modicum of bilaterality”) (quoting Ting 19 v. AT & T, 319 F.3d 1126, 1149 (9th Cir. 2003), cert. denied, 540 U.S. 811 (2003)). An 20 arbitration clause should not be rejected unless it is both procedurally and 21 substantively unconscionable. D.R. Horton, 120 Nev. at 553,96 P.3d at 1162 22 (citing to Burch v. District Court, 118 Nev. 438, 442,49 P.3d 647, 650 (2000)). Although substantial evidence of procedural unconscionability can make up for scarce evidence of substantive unconscionability, if there is no evidence to support one or the other in this case, so the arbitration clause must be upheld. See D.R. Horton, 120 Nev. at 553-54,96 P.2d at 1162. 27 28 MORRIS PICKERING PETERSON ATTORNEYS AT LAW 900 BANK OF AMERICA PLAZA Pacre 17 of 22 300 SOUTH FOURTH STREET 0 AS VEGAS, NEVADA 89101 7O/474-940O FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 17 of 22 1 a. The Arbitration Clause is not Procedurally Unconscionable. 2 i. The PSAs are Not Adhesion Contracts. Adhesion contracts are standardized contract forms offered on a ‘take it or leave it’ basis to customers of cons tinier goods and services without affording the consumer a realistic opportunity to bargain. Kindred v. District Court, 116 Nev. 6 405, 414,996 P.2d 903, 909 (2000). Adhesion contracts are marked by unequal bargaining power. D.R. Horton, 120 Nev. at 554,96 P.3d at 1162. 8 The PSAs for the Signature luxury hotel condominium units are not adhesion contracts for ‘consumer goods’ presented to these purchasers on a ‘take 10 it or leave it’ basis. The PSA gave Plaintiffs the opportunity to confer with 11 counsel, see Section 40, and permitted amendments, so long as they were in writing. Sec Section 4; see also Riordan Deci., Exh. B, ¶ 3. Plaintiff Mary Ann Sussex was one of the Plaintiffs who successfully negotiated an assignment and 14 assumption amendment to her PSA, despite the non-assignability clause in the 15 PSA. See Assignment and Assumption Agreement, Exh. D (adding Soledad 16 Martinez as additional purchaser); Compare PSA, Exh. C, Section 19. 17 ii. Section 24.10 is Conspicuous. 18 Procedurally unconscionable arbitration clauses often appear in “fine 19 print,” and/or are placed in an inconspicuous portion of the contract. For 20 example, in D.R. Horton the arbitration clause was hidden on the back page of a two-page contract, whereas the signature lines appeared on the front page. 120 22 Nev. at 556, 96 P.3d at 1164. In Burch - apart from the fact that the buyers did not 23 receive a copy of the terms until four months after they closed escrow on their 24 house - “[t}he arbitration clause was located on page six of the. . . booklet, after 25 . . . five pages of material only relevant to persons residing outside of Nevada. 118 26 Nev. at 443,49 P.3d at 650. Holding that the clause was procedurally 27 unconscionable, the Burch Court remarked: “The Burches were not sophisticated 28 MORRIS PICKERING S PETFRSON ATLORNEYS AT LAW 900 RANV OFAMEFOCA PLAZA Page 18 of 22 300 SOUTH FOURTH STREET LAS VEGAS NEVADA 89I0 702/474 9400 FAX 702/474-W422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 18 of 22 1 consumers, they did not understand the. . . terms, and the. . . disclaimers were 2 not conspicuous.” Id. at 444,49 P.2d at 650. Here, by contrast, section 24.10 of the PSA appears in the text of the contract, is in the same font as adjacent text, and is titled and underlined “Arbitration.” PSA, Exh. C, section 24.10. The page on which it appears contains a 6 signature line and was initialed by each plaintiff to acknowledge and accept the terms set out on that page. See Id. at 9. 8 iii. The Arbitration Clause Adequately Informs the 9 Purchasers of its Consequences. 10 An arbitration clause need not “explain in detail each and every right 11 that the [petitioners] would be waiving.., so long as the provision is 12 “conspicuous and clearly put[s] a purchaser on notice that he or she is waiving 13 important rights under Nevada law.” D.R. Horton, 120 Nev. at 556-57,96 P.3d at 14 1166 (emphasis added). Here, section 24.10 puts the purchasers on notice that 15 disputes cannot be submitted to a jury in the court by providing that: 16 (1) arbitration is the “exclusive means” for the resolution of “any dispute related 17 to the agreement”; (2) a single arbitrator - not “a court of the State of Nevada” - 18 has the authority to award “any remedy or relief”; and (3) “[tjhe arbitrator’s 19 award shall be final and judgment may be entered upon such award by any 20 court.” PSA, section 24.10, at 9. Thus there is no procedural unconscionability: 21 “The [Plaintiffs] were. . . sophisticated [investors], they did.. . understand the... 22 terms, and the. . . disclaimers were. . . conspicuous.” Burch, 118 Nev. at 444, 49 23 P.2d at 650. Without procedural unconscionability, Plaintiffs must be compelled 24 to arbitrate their claims. D.R. Horton, 120 Nev. at 553, 96 P.3d at 1162; Burch, 118 25 Nev. at 442,49 P.3d at 650. 26 27 28 MORRIS PICKERING i PETERSON ATTORNEYS AT LAW 900 BANK OF AMERICA PLAZA Page 19 of 22 300 SOUTH FOURTH STREET LAO VEGAS, NEVAOA 99101 702/474-9400 EAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 19 of 22 1 b. The Arbitration C/a use Is Not Substantively Unconscionable. 2 Substantive unconscionability may be present when the terms of the contract oppressively favor one party over the other. D.R. Horton, 120 Nev. at 554, 96 P.3d at 162-63 (quoting Ting v. AT & T, 319 F.3d 1126, 1149 (9th Cir, 2003), cert. denied, 540 U.S. 811 (2003) (“substantive unconscionability focuses on the one- 6 sidedness of the contract terms”). Here, however, section 24.10 puts Plaintiffs and Turnberry on equal footing. For example, 8 (1) Both parties are to submit any dispute” to arbitration; not just Plaintiffs. Compare, e.g., Armendariz v. Foundation Health Psychcare Services, Inc., 6 10 P.3d 669, 694 (Cal. 2000) (arbitration agreement was limited in scope to employee claims regarding wrongful termination); 12 (2) The clause does not bar class actions. Compare, e.g., Ting, 3l9 F.3d 13 at 1150 (prohibiting the consumers from bringing class action suits); 14 (3) The clause permits the prevailing party to recover its, her, or his 15 expenses of arbitration, including arbitration fees, attorneys’ fees and costs. 16 Compare, e.g., Ting, 319 F.3d at 1150 (attorneys’ fees only permitted pursuant to 17 statute and consumers required at all times to share arbitration fees). 18 The Sussex Plaintiffs and the proposed class members they represent 19 purchased luxury hotel condominium units at prices ranging between $400,000 20 and $900,000 per unit. See Exhibit 1 to Sussex Compl. II. These real estate 21 speculators cannot be compared to the consumers of telephone services in Ting, or 22 the employee that was terminated in Armendariz for whom the arbitration “fees 23 would be prohibitively expensive.” Armendariz, 6 P.3d at 686. But see ring, 319 24 F.3d at 1151 (“the majority of complainants would be handled satisfactorily either by customer service representatives or subsidized arbitration”) (emphasis added); 26 see a/so AAA Consumer-Related Disputes Supplementary Procedures (providing 27 . that a consumer whose claim does not exceed $10,000 is not responsible for more 28 MORRIS PICKERING PP PERSON CA PLAZA Page 20 of 22 300 SOUTH FOURTH STREET LAS VEGAS. NEVADA 89IO 702/474-9400 FAX 702/474 9422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 20 of 22 1 than $125 of the arbitrator’s fees).8 Because it does not “shock the conscience” that 2 purchasers of half million dollar luxury condominiums are required to arbitrate disputes with the seller of such units, 24 Hour Fitness, Inc. v. Superior Court, 78 Cal. Rptr. 533, 541 (Cal. Ct. App. 1998), the arbitration clause is not otherwise unconscionable, and none of Plaintiffs’ arguments to resist arbitration have merit, 6 this motion should be granted. III. CONCLUSION 8 For the reasons stated above, the Court should compel the Sussex Plaintiffs to arbitration and stay these judicial proceedings. 10 11 MORRIS PICKERING & PETERSON 12 13 By: 14 Stevord, No. 1543 Akke Levin, No. 9102 15 Jean-Paul Hendricks, No. 10079 900 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 17 18 Janice Michaels, No. 6060Wood, Smith, Henning & Berman LLP 19 7670 West lake Mead Blvd., Suite 250 Las Vegas, Nevada 89128-6652 20 Attorneys for Defendants 21 Turnberry/MGM Grand Towers, LLC, MGM Grand, Inc., Turnberry /Harmon 22 Ave., LLC., and Turnberry Associates 23 24 25 ________________________ 26 These rules apply to disputes between consumer and businesses, where 27 the terms and conditions of purchase are non-negotiable, and where the product or service is for personal or household use. See id. 28 MORRiS PICKERINt PR FE RSON ATTORNEYS AT LAW 900 BANK OF AMERICA PLAZA age o 300 SOUTH FOURTH STREET LAS VEGAS, NEVADA 89101 702/474 9400 FAX 702/47W8422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 21 of 22 1 CERTIFICATE OF SERVICE 2 Pursuant to Fed. R. Civ. P. 5(b) and Section IV of District of Nevada Electronic Filing Procedures, I certify that I am an employee of MORRIS PICKERING & IETERSON, and that the following documents were served via electronic service: MOTION TO COMPEL ARBITRATION 6 TO: Robert B. Gerard Norman Blumenthal 8 Ricardo R. Ehmann Blumenthal & Nordrehaug Gerard & Associates 2255 Calle Clara 9 2840 So, Jones Blvd. - Bldg. D, Suite 4 La Jolla, California 92037 Las Vegas, Nevada 89146 10 Attorneys for Plaintiff Attorneys for Plaintiff 11 12 I further certify that I am familiar with the firm’s practice of collection 13 and processing documents for mailing; that in accordance therewith, I caused the 14 above-named document to be deposited with the U.S. Postal Service at Las Vegas, 15 Nevada, in a sealed envelope, with first class postage prepaid, on the date and to 16 the addressee(s) shown below: 17 Robert Fellmeth University of San Diego Law School 18 5998 Alcala Park San Diego, California 92110 19 Attorneys for Plaintiff 20 Dated this _______day of _________ 2008. 21 22 23 BY: 24 25 26 27 28 MORRIS PICKERING PEIERSON 900 LAZA Page 22 of 22 300 SOUTH FOURTH STREET LAS VEGAS, NEVADA 890 702/474 9400 FAX 702/4749422 Case 2:08-cv-00773-MMD-PAL Document 17 Filed 07/17/08 Page 22 of 22