Sussex et al v. Turnberry/MGM Grand Towers, LLC et alRESPONSE to 96 MOTION TO RELATE CASES AND TRANSFER SECOND-FILED CASE TO FIRST-FILED CASED. Nev.November 28, 2011MORRIS PETERSON Steve Morris, No. 1543 Email: sm@morrislawgroup.com Akke Levin, No. 9102 Email: al@morrislawgroup.com Jean-Paul Hendricks, No. 10079 Email: jph@morrislawgroup.com 900 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 Telephone: (702) 474-9400 Facsimile: (702) 474-9422 WOOD, SMITH, HENNING & BERMAN LLP Jason C. Gless, No. 8469 Email: jgless@wshblaw.com 7670 West Lake Mead Boulevard, Suite 250 Las Vegas, Nevada 89128 Telephone: (702) 222-0625 Facsimile: (702) 253-6225 1211 Attorneys for Defendants 1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [ORRIS PETERSON ATTORNEYS AT LAW BANK OF AMERICA PLAZA 0 SOUTH FOURTH STREET 55 VEGAS. NEVADA 8910 702/474-9400 FAX 702/474-9422 MARY ANN SUSSEX; MITCHELL PAE; ) Case No. 2:08-cv-00773-RLH-PAL MALCOLM NICHOLL and SANDY ) SCALISE; ERNESTO VALDEZ, SR. and ) ERNESTO VALDEZ, JR; JOHN HANSON and ELIZABETH HANSON, ) ) Plaintiffs, ) OPPOSITION TO MOTION TO v. ) RELATE CASES AND TRANSFER ) SECOND-FILED CASE TO FIRST TURNBERRY/MGM GRAND TOWERS,) FILED CASE LLC, a Nevada LLC; MGM GRAND ) CONDOMINIUMS LLC, a Nevada LLC; ) THE SIGNATURE CONDOMINIUMS, ) LLC, a Nevada LLC; MGM MIRAGE, a ) Delaware Corporation; TURNBERRY/ ) HARMON AVE., LLC, a Nevada LLC; ) and TURNBERRY WEST REALTY, INC.,) a Nevada Corporation, ) ) Defendants. ) ) Case 2:08-cv-00773-MMD-PAL Document 97 Filed 11/28/11 Page 1 of 5 1 Defendants Turnberry/MGM Grand Towers, LLC, MGM Grand 2 Condominiums LLC, Inc., The Signature Condominiums, LLC, MGM Mirage, 3 Turnberry/Harmon Ave., LLC, and Turnberry West Realty, Inc. (collectively 4 “Defendants”), hereby oppose Plaintiffs’ motion to relate cases and transfer the 5 action entitled George Abraham, et al v. Turnberry/MGM Grand, et al, Case No: 6 2:11-cv-01007-JCM-RJJ (“Abraham”) to this Court. 7 I. INTRODUCTION 8 The Court should deny plaintiffs’ motion to transfer to this Court the 9 Abraham case filed earlier this year. There is no “related” case pending in this 10 Court. The Sussex case, with which Abraham’s lawyers wish to “consolidate” this 11 case, is in arbitration, where the Abraham case belongs. An order “relating” these 12 cases would accomplish the opposite of what LR 7-2.1 contemplates: Transfer 13 would be a waste of time, the parties’ money, and judicial resources. Defendants’ 14 motion to compel arbitration in Abraham is pending before Judge Mahan who is 15 perfectly capable of taking judicial notice of this Court’s June 16, 2009 order 16 compelling the Sussex case to arbitration and ordering the Abraham plaintiffs to do 17 likewise. The instant motion should be seen for what it is - a tactic by the 18 Abraham plaintiffs’ lawyers (who are the Sussex lawyers too) to further delay and 19 avoid their clients’ agreement to arbitrate their Signature claims. The motion 20 should be denied. 21 II. ARGUMENT 22 There is no dispute between the parties that the Sussex action and the 23 Abraham action involve the same defendants and similarly situated plaintiffs 24 making the same or substantially similar claims regarding their purchases at the 25 Signature at MGM Grand, a condominium-hotel project more than five years ago. 26 That, however, is insufficient under Local Rule 7-2.1 to mandate finding these 27 cases related and transferring them to this Court. Under LR 7-2.1, “[a]n action may 28 [ORRIS PETERSON ATTORNEYS AT LAW BANK OF AMERICA PLAZA 10 SOUTH FOURTH STREET SS VEGAS, NEVADA 89101 2 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 97 Filed 11/28/11 Page 2 of 5 1 be considered to be related to another action” (emphasis added) when it satisfies 2 one or more of the criteria outlined in LR 7-2.1 a-d. Mot. at 2. Even if the Court 3 finds that these actions are related, there is no language in the rule that compels 4 relation and transfer of similar cases - the rule is discretionary. It is without 5 question that the thrust of this rule is to, “effect a substantial savings of judicial 6 effort,” LR 7-2.1(c), to avoid the”substantial duplication of labor,” id. 7-2.1(d) or to 7 make a determination of the consolidation of the actions.” id.1 None of these 8 considerations are relevant to these cases because the parties in both Sussex and 9 Abraham agreed to arbitrate their claims against Defendants. 10 In point of fact, the only consideration for the Abraham Court is to 11 determine whether the Abraham plaintiffs entered into the same arbitration 12 agreement as the one held valid and enforceable by the Nevada Supreme Court in 13 the related KJH &RDA Investor Group, LLC et a!. v. Turnberry/MGM Grand Towers, 14 LLC (‘KJH”). If they did, they must be sent to arbitration.2 Defendants have 15 already requested Judge Mahan take judicial notice of the KJH order and this 16 Court’s June 16, 2009, order compelling the Sussex plaintiffs to arbitrate. The most 17 efficient means to this end is to deny the instant motion and allow Judge Mahan 18 to consider the motion to compel arbitration that is pending before him in the 19 Abraham action. There is simply no economy in transferring the case from one 20 judge to another to decide this motion. The same work must be completed by 21 either court. 22 23 1 See also Fed. R. Civ. P. 42(a)(3), “If actions before the court involve a common question of law or fact, the court may:.. . (3) issue any other order to 24 avoid cost or delay.” (emphasis added). Again, consolidation of actions is 25 discretionary to save the court’s valuable resources. No such savings would result from a transfer of the Abraham action. 26 2 This Court’s June 16, 2009, order compelling the Sussex plaintiffs to 27 arbitration was based on the Nevada Supreme Court’s decision in KJH. See Dkt. 28 59. ORRIS PETERSON ATFORNEYS AT LAW I BANK OF AMERICA PLAZA ‘0 SOUTH FOURTH STREET OS VEGAS, NEVADA 8910 3 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 97 Filed 11/28/11 Page 3 of 5 1 There is no other benefit to relate the two actions and transfer the 2 Abraham action to this Court. Sussex is pending in arbitration before the American 3 Arbitration Association. This motion is nothing more than another of many 4 attempts by lawyers for the Abraham plaintiffs to buy more judicial time and 5 avoid their agreement to arbitrate claims related to the Signature project. The 6 motion should be denied. 7 III. CONCLUSION 8 For the reasons stated above, the Court should not relate or transfer 9 the subject action to this court and the instant motion should be denied. 10 11 MORRIS PETERSON 12 By____ 13 Steve Morris, No. 1543 Akke Levin, No. 9102 14 Jean-Paul Hendricks, No. 10079 900 Bank of America Plaza 15 300 South Fourth Street 16 Las Vegas, Nevada 89101 WOOD, SMITH, HENNING & BERMAN LLP 17 Jason C. Gless, No. 8469 7670 West Lake Mead Blvd., Suite 250 18 Las Vegas, Nevada 89128 19 Attorneys for Defendants 20 21 22 23 24 25 26 27 28 ORRIS PETERSON ATTORNEYS AT LAW BANK OF AMERICA PLAZA IC SOUTH FOURTH STREET SVEGAS, NEVADA 89101 4 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 97 Filed 11/28/11 Page 4 of 5 1 CERTIFICATE OF SERVICE 2 Pursuant to Fed. R. Civ. P. 5(b) and Section IV of District of Nevada 3 Electronic Filing Procedures, I certify that I am an employee of MORRIS 4 PETERSON, and that the following documents were served via electronic service: 5 OPPOSITION TO MOTION TO RELATE CASES AND TRANSFER SECOND- 6 FILED CASE TO FIRST- FILED CASE 7T0: 8 Robert B. Gerard Ricardo R. Ehmann Gerard & Associates 10 2840 So. Jones Blvd. - Bldg. D, Suite 4 Las Vegas, Nevada 89146 11 rgerard@gerardlaw.com rehmann@gerardlaw . corn 12 Robert Feilmeth 13 University of San Diego Law School 5998 Alcala Park 14 San Diego, California 92110 15 cpil@sandiego.edu 16 Norman Blumenthal Blumenthal & Nordrehaug 17 2255 Calle Clara La Jolla, California 92037 18 norm@bam1awlj.com 19 Burton Wiand Wiand Guerra King 20 3000 Bayport Drive - Suite 600 21 Tampa, Florida 33607 bwiand@wiandlaw. corn 22 Attorneys for Plaintiff 23 DATED this - dayof(b , 2011. 25 By:_____________ ORRIS PETERSQ\ ATTORHEYS AT LAW BANK OF AMERICA PLAZA 0 SOUTH FOURTH STREET SS VEGAS, NEVAOA 89101 5 702/474-9400 FAX 702/474-9422 Case 2:08-cv-00773-MMD-PAL Document 97 Filed 11/28/11 Page 5 of 5
