United States District Court, D. Nevada
before the court is LN Management LLC Series 7937 Sierra
Rim v. Pfeiffer et al, case number
case arises out of a dispute over property located at 7927
Sierra Rim Dr., Las Vegas, NV 89131 (“the
property”). The dispute centers around the effect of a
homeowner's association foreclosure sale on a first deed
September 25, 2013, plaintiff LN Management LLC Series 7937
Sierra Rim (“LN Management”) filed a complaint in
the Eighth Judicial District of Nevada. Plaintiff's
complaint asserts claims for quiet title and declaratory
relief. Plaintiff asserted its claims against the former
homeowners, Benjamin and Sabrina Pfeiffer (“the
Pfeiffers”), among others. Plaintiff never served the
Pfeiffers with the complaint or any other document related to
the instant action.
October 22, 2013, defendant CitiMortgage, Inc.
(“CMI”), filed a petition for removal. (ECF No.
1). Thereafter, for the next three years, the parties
submitted to the court numerous motions, stipulations, and
other filings. On May 5, 2015, Magistrate Judge Leen granted
a stipulation to intervene filed by Federal Housing Finance
Agency (“FHFA”) and Federal National Mortgage
Association's (“Fannie Mae”). On May 12,
2015, CMI filed counterclaims against plaintiff for quiet
title, declaratory relief, and unjust enrichment. (ECF No.
On July 14, 2015, Fannie Mae filed counterclaims against
plaintiff for quiet title and declaratory relief. (ECF No.
On July 28, 2015, FHFA filed counterclaims against plaintiff
for quiet title and declaratory relief. (ECF No. 49). On
March 9, 2017, the court granted defendants and
counterclaimants FHFA and Fannie Mae's motion for summary
judgment on their claims for quiet title and declaratory
relief. (ECF No. 100).
5, 2017, the court issued an order to show cause as to why
the court should not dismiss the action. (ECF No. 103). On
July 12, 2017, defendant CMI filed its response. (ECF No.
104). CMI explained that the parties had to that point been
unclear on the effect that the court's order granting
defendant FHFA's motion for summary judgment (ECF No.
100) had on CMI and LN Management's claims. (ECF No.
104). CMI took the position that resolution of Fannie Mae and
FHFA's claims necessarily meant that CMI was likewise
entitled to summary judgment against plaintiff. Id.
CMI asked the court to consider granting summary judgment
sua sponte. Id.
July 12, 2017, plaintiff filed its response to the order to
show cause. (ECF No. 105). In plaintiff's response, it
argues that the Ninth Circuit decision in Weeping
Hollow holds that this court lacks subject matter
jurisdiction over the action. Id. In the
alternative, plaintiff states that if the court has
jurisdiction to hear the case, that the court resolve the
outstanding claims “so that the matter may conclude and
the time invested by the Court, and the parties, isn't
just for naught.” Id. at 3.
28, the court entered an order giving CMI seven days to
respond plaintiff's claim that, pursuant to Weeping
Hollow, the court lacks subject matter jurisdiction.
(ECF No. 106). On August 4, CMI filed its response. (ECF No.
courts unquestionably possess the power to enter summary
judgment sua sponte.” Norse v. City of Santa
Cruz, 629 F.3d 966, 971 (9th Cir. 2010). In order to
grant summary judgment sua sponte, the losing party must have
“reasonable notice that the sufficiency of [its] claim
will be in issue.” Id. at 971-72 (citing
United States v. 14.02 Acres of Land More or Less in
Fresno Cnty., 547 F.3d 943, 955 (9th Cir. 2008).
“Reasonable notice implies adequate time to develop the
facts on which the litigant will depend to oppose summary
judgment.” Id. at 972 (citing Portsmouth
Square, Inc. v. Shareholders Protective Comm., 770 F.2d
866, 869 (9th Cir. 1985)).
asserts that the Ninth Circuit decision in Weeping
Hollow divests this court of subject matter jurisdiction
over the instant dispute. Therefore, plaintiff continues,
this court must remand the case to state court and
accordingly vacate all prior orders in the case. CMI asserts
that plaintiff fraudulently joined the Pfeiffers, and the
court should therefore not consider them for purposes of
determining whether diversity jurisdiction exists.
Alternatively, CMI argues that the court should consider the
Pfeiffers nominal defendants.
initial matter, the court will dismiss defendants Benjamin
and Sabrina Pfeiffer from the action. Plaintiff has not
attempted to serve the Pfeiffers in the instant action, and
none of its briefings in the past three years make more than
passing mention of the Pfeiffers. Defendant CMI raised
fraudulent joinder concerns and noted plaintiff's failure
to serve the Pfeiffers as early as November 11, 2013, (ECF
No. 4) (CMI's statement regarding removed action), and as
recently as August 4, 2017 (CMI's response to the courts
order to show cause).
court noted plaintiff's failure to prosecute its claims
in its July 5, 2017, order to show cause. (ECF No. 101).
Plaintiff has received the adequate notice required by
Federal Rule of Civil Procedure 4(m) of its failure to serve
the Pfeiffers and the potential consequences of such failure.
As plaintiff has not served plaintiff after years of
litigation and multiple assertions that the Pfeiffers are not
a proper party to the ...