United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE.
before the Court is the Report and Recommendation (“the
Report”) of the Honorable United States Magistrate
Judge Cam Ferenbach, (ECF No. 1123). Interested Parties El
Dorado Trailer Sales, LLC (“El Dorado Trailer
Sales”), E.T.S. Ventures, LLC (“E.T.S.
Ventures”), and Dale E. Becker (“Becker”)
(collectively “El Dorado”) filed an Objection,
(ECF No. 1124), and the appointed Monitor over the
Monitorship Estate, Thomas McNamara (“the
Monitor”), filed a Response to the Objection, (ECF No.
1128). For the reasons discussed below, the Court will accept
and adopt in full Judge Ferenbach's Report and
Recommendation to the extent that it is not inconsistent with
underlying Motion for an Order to Show Cause, (ECF No. 1106),
arises out of an Asset Freeze Order entered by the Court on
March 31, 2016. This Order froze the assets of a number of
Defendants including Level 5 Motorsports, LLC (“Level 5
Motorsports”). (See Asset Freeze Order, ECF
No. 960). On August 24, 2016, the Federal Trade Commission
(“FTC”) filed an Emergency Motion to Enforce the
Asset Freeze Order. (See Emergency Mot., ECF No.
1031). The FTC argued that a fifty-three-foot luxury trailer
(the “Trailer”) was an asset of Level 5
Motorsports and thus subject to the Asset Freeze Order.
(Id.). On August 25, 2016, the Court granted the
Emergency Motion to Enforce the Asset Freeze Order
(“Enforcement Order”), deemed the Trailer an
asset of Level 5 Motorsports, and ordered Becker to cooperate
with the FTC. (See Enforcement Order, ECF No. 1036).
November 30, 2016, the Monitor was appointed to oversee
Defendants' assets post judgment. (See Order
Appointing Monitor and Freezing Assets (“Appointment
Order”), ECF No. 1099). On January 24, 2017, the
Monitor moved for the instant Order to Show Cause why
contempt and sanctions should not be issued against El
Dorado. (See Emergency Mot. for Order to Show Cause
(“Mot. for Cause”), ECF No. 1106). The instant
Motion alleges that Becker attempted to sell the Trailer and
commenced an action in Ohio (“Ohio Action”) for
quiet title to the Trailer. (See Mot. for Cause
9:3-15, 10:16, ECF No. 1106). The Monitor argues that both
actions violated the Enforcement Order entered on August 25,
2016. (See Mot. for Cause 12:5-9, ECF No. 1106).
instant action was referred to Judge Cam Ferenbach pursuant
to 28 U.S.C. § 636(b)(1)(B) and District of Nevada Local
Rule IB 1-4. Judge Ferenbach recommended that this Court
enter an order granting the Monitor's Motion for an Order
to Show Cause. (See R. & R., ECF No. 1123).
may file specific written objections to the findings and
recommendations of a United States Magistrate Judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
D. Nev. R. IB 3-2. Upon the filing of such objections, the
Court must make a de novo determination of those portions of
the Report to which objections are made. Id. The
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the Magistrate Judge. 28
U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).
Dorado objects to the Report and Recommendation by claiming
that personal jurisdiction was not waived, and it believes
that its actions were not contemptuous. (See
generally Obj., ECF No. 1124). The Court will address
each objection in turn.
Personal Jurisdiction Objection
a defendant to be subject to general in personam
jurisdiction, it must have such continuous and systematic
contacts with the forum that the exercise of jurisdiction
does not offend traditional notions of fair play and
substantial justice.” Reebok Int'l Ltd. v.
McLaughlin, 49 F.3d 1387, 1391 (9th Cir. 1995). Rule
12(b)(2) allows a party to assert that the court lacks
personal jurisdiction over it. Fed.R.Civ.P. 12(b)(2). If the
court lacks personal jurisdiction, it cannot issue contempt
against a party. See Reebok, 49 F.3d at 1388
(holding that the contempt order must be reversed because the
district court lacked personal jurisdiction). However,
“[a] party waives any defense listed in Rule
12(b)(2)-(5) by . . . failing to either make it by motion
under this rule; or include it in a responsive pleading or in
an amendment allowed by Rule 15(a)(1) as a matter of
course.” Fed.R.Civ.P. 12(h).
El Dorado objects to the recommendation that personal
jurisdiction was waived for three reasons: “(1) under
black letter law the Motion to Dissolve is not a pleading;
(2) the Motion to Dissolve expressly raises defective
personal jurisdiction; and (3) one of the alleged contemnors
was not even part of the Motion to Dissolve.”
(See Obj. 7:1-4, ECF No. 1123).
the fact that a motion to dissolve is not a pleading has no
bearing on waiver of any defense under Rule 12(b)(2)-(5).
See American Ass'n of Naturopathic Physicians v.
Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000) (holding
that just because a party's “first filing was not
dubbed a ‘Rule 12' motion is of no
significance”). “The rule applies with equal
effect no matter what is the title of the pleading.”
Id. As such, El Dorado's first argument fails