United States District Court, D. Nevada
T. BRENNER, ESQ. Nevada Bar No. 8386 JESSE RANSOM, ESQ.
Nevada Bar No. 13565 Akerman LLP Attorneys for Plaintiff Bank
of America, N.A.
NEILSON COLE SELTZER & GARIN, P.C. KALEB D. ANDERSON,
ESQ. Nevada Bar No. PETER E. DUNKLEY, ESQ. Nevada Bar No.
JOSEPH P. GARIN, ESQ. Nevada Bar No. 9900 Attorneys for
defendant Rainbow Bend Homeowners Association.
P. CROTEAU & ASSOCIATES, LTD. ROGER P. CROTEAU, ESQ.
Nevada Bar No. TIMOTHY RHODA, ESQ. Nevada Bar No. Attorneys
for defendants Nida Mir and Laiq Mir.
STIPULATION AND ORDER TO STAY ALL DISCOVERY PENDING
RESOLUTION OF BANA'S MOTION FOR SUMMARY JUDGMENT
to LR 6-1, Bank of America, N.A. (BANA),
Rainbow Bend Homeowners Association
(Rainbow), and Laiq and Nida Mir (the
Mirs) (collectively referred to as the
parties) hereby stipulate and agree to stay
all remaining discovery and deadlines to file dispositive
motions pending adjudication of Plaintiff's pending
Motion for Partial Summary Judgement.
2, 2015, BANA filed its original complaint against
defendants, seeking, inter alia, a declaratory
judgment Rainbow's foreclosure sale did not extinguish
the deed of trust. [ECF No. 1]. On August
12, 2016, the Ninth Circuit issued its decision in Bourne
Valley Court Tr. v. Wells Fargo Bank, N.A., 832 F.3d
1154, 1159-60 (9th Cir. 2016), holding NRS 116 to be facially
unconstitutional. Bourne Valley filed a petition for writ of
certiorari of the Ninth Circuit's decision before the
United States Supreme Court on April 3, 2017. See Bourne
Valley Court Tr. v. Wells Fargo Bank, NA.,
United States Supreme Court Case No. 16A753, Docket No.
16-208. On June 26, 2017, the Supreme Court denied the
petition for review. Id. On January 26, 2017, the
Nevada Supreme Court declined to follow Bourne Valley.
Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo
Home Mortg., a Div. of Wells Fargo Bank, N.A., 388 P.3d
970, 974 (Nev. 2017). On April 21, 2017, the U.S. District
Court, District of Nevada certified a question to the Nevada
Supreme Court regarding the construction and interpretation
of NRS 116. SFR Investments Pool 1, LLC v. The Bank of
New York Mellong fka The Bank of New York as Trustee, et
al.Case No. 2:16-cv-02561-RFB-PAL, Nevada Supreme Court
No. 72931. Specifically, Judge Boulware certified the
question of whether NRS 116.31168, as it existed prior to
October 1, 2015, required homeowners associations to provide
notices of default and/or sale to first deed of trust
holders, even if they did not request notice. The certified
question is in the briefing stage, with the opening brief and
response brief having been filed. The Nevada Supreme
Court's determination of this certified question may
overrule or otherwise affect Bourne Valley.
court recently held that under Bourne Valley,
"no conceivable set of circumstances exists under which
the provisions [of NRS § 116.3116] would be valid."
See Green Tree Servicing LLC v. Rainbow Bend Homeowners
Ass'n, Case No. 3:15-cv-00297-MMD-WGC, 2017 WL
4712614, *2-3 (D. Nev. Sept. 20, 2017) (actual notice
irrelevant because Bourne Valley held NRS 116 was
facially unconstitutional). The Defendants believe that the
finding that actual notice is irrelevant is in error. The
Defendants further dispute the force and effect of Bourne
Valley. However, to the extent that Court continues to
hold that actual notice is irrelevant and rule as it has in
the past, further discovery by the parties is not needed to
resolve this legal question.
October 3, 2017, BANA filed its motion for partial summary
judgment based on Bourne Valley pending the outcome
of this motion. [ECF No. 74]. Plaintiff
asserts that the motion for partial summary judgment raises a
purely legal issue that can be resolved without discovery:
the HOA Sale cannot extinguish BANA's interest because
the Nevada HOA foreclosure statute is facially
unconstitutional, as set forth in Bourne Valley Court Tr.
v. Wells Fargo Bank, N.A., 832 F.3d 1154, 1159 (9th Cir.
2016). As set forth above, the Defendants do not necessarily
agree that discovery is not required if the Plaintiff
disputes receipt of actual notice; however, given the
Court's recent stance, discovery may be a wasted effort
at this time. At the very least, the Court's decision on
the pending Motion for Summary Judgment may provide direction
regarding the discovery that may be required, if any.
interests of judicial economy, the parties respectfully
request all discovery be stayed until the court can resolve
plaintiff's pending motion.
closes in this matter on December 7, 2017, and dispositive
motions are due on or before January 8, 2018. The parties
have served initial disclosures, and BANA and Rainbow have
served and responded to written discovery. BANA has disclosed
an expert witness report and conducted non-party discovery
via subpoenas duces tecum. No depositions have been
taken at this time. BANA intends to depose a 30(b)(6)
representative of Rainbow, a 30(b)(6) representative of the
HOA Trustees, Kern & Associates, Ltd., Defendants Laiq
and Nida Mir, and the non-party individuals Justin Branson
and Erica Branson. All of the depositions will take place in
The Case Should be Stayed Pending Decision on Dispositive
evaluating the propriety of an order staying or limiting
discovery while a dispositive motion is pending, the court
considers the goal of Rule 1 of the Federal Rules of Civil
Procedure, which directs that the Rules shall 'be
construed and administered to secure the just, speedy, and
inexpensive determination of every action.'"
Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 602 (D.
Nev. 2011). This principle has guided the District of Nevada
to develop a three-part test governing discovery stays.
"First, the pending motion must be potentially
dispositive of the entire case or at least the issue on which
discovery is sought." Rosenstein v. Clark Cty. Sch.
Dist., No. 2:13-CV-1443-JCM-VCF, 2014 WL 2835074, at *3
(D. Nev. June 23, 2014) (citing Tradebay, 278 F.R.D.
at 600). "Second, the court must determine whether the
pending motion to dismiss can be decided without additional
discovery." Id. (citing Tradebay, 278