United States District Court, D. Nevada
MARCUS & MILLICHAP REAL ESTATE INVESTMENT SERVICES OF NEVADA, INC., MARCUS & MILLICHAP REAL ESTATE INVESTMENT SERVICES, INC., GORDON ALLRED, ALVIN NAJIB MANSOUR, KEVIN NAJIB MANSOUR, PERRY WHITE, and NENAD ZIVKOVIC, Plaintiffs,
JOSEPH DECKER, in his official capacity as Administrator of the Real Estate Division, Department of Business & Industry, State of Nevada, and NORMA JEAN OPATIK, NEIL SCHWARTZ, SHERRIE CARTINELLA, DEVIN REISS, and LEE K. BARRETT, in their official capacities as Commissioners of the Nevada Real Estate Commission, Defendants.
ORDER PLAINTIFFS' MOTION FOR TEMPORARY
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court is Gordon Allred, Alvin Najib Mansour, Kevin Najib
Mansour, Perry White, and Nenad Zivkovic (collectively,
“Individual Plaintiffs”)' Renewed Motion for
Temporary Injunction, (ECF No. 100). For the reasons stated
below, these motions are denied.
10, 2016, Individual Plaintiffs and Marcus & Millichap
Real Estate Investment Services, Inc. (“M&M”)
(collectively, “Plaintiffs”) filed a Complaint
and Request for Declaratory and Injunctive Relief against
Defendants, officials of the Nevada Real Estate Division
(“NRED”) and Nevada Real Estate Commission
(“NREC”). (ECF No. 1). Plaintiffs assert two
Section 1983 claims, alleging that a NREC real estate
regulation 1) violates the Commerce Clause, and 2) violates
the First Amendment. Plaintiffs additionally seek declaratory
and injunctive relief.
12, 2017, Plaintiffs filed a Motion for Preliminary
Injunction. (ECF No. 47). Defendants filed a Response on July
25, 2017. (ECF No. 58). The Court held a hearing on the
Motion on July 26, 2017, and denied the Motion without
prejudice with leave to refile, as the administrative
hearings which the Plaintiffs sought to enjoin were continued
from August to December. (ECF No. 63). The Court also granted
in part and denied in part a Motion to Compel, (ECF No. 45),
at the hearing.
August 25, 2017, Plaintiffs and Defendants filed
Cross-Motions for Summary Judgment. (ECF Nos. 71-72). The
same day, Plaintiffs also filed a Statement of Material Facts
regarding their Motion for Summary Judgment. (ECF No. 74).
The parties filed Responses on September 15, 2017. (ECF Nos.
84-85). Replies were filed on September 29, 2017. (ECF Nos.
92, 93). The International Council of Shopping Centers, The
Commercial Real Estate Development Association, and National
Multifamily Housing Council (collectively, “Interested
Parties”) filed a Motion for Leave to File Amicus Brief
in Support of Plaintiffs on November 10, 2017. (ECF No. 96).
The proposed amicus brief is attached to the Motion. (ECF No.
November 14, 2017, Individual Plaintiffs filed an Emergency
Motion to Renew the  Motion for Preliminary Injunction.
(ECF No. 100). M&M filed a Joinder on November 15, 2017.
(ECF No. 103). Defendants filed a Response to the Motion for
Leave to File Amicus Brief on November 16, 2017. (ECF No.
108). Defendants filed a Response to the Emergency Motion on
November 20, 2017. (ECF No. 111). M&M submitted a
Supplemental Brief on the Renewed Motion on December 1, 2017.
(ECF No. 113).
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). To obtain a
preliminary injunction, a plaintiff must establish four
elements: “(1) a likelihood of success on the merits,
(2) that the plaintiff will likely suffer irreparable harm in
the absence of preliminary relief, (3) that the balance of
equities tip in its favor, and (4) that the public interest
favors an injunction.” Wells Fargo & Co. v. ABD
Ins. & Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th
Cir. 2014), as amended (Mar. 11, 2014) (citing
Winter, 555 U.S. 7, 20 (2008)). A preliminary
injunction may issue under the “serious
questions” test. Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (affirming
the continued viability of this doctrine
post-Winter). According to this test, a plaintiff
can obtain a preliminary injunction by demonstrating
“that serious questions going to the merits were raised
and the balance of hardships tips sharply in the
plaintiff's favor, ” in addition to the other
Winter elements. Id. at 1134-35 (citation
Renewed Motion for Temporary Injunction
to analyzing the request for injunction, the Court will
briefly discuss the regulatory and statutory framework at
issue in this case.
Nevada's cooperative certificate law
law permits out-of-state licensed real estate brokers
cooperating with Nevada brokers to engage in real estate
transactions. Nev. Rev. Stat. § 645.605. Pursuant to
this law, “[t]he Administrator [of the Real Estate
Division] shall have authority to issue certificates
authorizing out-of-state licensed brokers to cooperate with
Nevada brokers, and the [Nevada Real Estate] Commission shall
have authority to promulgate rules and regulations
establishing the conditions under which such certificates
shall be issued and canceled . . . .”Id.
Nevada Administrative Code (“NAC”) Section
645.185 contains the rule for how cooperative certificates
may operate. Subsection 11, the provision at issue, provides:
“An out-of-state broker may not use a cooperating
broker's certificate as authority to sell or attempt to
sell real estate in Nevada to a resident of Nevada. Such a
certificate may be used only for the purpose of allowing the
out-of-state broker or salesman to offer real estate in
Nevada for sale to a person other than a resident of
Nevada.” Plaintiffs argue in their Complaint that the