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Marcus & Millichap Real Estate Investment Services of Nevada, Inc. v. Decker

United States District Court, D. Nevada

December 3, 2017

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,
v.
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 INJUNCTION

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. BACKGROUND

         On June 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.

         On July 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.

         On 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. 96-1).

         On November 14, 2017, Individual Plaintiffs filed an Emergency Motion to Renew the [47] 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).

         II. LEGAL STANDARD

         A 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 omitted).

         III. DISCUSSION

         a. Renewed Motion for Temporary Injunction

         Prior to analyzing the request for injunction, the Court will briefly discuss the regulatory and statutory framework at issue in this case.

         i. Nevada's cooperative certificate law

         Nevada 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 . . . .”[1]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 ...


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