United States District Court, D. Nevada
ORDER DENYING MOTION FOR SUMMARY JUDGMENT [ECF NO.
P. GORDON, UNITED STATES DISTRICT JUDGE.
suit arises out of alleged agreements surrounding the auction
of 131 cars. Non-party Ron MacWhorter owned a collection of
cars that he was hoping to sell. Plaintiff Sam Wright
introduced MacWhorter to representatives of defendant Mecum
Auction, Inc. MacWhorter signed listing contracts with Mecum
for Mecum to auction the cars on his behalf. However, the
cars did not have marketable title. Plaintiffs Sam Wright and
Boulder City Toy Box (BCTB) provided services to obtain
marketable title in BCTB's name for the cars that were
then sold at the auction. The crux of the parties'
dispute is what their agreement was, if any, regarding the
payment for these services. The plaintiffs assert they were
entitled to a 6% commission along with repayment of costs of
procuring title. Mecum and MacWhorter contend there was no
plaintiffs sue for breach of contract, breach of the implied
covenant of good faith and fair dealing, and “tort in
bad faith breach.” ECF No. 1. The plaintiffs contend
Mecum paid MacWhorter the auction proceeds instead of paying
BCTB (who would take its commission and pay the balance to
MacWhorter), thus depriving the plaintiffs of their
commission for the services they performed in procuring
marketable title for the auctioned cars. They also allege
Mecum promised to pay the plaintiffs for the costs incurred
in titling the cars but has not done so.
moves for summary judgment, arguing that Mecum and the
plaintiffs could not have agreed to divert the sale proceeds
to BCTB because that would have modified the contract between
Mecum and MacWhorter (which required Mecum to pay the sale
proceeds to MacWhorter) without MacWhorter's consent and
without additional consideration. Mecum contends that because
there was no valid and enforceable contract, the
plaintiffs' other claims also fail as a matter of law.
plaintiffs respond that there is evidence that BCTB entered
into auction listing contracts with Mecum to sell the cars
with titles in BCTB's name. They argue they undertook
work to obtain marketable title so the auction could go
forward. They also contend the evidence shows Mecum agreed to
pay the plaintiffs the costs of obtaining marketable title
for the cars because Mecum made two payments toward that
previously advised Mecum that as the removing defendant it
bore the burden of establishing that subject matter
jurisdiction exists before final judgment would be entered.
ECF No. 17 (stating “the defendant remains responsible
for showing diversity jurisdiction actually exists before
judgment is entered”). Mecum has not presented any
evidence to prove the citizenship of each member of plaintiff
BCTB at the time the complaint was filed and at the time of
removal. See Johnson v. Columbia Properties Anchorage,
LP, 437 F.3d 894, 899 (9th Cir. 2006) (stating that
“an LLC is a citizen of every state of which its
owners/members are citizens”); Strotek Corp. v. Air
Transp. Ass'n. of Am., 300 F.3d 1129, 1131 (9th Cir.
2002) (stating diversity jurisdiction is determined at the
time the complaint is filed and when the action is removed).
I cannot discern whether I have jurisdiction to enter
judgment, so I deny Mecum's motion. However, because the
parties have briefed the issues, and because I nevertheless
would deny Mecum's motion on the merits, I address the
issues raised in the parties' briefs.
judgment is appropriate if the movant shows “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000); Sonner v. Schwabe N. Am.,
Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To
defeat summary judgment, the nonmoving party must produce
evidence of a genuine dispute of material fact that could
satisfy its burden at trial.”). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
Nevada law, “the plaintiff in a breach of contract
action [must] show (1) the existence of a valid contract, (2)
a breach by the defendant, and (3) damage as a result of the
breach.” Saini v. Int'l Game Tech., 434
F.Supp.2d 913, 919-20 (D. Nev. 2006). For a valid contract to
exist, there must be “an offer and acceptance, meeting
of the minds, and consideration.” May v.
Anderson, 119 P.3d 1254, 1257 (Nev. 2005).
“Parties may mutually consent to enter into a valid
agreement to modify a former contract.” Clark Cty.
Sports Enterprises, Inc. v. City of Las Vegas, 606 P.2d
171, 175 (Nev. 1980). Parol evidence and evidence of conduct
consistent with the asserted modification “may be used
to show an agreement to modify.” Id. Along
with mutual consent to the modification, there must also be
“additional consideration . . . to . . . modify the
existing contract between the parties.” Ins. Co. of
the W. v. Gibson Tile Co., 134 P.3d 698, 703 (Nev. 2006)
(en banc). Whether a contract exists is a question of fact.
May, 119 P.3d at 1257.
the evidence in the light most favorable to the plaintiffs as
the non-moving parties, a reasonable jury could find the
agreement to pay the plaintiffs' costs existed and that
MacWhorter agreed to it. Both Wright and a Mecum employee
aver that an agreement to pay the plaintiffs' costs
existed. ECF Nos. 30-4 at 8; 33 at 3. Mecum's Rule
30(b)(6) deponent, Gus Kozarzewski, was asked how Wright and
BCTB would be paid for the services performed. ECF No. 30-4
at 8. He testified “[w]hatever the title services that
we're charging Mr. Wright or [BCTB] would be paid by Mr.
MacWhorter via Mecum Auctions.” Id. It is
reasonable to infer from this testimony that MacWhorter
agreed to this arrangement, otherwise Mecum would breach its
contract with MacWhorter by deducting from his account funds
to be paid to the plaintiffs. Additionally, Wright avers that
Mecum has already made two payments toward these expenses.
ECF No. 33 at 5. A reasonable jury could find that conduct
consistent with the alleged modification shows all parties
agreed to the arrangement.
the contractual promise to pay BCTB the auction proceeds
first so it could collect its commission, Mecum admitted in
its motion that Wright testified MacWhorter verbally agreed
to that arrangement. ECF No. 30 at 9; see also ECF
No. 30-2 at 6 (Wright's testimony). However, Mecum did
not raise the possibility that the plaintiffs would not be
able to admit this statement into evidence until its reply
brief, thus depriving the plaintiffs of the opportunity to
respond. ECF No. 35 at 7. I ...