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Boca Park Marketplace Syndications Group, LLC v. Ross Dress For Less, Inc.

United States District Court, D. Nevada

June 20, 2019

BOCA PARK MARKETPLACE SYNDICATIONS GROUP, LLC, Plaintiff,
v.
ROSS DRESS FOR LESS, INC., Defendant.

          ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER COURT TRIAL

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This case is a contract action in which Plaintiff Boca Park Marketplace Syndications Group, LLC (“Boca Park”) alleges that a co-tenancy clause in its lease agreement with Defendant Ross Dress for Less, Inc. (“Ross”) constitutes an unenforceable liquidated damage. The Court held an eight-day bench trial in this case from April 30, 2018 through May 10, 2018. The Court rules in favor of Ross and against Boca Park based on the following findings of fact and conclusions of law.

         II. PROCEDURAL HISTORY

         On April 18, 2016, Boca Park filed a Complaint against Ross in the Eighth Judicial District Court in Clark County, Nevada. ECF No. 1-2. Boca Park asserts the following causes of action: (1) declaratory judgment, declaring that the co-tenancy provisions in the commercial lease at issue constitute the imposition of a penalty and are unenforceable, and (2) breach of contract. Ross filed a Notice of Removal on the grounds of diversity jurisdiction on May 27, 2016. ECF No. 1.

         On June 13, 2016, Ross filed an Answer and Counterclaim to the Complaint. ECF No. 6. Ross brings its counterclaim seeking a declaratory judgment, declaring that the co-tenancy provisions in the lease and lease amendment, together with the Substitute Rent provision contained therein, were negotiated at arm's length between the parties of equal standing and are enforceable. Boca Park filed an Answer to the Counterclaim on June 20, 2016. ECF No. 9.

         In May 2017, Boca Park and Ross each filed Motions for Summary Judgment. ECF Nos. 69, 72, 84. The Court heard oral argument on the motions on March 20, 2018. ECF No. 101. In an order issued March 28, 2018, the Court denied each Motion for Summary Judgment. ECF No. 103. The Court determined that factfinding was required for the Court to evaluate whether the cotenancy provision was a liquidated damages provision and whether it was enforceable. The Court therefore ordered that the case proceed to trial.

         The Court held a pretrial conference on June 7, 2018 and a calendar call on August 28, 2018. ECF Nos. 108, 134. The Court conducted a bench trial on September 4, 2018 and heard closing arguments on October 18, 2018. ECF Nos. 139, 150.

         III. JURISDICTION AND VENUE

         This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332, as the parties are citizens of different states and the amount in controversy exceeds $75, 000. Venue is proper because the commercial lease agreement at issue relates to property within Clark County, Nevada.

         IV. FINDINGS OF FACT

         Federal Rule of Civil Procedure 52(a)(1) requires the Court to “find the facts specially and state its conclusions of law separately.” Fed.R.Civ.P. 52(a)(1). The court must make findings sufficient to indicate the factual basis for its ultimate conclusion. Kelley v. Everglades Drainage District, 319 U.S. 415, 422 (1943). The findings must be “explicit enough to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground on which the trial court reached its decision.” United States v. Alpine Land & Reservoir Co., 697 F.2d 851, 856 (9th Cir.), cert. denied, 464 U.S. 863 (1983) (citations omitted).

         Accordingly, following the bench trial and having reviewed all of the evidence and observed all of the witnesses, the Court makes the following findings of fact in this case.

         A. Parties / Background

         1. Boca Park Shopping Center (“the Shopping Center”) is owned by an entity called Triple Five Group (“Triple Five”). Triple Five has controlled the Shopping Center through its affiliates, including Plaintiff Boca Park, from the time of its development to the present.

         2. Triple Five is a sophisticated, multi-national real estate company with extensive experience in ...


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