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

United States District Court, D. Nevada

July 8, 2019

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

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants' Renewed Motion for Summary Judgment (ECF No. 135), Plaintiffs' Motion for Summary Judgment (ECF No. 136), Plaintiffs' Supplemental Summary Judgment Brief (ECF No. 159), Defendants' Motion to Strike Portions of Amended Complaint (ECF No. 178), Plaintiffs' Motion for a Hearing (ECF No. 188), and Plaintiffs' Motion for Leave to File Plaintiffs' Supplemental Summary Judgment Brief (ECF No. 190). For the reasons stated below, summary judgment is granted in favor of Defendants, Defendants' Motion to Strike is denied, and Plaintiffs' Motion for a Hearing and Motion for Lave to File are denied.

         I. PROCEDURAL HISTORY

         On June 10, 2016, Plaintiffs Gordon Allred, Alvin Najib Mansour, Kevin Najib Mansour, Perry White, and Nenad Zivkovic (collectively, “Individual Plaintiffs”), Marcus & Millichap Real Estate Investment Services of Nevada, Inc. (“M&M”), and Marcus & Millichap Real Estate Investment Services, Inc. (“M&M National”) 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 Plaintiffs sought to enjoin were continued from August to December. (ECF No. 63).

         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 Emergency Renewal of Motion for a Temporary 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 Renewal of Motion on November 20, 2017. (ECF No. 111). Plaintiffs filed a Supplemental Brief in Support of the Motion for a Temporary Injunction on December 1, 2017. (ECF No. 113). The Court denied the Emergency Renewal of Motion on December 3, 2017. (ECF No. 115).

         On December 4, 2017, Plaintiffs appealed the Court's denial of injunctive relief to the Ninth Circuit. (ECF No. 115). On December 5, 2017, the Ninth Circuit denied Plaintiffs' emergency motion for an injunction pending the appeal of this Court's denial of a motion for preliminary injunction. (ECF No. 119). Plaintiffs voluntarily dismissed their appeal. (ECF No. 120).

         On February 6, 2018, the Court held a hearing on the parties' cross-motions for summary judgment. (ECF No. 129). The Court denied each parties' motion without prejudice.

         On February 26, 2018, Plaintiffs filed a Motion for Leave to File an Amended Complaint. (ECF No. 131). Defendants responded (ECF No. 138) and Plaintiffs replied (ECF No. 141).

         On March 6, 2018, Defendants filed the instant Renewed Motion for Summary Judgment (ECF No. 135) and Plaintiffs filed the instant Motion for Summary Judgment (ECF No. 136). Each party filed a response (ECF Nos. 139, 140) and a reply (ECF Nos. 143, 144).

         On June 27, 2018, Plaintiffs filed the instant Supplemental Summary Judgment Brief (ECF No. 159) and a Motion for Leave to File Plaintiffs' Supplemental Summary Judgment Brief (ECF No. 160). On September 20, 2018, the Court granted the Motion for Leave to File and set a hearing regarding the motions for summary judgment. (ECF No. 168). The Court denied Plaintiffs' Motion for Leave to File an Amended Compliant without prejudice, such that Plaintiffs could refile the motion after the Court ruled on the pending summary judgment motions.

         The Court held a hearing on October 10, 2018. (ECF No. 173). The Court permitted supplementation of the record regarding the legislative history of S.B. 69 and took the summary judgment motions under consideration. The Court also granted Plaintiffs' oral motion for reconsideration of its order denying leave to file an amended complaint. The Clerk of Court filed Plaintiffs' amended complaint on October 26, 2018. (ECF No. 175).

         On November 15, 2018, Defendants filed the instant Motion to Strike Portions of Amended Complaint. (ECF No. 178). Plaintiffs responded on November 21, 2018 (ECF No. 180) and Defendants replied on November 29, 2018 (ECF No. 181).

         On April 24, 2019, the Court held a status conference regarding the status of the case and related case 2:18-cv-02409-RFB-VCF. (ECF No. 187). On July 2, 2019, Plaintiffs filed a Motion for Leave To File. (ECF No. 190).

         II. FACTUAL FINDINGS

         The Court finds the following facts to be undisputed.

         M&M is a subsidiary of M&M National. M&M is headquartered in Calabasas, California and has offices in Las Vegas, Nevada and Reno, Nevada. M&M National is also headquartered in Calabasas, California and it has other subsidiaries throughout the United States. M&M and M&M National service commercial real estate investment needs for clients across the United States.

         Plaintiff Gordon Allred is First Vice President of Investments with M&M National. Allred holds a California broker's license and works out of a Millichap office in Ontario, California. He resides in California.

         Plaintiff Alvin Najib Mansour is Executive Vice President of Investments with M&M National. He is also president for the Manour Group, which is an entity affiliated with M&M National. Alvin Mansour holds a California broker's license and a Texas broker's license. He works out of a Millichap office in San Diego, California. He resides in California.

         Plaintiff Kevin Najib Mansour is Managing Partner for the Mansour Group, which is an entity affiliated with M&M National. Kevin Mansour holds a California salesperson's license and works out of the Mansour Group's San Diego, California office. He resides in California.

         Plaintiff Perry White is a Vice President of Investments with M&M National or M&M. White holds a Nevada broker's license and works out of the M&M office in ...


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