United States District Court, D. Nevada
before the court is cross-defendant Christopher Communities
at Southern Highlands Golf Club Homeowners Association's
(the “HOA”) motion to dismiss cross-claimant Alan
and Theresa Lahrs as Trustees of the Lahrs Family Trust's
(the “Lahrses”) answer to complaint, cross
claims, and third-party complaint for lack of diversity
jurisdiction. (ECF No. 92). Cross-defendant Kupperlin Law
Group, LLC (“Kupperlin) joined in the motion. (ECF No.
93). The Lahrses filed a response (ECF No. 99), to which the
HOA replied (ECF No. 101).
before the court is third-party plaintiff Lahrses' motion
for partial summary judgment for declaration of title
insurance coverage. (ECF No. 127). Third-party defendants
Commonwealth Land Title Insurance Company
(“Commonwealth”) and Lawyers Title Company of
Nevada (“Lawyers Title”) filed a response (ECF
No. 142), to which the Lahrses replied (ECF No. 144).
before the court is cross-defendant First 100, LLC's
(“First 100”) and third-party defendant Jay
Bloom's (“Bloom”) motion to compel
arbitration. (ECF No. 130). The Lahrses filed a limited
opposition. (ECF No. 133).
case has been thoroughly litigated, and its procedural
posture is staggering. As relevant to this order, the instant
action arises from a foreclosure sale of 11966 Port Labelle
Drive, Las Vegas, Nevada 89141. (ECF No. 1 at 3). The prior
owners of 11966 Port Labelle Drive were delinquent on their
HOA assessments. (ECF No. 74 at 2). Red Rock Financial
Services, acting on behalf of the HOA, recorded a notice of
delinquent assessment lien. Id.
to a purchase and sale agreement, the HOA assigned its right
to payment on the delinquency to First 100 and retained its
lien on the property. Id. Also pursuant to the
purchase and sale agreement, Kupperlin replaced Red Rock
Financial Services as the HOA's agent, and the HOA
promised that it would not send anyone to the foreclosure
sale to bid “in any amount in excess of the Opening
Bid” of $99. (ECF No. 59-2 at 9).
was instructed not to postpone any foreclosure sale, even if
few or no bidders were present.” (ECF No. 59-2 at 9).
As a result, Kupperlin foreclosed on the property. (ECF No.
74 at 2-3). First 100 purchased the for $151. Id. at
court has already granted summary judgment in favor of the
plaintiff Bank of New York Mellon (“BNYM”) and
quieted title in its favor; thus, its first priority lien
still encumbers the property. See generally id.
Lahrses filed a third-party complaint against Jay Bloom
(“Bloom”) and crossclaims against the HOA,
Kupperlin, and First 100. (ECF No. 75). The Lahrses allege
intentional and negligent misrepresentation against First
100, Bloom, and Kupperlin; fraudulent concealment against
First 100 and Bloom; fraud in the inducement against First
100; civil conspiracy against First 100, Bloom, Kupperlin,
and the HOA; and breach of the covenant of good faith and
fair dealing against First 100. Id.
Lahrses' also filed a third-party complaint against
Commonwealth and Lawyers Title seeking a judicial declaration
of insurance coverage and alleging breach of contract and
breach of the implied covenant of good faith and fair
dealing. (ECF No. 114). . . . . . .
Motion to dismiss
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
1989). Thus, federal subject matter jurisdiction must exist
at the time an action is commenced. Mallard Auto. Grp.,
Ltd. v. United States, 343 F.Supp.2d 949, 952 (D. Nev.
Rule of Civil Procedure 12(b)(1) allows defendants to seek
dismissal of a claim or action for a lack of subject matter
jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule
12(b)(1) is appropriate if the complaint, considered in its
entirety, fails to allege facts on its face sufficient to
establish subject matter jurisdiction. In re Dynamic
Random Access Memory (DRAM) Antitrust Litig., 546 F.3d
981, 984-85 (9th Cir. 2008).
the defendant is the moving party in a 12(b)(1) motion to
dismiss, the plaintiff is the party invoking the court's
jurisdiction. As a result, the plaintiff bears the burden of
proving that the case is properly in federal court to survive
the motion. McCauley v. Ford Motor Co., 264 F.3d
952, 957 (9th Cir. 2001) (citing McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)). More
specifically, the plaintiff's pleadings must show
“the existence of whatever is essential to federal
jurisdiction, and, if [plaintiff] does not do so, the court,
on having the defect called to its attention or on
discovering the same, must dismiss the case, unless the
defect be corrected by amendment.” Smith v.
McCullough, 270 U.S. 456, 459 (1926).
moving to dismiss under Rule 12(b)(1), the challenging party
may either make a “facial attack, ” confining the
inquiry to challenges in the complaint, or a “factual
attack” challenging subject matter on a factual basis.
Savage v. Glendale Union High Sch., 343 F.3d 1036,
1039 n.2 (9th Cir. 2003). For a facial attack, the court
assumes the truthfulness of the allegations, as in a motion
to dismiss under Rule 12(b)(6). Trentacosta v. Frontier
Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th
Cir. 1987). By contrast, when presented as a factual
challenge, a Rule 12(b)(1) motion can be supported by
affidavits or other evidence outside of the pleadings.
United States v. LSL Biotechs., 379 F.3d
672, 700 n.14 (9th Cir. 2004) (citing St. Clair v. City
of Chicago, 880 F.2d 199, 201 (9th Cir. 1989)).
Motion for summary judgment
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment ...