United States District Court, D. Nevada
GYPSUM RESOURCES, LLC, a Nevada limited liability company, Plaintiff,
CLARK COUNTY, a political subdivision of the State of Nevada; and CLARK COUNTY BOARD OF COMMISSIONERS, Defendants.
REPORT AND RECOMMENDATION ECF NO. 17
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff's Motion for Order
Referring Civil Action to United States Bankruptcy Court,
District of Nevada. ECF No. 17.
Motion, Plaintiff requests an order from the United States
District Court referring the instant civil action to the
United States Bankruptcy Court, District of Nevada.
Id. at 1:25-2:3. Plaintiff also asks the Court take
judicial notice of “all pleadings filed in the Chapter
11 Cases . . . pursuant to Fed.R.Evid. 201.”
Id. at 2:3-4. Vices, LLC (“Vices”) filed
a Joinder to Plaintiff's Motion. ECF No. 23. To date,
Defendants have not replied to Plaintiff's Motion.
courts have original jurisdiction over all civil proceedings
arising under Title 11 of the Bankruptcy Code, as well as
those “arising in or related to cases under [T]itle
11.” 28 U.S.C. § 1334(b). A district court may
refer any of these proceedings to the bankruptcy court for
that district. Id. § 157(a). “Upon
referral, the bankruptcy court ‘may hear and determine
all cases under title 11 and all core proceedings arising
under title 11, or arising in a case under title
11.'” Grantham v. Timothy Cory &
Assocs., No. 2:11-cv-01569-PMP-VCF, 2012 WL 174398, *2
(D. Nev. Jan. 20, 2012) (citing 28 U.S.C. § 157(b)(1)).
A core proceeding is any case that is brought under, arises
under or is “related to” a case brought under
Title 11 of the United States Code. 28 U.S.C. § 157(a).
Core proceedings include, inter alia, “matters
concerning the administration of the estate” and
“other proceedings affecting the liquidation of the
assets of the estate. . . . ” Id. §§
157(b)(2)(A) and (O).
explained in Plaintiff's Motion, its First Amended
Complaint “Plaintiff brings eight (8) claims for relief
. . . against Defendants, based on the actions they have
taken and/or have failed to take with respect to
Plaintiff's approximately 2, 400 acres of real property
encompassing Blue Diamond Hill and the Hardie Gypsum Mine
located in Clark County, Nevada.” ECF No. 17 ¶ 4.
As stated by Plaintiff, the Amended Complaint seeks “a
petition for a writ of mandamus requiring Defendants to deal
in good faith with Plaintiff's zoning application”
the following Claims, among others: (1) for violation of the
equal protection clause of the Fourteenth Amendment of the
United States Constitution based on the Defendants'
failure to timely process and fairly adjudicate
Plaintiff's zoning application; (2) for breach of
contract; (3) for breach of the implied covenant of good
faith and fair dealing; and (4) for inverse condemnation
because Defendants' actions have resulted in a de facto
taking of the Gypsum Property.
Id. ¶ 5 (internal citation omitted).
pending before United States Bankruptcy Judge Mike Nakagawa
are the Chapter 11 bankruptcy cases filed by Plaintiff and
its wholly owned subsidiary, Gypsum Resources Materials, LLC
(“GRM, ” and together with Plaintiff, the
“Debtors”). Id. at 1:25-2:3. Debtors
continue to possess their property and are operating and
managing their business pursuant to Bankruptcy Code
§§ 1107, 1108. Id. ¶ 7.
undersigned recommends that the instant civil action be
referred to the Bankruptcy Court as this matter constitutes a
core proceeding under 28 U.S.C. § 157(a). In its Chapter
11 filings, Plaintiff alleges that the “Gypsum
Property, together with Plaintiff's Claims against
Defendants relating thereto, are among the few assets in
Plaintiff's Bankruptcy Estate and, arguably, the most
important ones.” ECF No. 17 ¶ 10. “[T]he
value of the Gypsum Property and the validity of
Plaintiff's claims against Defendants (which
significantly impact the value of the Gypsum Property) are
central to the formulation of Plaintiff's plan of
reorganization in its Chapter 11 case, ” and the
purported value of the Gypsum Property may yield “among
the most promising potential sources of recovery for
Plaintiff's creditors.” Id. ¶ 11.
Vices joins Plaintiff in asking this Court to refer the
instant civil action to the Bankruptcy Court because Vices
loaned a principal amount of $500, 000.00 to the Plaintiff,
which is “secured by a portion of the Gypsum
Property.” ECF No. 23 at 2:7-9. “Vices has an
interest in ensuring that there is a source of recovery
available to Vices, so it can recover all amounts owed to it
pursuant to the Loan.” Id. at 2:13-15.
Clearly, Plaintiffs claims in the instant civil action affect
the administration and liquidation of assets of the
Bankruptcy Estate and, therefore, this matter constitutes a
core proceeding warranting referral of the matter to
requests that the District Court take judicial notice of all
pleadings filed in the Chapter 11 Cases. “[U]nder
Fed.R.Evid. 201, a court may take judicial notice of matters
of public record.” Lee v. City of Los Angeles,
250 F.3d 668, 688-89 (9th Cir. 2001) (internal citation and
quotation marks omitted). However, “a court may not
take judicial notice of a fact that is ‘subject to
reasonable dispute.'” Id. at 689,
citing Fed. R. Evid. 201(b). Because the pleadings
filed in the Chapter 11 Cases concern disputed facts stated
in public records, the undersigned recommends that the
District Court decline to take judicial notice of the same.
IT IS HEREBY RECOMMENDED that Plaintiffs Motion for Order
Referring Civil Action to United States Bankruptcy Court,
District of Nevada (ECF No. 17) be GRANTED in part and DENIED
FURTHER RECOMMENDED that this matter be referred to the
United States Bankruptcy Court for the District of Nevada,
Case Number BK-S-14796-MKN.
FURTHER RECOMMENDED that judicial notice of all pleadings
filed in ...