-LRL Multibank 2009-1 RES-ADC Venture, LLC v. Garretson et al, No. 2:2010cv01396 - Document 11 (D. Nev. 2010)
Court Description: ORDER granting 9 Motion to Enlarge Time for Service and to Serve Defendant David A. Garretson Pursuant to 14.090. Signed by Magistrate Judge Lawrence R. Leavitt on 12/17/10. (Copies have been distributed pursuant to the NEF - ECS)
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-LRL Multibank 2009-1 RES-ADC Venture, LLC v. Garretson et al 7 Cam Ferenbach, NV Bar No. 96 cferenbach@lionelsawyer.com Timothy R. Mulliner, NV Bar No. 10692 tmulliner@lionelsawyer.com Ketan D. Bhirud, NV Bar No. 10515 kbhirud@lionelsawyer.com LIONEL SAWYER & COLLINS 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 Telephone: (702) 383-8888 Facsimile: (702) 383-8845 8 Doc. 11 Attorneys for Plaintiff 1 2 3 4 5 6 9 UNITED STATES DISTRICT COURT 10 11 12 DISTRICT OF NEVADA MULTIBANK 2009-1 RES-ADC VENTURE, LLC, a Delaware limited liability company; 13 14 15 16 17 Case No.: 2:10-cv-1396-RLH-LRL Plaintiff, v. DAVID A. GARRETSON, an individual; and KELLY A. MUSLER, an individual; MOTION TO: (1) ENLARGE THE TIME FOR SERVICE; and (2) SERVE DEFENDANT DAVID A. GARRETSON PURSUANT TO 14.090 Defendants. 18 Plaintiff Multibank 2009-1 RES-ADC Venture, LLC moves the Court for an order 19 enlarging the time for service of process upon Defendant David A. Garretson ("Garretson") and 20 authorizing Plaintiff to serve Garretson pursuant to NRS 14.090. This motion is based upon the 21 following memorandum of points and authorities, the pleadings and papers on file, the attached 22 Affidavit of Due Diligence, and any oral argument which may be requested by the Court. 23 LIONEL SAWYER & COLLINS 24 25 26 27 By: /s/ Timothy R. Mulliner Cam Ferenbach, NV Bar No. 96 Timothy R. Mulliner, NV Bar No. 10692 Ketan D. Bhirud, NV Bar No. 10515 Attorneys for Plaintiff 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW 1700 BANK OF AMERICA PLAZA 300 SOUTH FOURTH ST. LAS VEGAS, NEVADA 89101 (702) 383-8888 Dockets.Justia.com 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Since filing its Complaint on August 16, 2010 [Doc. 1], Plaintiff has made multiple, 4 diligent efforts to serve Defendant David A. Garretson ("Garretson") by hand delivery of the 5 Complaint and Summons, but, to date, has been unsuccessful in those efforts. Plaintiff therefore 6 makes this motion—within the initial 120-day period for service—requesting that the Court 7 authorize service upon Garretson pursuant to NRS 14.090 and allowing Plaintiff additional time 8 to effect such service.. 9 10 II. A. FACTUAL SUMMARY DEFENDANTS DEFAULTED ON A $2,000,000 LOAN 11 Pursuant to a Promissory Note dated June 27, 2007 and a Construction Loan Agreement 12 of the same date (collectively, the “Note’), Silver State Bank extended a loan to Codi 13 Investments, LLC (the "Borrower") in the original principal amount of $2,000,000 (the “Loan”) 14 for the purpose of financing the construction of ten residential homes on real property commonly 15 known as 322 East Shelbourne Avenue, Las Vegas, Nevada (the “Property”). The Borrower 16 agreed to repay the Loan by making monthly payments until the maturity date of December 27, 17 2008, at which time the remaining principal and all accrued unpaid interest would become due. 18 In order to secure the Loan, the Borrower executed a Construction Deed of Trust dated June 27, 19 2007 (the “Deed of Trust”), which pledged the Property and all fixtures and improvements 20 thereon, as security for the Loan (the “Security”). 21 Pursuant to Commercial Guaranties dated June 27, 2007 (the “Guaranties”), Garretson 22 and Kelly A. Musler (the “Guarantors”) personally guaranteed all of the Borrower's obligations 23 under the Loan, including repayment. In September of 2008, Silver State Bank was closed by 24 the Nevada Financial Institutions Division and the Federal Deposit Insurance Corporation (the 25 “FDIC”) was appointed as its receiver. Defendants’ obligations under the Note, Deed of Trust, 26 Guaranties, and related agreements (the “Loan Documents”) were then owed to the FDIC as the 27 receiver for Silver State Bank. 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW 1700 BANK OF AMERICA PLAZA 300 SOUTH FOURTH ST. LAS VEGAS, NEVADA 89101 (702) 383-8888 2 1 The Borrower thereafter defaulted on the Loan by failing to repay the same as agreed. 2 In February of 2010, Multibank purchased the Loan from the FDIC and thus became entitled to 3 enforce all rights of the lender under the Loan Documents. When Defendants failed to repay the 4 indebtedness owed, Plaintiff initiated this lawsuit n July 16, 2010. 5 B. 6 PLAINTIFF TIMELY SERVED CO-DEFENDANT MUSLER, BUT HAS BEEN UNABLE TO SERVE GARRETSON BECAUSE HIS RESIDENCE IS INACCESSIBLE DUE TO AN "UNMANNED" GATE 7 Plaintiff immediately began its efforts to serve Defendants upon filing the Complaint by 8 delivering copies of the Complaint and Summonses to Legal Process Service on August 18, 9 2010. See Affidavits of Service/Affidavit of Due Diligence attached as Exhibit 1. Service was 10 made upon Defendant Kelly A. Musler almost immediately on August 20, 2010 [Doc. 5]. 11 Process server Dawn Weislek ("Weislek") also attempted service upon Garretson on 12 August 18, 2010 at his home address of 292 East Ford, Las Vegas, Nevada (the "Ford Address"), 13 however, because the residence is only accessible through a locked gate, Weislek was unable to 14 effect service. See Exhibit 1, at p. 1. Weislek attempted service at the Ford Address again on 15 August 20 and August 22, 2010, but each time the residence was inaccessible because of the 16 locked gate and failure of the occupants to come out of the residence to grant Weislek entry. Id. 17 Process server Joe Ricondo therefore tried an alternative address of 3819 Haddock Avenue, Las 18 Vegas, Nevada on August 25, 2010, but learned that Garretson had not lived at that address for 19 approximately five years.1 Id. at p. 2. 20 Weislek returned to the Ford Address on August 31 and September 2, 2010 before trying 21 a third address of 240 West Maulding Avenue. Id. at p. 3. Weislek learned that Garretson had 22 moved from the residence on West Maulding Avenue to the Ford Address, but was again unable 23 to gain entry to the Ford address due to the locked gate.2 Id. 24 // 25 1 26 27 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW 1700 BANK OF AMERICA PLAZA 300 SOUTH FOURTH ST. LAS VEGAS, NEVADA 89101 (702) 383-8888 A search of the Clark County Assessor Records indicates that Garretson was the former owner of the 2819 Haddock Avenue residence. Id. at p. 6. 2 A search of the Clark County Assessor Records indicates that Garretson was also the former owner of the 240 West Maulding Avenue residence. Id. at p. 6. 3 1 Weislek's due diligence thereafter confirmed without question that Garretson currently 2 resides at the gated Ford Address. Id. at p. 6. Garretson is listed as the current owner of the Ford 3 Address on the Clark County Assessor Records. Id. Local, state and cross-referenced directories 4 list the Ford Address as Garretson's current address. Id. An online search engine related 5 Garretson to the Ford Address. Id. Current voter registration records show that Garretson is 6 registered to vote at the Ford Address. Id. A search with the Nevada Department of Motor 7 Vehicles shows that Garretson's current registration and driver's license list the Ford Address as 8 current.3 Lastly, a search with the United States Postmaster confirmed that mail to Garretson is 9 "Good as Addressed" to the Ford Address. Id. 10 All attempts to serve Garretson since September 2010 (and there have been many) have 11 therefore been at the Ford Address. Weislek attempted service on September 26, September 27, 12 twice on September 28, November 23, November 26, and November 28, 2010, but each time was 13 unable to access the residence due to the locked gate. Id. at pp. 4 and 5. While vehicles are 14 often parked at the residence and loud music is heard coming from the residence, the occupants 15 fail to respond to honking or other verbal attempts to make contact. Id. at p. 1 through 5. 16 Weislek has also left telephone messages for Garretson and notes of attempted service requesting 17 a return phone call on several occasions to no avail. Id. The process servers have even gone so 18 far as "staking out" the residence for extended periods of time in hopes of serving Garretson 19 while he is entering or exiting the gated residence, however those attempts have also been to no 20 avail. See Affidavits of Attempted Service attached as Exhibit 2. Quite simply, personal service 21 of the Complaint and Summons by hand delivery—at the residence which has been confirmed as 22 Garretson's current and accurate residence—is not possible due to the locked gate which 23 precludes access to the residence. 24 // 25 // 26 27 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW 1700 BANK OF AMERICA PLAZA 300 SOUTH FOURTH ST. LAS VEGAS, NEVADA 89101 (702) 383-8888 3 One of the DMV records listing the Ford Address is the vehicle registration for a 2002 Ford F350 pickup truck. Id. A Ford F350 was parked at the Ford Address on several occasions when service was attempted. Id. at pp. 1, 3 and 6. 4 1 2 III. A. LEGAL ARGUMENT SERVICE UPON GARRETSON SHOULD BE MADE BY MAIL PURSUANT TO NRS 14.090 3 The Nevada Legislature has specifically addressed situations such as the present where 4 personal service is frustrated because access to the defendants' residence is precluded due to a 5 locked gate which is not tended to by a guard. Specifically, NRS 14.090(a)(2) states as follows: 6 A person who resides at a location to which access is not reasonably available except through a gate may be lawfully served with any legal process in the manner provided in this section. If there is [ n]o guard posted at the gate and entry through the gate is not reasonably available, the court may, if it is satisfied by affidavit that those facts are true, allow service of process by mailing a copy thereof to the residence by certified or registered mail. 7 8 9 10 Id. 11 As demonstrated through the attached affidavits, access to Garretson's known residence 12 "is not reasonably available" due to it being surrounded by a locked gate. Despite significant 13 time, effort and expense, Plaintiff cannot access Garretson's residence so that copies of the 14 Complaint and Summons can be hand delivered to him. Accordingly, Plaintiff requests that the 15 Court allow service to be made upon Garretson pursuant to NRS 14.090(1)(b) by mailing copies 16 of those papers to the Ford Address by certified or registered mail. 17 B. THE TIME FOR SERVICE UPON GARRETSON SHOULD BE ENLARGED 18 FRCP 4(m) gives courts "great[] leeway to preserve meritorious lawsuits despite 19 untimely service of process." United States v. 2,164 Watches, 366 F.3d 767, 772. In fact, the 20 Ninth Circuit has previously held that "district courts have broad discretion under [FRCP 4(m)] 21 to extend time for service even without a showing of good cause." In re Sheehan, 253 F.3d 507, 22 513 (9th Cir. 2001) (emphasis added). "A district court may, for instance, extend time for 23 service retroactively after the 120-day service period has expired." 2,164 Watches, 366 F.3d at 24 772 (emphasis added) (citing Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003)). 25 Here, Plaintiff brings this motion within the original 120-day period and has 26 demonstrated good cause for an extension of time to serve Garretson. As demonstrated above, 27 Plaintiff caused summonses to be issued and delivered to process server Weislek almost 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW 1700 BANK OF AMERICA PLAZA 300 SOUTH FOURTH ST. LAS VEGAS, NEVADA 89101 (702) 383-8888 5 1 immediately upon this case being filed and diligently pursued its obligations to serve Defendants. 2 Those efforts were successful with regard to Defendant Kelly A. Musler, but due to Garretson's 3 residence being gated and "un-manned", Plaintiff has been unable to effect service by hand 4 delivery. Plaintiff tried alternative addresses, but found them to be outdated. After the process 5 server's due diligence confirmed the accuracy of the Ford Address, additional attempts were 6 made and the residence was even "staked out" on several occasions to work around the issue of 7 the locked gate. However, despite the best efforts of Plaintiff and the process servers, hand 8 delivery of the Complaint and Summons to Garretson is not possible. 9 The Court should also consider the lack of prejudice to Garretson which would result 10 from such an extension. Id., at 722, n.2 (citing West Coast Theater Corp. v. Portland, 897 F.2d 11 1519, 1528-29 (9th Cir. 1990); Floyd v. United States, 900 F.2d 1045, 1049 (7th Cir. 1990); MCI 12 Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3rd Cir. 1995); Fournier v. 13 Textron, Inc., 776 F.2d 532, 534 (5th Cir. 1985)). 14 case is in its infant stages and Garretson will have a full opportunity to participate in the defense 15 of this action once served. Moreover, this lawsuit is no "surprise" to Garretson who is fully 16 aware that he did not repay the $2,000,000 Loan he guaranteed.. Here, there would be no prejudice as this 17 In summary, this is precisely the type of case contemplated by FRCP 4(m), which gives 18 the Court broad discretion to enlarge the time for service in this straight-forward and meritorious 19 lawsuit. Plaintiff therefore respectfully requests an extension of the time for service so that 20 service can be made pursuant to NRS 14.090 should the Court authorize such service. Should 21 the Court deny Plaintiff's request for service pursuant to that statute, additional time will be 22 needed to continue attempts to serve Garretson and allow Plaintiff to bring a motion for service 23 by publication, if necessary. 24 // 25 // 26 // 27 // 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW 1700 BANK OF AMERICA PLAZA 300 SOUTH FOURTH ST. LAS VEGAS, NEVADA 89101 (702) 383-8888 6 1 IV. CONCLUSION 2 For the foregoing reasons, Plaintiff respectfully requests that the Court enter an order 3 enlarging the time for service of process upon Garretson and authorizing Plaintiff to serve 4 Garretson pursuant to NRS 14.090. 5 LIONEL SAWYER & COLLINS 6 7 8 9 By: /s/ Timothy R. Mulliner Cam Ferenbach, NV Bar No. 96 Timothy R. Mulliner, NV Bar No. 10692 Ketan D. Bhirud, NV Bar No. 10515 Attorneys for Plaintiff 10 11 12 13 14 15 16 17 12-17-10 18 19 20 21 22 23 24 25 26 27 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW 1700 BANK OF AMERICA PLAZA 300 SOUTH FOURTH ST. LAS VEGAS, NEVADA 89101 (702) 383-8888 7
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