Capital One, National Association v. KK Real Estate Investment Fund, LLC et al, No. 2:2017cv02493 - Document 9 (D. Nev. 2018)

Court Description: ORDER Granting 6 Motion to Extend Time. See Order for deadlines. Signed by Judge Richard F. Boulware, II on 1/22/2018. (Copies have been distributed pursuant to the NEF - ADR)

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Capital One, National Association v. KK Real Estate Investment Fund, LLC et al 1 2 3 4 5 6 7 8 9 10 Abran E. Vigil Nevada Bar No. 7548 BALLARD SPAHR LLP 100 North City Parkway, Suite 1750 Las Vegas, Nevada 89106 Telephone: (702) 471-7000 Facsimile: (702) 471-7070 vigila@ballardspahr.com Matthew D. Lamb Nevada Bar No. 12991 BALLARD SPAHR LLP 1909 K Street NW, 12th Floor Washington, D.C. 20006 Telephone: (202) 661-2200 Facsimile: (202) 661-2299 lambm@ballardspahr.com Attorneys for Plaintiff (702) 471-7000 FAX (702) 471-7070 UNITED STATES DISTRICT COURT 12 LAS VEGAS, NEVADA 89106 BALLARD SPAHR LLP 11 100 NORTH CITY PARKWAY, SUITE 1750 Doc. 9 DISTRICT OF NEVADA 13 14 CAPITAL ONE, NATIONAL ASSOCIATION, a national banking association, 15 Plaintiff, Case No. 2:17-cv-02493-RFB-VCF MOTION TO EXTEND DEADLINE FOR SERVICE OF PROCESS 16 vs. 17 KK REAL ESTATE INVESTMENT FUND, LLC, a Nevada limited liability company; and TURNBERRY TOWERS EAST UNIT OWNERS ASSOCIATION, a Nevada non-profit corporation; 18 19 20 Defendants. 21 22 Pursuant to Fed. R. Civ. P. 4(m), plaintiff Capital One, National Association 23 (“Capital One”) moves to extend the deadline to effect service of process in this case 24 from December 26, 2017 to January 25, 2018. 25 MEMORANDUM OF POINTS AND AUTHORITIES 26 Plaintiff Capital One filed this action against defendants KK Real Estate 27 Investment Fund, LLC (“KKRE”) and Turnberry Towers East Unit Owners 28 Association (“Turnberry”) on September 26, 2017. Pursuant to Fed. R. Civ. P. 4(m) DMWEST #17339543 v1 Dockets.Justia.com 1 and 6(a)(1)(C), the current deadline for Capital One to effect service of process on 2 KKRE and Turnberry is December 26, 2017. 3 deadline by thirty days to January 25, 2017. Good cause exists to extend this 4 Fed. R. Civ. P. 4(m) generally requires a plaintiff to serve a defendant within 5 90 days after filing a complaint. However, “if the plaintiff shows good cause for the 6 failure, the court must extend the time for service for an appropriate period.” Fed. R. 7 Civ. P. 4(m). Rule 4(m) “requires a district court to grant an extension of time if good 8 cause is shown and permits the district court to grant such an extension even absent 9 good cause.” Mann v. Am. Airlines, 324 F.3d 1088, 1090 n.2 (9th Cir. 2003) (citing (702) 471-7000 FAX (702) 471-7070 amended in 2015 to shorten the presumptive time for service from 120 to 90 days, the 12 LAS VEGAS, NEVADA 89106 BALLARD SPAHR LLP Henderson v. United States, 517 U.S. 654, 662 (1996)). 11 100 NORTH CITY PARKWAY, SUITE 1750 10 advisory committee noted that “[s]hortening the presumptive time for service will 13 increase the frequency of occasions to extend the time.” Fed. R. Civ. P. 4, Notes of 14 Advisory Committee on 2015 Amendment. “More time may be needed, for example, 15 when a request to waive service fails, a defendant is difficult to serve, or a marshal is 16 to make service in an in forma pauperis action.” Id. When Rule 4(m) was 17 In this case, Capital One hired a process server to serve KKRE’s registered 18 agent, an individual named Cheung K Wok Chan. The process server attempted to 19 serve the registered agent on December 22, 2017 at 11:33 a.m. at the registered 20 agent’s address on file with the Nevada Secretary of State. Ex. 1. The process server 21 observed that the property appeared occupied, but the blinds were closed and no one 22 answered the door. Id. The process server attempted to serve the registered agent 23 again on December 26, 2017 at 11:57 a.m. A person in a neighboring suite confirmed 24 that the property was occupied, but again, there was no one present at the property. 25 Id. 26 Capital One also hired a process server to serve Turnberry’s registered agent, 27 Pinnacle Community Association Management. 28 serve the registered agent on December 22, 2017 at 11:31 a.m. at the registered 2 DMWEST #17339543 v1 The process server attempted to 1 agent’s address on file with the Nevada Secretary of State. Ex. 2. The process server 2 reported that the office was closed and there were no posted hours. Id. The process 3 server attempted to serve the registered agent again on December 26, 2017 at 10:24 4 a.m. Id. The office was again closed, and a sign indicated the office would remain 5 closed until December 27, 2017. Id. on the likelihood that Capital One will be able to serve them in the near future. The 10 office for Turnberry’s registered agent will apparently reopen tomorrow, December 11 27. Further, while no one was present at the office of KKRE’s registered agent on 12 (702) 471-7000 FAX (702) 471-7070 30-day extension based on Capital One’s prior efforts to serve defendants and based 9 LAS VEGAS, NEVADA 89106 agents for KKRE and Turnberry on two separate occasions. There is good cause for a 8 BALLARD SPAHR LLP To summarize, Capital One has diligently attempted to serve the registered 7 100 NORTH CITY PARKWAY, SUITE 1750 6 December 22 and 26, the office appears to be occupied. Because there is good cause to 13 extend the service deadline, an extension is mandatory. In the alternative, the Court 14 can and should exercise its discretion to grant the requested extension even in the 15 absence of good cause. 16 Dated: December 26, 2017. 17 BALLARD SPAHR LLP 18 By: /s/ Matthew D. Lamb Abran E. Vigil Nevada Bar No. 7548 100 North City Parkway, Suite 1750 Las Vegas, Nevada 89106 19 IT IS SO ORDERED: 20 21 22 23 Matthew D. Lamb Nevada Bar No. 12991 1909 K Street NW, 12th Floor Washington, D.C. 20006 __________________________ RICHARD F. BOULWARE, II United States District Judge DATED this 22nd day of January, 2018. Attorneys for Plaintiff 24 25 26 27 28 3 DMWEST #17339543 v1 1 2 3 4 5 6 7 8 CERTIFICATE OF SERVICE I certify that on December 26, 2017, I served the foregoing Motion to Extend Deadline for Service of Process to the following parties via United States Mail: Cheung K Wok Chan 2625 S Rainbow Blvd, Suite C-106 Las Vegas, Nevada 89146 Registered Agent – KK Real Estate Investment Fund LLC Pinnacle Community Association Management 8311 W Sunset Rd Ste 110 Las Vegas, Nevada 89113 Registered Agent – Turnberry Towers East Unit Owners Association 9 /s/Elizabeth Blaschko An employee of Ballard Spahr LLP 10 (702) 471-7000 FAX (702) 471-7070 12 LAS VEGAS, NEVADA 89106 BALLARD SPAHR LLP 100 NORTH CITY PARKWAY, SUITE 1750 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DMWEST #17339543 v1 Exhibit 1 Exhibit 1 From: Las Vegas Process [ mailto:LVProcess@nationwideasap.com] Sent: Tuesday, December 26, 2017 12:02 PM To: Blaschko, Elizabeth (LV) Subject: 00156558 - Guastella: Status RE KK Real Estate Investment Fund, LLC c/ o Cheung K. Please inform the attorney that the below location has not been served either server will attempt again 12/27, l Nationwide Legal Nevada, LLC Number: NV109947 Your Reference Number: 00156558 Guastella Servee: KK Real Estate Investment Fund, LLC c/o Cheung K. Wok Chan, Registered Agent Case Info: Capital One v KK Real Estate Investment Fund, LLC Date: 12/22/2017 Time: 11:33 AM Server: Brittany Mae Holman reg: R 099789, Nevada Address Attempted: 2625 S. Rainbow Boulevard, C 106, Las Vegas, NV 89146 Blinds Closed, No Answer, No Movement, Property is occupied Date: 12/26/2017 Time: 11:57 AM Server: Brittany Mae Holman reg: R 099789, Nevada Address Attempted: 2625 S. Rainbow Boulevard, C 106, Las Vegas, NV 89146 Blinds Closed, Fully Furnished, Neighbor confirms property is occupied, No Changes, No Lights, No Movement, Property is occupied Thank you, Jennifer Craig R 081221 Las Vegas Process NATIONWIDE LEGAL,LLC 626 South 7th Street Las Vegas | NV | 89101 T 702.385.5444 | F 702.385.1444 LVProcess@nationwideasap.com Did you know Nationwide Legal has a full service Medical Records Retrieval Department? We Can Issue your Subpoena, Notice Your Opposing Counsel and act as your Deposition Officer. Please call 1(877) 326 2679 or email dsolutions@nationwideasap.com for further information. Exhibit 2 Exhibit 2 From: Las Vegas Process [ mailto:LVProcess@nationwideasap.com] Sent: Tuesday, December 26, 2017 11:22 AM To: Blaschko, Elizabeth (LV) Subject: 00156558 - Guastella: Status RE Turnberry Towers East Unit-Owners' Association c/ o Pinnacle Community Association Managemen Please see attempts made below Servee: Turnberry Towers East Unit Owners' Association c/o Pinnacle Community Association Management Case Info: Capital One v KK Real Estate Investment Fund, LLC Date: 12/22/2017 Time: 11:31 AM Server: Tanner Trewet reg: R 075655, Clark Address Attempted: 8311 W. Sunset Road, 110, Las Vegas, NV 89113 Office is closed. No posted hours. Date: 12/26/2017 Time: 10:24 AM Server: Tanner Trewet reg: R 075655, Clark Address Attempted: 8311 W. Sunset Road, 110, Las Vegas, NV 89113 Office is closed. Per sign office is closed until Wednesday 12/27. Thank you, Jennifer Craig R 081221 Las Vegas Process NATIONWIDE LEGAL,LLC 626 South 7th Street Las Vegas | NV | 89101 T 702.385.5444 | F 702.385.1444 LVProcess@nationwideasap.com Did you know Nationwide Legal has a full service Medical Records Retrieval Department? We Can Issue your Subpoena, Notice Your Opposing Counsel and act as your Deposition Officer. Please call 1(877) 326 2679 or email dsolutions@nationwideasap.com for further information.

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