Nelson v. Carson Valley United Methodist Church

Filing 12

MEMORANDUM AND ORDER - CVUMC's Motion to Strike (filing 7 ) is denied. CVUMC's Motion to Dismiss (filing 4 ) is granted in accordance with this Memorandum and Order and this matter is dismissed with prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GREGG M. NELSON, pro se,
Plaintiff,
v.
CARSON VALLEY UNITED
METHODIST CHURCH, a Nevada
non-Profit Corporation, DOES 1-5,
Inclusive, and ROE COMPANIES 13, Inclusive,
Defendants.

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4:13CV3113

MEMORANDUM
AND ORDER

This matter is before me on Defendant Carson Valley United Methodist
Church’s (“CVUMC”) Motion to Dismiss. (Filing 4.) Also pending is CVUMC’s
Motion to Strike. (Filing 7.) As set forth below, I will deny CVUMC’s Motion to
Strike and grant its Motion to Dismiss.
I. BACKGROUND
On May 1, 2013, Plaintiff Gregg M. Nelson (“Nelson”) filed a Complaint in the
County Court of Lancaster County, Nebraska. (Filing 1-1 at CM/ECF p. 1.) In the
Complaint Nelson alleges that on April 3, 2013, A3 Energy, Inc. (“A3 Energy”),
assigned him a Solar Power Generating Facility located on CVUMC’s property. (Id.
at CM/ECF pp. 6, 123.) Nelson’s Complaint asks, among other things, for a judgment
declaring that a “November 21, 2010 Contract between [CVUMC] and A3 Energy,
Inc. was legal and binding,” “[CVUMC] is bound by the Terms and Conditions of the
Contract,” Nelson is the exclusive owner of the “Generating Facilities located on”
CVUMC’s “real property as of April 1, 2013 and that any subsequent action taken by
[CVUMC] in an attempt to gain ownership is null and void.” (Id. at CM/ECF p. 9.)

On June 7, 2013, CVUMC removed Nelson’s Complaint to this court pursuant
to 28 U.S.C. § 1441. (Filing 1.) CVUMC subsequently filed a Motion to Dismiss
along with a Brief and Affidavits in Support. (Filings 4, 5, 5-2, and 5-3.) In its Brief,
CVUMC argues that Nelson’s Complaint should be dismissed for insufficient service
of process and because the court lacks personal jurisdiction over CVUMC. (Filing 5.)
On July 10, 2013, Nelson filed a Response to CVUMC’s Motion to Dismiss. (Filing
6.) Thereafter, CVUMC moved to strike Nelson’s response arguing it contains
unsupported assertions of fact in violation of NECivR 7.0.1. (Filings 7 and 8.)
On September 24, 2013, I entered a Memorandum and Order in this matter
finding that the record was incomplete. (Filing 9.) In particular, I concluded that
CVUMC had filed an Affidavit that discussed an attached “Judgment by Default,” but
that no such “Judgment by Default” was attached to the Affidavit. (Id.) I also noted
that such a judgment raised concerns regarding the Rooker-Feldman 1 doctrine. (Id.)
I directed CVUMC to supplement the record with the “Judgment by Default” and file
a supplemental brief addressing the application of the Rooker-Feldman doctrine. (Id.)
I also provided Nelson with the opportunity to respond. (Id.)
On October 23, 2013, CVUMC filed a Supplemental Brief and an Index of
Evidence in Support. (Filings 10 and 11.) In its Supplemental Brief, CVUMC argues
that “pursuant to the Rooker-Feldman doctrine, the Court is without subject matter
jurisdiction over the instant matter.” (Filing 10 at CM/ECF p. 2.) However, CVUMC
asks me to dismiss Nelson’s Complaint upon the substantive grounds of claim
preclusion. (Id.) Nelson did not respond to CVUMC’s Supplemental Brief. (See
Docket Sheet.)

1

See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid.
Trust Co., 263 U.S. 413 (1923).
2

II. ANALYSIS
A.

Motion to Strike

Before turning to CVUMC’s Motion to Dismiss, I will address its Motion to
Strike. CVUMC asks me to strike Nelson’s Response to its Motion to Dismiss
because Nelson failed to file his Response in the form of a brief and because Nelson
makes factual assertions without supporting citations. (Filing 8.) The court’s local
rules provide that a party opposing a motion “must file a brief that concisely states the
reasons for opposing the motion and cites to supporting authority.” NECivR
7.0.1(b)(1)(A). The local rules also provide that a factual assertion in an “opposing
brief must cite to the pertinent page of the pleading, affidavit, deposition, discovery
material, or other evidence on which the opposing party relies.” NECivR
7.0.1(b)(2)(A).
The court agrees with CVUMC that Nelson’s Response does not comply with
the court’s local rules. However, motions to strike are viewed with disfavor and
infrequently granted. Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977).
In light of this, and Nelson’s pro se status, the court will not strike Nelson’s Response.
CVUMC’s Motion to Strike (filing 8) is denied.
B.

Rooker-Feldman

As discussed above, CVUMC argues that this court lacks subject matter
jurisdiction under the Rooker-Feldman doctrine. (Filing 10 at CM/ECF p. 2.) The
Rooker-Feldman doctrine is based on the fact that “federal district courts are courts
of original jurisdiction, and by statute they are precluded from serving as appellate
courts to review state court judgments, as that appellate function is reserved to the
Supreme Court under 28 U.S.C. § 1257.” Dornheim v. Sholes, 430 F.3d 919, 923 (8th
Cir. 2005). The doctrine applies to “cases brought by state-court losers complaining
of injuries caused by state-court judgments rendered before the district court
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proceedings commenced and inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus.Corp., 544 U.S. 280, 284
(2005). However, the doctrine “precludes federal district court jurisdiction only if the
federal suit is commenced after the state court proceedings have ended.” Dornheim,
430 F.3d at 923; see also Exxon Mobil, 544 U.S. at 292 (“[N]either Rooker nor
Feldman supports the notion that properly invoked concurrent jurisdiction vanishes
if a state court reaches judgment on the same or related question while the case
remains sub judice in a federal court.”). Indeed, “[t]here is no judgment to review if
suit is filed in federal district court prior to completion of the state-court action.
Rather, ‘[d]isposition of the federal action, once the state-court adjudication is
complete, would be governed by preclusion law.’” Dornheim, 430 F.3d at 923
(quoting Exxon Mobil, 544 U.S. at 293).
Here, the record before the court shows that Nelson originally filed this matter
on May 1, 2013, in the County Court of Lancaster County, Nebraska. (Filing 1-1 at
CM/ECF p. 1.) The “Judgment by Default” that relates to this matter was entered by
the Ninth Judicial District Court of the State of Nevada on May 10, 2013, in “CASE
No. 13-CV-0078” (the “Nevada Proceeding”). (Filing 11-2 at CM/ECF pp. 149-53.)
Because the “Judgment by Default” was entered after this matter was filed, the
Rooker-Feldman doctrine does not apply and this matter is governed by preclusion
law. See Dornheim, 430 F.3d at 923.
C.

Preclusion

The preclusive effect of the “Judgment by Default” from the Nevada
Proceeding is governed by Nevada’s preclusion law. See Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (“[A] federal court must give to a
state-court judgment the same preclusive effect as would be given that judgment under
the law of the State in which the judgment was rendered.”); see also 28 U.S.C. § 1738.
In Nevada, claim preclusion applies when three elements are present: (1) the parties
or their privies are the same, (2) the final judgment is valid, and (3) the subsequent
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action is based on the same claims or any part of the original claims that were or could
have been brought in the initial action. Five Star Capital Corp. v. Ruby, 194 P.3d 709,
713 (Nev. 2008).
With regard to the first element, the “Judgment by Default” was entered in
favor of CVUMC and against A3 Energy. (Filing 11-2 at CM/ECF pp. 149-53.)
Importantly, the judgment states that “no valid contract or agreement was formed
between” CVUMC and A3 Energy, and that CVUMC holds “exclusive title to the
solar array on” CVUMC’s “real property located at 1375 Centerville Lane,
Gardnerville, Nevada, as against A3 Energy, Inc., and its assigns, and all other
persons, legal or natural.” (Id. at CM/ECF pp. 152-53.) Nelson is an alleged
“officer,” “secretary,” and creditor of A3 Energy. (Filing 1-1 at CM/ECF pp. 1, 3, and
5.) He is also the alleged “Solar Services” contract assignee and title recipient of a
“Solar Photovoltaic Array,” which he refers to as “Generating Facilities” located on
CVUMC’s property. (Id. at CM/ECF pp. 1, 6, 14-100, 116; Filing 11-2 at CM/ECF
pp. 23-66.) Stated another way, Nelson is a successor-in-interest to the “Solar
Services” contract (i.e. the same contract deemed void in the Nevada Proceeding), and
the “Generating Facilities” (i.e. the same solar array deemed to be CVUMC’s
“exclusive” property in the Nevada Proceeding). (See Filing 11-2 at CM/ECF pp. 59,
151; Filing 1-1 at CM/ECF p. 89.) Because CVUMC and A3 Energy were parties to
the Nevada Proceeding, and because Nelson is a successor-in-interest to A3 Energy’s
“Solar Services” contract and “Generating Facilities,” the first element is met. See,
e.g., Howell v. Pac. Reclamation Water Co., No. 57004, 2012 WL 1378162, at *2
(Nev. Apr. 17, 2012) (concluding privity existed between prior owner of water rights
and its successor-in-interest); Paradise Palms Cmty. Ass’n v. Paradise Homes, 505
P.2d 596, 599 (Nev. 1973) (concluding that a privy is one who “has acquired an
interest in the subject matter affected by the judgment through or under one of the
parties, as by inheritance, succession, or purchase”).
The second element is also satisfied. Nevada courts apply res judicata, or claim
preclusion, to default judgments. See Jones v. Drain, No. 3:05CV0278 PMPRAM,
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2006 WL1966741, at *7 (D. Nev. July 11, 2006) (collecting cases and concluding that
Nevada courts have recognized the applicability of res judicata to default judgments).
In addition, CVUMC and A3 Energy were both entities organized under Nevada’s
laws2 (filing 1-1 at CM/ECF p. 2), and A3 Energy was served by personal service to
its resident agent, CSC Services of Nevada, Inc., on April 3, 2013 (filing 11-2 at
CM/ECF pp. 2, 71). Further, Nelson does not argue that the Nevada court lacked
jurisdiction over the parties.3
With both the first and second elements satisfied, I turn to the third element.
Nelson’s complaint is based on the same “Solar Services” contract and “Generating
Facilities” addressed in the Nevada Proceeding. (Compare Filing 1-1 at CM/ECF pp.
1-10, with Filing 11-2 at CM/ECF pp. 149-53.) His Complaint also contains claims
and requests for relief that directly conflict with the Nevada court’s “Judgment by
Default.” (Id.) Indeed, Nelson’s Complaint specifically asks for a judgment
declaring that a “November 21, 2010 Contract between [CVUMC] and A3 Energy,
Inc. was legal and binding,” “[CVUMC] is bound by the Terms and Conditions of the
Contract,” Nelson is the exclusive owner of the “Generating Facilities located on”
CVUMC’s “real property as of April 1, 2013 and that any subsequent action taken by
[CVUMC] in an attempt to gain ownership is null and void.” (Filing No. 1-1 at
CM/ECF p. 9.) The record shows Nelson was aware of the Nevada Proceeding and
2

Public records of the Nevada Secretary of State concerning Nevada business
entities are available at the following internet address:
http://nvsos.gov/sosentitysearch/CorpSearch.aspx.
3

I note that the “Services Contract” contained a forum selection clause stating
that “any action or proceeding related to a Dispute shall be in Lancaster County,
Nebraska.” (Filing 1-1 at CM/ECF p. 9.) However, the Nevada court has held that
the “Services Contract” at issue was “null and void ab initio.” (Filing 11-2 at
CM/ECF p. 152.) The record indicates Nelson was aware of the Nevada Proceeding
and chose not to plead or otherwise defend A3 Energy, or his own alleged successorin-interest rights, regarding the validity of the forum selection clause. (See Filing No.
11-2 at CM/ECF p. 149; Filing 1-1 at CM/ECF pp. 108-09.)
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chose not to assert any of the claims or arguments that he now raises this matter, a
matter he filed before the “Judgment by Default” in the Nevada Proceeding was
entered. (Filing 1-1 at CM/ECF pp. 1, 108-09; Filing 11-2 at CM/ECF p. 149.) See
Five Star, 194 P.3d at 715 (concluding claim preclusion applies to prevent a second
suit based on all grounds of recovery that were or could have been brought in the first
suit). Accordingly,
IT IS THEREFORE ORDERED that:
1.

CVUMC’s Motion to Strike (filing 7) is denied.

2.
CVUMC’s Motion to Dismiss (filing 4) is granted in accordance with this
Memorandum and Order and this matter is dismissed with prejudice.
3.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 26th day of November, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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