KeyBank National Association v. Nielsen et al

Filing 61

ORDER Granting 43 Motion for Summary Judgment as to Counterclaims, Granting 45 Motion to File Amended Complaint, and Denying 50 Motion for Summary Judgment. Signed by Judge Philip M. Pro on 12/22/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEYBANK NATIONAL
ASSOCIATION,

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Plaintiff,
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vs.
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FRANK NIELSEN, et al.,
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Defendants.
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2:10-CV-00352-PMP-VCF
ORDER

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Before the Court for consideration are Plaintiff’s Motion for Summary Judgment

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on Defendants’ Counterclaims (Doc. #43), Plaintiff’s Motion for Leave to Substitute Party

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(Doc. #45), and Defendants’ Countermotion for Summary Judgment on Plaintiff’s Claims

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(Doc. #50). Having considered the fully briefed motions and the arguments of counsel

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presented at the hearing conducted December 20, 2011, the Court finds as follows:

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Defendants’ allege five claims for relief in their Counterclaim (Doc. #10).

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Defendants’ First Counterclaim for Relief alleges negligent misrepresentation by KeyBank,

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and Defendants’ Third Claim for Relief alleges intentional misrepresentation by KeyBank.

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Defendants’ Second and Fourth Counterclaims allege breach of the implied covenant of

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good faith and fair dealing, and the Fifth Counterclaim for Relief alleges a claim for

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declaratory relief. The first four Counterclaims are grounded in Defendants’ allegations

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that Plaintiff KeyBank misrepresented the value of the Subject Property through an

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appraisal by Kathleen Nylen. The Court finds on the basis of the extensive record adduced

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by the Parties, there remains no genuine issue of material fact regarding Defendants’

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misrepresentation allegations, and that Plaintiff KeyBank is entitled to summary judgment

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on those four Counterclaims. Additionally, Defendants’ Fifth Counterclaim for Declaratory

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Relief is duplicitous of the Claims at issue in Plaintiff’s Complaint and is thus also ripe for

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summary judgment.

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IT IS THEREFORE ORDERED that Plaintiff KeyBank’s Motion for
Summary Judgment on Defendants’ Counterclaims (Doc. #43) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Substitute
Party (Doc. #45) is GRANTED and that Defendants’ Countermotion for Summary
Judgment on Plaintiff’s Claims (Doc. #50) is DENIED.

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DATED: December 22, 2011.

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PHILIP M. PRO
United States District Judge

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