Sanzaro et al v. Ardiente Homeowners Association LLC et al

Filing 366

ORDER. IT IS HEREBY ORDERED that 343 Mr. Shirinian's Motion to Quash Subpoena is granted.IT IS FURTHER ORDERED that 329 the subpoena issued as to Mr. Shirinianis quashed. IT IS FURTHER ORDERED that the Clerk of Court must serve a copy of this order by United States mail on Ara H. Shirinian at the following address: 10651 Capesthorne Way Las Vegas, Nevada 89136. Signed by Magistrate Judge Carl W. Hoffman on 3/30/17. (Copies have been distributed pursuant to the NEF - ADR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 12 DEBORAH SANZARO, et al., ) ) Plaintiffs, ) ) vs. ) ) ARDIENTE HOMEOWNERS ) ASSOCIATION, LLC, et al., ) ) Defendants. ) __________________________________________) 13 Case No. 2:11-cv-01143-RFB-CWH ORDER This matter is before the Court on non-party Ara H. Shirinian’s Motion to Quash Subpoena, 14 (ECF No. 343), filed January 20, 2017, Plaintiffs Deborah Sanzaro and Michael Sanzaro’s 15 Opposition (ECF No. 349), filed January 24, 2017, and Mr. Shirinian’s Reply (ECF No. 355), filed 16 February 2, 2017. The Court also received Plaintiff’s Opposition to Non-Party Mr. Shirinian’s 17 Reply (ECF No. 357), filed February 8, 2017, but did not consider this surreply because it had not 18 been authorized by the Court. Local Rule 7-2(b). Defendants Ardiente Homeowners Association 19 LLC, Scott Harris, Corona Ardiente LLC, Margo Hughen, Ryan Smith, RMI Management, LLC, 20 and Kevin Wallace joined Mr. Shirinian’s Motion (ECF No. 344) on January 23, 2017. Trial in the 21 underlying matter is scheduled to begin on April 24, 2017.1 22 Plaintiffs bring the underlying action for civil rights violations related to an animal being 23 brought into the homeowner’s association clubhouse, and fines associated therewith. In the early 24 stages of that dispute, in 2009, the parties appeared before Arbitrator Shirinian who had been 25 appointed by the Nevada Department of Real Estate to arbitrate the dispute, and he conducted the 26 arbitration and rendered an award. Plaintiffs have now issued a subpoena for Mr. Shirinian’s 27 28 1 The trial date related to the subpoena was February 9, 2017, but that date was vacated by the district judge. (Minute Orders (ECF Nos. 350, 362, 363).) 1 appearance to testify at the trial, and he objects and moves to quash the subpoena because, under 2 Nevada Revised Statutes § 38.229, an arbitrator is not competent to testify. Plaintiffs respond that 3 they require Mr. Shirinian to testify because they believe that in the arbitration, he did not have 4 jurisdiction to decide the issues, and therefore he has no immunity. Plaintiffs indicate they intend 5 to ask Mr. Shirinian only about his knowledge of qualifications to rule on federal discrimination 6 issues and his lack of jurisdiction, but will not ask him “any questions regarding any statement he 7 may have made, conduct, decision or anything happening in the arbitral (sic) itself.”2 (Opp’n (ECF 8 No. 349) at 2:16-17.) 9 Federal Rules of Civil Procedure 45(d)(3)(iii) provides that, upon timely motion, the court 10 for the district where compliance is required must quash or modify a subpoena that requires 11 disclosure of privileged or other protected matter, if no exception or waiver applies. Rule 45(e)(2) 12 further sets forth the process for a person withholding subpoenaed information to assert a privilege 13 claim, that is, to expressly make the claim, and to describe the nature of the withheld 14 communications. 15 Here, Mr. Shirinian points to Nevada law which provides that in relevant part that “in a 16 judicial . . . proceeding, an arbitrator . . . is not competent to testify, and may not be required to 17 produce records as to any statement, conduct, decision or ruling occurring during the arbitral 18 proceeding, to the same extent as a judge of a court of this state acting in a judicial capacity.” Nev. 19 Rev. Stat. § 38.229(4). Plaintiffs desire to have Mr. Shirinian testify about his qualifications to rule 20 on federal discrimination law and his lack of jurisdiction as it relates to this case. By statute, 21 because these subjects relate to his performance of duties as an arbitrator in this case, the matters 22 are protected, and he may not testify about them.3 Plaintiffs provide no argument that there are any 23 24 25 26 27 28 2 Plaintiff’s position seems to be internally inconsistent—the arbitrator’s answers to these questions would necessarily be made in the context of his role as the arbitrator during the arbitration. 3 Although Mr. Shirinian primarily relies on Nevada law, federal common law also extends judicial immunity to arbitrators and arbitral organizations. See Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579, 1582 (9th Cir. 1987); Slaughter v. American Arbitration Ass’n, No. 2:10-cv-01437-KJDGWF, 2011 WL 2174403, at *1, *2 (D. Nev. June 2, 2011) (citing Wasyl and finding that an arbitral 2 1 applicable exceptions in this situation. 2 Additionally, Mr. Shirinian advises that he had no dealings with the Plaintiffs except in his 3 capacity as arbitrator. His testimony regarding his qualifications to rule on federal discrimination 4 issues and his “lack of jurisdiction” to conduct the arbitration is not relevant to the claims and 5 defenses in this case. To the extent that there is an admissible arbitration decision in this matter, it 6 will speak for itself. See Reichman v. Creative Real Estate Consultants, Inc., 476 F. Supp. 1276, 7 1286 (S.D.N.Y. 1979) (granting a motion to quash a deposition subpoena served on an arbitrator 8 and reasoning that “nothing that the arbitrator could conceivably say at his deposition would have 9 ‘any tendency to make the existence of any fact that is of consequence to the determination of the 10 action more probable or less probable than it would be without the evidence.’” (quoting Fed. R. 11 Evid. 401).) Accordingly, the Court must quash the subpoena for Mr. Shirinian to testify in this 12 matter. 13 14 15 16 17 IT IS HEREBY ORDERED that Mr. Shirinian’s Motion to Quash Subpoena (ECF No. 343) is granted. IT IS FURTHER ORDERED that the subpoena (ECF No. 329) issued as to Mr. Shirinian is quashed. IT IS FURTHER ORDERED that the Clerk of Court must serve a copy of this order by 18 United States mail on Ara H. Shirinian at the following address: 19 10651 Capesthorne Way Las Vegas, Nevada 89136 20 DATED: March 30, 2017 21 22 ______________________________________ C.W. Hoffman, Jr. United States Magistrate Judge 23 24 25 26 27 28 organization and it arbitrators are immune from civil liability under Nevada Revised Statutes § 38.229). This includes immunity from testifying in a subsequent proceeding, absent evidence of arbitrator misconduct. See, e.g., Woods v. Saturn Distrib. Corp., 78 F.3d 424, 430-31 (9th Cir. 1996) (holding district court did not abuse its discretion in denying the deposition of an arbitrator because no evidence of bias was presented); Reichman v. Creative Real Estate Consultants, Inc., 476 F. Supp. 1279, 1286 (S.D. N.Y. 1979) (quashing a deposition subpoena served on an arbitrator on the grounds that an arbitrator should “not be called upon to give a reason for his decision.” (quotation omitted)). 3

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