Martinez et al v. PRLAP, INC et al

Filing 41

ORDER that Plaintiff Daniel G. Martinez's Motion to Remand 8 and Amended Motion to Remand 23 are DENIED. Martinez's Motion to Strike 16 , Motion for Clarification (dkt. no. 1-E), and Motion for Disqualification of Opposing Counsel (dk t. no. 1-I) are DENIED. Martinez's Mandatory Judicial Notice of Pending Unopposed Motions Before the Court and Application of Default Judgment Against PRLAP Inc. 20 is DENIED. Martinez's Motion to Stay 33 is DENIED. The stay on discovery ordered on May 15, 2012, 28 is LIFTED. Signed by Judge Miranda M. Du on 7/11/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DANIEL G. MARTINEZ, et. al.,

Case No. 2:12-cv-00345-MMD-RJJ

Plaintiffs,

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v.

ORDER

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PRLAP, Inc., et al.,
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Defendants.
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Before this Court are Plaintiff Daniel G. Martinez‟s Motion to Remand (dkt. no. 8),

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Amended Motion to Remand (dkt. no. 23), Motion to Strike Joinder (dkt. no. 16), Motion

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for Clarification (dkt. no. 1-E), Motion for Disqualification of Opposing Counsel (dkt. no.

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1-I), Motion for Mandatory Judicial Notice and Application of Default Judgment (dkt. no.

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20), and Notice of Motion to Stay Proceedings Pending the Outcome of Bankruptcy

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Proceedings in Title 11 (dkt. no. 33).1

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I.

BACKGROUND

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Plaintiffs filed this action in state court on October 14, 2011, against PRLAP, Inc.,

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the original trustee of the deed of trust, for breach of fiduciary duties arising out of the

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alleged filing of fraudulent documents with the county recorder relating to a property that

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The Complaint in this action was filed by three plaintiffs, Daniel G. Martinez,
Tina M. Courtney, and Thomas Zsido. The First Amended Complaint appears to only be
brought by Plaintiff Daniel G. Martinez, although many of the subsequently filed motions
appear to be brought on behalf of all three original Plaintiffs. The Court will construe the
Motions that are the subject of this Order as having been brought by Martinez only,
mindful that “courts have routinely adhered to the general rule prohibiting pro se plaintiffs
from pursuing claims on behalf of others in a representative capacity.” Simon v. Hartford
Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008).

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had been the subject of foreclosure proceedings. The property was sold at a foreclosure

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sale on October 24, 2011. Plaintiff Daniel G. Martinez (“Martinez”) subsequently filed a

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First Amended Complaint on February 10, 2012, alleging claims against PRLAP, Inc.,

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MTC Financial Inc. d/b/a Trustee Corps (“Trustee Corps”) (the substituted trustee), and

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individual defendants Paul Kim, Juan Carrillo, Gloria Juarez, Amy Lemus, Anthony Trust,

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Susan Dana, and Diane Derr. Defendants removed this action on March 1, 2012.

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II.

DISCUSSION

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A.

Motion and Amended Motion to Remand (dkt nos. 8 and 23)

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The amended complaint was served upon defendant Trustee Corps on February

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21, 2012, and the remand petition was timely filed on March 1, 2012, on the basis of

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diversity jurisdiction.2 See 28 U.S.C. § 1446(b) (“The Notice of removal of a civil action or

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proceeding shall be filed within 30 days after the receipt by the defendant, through

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service or otherwise, of a copy of the initial pleading.”).

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exception of Defendants Dana and Derr who had not been served at the time, timely

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joined the removal petition.

All Defendants, with the

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Martinez appears to argue in his Motion to Remand that removal was improper

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because not all defendants acquiesced to the removal, no federal subject matter

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jurisdiction or diversity jurisdiction exists to hear this suit, and that this Court should

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abstain from exercising jurisdiction due to the important state issues raised by the

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complaint.

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Martinez‟s arguments with respect to proper joinder to the removal petition and

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with respect to abstention are meritless. Since removal was based on diversity, the

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Court will not address federal question jurisdiction.

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jurisdiction pursuant to diversity of citizenship, the party asserting jurisdiction must show:

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(1) complete diversity of citizenship among opposing parties and (2) an amount in

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controversy exceeding $75,000. 28 U.S.C. § 1332(a). Martinez appears to challenge

To establish subject matter

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In their Response to this Motion, Defendants contend that Trustee Corps was
the only defendant to have been served.
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only the amount-in-controversy requirement.

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Where a defendant removes a plaintiff‟s state action on the basis of diversity

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jurisdiction, the defendant must either: (1) demonstrate that it is facially evident from the

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plaintiff‟s complaint that the plaintiff seeks in excess of $75,000, or (2) prove, by a

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preponderance of the evidence, that the amount in controversy meets the jurisdictional

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limit. Valdez v. Allstate Ins. Co., 372 F.3d 1115 (9th Cir. 2004). In determining what

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evidence may be considered under (2) above, the Ninth Circuit has adopted the “practice

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of considering facts presented in the removal petition as well as any „summary-

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judgement-type evidence relevant to the amount in controversy at the time of removal.‟
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Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003)

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(quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir.1997)).

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This action was properly removed as a diversity action. Defendant PRLAP, Inc. is

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a North Carolina corporation, Trustee Corps is a California corporation,3 and the

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remaining individual defendants are California citizens.4 Martinez identifies himself in

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the Amended Complaint as a Nevada resident.5 Martinez does not, in his Motion or

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Reply, challenge the domicile of the Defendants. The Court is thus satisfied that diversity

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of citizenship exists as to all parties.

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This case also satisfies the amount-in-controversy requirement. Martinez has

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alleged damages in excess of $75,000. Although the caption to his Motion appears to

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Martinez filed his First Amended Complaint against “Malcolm Cisneros Law
Group aka MTC financial dba Trustee Corp,” alleging that Trustee Corps is run by
Malcolm Cisneros attorneys. Trustee Corps is the legitimate defendant in this suit. Even
were Malcolm Cisneros a proper defendant, their status as California citizens would not
destroy diversity.
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Defendants have demonstrated sufficiently to this Court that Defendants Susan
Dana and Diane Derr are citizens of California. This Court will not consider Defendants‟
alternative arguments on fraudulent joinder.
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Though citizenship, not residence, is the touchstone for diversity jurisdiction, see
Seven Resorts, Inc. v. Cantlen, 57 F.3d 771, 774 (9th Cir.1995) (“It is black letter law that,
for purposes of diversity, „[r]esidence and citizenship are not the same thing”), the Court is
satisfied based on the pleadings and on the original and amended complaints that
Plaintiffs are Nevada citizens.
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claim that the amount-in-controversy requirement is not satisfied, the Amended

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Complaint seeks a total of $202,000 in damages ($60,000 in damages, and $142,000 for

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treble damages for the alleged illegal sale of the property). It is thus “facially evident” from

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the complaint that this requirement is met. See Valdez, 372 F.3d at 1117.

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For these reasons, Martinez‟s Motion to Remand and Amended Motion to
Remand are denied.

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B.
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Motion to Strike (dkt. no. 16), Motion for Clarification (dkt. no. 1-E),
and Motion for Disqualification of Opposing Counsel (dkt. no. 1-I)

Martinez seeks to strike any filings made by the law firm of Malcolm Cisneros,

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counsel for Defendant PRLAP, Inc.

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Motion for Clarification (dkt. no. 1-E) and Motion for Disqualification of Opposing Counsel

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(dkt. no. 1-I), both filed in state court before removal. Counsel need not demonstrate to

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this Court their status as representatives of PRLAP, Inc., and Martinez has not

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demonstrated any impropriety on the part of current counsel to represent PRLAP. The

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Motion to Strike, Motion for Clarification, and Motion for Disqualification of Opposing

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Counsel are without merit, and are denied.

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C.
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He makes essentially the same request in his

Martinez’s Mandatory Judicial Notice of Pending Unopposed Motions
(dkt. no. 20)

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Martinez also filed a Mandatory Judicial Notice of Pending Unopposed Motions

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Before the Court and Application of Default Judgment Against PRLAP, Inc., seeking

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default judgment against PRLAP for failure to respond. However, PRLAP responded to

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the original Complaint by filing a Motion to Dismiss on November 22, 2011. (See dkt. no.

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1-B.) The fact that Martinez has later filed an amended complaint alleging additional

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claims against additional defendants does not extinguish PRLAP‟s original appearance.

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Moreover, this Court has ordered Defendants to respond to the Amended Complaint

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within 10 days from Trustee Corps‟ supplementation of the records with the order

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granting Martinez leave to amend. (See dkt. no. 40.) Martinez‟s motion for default

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judgment against PRLAP is thus denied.
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D.

Motion to Stay Proceedings Pending Outcome of Bankruptcy (dkt. no.
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Martinez filed a notice of bankruptcy filing by Rampart MMW, Inc. (“Rampart”) and

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requested that this Court stay this action pending the resolution of Rampart‟s bankruptcy

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proceedings. However, Martinez has failed to demonstrate that Rampart has any

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relationship to any of the parties in this action or to the dispute before this Court to

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warrant a stay. He also has failed to demonstrate that Rampart has any interest in the

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property that is the subject of this action. While Rampart disclosed an equitable interest

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in the property, subject to a security interest by Bank of America, in Schedule A of its

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bankruptcy petition, there is no evidence before this Court that Rampart has any interest

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in the property. Moreover, even assuming Rampart had an interest in the property

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acquired through a series of reconveyances from Plaintiffs Tina M. Courtney and

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Thomas Zsido,6 Rampart would have only received Courtney and Zsido‟s interests which

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were extinguished after the foreclosure sale. Accordingly, Martinez‟s motion to stay is

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denied.

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III.

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CONCLUSION
IT IS HEREBY ORDERED THAT Plaintiff Daniel G. Martinez‟s Motion to Remand

(dkt. no. 8) and Amended Motion to Remand (dkt. no. 23) are DENIED.

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IT IS FURTHER ORDERED THAT Martinez‟s Motion to Strike (dkt. no. 16),

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Motion for Clarification (dkt. no. 1-E), and Motion for Disqualification of Opposing

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Counsel (dkt. no. 1-I) are DENIED.

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IT IS FURTHER ORDERED THAT Martinez‟s Mandatory Judicial Notice of

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Pending Unopposed Motions Before the Court and Application of Default Judgment

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Against PRLAP Inc. (dkt. no. 20) is DENIED.

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Martinez apparently acquired an interest in the subject property through a
quitclaim deed from Tina M. Courtney and Thomas Zsido. (See dkt. no. 38-3.) Martinez
then conveyed his interest to The Country Hollow 1409 Trust via a Special Warranty
Deed and Rampart was identified as a co-trustee of said Trust. (See dkt. no. 38-5.)
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IT IS FURTHER ORDERED THAT Martinez‟s Motion to Stay (dkt. no. 33) is
DENIED.
IT IS FURTHER ORDERED THAT the stay on discovery ordered on May 15,
2012 (dkt. no. 28), is hereby LIFTED.
IT IS SO ORDERED.

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ENTERED THIS 11th day of July 2012.

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UNITED STATES DISTRICT JUDGE
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