Spartalian v. Citibank N.A. et al

Filing 26

ORDER Denying 3 Plaintiff's Motion to Quash. Signed by Magistrate Judge Peggy A. Leen on 7/11/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GAREGIN SPARTALIAN,

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Plaintiff,
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vs.
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CITIBANK, N.A., et al.,
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Defendants. )
__________________________________________)

Case No. 2:12-cv-00742-MMD-PAL
ORDER
(Mot. Quash - Dkt. #3)

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Before the court is Plaintiff’s “Notice Motion to Quash Filed Concurrently Herein Notice of

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Removal with Initial Complaint, Service of Summons” (Dkt. #3). This motion was filed the same day

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Plaintiff filed his Complaint (Dkt. #1).

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It appears that the Plaintiff was sued by Defendant Citibank N.A. in state court. The current

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motion seeks to quash summons and complaint in the state court action, Case No. 12C008083, JC

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Department 6, on the grounds it was not served on Plaintiff or any other adult or person with competent

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responsibility as required by Nevada Rule of Civil Procedure 4(6) (sic). Plaintiff states that the

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summons and complaint were not served on him in person “nor upon a person of suitable and discretion

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residing at the above stated residential address.” Although it is not clear, Plaintiff may be referring to

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the address that he lists on the caption of the motion. It appears that the Plaintiff was sued in state court

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for a credit card debt he allegedly owes. He filed this complaint alleging a violation of the Fair Debt

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Collection Practices Act (“FDCPA”). His complaint also purports to be a notice of removal of the state

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court action filed against him, on the theory that the Defendants’ claims against him, and his claims

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against the Defendants “arise out of the same transactions and occurrences, and out of a common

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nucleus of operative facts.” As a result, he requests that the court exercise supplement jurisdiction over

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the state court action pursuant to 28 U.S.C. § 1367.

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Defendants the Law Offices of Rausch, Sturm, Israel, Enerson & Hornik, LLC, Megan Hummel,

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Esq., Richard A. Russell, and Shelley Lanzkowsky filed an opposition (Dkt. #13). Defendants argue

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that the motion is not properly supported because there are no attached independent documents such as

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affidavits, photographs, recordings or other admissible forms of evidence upon which the court may

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rely to test the veracity of Plaintiff’s unverified assertions. As the Plaintiff has not supported the

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motion with admissible evidence “for that very reason, the Motion should be discarded”, citing LR 7-

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2(d). On the merits, these Defendants argue that Plaintiff was properly served in state court, and the

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process server filed an affidavit of service in the state court action attesting under penalty of perjury that

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a copy of the complaint was left with a co-resident of the residence at 9790 Prescott Creek Court, Las

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Vegas, Nevada 89117.

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No reply was filed and the time for filing a response has run.

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This court did not set a hearing on this motion to quash. However, Judge Ferenbach set a

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hearing on a motion to quash in related case 2:12-cv-00743-MMD-VCF, Citibank N.A. v. Spartalian.

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Judge Ferenbach took the matter under advisement, and on June 13, 2012, filed a Report and

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Recommendation (Dkt. #22) recommending to the district judge that the case be remanded for lack of

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federal jurisdiction. The same district judge is presiding over this case and related case 2:12-cv-00743.

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Judge Ferenbach’s report of findings and recommendations set forth the procedural history of both

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cases and the underlying state action. Judge Ferenbach’s report and recommendation also recommends

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that this case be stayed for a period of sixty days. Spartalian filed an objection to the report and

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recommendation and the Defendants filed a response. The district judge has not yet ruled on the matter.

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Plaintiff’s motion is not supported by an affidavit, declaration or any form of admissible

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evidence. The affidavit of service and pleadings filed in state court were not attached to Plaintiff’s

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complaint and notice of removal. For all of these reasons,

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IT IS ORDERED that Plaintiff’s Motion to Quash (Dkt. #3) is DENIED.

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Dated this 11th day of July, 2012.

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______________________________________
Peggy A. Leen
United States Magistrate Judge
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