Alexander et al v. Onewest Bank Group, FSB et al

Filing 18

ORDER that 13 Motion for Preliminary Injunction; and 15 Motion to Shorten Time on Motion for Preliminary Injunction are DENIED. Signed by Judge James C. Mahan on 8/1/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DAVID L. ALEXANDER, et al.,

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2:12-CV-968 JCM (RJJ)

Plaintiffs,
v.
ONEWEST BANK FSB, et al.,

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Defendants.

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ORDER

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Presently before the court are plaintiffs David L. Alexander, et. al.’s motion for preliminary

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injunction (doc. #13) and emergency motion to shorten time on motion for preliminary injunction

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(doc. #15).

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Plaintiffs note that there is a hearing scheduled in state justice court on August 7, 2012, at

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1:00 p.m. on an order to show cause why a writ of restitution should not be entered. (Doc. #13).

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Plaintiffs assert that this court should hear the merits of their case before they are removed from the

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property at 170 Siddall, Las Vegas, Nevada. Thus, the motion for preliminary injunction requests

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the following relief: (1) for “a preliminary injunction as to any further proceedings in justice court

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or elsewhere or until the matter can be heard on its merits by this court;” (2) for this court “to assume

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jurisdiction of the justice court in the order to show cause initiated by” DeutscheBank; (3) for an

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order that plaintiffs “be allowed to remain on the Siddall property and conduct their business, subject

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to a reasonable payment of rent by plaintiffs;” and (4) for such other relief as the court deems just

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and proper. (Doc. #13).

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James C. Mahan
U.S. District Judge

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Plaintiffs filed the instant case in state court on March 16, 2012. (Doc. #1, Ex. 2). Plaintiffs

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further assert that DeutscheBank filed the order to show cause why a writ of restitution should not

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be entered in justice court on March 28, 2012. (Doc. #13). Plaintiffs did not attach a copy of the

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order to show cause to the motion for preliminary injunction. Defendant OneWest Bank, FSB

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removed the case to this court on June 7, 2012. (Doc. #1).

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The Anti-Injunction Act, 28 U.S.C. § 2283, prohibits federal courts from enjoining state court

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proceedings unless one of three exceptions applies: (1) where the injunction is expressly authorized

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by an act of Congress, (2) where it is necessary in aid of the federal court’s jurisdiction, and (3)

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where an injunction would protect or effectuate the federal court’s judgments. See also United States

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v. Alpine Land & Reservoir Co., 174 F.3d 1007, 1014 (9th Cir. 1999). “[I]t has long been held that

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the first court to exercise jurisdiction over real property is entitled to enjoin proceedings in another

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court regarding that property.” Id. However, “[a]ny doubts as to the propriety of a federal injunction

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against state court proceedings should be resolved in favor of permitting the state courts to proceed

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. . . .” Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 297

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(1970).

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It is clear that neither the first nor the third exception to the Anti-Injunction Act applies in

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this case. Plaintiffs have not pointed to any act of Congress that would authorize this court to enjoin

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the state court proceedings. (Doc. #13). Further, this court has not entered a judgment in the instant

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case, so there is no judgment from this court which an injunction could protect or effectuate. See

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Brother Records, Inc. v. Jardine, 432 F.3d 939, 942 (9th Cir. 2005) (stating that this exception is

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grounded in the concepts of res judicata and collateral estoppel).

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Similarly, the court does not have authority to enjoin the state court proceedings under the

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second exception to the Anti-Injunction Act. Regardless of whether the instant suit is characterized

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as a proceeding in rem or in personam, see Chapman v. Deutsche Bank National Trust Co., 651 F.3d

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1039, 1044 (9th Cir. 2011) (stating that this is an open question under Nevada law), this court did

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not assume jurisdiction over the instant case until after the justice court exercised jurisdiction in the

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order to show cause.

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James C. Mahan
U.S. District Judge

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This court assumed jurisdiction over the instant lawsuit on June 7, 2012, when OneWest

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Bank removed the case to this court. Chapman, 651 F.3d at 1044 (stating that jurisdiction attaches

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when defendants filed a notice of removal). In contrast, the justice court first exercised jurisdiction

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over the order to show cause when DeutscheBank filed the order to show cause on March 28, 2012.

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Id.

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Therefore, the justice court exercised jurisdiction prior to this court’s assumption of

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jurisdiction, and this court does not have the authority to enjoin the state court proceedings regarding

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this real property. See Alpine Land & Reservoir Co., 174 F.3d at 1014.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiffs David L.

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Alexander, et. al.’s motion for preliminary injunction (doc. #13) and emergency motion to shorten

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time on motion for preliminary injunction (doc. #15) be, and the same hereby are, DENIED.

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DATED August 1, 2012.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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