LN Management LLC Series 8246 Azure Shores v. Wells Fargo Bank, N.A. et al

Filing 63

ORDER Denying Without Prejudice 52 Motion for Summary Judgment. Signed by Judge James C. Mahan on 3/19/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ZYZZX2,

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Case No. 2:13-CV-1307 JCM (PAL)
Plaintiff(s),

ORDER

v.
ARLENE G. DIZON, et al.,

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Defendant(s).

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Presently before the court is a motion for summary judgment filed by defendant Wells

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Fargo Bank, N.A. (hereinafter “defendant”).

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“plaintiff”) filed a response, (doc. # 57), and defendant filed a reply, (doc. # 61).

(Doc. # 52).

Plaintiff Zyzzx 2 (hereinafter

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Defendant seeks summary judgment on the grounds that Nevada Revised Statute 116.3116

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is facially unconstitutional. (Doc. # 52). A party that files a motion calling into question the

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constitutionality of a state statute must promptly “file a notice of constitutional question stating

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the question and identifying the paper that raises it, if . . . the parties do not include the state, one

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of its agencies, or one of its officers or employees in an official capacity

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. . . .” Fed. R. Civ. P. 5.1(a)(1)(B).

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The party must serve the notice on the state attorney general “by certified or registered mail

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or by sending it to an electronic address designated by the attorney general for this purpose.” Fed.

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R. Civ. P. 5.1(a)(2). Defendant provides no proof of compliance with this rule.

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Rule 5.1 also requires the court to “certify to the appropriate attorney general that a statute

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has been questioned” under 28 U.S.C. § 2403. Fed. R. Civ. P. 5.1(b). This statute states that the

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court “shall permit the State to intervene for presentation of evidence, if evidence is otherwise

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admissible in the case, and for argument on the question of constitutionality.” 28 U.S.C. § 2403(b).

James C. Mahan
U.S. District Judge

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In light of the foregoing rule and statute, the court will deny defendant’s motion for

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summary judgment without prejudice to allow defendant and the court to comply and the attorney

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general to intervene. Defendant may renew its motion after the attorney general has been afforded

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time to respond and upon showing compliance with the notice requirement of Rule 5.1(a).

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion for

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summary judgment, (doc # 52), be, and the same hereby is, DENIED without prejudice.

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IT IS FURTHER ORDERED that defendant shall provide notice to the Nevada attorney

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general in compliance with Federal Rule of Civil Procedure 5.1, and include proof of such notice

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upon filing any further motions raising constitutional challenges.

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IT IS FURTHER ORDERED that this court certifies to the Nevada attorney general that it

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may rule on the constitutionality of the state statute at issue in this case, NRS 116.3116. The

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attorney general shall have thirty (30) days within which to intervene on behalf of the state of

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Nevada for presentation of argument on the question of the constitutionality of the statute.

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IT IS FURTHER ORDERED that the clerk of court shall send a copy of this order by
certified mail to the Nevada attorney general.
DATED March 19, 2015.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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