LN Management, LLC Series 5664 Divot v. Dansker et al

Filing 108

ORDER granting ECF No. 89 Motion for Summary Judgment; denying ECF No. 102 Motion to Substitute Party; JP Morgan and Fannie Mae to submit proposed judgment within 14 days. Signed by Judge Robert C. Jones on 1/16/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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LN MANAGEMENT, LLC SERIES 5664
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DIVOT,
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Plaintiff,
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vs.
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KIT DANSKER et al.,
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Defendants.
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2:13-cv-01420-RCJ-GWF
ORDER

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This is a removed quiet title action between the buyer of real property at a homeowners’

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association foreclosure sale (LN Management, LLC Series 5664 Divot or “LN”) and the holder

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of the first deed of trust (JPMorgan Chase Bank, N.A. or “JPMorgan”). JPMorgan and

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Intervenors Federal Housing Finance Agency (“FHFA”) and Federal National Mortgage

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Association (“Fannie Mae”) moved for summary judgment under Bourne Valley Court Tr. v.

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Wells Fargo Bank, N.A., 832 F.3d 1154 (9th Cir. 2016). LN countered that the Court should

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remand for lack of diversity under Weeping Hollow Ave. Tr. v. Spencer, 831 F.3d 1110 (9th Cir.

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2016). Because diversity depended on the citizenships of any successor(s)-in-interest of the

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deceased homeowner (Kit Dansker) and LN’s member(s), none of whom had been identified, the

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Court gave the parties several months to engage in jurisdictional discovery. The parties later

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noted at a status conference that diversity would only be lacking if any of Dansker’s successors

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were Nevada citizens. But the parties had not identified any successors. The dispositive fact

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was therefore that no non-diverse person had been joined. The Court indicated it was satisfied of

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its jurisdiction under these circumstances and would not delay the case any longer, noting that

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any party later discovering a lack of diversity could of course bring the issue to the attention of

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the Court.

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Accordingly, JPMorgan has renewed its motion for summary judgment under Bourne

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Valley. In opposition, LN again relies upon an alleged lack of diversity. The argument differs

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this time, however. LN now argues that the Court should consider Dansker’s estate to be a

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defendant (and to substitute the estate for Dansker, if necessary), and that under § 1332 the

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citizenship of the estate is the same as Dansker’s citizenship at the time of her death, i.e.,

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Nevada, which would destroy diversity.

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The Court rejects this argument. The cited subsection of the statute applies not to estates

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in the abstract, but to legal representatives of a decedent’s estate. See 28 U.S.C. § 1332(c)(2)

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(“[T]he legal representative of the estate of a decedent shall be deemed to be a citizen only of the

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same State as the decedent . . . .” (emphasis added)). As the Court has noted, LN has always

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been free to join such a person if one exists. But LN has neither identified any legal

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representative of Dansker’s estate nor, to the Court’s knowledge, made any effort to have one

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appointed. LN has had several years since learning (no later than 2013) of Dansker’s death (in

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2009) to petition a Nevada probate court to appoint a personal representative under Chapter 138

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(if there be a will), or an administrator or special administrator under Chapters 139 or 140 (if

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Dansker died intestate). Absent a successor with his or her own interest in the property—none

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has been identified—only a legal representative of Dansker’s estate may sue or be sued. See 34

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C.J.S. Executors and Administrators § 847 (2017) (collecting cases). Dansker’s estate, like

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Dansker’s memory, is an abstract concept that cannot be sued except through a legal

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representative who can appear to defend the interests of the heirs (whether yet determined or not)

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in any remaining estate property. See id. 1 And although the Court has jurisdiction to enter

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judgment on a civil common law claim against such a representative, the Court has no

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jurisdiction to appoint a representative in the first instance, which would be an act of

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administration of the estate. See Marshall v. Marshall, 547 U.S. 293, 311 (2006).

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Although Dansker’s estate’s legal representative would be a Nevada citizen for the

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purposes of diversity if one existed and were joined, see 28 U.S.C. § 1332(c)(2), the Court

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cannot find a lack of diversity between the existing parties based on the mere possibility that a

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non-diverse person might be discovered or appointed and subsequently joined. In Weeping

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Hollow, a living homeowner was a party to the case, see 831 F.3d at 1111, even if she had not

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appeared because, as most parties in her position, she had no remaining practical interest in the

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matter, (see generally Docket in Weeping Hollow Ave. Tr. v. Spencer, No. 2:13-cv-544). In that

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case, there was indisputably no “civil action . . . between” completely diverse parties. See 28

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U.S.C. § 1332(a). The question was whether the homeowner’s citizenship should be disregarded

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under the doctrine of fraudulent joiner. See id. Here, although Weeping Hollow would preclude a

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fraudulent joinder argument were a representative of Dansker’s estate to be joined, the action as

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it currently stands is indisputably between completely diverse parties. The Court of Appeals

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ruled in Weeping Hollow that the possibility of a former homeowner bringing a future quiet title

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action was enough to defeat an argument that her joinder was fraudulent. See 831 F.3d at 1114.

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1 The Court denies the separate motion to substitute “the Estate of Kit Dansker” for Kit Dansker.
First, Kit Dansker is not even a proper party who can be substituted for. She died before the
action was filed, and no legal representative has ever appeared. Second, her estate is not a
juridical entity that can sue or be sued except through a representative, and LN identifies none.
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The Court of Appeals did not rule that the possibility of a presumably non-diverse person

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bringing such an action destroys diversity between otherwise completely diverse parties where

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the presumably non-diverse person has not in fact been joined.
CONCLUSION

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IT IS HEREBY ORDERED that the Motion for Summary Judgment (ECF No. 89) is
GRANTED.

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IT IS FURTHER ORDERED that the Motion to Substitute (ECF No. 102) is DENIED.

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IT IS FURTHER ORDERED that Movants JPMorgan and Fannie Mae shall submit a

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proposed judgment within fourteen (14) days.
IT IS SO ORDERED.
Dated this 11th16, 2018.
January day of December, 2017.

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_____________________________________
ROBERT C. JONES
United States District Judge

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