My Home Now, LLC v. Citibank, N.A.

Filing 41

ORDER denying without prejudice 35 and 37 Motions for Summary Judgment; directing Defendant to provide notice to the NV AG in compliance with F.R.Civ.P. 5.1; giving the NG AG 30 days to intervene; directing the Clerk to send a copy of this order to the NV AG via certified mail (7013 1710 0001 6622 4197; sent 4/15/2016). Signed by Judge James C. Mahan on 4/14/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MY HOME NOW, LLC,

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Case No. 2:14-CV-2019 JCM (VCF)
Plaintiff(s),

ORDER

v.
CITIBANK, N.A., et al.,

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Defendant(s).

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Presently before the court is plaintiff My Home Now’s motion for summary judgment.

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(Doc. # 35). Defendant Citibank, N.A. filed a response, (doc. # 36), and plaintiff filed a reply.

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(Doc. # 39). Also before the court is defendant’s countermotion for summary judgment. (Doc. #

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37). Plaintiff filed a response (doc. # 39), and defendant filed a reply. (Doc. #40).

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

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is facially unconstitutional. (Docs. #36, 37). 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 . . . .” Fed. R. Civ. P.

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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 has provided 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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James C. Mahan
U.S. District Judge

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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).

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In light of the foregoing rule and statute, the court will deny the parties’ motions 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. The parties may renew their motions after the attorney general has been

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afforded 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 plaintiff’s motion for

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summary judgment (docs. #35), be, and the same hereby is, DENIED without prejudice.
IT IS FURTHER ORDERED that defendant’s motion for summary judgment (doc. #37),
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.

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DATED April 14, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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