McNamara v. Patten et al

Filing 45

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that 22 defendants' motion to dismiss be, and the same hereby is, DENIED without prejudice. The clerk shall close this case. Signed by Judge James C. Mahan on 9/21/2018. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

THOMAS W. MCNAMARA,

8
9
10

Case No. 2:17-CV-2968 JCM (NJK)
Plaintiff(s),

ORDER

v.
GARY PATTEN, et al.,

11

Defendant(s).

12
13

Presently before the court is defendants Gary Patten and Pano Advisors, Inc.’s (collectively

14

“defendants”) motion to dismiss. (ECF No. 22). Plaintiff Thomas W. McNamara, as the court

15

appointed monitor for AMG Capital Management, LLC, filed a response (ECF No. 26), to which

16

defendants replied (ECF No. 30).

17

On September 30, 2016, the court in Fed. Trade Comm’n awarded the Federal Trade

18

Commission $1,301,897,652 on its claims against AMG Services, Inc., Scott Tucker, and various

19

entities alleged to be owned and/or controlled by Tucker. Fed. Trade Comm’n v. AMG Servs.,

20

Inc., No. 2:12-cv-00536-GMN-VCF, 2017 WL 1704411 (D. Nev. May 1, 2017). Subsequently,

21

the parties filed an appeal, and the court entered an order appointing a monitor to oversee an asset

22

freeze on the Tucker estate while the appeal was pending. (ECF No. 1). In the monitor order,

23

Chief Judge Navarro held “this Court shall have exclusive jurisdiction regarding any dispute

24

regarding this order.” (ECF No. 1-1) (emphasis added).

25

Plaintiff initiated this action to clawback more than $10 million in allegedly fraudulent

26

transfers to defendants during and prior to the FTC v. AMG litigation. (ECF No. 1). Plaintiff also

27

raised a claim for unjust enrichment and requested an accounting by defendants. Id.

28
James C. Mahan
U.S. District Judge

1

Defendants argue in their motion to dismiss that plaintiff’s case is beyond the scope of the

2

monitor order. (ECF No. 22). The court cannot proceed to adjudicate the merits of the case

3

without first determining the scope of the monitor order. Accordingly, because the scope of the

4

monitor order is subject to the exclusive jurisdiction of Chief Judge Navarro, the court will deny

5

without prejudice defendants’ motion to dismiss, and dismiss the action to the plaintiff’s ability to

6

refile his case in the proper tribunal.

7

Accordingly,

8

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants’ motion to

9

dismiss (ECF No. 22) be, and the same hereby is, DENIED without prejudice.

10

The clerk shall close this case.

11

DATED September 21, 2018.

12
13

__________________________________________
UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-2-