State of Nevada v. Bank of America Corporation et al

Filing 86

ORDERED that the # 56 Motion to Change Venue is DENIED. FURTHER ORDERED that the # 63 Motion for Leave to File Second Amended Complaint is GRANTED. FURTHER ORDERED that the hearing set for November 15, 2011 is VACATED . Signed by Chief Judge Robert C. Jones on 10/13/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STATE OF NEVADA,
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Plaintiff,
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vs.
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BANK OF AMERICA CORP. et al.,
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Defendants.
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3:11-cv-00135-RCJ-WGC
ORDER

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This case arises out of a national bank’s and its subsidiaries’ practices with regard to

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mortgage modifications. The Court denied Plaintiff’s Motion to Remand (ECF No. 18), and

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Plaintiff has now moved to change venue to the unofficial southern division of the District.

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Defendants object. For the reasons given herein, the Court denies the motion.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiffs often claim in foreclosure lawsuits that the beneficiary or loan servicer made

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misrepresentations or unfulfilled promises concerning the availability of a mortgage

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modification. The State of Nevada (the “State”) sued Defendants in state court on behalf of

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potentially thousands of individual Nevadans on a single cause of action under Nevada’s

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Deceptive Trade Practices Act (“DTPA”), Chapter 598 of the Nevada Revised Statutes (“NRS”),

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alleging seven types of such misrepresentations. (See Compl., Dec. 17, 2010, ECF No. 4-1). The

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State requests declaratory judgment, an injunction against any practices declared to be unlawful,

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civil penalties as provided by sections 598.0999(2) and 598.0973, restitution as provided by

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section 598.0993, and the costs of investigation and attorney’s fees as provided by section

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598.0999(2). (See id. at 35–36). Defendants removed. The Court denied a motion to remand,

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and Plaintiff has now moved for a change of venue.

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II.

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LEGAL STANDARDS
“For the convenience of parties and witnesses, in the interest of justice, a district court

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may transfer any civil action to any other district or division where it might have been brought.”

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28 U.S.C. § 1404(a). Furthermore, “[a] district court may order any civil action to be tried at any

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place within the division in which it is pending.” § 1404(c). Section 1404(a) may be invoked to

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transfer a case between divisions of judicial districts created by rule, not only those created by

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statute. McNeil Const. Co. v. Livingston State Bank, 155 F. Supp. 658, 662 (D. Mont. 1957).

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Nevada constitutes a single district that is not divided into divisions, 28 U.S.C. § 108, but

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the District has two “unofficial” divisions under the local rules. The unofficial southern division

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encompasses Clark, Esmeralda, Lincoln, and Nye Counties, and cases originating in those

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counties are filed in Las Vegas and designated with “2:” at the beginning of the case number. See

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Local R. IA 6-1. The unofficial northern division encompasses the remaining counties, and

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cases originating in those counties are filed in Reno and designated with “3:” at the beginning of

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the case number. See id. “The court may in its discretion direct that proceedings or trial take

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place in the division other than the division where filed. Unless otherwise ordered, however, all

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filings shall be made and proceedings had in the division of the court in which the case was

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originally filed.” Local R. IA 8-1(c).

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III.

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ANALYSIS
The State filed the present case in state court in Clark County, but Defendants removed to

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federal court in Reno, so the Clerk designated the case as an unofficial northern division case.

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The State does not request transfer to another district or to another judge within this District but

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asks to change venue to the unofficial southern division. The practical effects of granting the

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motion would be to alter the case number prefix from “3:” to “2:” and to change the default
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hearing and trial location from Reno to Las Vegas. However, it is also possible that the Clerk

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would randomly reassign the case to another judge, raising the specter of judge-shopping. The

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most important consideration is whether it would be more convenient for the parties and

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witnesses to hold the trial in Las Vegas. The case is still in the pretrial stage; however, so only

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the convenience of the attorneys is currently implicated. Attorney convenience is a legitimate

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reason to change hearing locations on a hearing-by-hearing basis, but it is not a proper reason to

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formally change venue of a case. And attorneys in this state routinely travel between Reno and

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Las Vegas for hearings, and this Court permits telephonic appearances on short notice, in any

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case. Defendants’ attorneys are based in Reno and Los Angeles, CA. Plaintiff’s attorneys are

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based in Las Vegas, Carson City, and Washington, DC. Defendants’ attorneys would therefore

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be more inconvenienced by hearings in Las Vegas than Plaintiff’s attorneys would be by

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hearings in Reno. Any attorney may appear telephonically, but if the parties wish to appear in

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person, Plaintiff has an attorney in Carson City who may drive to Reno in less than an hour,

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whereas Defendants’ attorneys would have to fly to Las Vegas if venue were changed. As for

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the inconvenience of the parties and witnesses at trial, there are not yet any witness lists for the

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Court to consider, and the motion is therefore premature in that regard. Plaintiff alleges

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thousands of similarly situated class members, so it is extremely doubtful that enough of them

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cannot be found in the Reno area for Plaintiff to make its case.

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Finally, Plaintiff has moved to amend to add a second cause of action for declaratory

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judgment as to whether Defendants breached a previous consent judgment. Defendants argue

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that permitting this amendment will greatly expand the scope of litigation, making the case

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difficult for the Court to manage. Although the Proposed Second Amended Complaint

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(“PSAC”) contains many pages of extraneous factual material and the second cause of action

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therein is both partially unclear and partially redundant with the first cause of action, this is no

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reason to deny permission to amend. This Court routinely manages many cases just as complex
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as the present one.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Change Venue (ECF No. 56) is DENIED.

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IT IS FURTHER ORDERED that the Motion for Leave to File Second Amended

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Complaint (ECF No. 63) is GRANTED.

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IT IS FURTHER ORDERED that the hearing set for November 15, 2011 is VACATED.

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IT IS SO ORDERED.

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Dated this 13th day of October, 2011.

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_____________________________________
ROBERT C. JONES
United States District Judge

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