Naples Polaris v. Peterson et al

Filing 29

ORDERED that the # 19 Motion to Intervene is GRANTED. Signed by Judge Robert C. Jones on 1/10/2014. (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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NAPLES POLARIS, LLC,
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Plaintiff,
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vs.
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VAL PETERSON et al.,
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Defendants.
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3:13-cv-00511-RCJ-VPC
ORDER

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This Rule 22 interpleader action arises out of confusion concerning the proper claimant to

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$300,000 held by Plaintiff. Pending before the Court is a Motion to Intervene (ECF No. 19). For

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the reasons given herein, the Court grants the motion.

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I.

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FACTS AND PROCEDURAL HISTORY
On September 8, 2008, the bankruptcy court of this District approved a settlement

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agreement (“SA”) in Case No. 07-bk-51126. (See Compl. ¶ 10, Sept. 17, 2013; Order 5:10–11,

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Sept. 8, 2008, ECF No. 1, at 8; SA, Aug. 27, 2008, ECF No. 1, at 23). The SA provided in

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relevant part that the trustee was to assign certain of the debtor’s civil claims (the “Assigned

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Claims”) to Plaintiff in the present action, Naples Polaris, LLC (“Naples”), and that Naples could

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pursue those claims at its discretion so long as certain other parties were appraised of the

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litigation and any settlement offers. (See SA 12–13). Naples contemporaneously granted an

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entity identified in the relevant section of the SA only as “Western” a contingent security interest

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in the first $300,000 of any amount recovered under the Assigned Claims after allowance for fees

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and costs related to their prosecution. (See id. 14). Naples recovered approximately $2.5 million

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on the Assigned Claims in state court, and upon the Nevada Supreme Court’s affirmation and

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remittitur the state district court released to Naples the supersedeas bonds Defendants had posted.

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(See Compl. ¶¶ 15–16). Naples therefore is now in possession of $300,000 to which “Western”

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is entitled. (Id. ¶ 14). However, Naples is uncertain to whom it should distribute the funds

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because of, inter alia, confusion over corporate names and corporate status. (See id. ¶¶ 17–28).

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Naples therefore filed the present Rule 22 interpleader action in this Court, naming four

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Defendants-in-Interpleader: (1) Val Peterson; (2) Eugene Cleveland Canepa; (3) Western

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Properties of Nevada, LLC; and (4) the United States Department of the Treasury, Internal

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Revenue Service (“IRS”). The first page of the SA indicates that “Western” refers to “Western

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Properties, LLC,” and the SA appears to use the abbreviation “Western” thereafter. Naples notes

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that only Western Properties of Nevada, LLC made an appearance in the bankruptcy case,

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however, and the SA is signed on behalf of “Western Properties of Nevada.” Canepa is the

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principal of Western Properties of Nevada, LLC, and he filed proofs of claim in the name

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“Western Properties, LLC.” The Secretary of State’s website indicates that there are business

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entities named “Western Properties LLC,” “Western Properties, LLC,” and “Western Properties

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of Nevada, LLC.” The first entity has been dissolved but previously had a single manager, The

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Revocable Trust of Michelle M. Mayne. The second entity is active, with managers Brian and

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Sandra Kazarian. The third entity is revoked, with previous managers Canepa and Peterson. It

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appears that the third entity is the one involved in the bankruptcy proceedings and the SA based

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upon Canepa’s and Peterson’s separate mention in the SA and lack of any reference to the

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members of the other closely named entities. The reference to “Western Properties, LLC” in the

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SA was likely an unfortunate, though minor, error that has resulted in confusion only because of

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the generic name of the entity. However, Western Properties of Nevada, LLC’s revoked status

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still makes it unclear to Naples to whom the proceeds should be distributed. (See id. ¶ 29).

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Finally, Naples notes that it is aware of a federal tax lien against Canepa, so it has named the IRS
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as a Defendant-in-Interpleader, as well. (See id. ¶ 28). Oscar Renteria, Denise Renteria, and The

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Renteria Family Trust have now moved to intervene as of right under Rule 24(a). No party has

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timely objected.

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II.

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LEGAL STANDARDS
On timely motion, the court must permit anyone to intervene who:

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(1) is given an unconditional right to intervene by a federal statute; or

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(2) claims an interest relating to the property or transaction that is the subject
of the action, and is so situated that disposing of the action may as a practical
matter impair or impede the movant’s ability to protect its interest, unless
existing parties adequately represent that interest.

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Fed. R. Civ. P. 24(a)(1)–(2).
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III.

ANALYSIS

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Intervenors argue that because Western Properties of Nevada, LLC (“Western”) has been
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in revoked status since January 31, 2009, its managers or members hold its assets in trust as a
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matter of law. See Nev. Rev. Stat. § 86.274(5) (“If the charter of a limited-liability company is
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revoked and the right to transact business is forfeited, all of the property and assets of the
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defaulting company must be held in trust by the managers or, if none, by the members of the
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company . . . .”). Moreover, Intervenors argue that they were the payees on five promissory notes
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made by Canepa, that they have received a judgment of $998,870.27 in their favor based upon
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nonpayment of those notes in a separate action in this Court, Case No. 3:11-cv-534, and that the
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judgment remains totally unsatisfied. Intervenors also correctly note that in the ‘534 Case the
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Court entered a charging order against Canepa, charging his membership interest in Western (as
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well as his stock in two other companies) for the full amount of the judgment under NRS
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sections 78.746 and 86.401. The Court rejected Canepa’s argument that the IRS tax lien against
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him prevent the charging order under state law, noting that it was for the IRS or other entities to
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litigate priority to the assets if they wished to. The Court agrees that Intervenors claim an interest
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in the common fund such that disposing of the action will impair or impede their ability to

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protect their interests therein, and that existing parties will not adequately protect Intervenors’

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interest.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Intervene (ECF No. 19) is GRANTED.

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IT IS SO ORDERED.

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Dated this 10th day December, 2013.
Dated this 12th day of of January, 2014.

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_____________________________________
ROBERT C. JONES
United States District Judge

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