Robert A. Slovak vs Golf Course Villas Homeowners Association, et al

Filing 385

ORDER granting, in part, and denying, in part, 370 Motion for Release of Funds From Court-Ordered Blocked Account to Consummate Settlement. Signed by Magistrate Judge Carla Baldwin on 10/22/2021. (Copies have been distributed pursuant to the NEF - DN)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBERT SLOVAK,
Plaintiff,

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v.

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WELLS FARGO BANK, N.A., et al.,

Case No. 3:13-CV-0569-MMD-CLB
ORDER RE: MOTION FOR RELEASE OF
FUNDS FROM COURT-ORDERED
BLOCKED ACCOUNT TO CONSUMMATE
SETTLEMENT
[ECF No. 370]

Defendants.

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Before the Court is Plaintiff Robert Slovak’s (“Slovak”) motion for release of funds

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from court-ordered blocked account to consummate settlement, (ECF Nos. 370, 371).1

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Defendant Wells Fargo Bank, N.A., (“Wells Fargo”) filed a motion for leave to file its

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opposition to Slovak’s motion for release of funds, (ECF No. 373), in addition to its

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opposition to the motion. (ECF No. 374.) That same day, Slovak filed a notice of appeal

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and Ninth Circuit Rule 3-2 representation statement. (ECF No. 375.) Slovak is appealing

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the District Court’s order, ECF No. 372, which overruled Slovak’s objection to the

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Magistrate Judge’s order, ECF No. 362.

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The Court granted Wells Fargo’s motion for leave to file its opposition and

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additionally granted leave to Slovak to file a reply in support of his motion on or before

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October 19, 2021. (ECF No. 377.) In lieu of filing a reply, Slovak filed a document titled:

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“Notice Regarding Plaintiff’s Availability and Intent to File Reply Following Pendency of

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Appeal.” (ECF No. 380.)2 The Court construes this “notice” as Slovak’s reply brief.

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However, as new issues were raised in the document, the Court ordered Wells Fargo

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leave to file a response to this document. (ECF No. 381.) Wells Fargo filed that response

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on October 22, 2021. (ECF No. 382.)

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ECF No. 371 is an erratum to the motion for release of funds.

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Slovak filed two notices, (ECF Nos. 379 and 380), however ECF No. 379 appears
to be a corrupted document.

Slovak’s Notice of Appeal does not Divest this Court of Jurisdiction

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A.

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Slovak argues in his reply brief that the Court does not have jurisdiction to take

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any further action in this case due to the filing of his notice of appeal on October 12, 2021.

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(ECF No. 375.) In its response, Wells Fargo disagrees that Slovak’s notice of appeal

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divests this Court of jurisdiction. (ECF No. 382.)3

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Generally, once an appeal has been taken, the district court is divested of

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jurisdiction to take any action except in aid of the appeal. Ruby v. Sec’y of U.S. Navy, 365

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F.2d 385, 388 (9th Cir. 1966). However, where it is clear to the district court that the notice

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of appeal is in reference to a non-appealable order, the court may disregard the purported

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notice of appeal and proceed with the case, knowing that it has not been deprived of

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jurisdiction. Id. at 388-89. The Ninth Circuit has made clear, “when a litigant makes an

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improper interlocutory appeal, such action will not throw a monkey wrench into the

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machinery of our justice system. Instead, when an improper appeal is taken, the district

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court retains its jurisdiction to act on the case, and its extant orders must be followed by

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the litigants, at risk of grave sanction.” Nascimento v. Dummer, 508 F.3d 905, 910 (9th

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Cir. 2007).

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The Court finds that the notice of appeal filed by Plaintiff does not divest this Court

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of jurisdiction. ECF No. 372 is an interlocutory order related to procedural matters in this

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case. This order is not related to an injunction, any order regarding a receiver, or an

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interlocutory decree related to the rights or liabilities in an admiralty case. 28 U.S.C. §

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1292(a). As such, ECF No. 372 is not a final, appealable order and the notice of appeal

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seeking review of that order does not divest this Court of jurisdiction. Therefore,

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irrespective of the notice of appeal, the Court will proceed with this case in all respects,

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including, but not limited to, proceeding with the evidentiary hearing set for October 27,

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and 28, 2021 and ruling on the outstanding motion for release of funds pending before

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the Court.

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Wells Fargo has also filed a motion to dismiss Slovak’s appeal with the Ninth
Circuit, No. 21-16699. (See ECF No. 382-1.)
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Plaintiff’s Motion for Release of Funds

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B.

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Turning to the merits of Plaintiff’s motion, the Court grants the motion in part, and

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denies it, in part. To the extent Plaintiff seeks to withdraw his motion to enforce the

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settlement, the Court grants the motion.

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However, Plaintiff’s motion is denied in all other respects. First, the Court denies

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Plaintiff’s request to vacate the evidentiary hearing scheduled for October 27 and 28,

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2021. Wells Fargo’s motion to enforce the settlement agreement is still pending and must

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be decided. Consequently, withdrawal of Plaintiff’s motion to enforce the settlement

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agreement does not negate the need or basis for holding the evidentiary hearing.

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Therefore, the Court denies Plaintiff’s motion to the extent it seeks to vacate the

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evidentiary hearing.

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As to the release of the funds, although Plaintiff asserts that he seeks release of

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the funds directly to him to “consummate” the settlement agreement between the parties,

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Plaintiff’s motion does not affirmatively explain what this means or when he intends to

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“consummate” the settlement. In fact, Plaintiff’s motion carefully avoids stating that

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Plaintiff is now willing to accept the documents tendered by Wells Fargo in 2018 as

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sufficient to finalize the parties’ 2014 settlement agreement and thus end this litigation.

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There is also no statement in the motion addressing the question of when Plaintiff would

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consummate the settlement agreement if the funds were to be released to him. Rather, it

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appears Plaintiff is requesting the Court to release the funds directly to him without any

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guarantee or expectation that he will, in fact, consummate the settlement by accepting

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the documents previously tendered by Wells Fargo as sufficient to finalize the parties’

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agreement. Given Plaintiff’s conduct in this litigation of late, coupled with the careful

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drafting of his motion, it is does not appear Plaintiff has any intention of consummating

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the settlement in this case or ending this litigation if the funds are released to him.

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Therefore, the Court also denies the motion to the extent it seeks release of the funds at

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this time.

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However, if the parties file a stipulation or an agreement signed by both parties

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indicating that Plaintiff will accept the documents tendered by Wells Fargo as sufficient

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to finalize the 2014 settlement agreement prior to the scheduled hearing, the Court will

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convert the scheduled evidentiary hearing to a hearing to finalize the terms of the

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settlement agreement. If this occurs, the Court will enter an order directing the bank

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holding the funds in Plaintiff’s account to release $280,000 of the funds from Plaintiff via

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Plaintiff’s account directly to Wells Fargo (either by ordering the issuance of a cashier’s

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check with the payee listed as Wells Fargo or a wire transfer directly from Plaintiff’s

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account to Wells Fargo’s account) to coincide with delivery of the documents to Plaintiff.

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If the parties choose to proceed with such an agreement or stipulation, the agreement or

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stipulation must be filed by no later than Tuesday, October 26, 2021, at 12:00 p.m. and

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must be accompanied with a draft order for the Court’s signature, approved by both

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parties, setting forth the necessary requirements and details for the release of the funds

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as stated above.

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However, if the Court does not receive such a stipulation and/or agreement by the

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date and time listed above, the in-person evidentiary hearing set for October 27, and 28,

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2021 will proceed at 8:00 a.m. The parties are ordered to attend this hearing, either

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personally or through at least one of their attorneys. Any party’s failure to appear,

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either personally or through their attorney(s), will result in an order to show cause

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why sanctions should not be imposed against the party and/or their attorney(s).

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Therefore, Plaintiff’s motion for release of funds from court-ordered blocked

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account to consummate settlement, (ECF No. 370), is GRANTED, IN PART, AND

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DENIED, IN PART, for the reasons stated above.

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IT IS SO ORDERED.

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October 22, 2021
DATED: _____________________

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____________________________________
UNITED STATES MAGISTRATE JUDGE

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