Thomas v. Zachry et al
Filing
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ORDER granting in-part and denying in-part ECF No. #58 Motion to Dismiss. The action shall proceed solely on the fourth cause of action. Defendant Storey County and its Board of Commissioners shall serve a copy of this order and a copy of ECF No. #41 Order on the current owner or interested parties by 12/10/2017. Interested parties have until 12/20/2017 to seek leave from the court to participate in this action. Defendants' status report due 1/9/2018. Signed by Judge Larry R. Hicks on 11/30/2017. (Copies have been distributed pursuant to the NEF - LH)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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LORI L. THOMAS,
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Plaintiff,
Case No. 3:17-cv-0219-LRH-(WGC)
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v.
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ORDER
THOMAS ZACHRY; MARNA ZACHRY;
JOHN HARPER; and STOREY COUNTY
and its BOARD OF COMISSIONERS,
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Defendants.
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Before the court is plaintiff Lori L. Thomas’s (“Thomas”) motion to dismiss her
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complaint. ECF No. 58. Defendants Thomas Zachry, Marna Zachry, and John Harper
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(“homeowner defendants”), along with defendants Storey County and its Board of
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Commissioners, filed oppositions (ECF Nos. 59, 60) to which Thomas replied (ECF No. 61).
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This case has an extensive factual and procedural background,1 but in short, this case
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involves a dispute over a dirt road in Storey County, Nevada, commonly known as “Sutro
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Springs Road” which runs across real property formerly owned by Thomas. On April 7, 2017,
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Thomas, who then owned the real property, filed a complaint against defendants alleging four
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causes of action: (1) petition for writ of mandamus against Storey County; (2) a Fifth
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Amendment takings claim; (3) injunctive relief; and (4) declaratory relief and quiet title to the
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For a more complete history of the factual and procedural history in this action, see the court’s order on Thomas’s
motion for preliminary injunction (ECF No. 41).
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roadway along the property. ECF No. 1. However, on September 22, 2017, after the court’s order
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denying her motion for a preliminary injunction (ECF No. 41), Thomas transferred her interest in
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the underlying property to another individual. In light of her transfer of the property, Thomas
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now moves to dismiss her complaint in its entirety. See ECF No. 58
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The court shall grant Thomas’s motion to dismiss her non-in rem claims for a writ of
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mandamus, her Fifth Amendment takings claim, and her injunctive relief claim. These three
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claims do not concern the title of Sutro Springs Road as it crosses the underlying property and, as
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such, may be withdrawn by Thomas with prejudice. However, her declaratory relief and quiet
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title claim was brought in rem to determine the rights to Sutro Springs Road as it crosses the
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property against all other persons including the named defendants. As such, the court finds that
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this claim should proceed to a final determination notwithstanding Thomas’s transfer of her
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interest in the property. See e.g., Chapman v. Deutsche Bank Nat. Trust Co., 651 F.3d 1039,
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1046-47 (9th Cir. 2011) (recognizing that in rem actions survive a transfer of a party’s interest in
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the underlying property).
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In her motion, Thomas contends that the transfer of her interest in the property divests her
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of the standing to maintain her quiet title action and, as such, this action should be dismissed.
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However, although Thomas no longer has an interest in the property, the defendants have an
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ongoing interest in the determination of whether or not Sutro Springs Road constitutes a public
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roadway under R.S. 2477 as it crosses the property formerly owned by Thomas. Further, the
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defendants have expended significant resources in this action and are entitled to have the
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declaratory relief and quite title claim determined on the merits. The court recognizes that
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Thomas no longer has any interest in this action as it relates to the declaratory relief and quite
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title claim and, as such, Thomas will not be required to participate any further in this action. The
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court also recognizes that there may be other parties whose interest in the underlying real
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property may be affected by an order from the court concerning Sutro Springs Road, particularly
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the new owner of the underlying property and any possible lien holders on the property. In this
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regard, defendant Storey County and its Board of Commissioners shall serve a copy of this order,
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along with the court’s order denying Thomas’s motion for a preliminary injunction
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(ECF No. 41), on the current owner of the underlying property and any other parties known to
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have or be claiming an interest in the underlying property. Interested parties may then seek leave
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from the court to participate in this action under Federal Rule of Civil Procedure Rule 20.
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IT IS THEREFORE ORDERED that plaintiff’s motion to dismiss (ECF No. 58) is
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GRANTED in-part and DENIED in-part in accordance with this order. Plaintiff’s first cause of
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action for a petition for writ of mandamus; second cause of action for an unconstitutional taking
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in violation of the Fifth Amendment; and third cause of action for injunctive relief are
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DISMISSED with prejudice from plaintiff’s complaint (ECF No. 1). This action shall proceed
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solely on plaintiff’s fourth cause of action for declaratory relief and quiet title.
IT IS FURTHER ORDERED that defendant Storey County and its Board of
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Commissioners shall, within ten (10) days of entry of this order, serve a copy of this order, as
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well as the court’s order denying plaintiff’s motion for a preliminary injunction (ECF No. 41), on
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the current owner and any other parties known to have or be claiming an interest in the
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underlying property.
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IT IS FURTHER ORDERED that any interested party shall have twenty (20) days after
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being served with a copy of this order to seek leave from the court to participate in this action
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under Rule 20 of the Federal Rules of Civil Procedure governing permissive joinder.
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IT IS FURTHER ORDERED that defendants shall submit a status report no later than
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forty (40) days after entry of this order setting forth all remaining issues to be addressed by the
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court and a prospective schedule to address these issues.
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DATED this 30th day of November, 2017.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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