Thomas v. Zachry et al

Filing 63

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 EC F 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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 LORI L. THOMAS, 10 Plaintiff, Case No. 3:17-cv-0219-LRH-(WGC) 11 v. 12 ORDER THOMAS ZACHRY; MARNA ZACHRY; JOHN HARPER; and STOREY COUNTY and its BOARD OF COMISSIONERS, 13 14 Defendants. 15 16 Before the court is plaintiff Lori L. Thomas’s (“Thomas”) motion to dismiss her 17 18 complaint. ECF No. 58. Defendants Thomas Zachry, Marna Zachry, and John Harper 19 (“homeowner defendants”), along with defendants Storey County and its Board of 20 Commissioners, filed oppositions (ECF Nos. 59, 60) to which Thomas replied (ECF No. 61). 21 This case has an extensive factual and procedural background,1 but in short, this case 22 involves a dispute over a dirt road in Storey County, Nevada, commonly known as “Sutro 23 Springs Road” which runs across real property formerly owned by Thomas. On April 7, 2017, 24 Thomas, who then owned the real property, filed a complaint against defendants alleging four 25 causes of action: (1) petition for writ of mandamus against Storey County; (2) a Fifth 26 Amendment takings claim; (3) injunctive relief; and (4) declaratory relief and quiet title to the 27 28 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). 1 1 1 roadway along the property. ECF No. 1. However, on September 22, 2017, after the court’s order 2 denying her motion for a preliminary injunction (ECF No. 41), Thomas transferred her interest in 3 the underlying property to another individual. In light of her transfer of the property, Thomas 4 now moves to dismiss her complaint in its entirety. See ECF No. 58 5 The court shall grant Thomas’s motion to dismiss her non-in rem claims for a writ of 6 mandamus, her Fifth Amendment takings claim, and her injunctive relief claim. These three 7 claims do not concern the title of Sutro Springs Road as it crosses the underlying property and, as 8 such, may be withdrawn by Thomas with prejudice. However, her declaratory relief and quiet 9 title claim was brought in rem to determine the rights to Sutro Springs Road as it crosses the 10 property against all other persons including the named defendants. As such, the court finds that 11 this claim should proceed to a final determination notwithstanding Thomas’s transfer of her 12 interest in the property. See e.g., Chapman v. Deutsche Bank Nat. Trust Co., 651 F.3d 1039, 13 1046-47 (9th Cir. 2011) (recognizing that in rem actions survive a transfer of a party’s interest in 14 the underlying property). 15 In her motion, Thomas contends that the transfer of her interest in the property divests her 16 of the standing to maintain her quiet title action and, as such, this action should be dismissed. 17 However, although Thomas no longer has an interest in the property, the defendants have an 18 ongoing interest in the determination of whether or not Sutro Springs Road constitutes a public 19 roadway under R.S. 2477 as it crosses the property formerly owned by Thomas. Further, the 20 defendants have expended significant resources in this action and are entitled to have the 21 declaratory relief and quite title claim determined on the merits. The court recognizes that 22 Thomas no longer has any interest in this action as it relates to the declaratory relief and quite 23 title claim and, as such, Thomas will not be required to participate any further in this action. The 24 court also recognizes that there may be other parties whose interest in the underlying real 25 property may be affected by an order from the court concerning Sutro Springs Road, particularly 26 the new owner of the underlying property and any possible lien holders on the property. In this 27 regard, defendant Storey County and its Board of Commissioners shall serve a copy of this order, 28 along with the court’s order denying Thomas’s motion for a preliminary injunction 2 1 (ECF No. 41), on the current owner of the underlying property and any other parties known to 2 have or be claiming an interest in the underlying property. Interested parties may then seek leave 3 from the court to participate in this action under Federal Rule of Civil Procedure Rule 20. 4 5 IT IS THEREFORE ORDERED that plaintiff’s motion to dismiss (ECF No. 58) is 6 GRANTED in-part and DENIED in-part in accordance with this order. Plaintiff’s first cause of 7 action for a petition for writ of mandamus; second cause of action for an unconstitutional taking 8 in violation of the Fifth Amendment; and third cause of action for injunctive relief are 9 DISMISSED with prejudice from plaintiff’s complaint (ECF No. 1). This action shall proceed 10 11 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 12 Commissioners shall, within ten (10) days of entry of this order, serve a copy of this order, as 13 well as the court’s order denying plaintiff’s motion for a preliminary injunction (ECF No. 41), on 14 the current owner and any other parties known to have or be claiming an interest in the 15 underlying property. 16 IT IS FURTHER ORDERED that any interested party shall have twenty (20) days after 17 being served with a copy of this order to seek leave from the court to participate in this action 18 under Rule 20 of the Federal Rules of Civil Procedure governing permissive joinder. 19 IT IS FURTHER ORDERED that defendants shall submit a status report no later than 20 forty (40) days after entry of this order setting forth all remaining issues to be addressed by the 21 court and a prospective schedule to address these issues. 22 DATED this 30th day of November, 2017. 23 24 LARRY R. HICKS UNITED STATES DISTRICT JUDGE 25 26 27 28 3

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