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Nissan Motor Acceptance Corp. v. Robert Allen Nissan Of Helena Inc.

United States District Court, D. Montana, Helena Division

March 19, 2019

NISSAN MOTOR ACCEPTANCE CORPORATION, Plaintiff,
v.
ROBERT ALLEN NISSAN OF HELENA, INC., and ROBERT T. ALLEN, individually, Defendants.

          TEMPORARY RESTRAINING ORDER

          CHARLES C. LOVELL SENIOR UNNITED STATES DISTRICT JUDGE.

         Before the Court is a motion for temporary restraining order and preliminary injunction filed by Plaintiff Nissan Motor Acceptance Corporation ("NMAC") on March 6, 2019. Rather than issuing the requested emergency temporary restraining order without providing the defendants with an opportunity to be heard, the Court set a status conference for today's date. Plaintiff was represented at the status conference by local counsel, Pamela D. Combo of Witherspoon Kelley and by pro hac vice counsel Andrew S. Elliott of Severson & Werson. Defendants were represented by Murry Warhank of Jackson, Murdo & Grant, P.C.

         PROCEDURAL BACKGROUND

         Complaint

         Plaintiff filed what it terms a "Verified Complaint" on Friday, February 22, 2019. Plaintiffs complaint names two defendants, Robert Allen Nissan of Helena (Nissan of Helena) and Robert T. Allen, an individual. (Doc. 1, Compl. at ¶ 4). Robert T. Allen (Allen) is named individually as the guarantor of Defendant Nissan of Helena. The defendants are also identified as agents of one another. (Doc 1 at¶ 6). The complaint contains seven claims for relief. The first claim for relief is for breach of the Wholesale Agreement between NMAC and Nissan of Helena.[1] (Doc. 1 at ¶¶ 29 - 34). In its prayer for relief as to the first claim, Plaintiff seeks damages of over $6.7 million, with interest and charges as allowed under the Wholesale Agreement. (Doc. 1 at 14, ¶ 1).

         In its second claim for relief, Plaintiff is bringing an action for "claim and delivery" under Mont. Code Ann. §§27-17-101 through 27-17-405. Plaintiff alleges that it has a security interest in all the collateral described in the Wholesale Agreement and that it is entitled to immediate possession of that collateral based on Defendant's defaults under the Wholesale Agreement. (Doc. 1 at ¶¶ 35 - 44). In its prayer for relief as to its second claim.. Plaintiff asks the Court to enter an order to show cause why a writ of possession should not be directed to the Sheriff of Lewis and Clark County to seize all personal property in which Plaintiff has a security interest. (Doc. 1 at 14, ¶ 2).[2]

         The third claim for relief seeks injunctive relief under Fed.R.Civ.P. 65. (Doc. 1 at ¶¶ 45 - 48 and at 15, ¶ 3). NMAC alleges that it has a perfected security interest in the collateral described in the Wholesale Agreement (Doc. 1 at ¶¶ 13 - 14) and that Defendant has violated the Wholesale Agreement by failing to "hold in trust and pay, without demand, the unpaid balance of any advance made by NMAC with respect to a Vehicle at or near the date on which the Vehicle was sold, leased, or placed into use by Defendant." (Doc. 1 at ¶ 15). Defendant refers to such vehicles as being "sold out of trust" or "SOT." (Doc. 1 at ¶ 7). Plaintiff alleges that it "has demanded Defendant pay the amounts owing and all of its other obligations, or to surrender the Collateral, but despite this demand, Defendant has failed and refused to do so." (Doc. 1 at ¶ 33). Plaintiff alleges that "Defendant's wrongful conduct in failing to turn over to NMAC the Vehicles, and other Collateral in which NMAC has a security interest has caused and will continue to cause great and irreparable injury to NMAC unless and until enjoined and restrained by order of this Court." (Doc. 1 at ¶ 46). In its prayer for relief as to its third claim, Plaintiff seeks "a temporary restraining order, preliminary injunction and permanent injunction, each prohibiting Defendants and their principals, agents, employees and other representatives from selling, diverting, commingling, depositing, spending, or otherwise disposing of proceeds of the lease, sale or other disposition of any and all Vehicles and other personal property of Defendant in which NMAC has a security interest, and from doing anything with the proceeds and other income of same, other than paying them over to NMAC or depositing the same into Court." (Doc. 1 at 15, ¶ 3).

         The fourth claim for relief seeks specific performance of that portion of the Wholesale Agreement that requires Defendant and its agents to assemble and deliver the collateral to NMAC. (Doc. 1 at ¶¶ 49 - 53 and 15, ¶ 4).

         Plaintiff seeks damages of approximately $5, 492.41, with interest and charges as allowed under the Sign Lease Agreement for breach of that agreement in its fifth claim for relief, (Doc. 1 at ¶¶ 54 - 57 and 15, ¶ 5). In it sixth claim for relief, Plaintiff seeks damages of over $38, 000 with interest and charges for Defendants' violation of the Lease Agreement. (Doc. 1 at¶¶ 58 - 64). Plaintiff uses the term "Lease Agreement" to refer to the Lease Plan Financing and Security Agreement. (Doc. 1 at ¶ 21). In its prayer for relief as to its sixth claim, Plaintiff seeks "damages under the Lease Agreement in the sum of approximately $38, 650.52, with interest and charges as allowed under the Sign Lease Agreement." (Doc. 1 at 15, ¶ 6).

         Plaintiffs seventh claim for relief is the only claim directed specifically at Defendant Robert T. Allen and is based on his execution of a Continuing Guaranteed Agreement guaranteeing the full payment of all obligations of Defendant to NMAC. (Doc. 1 at ¶¶ 65 - 70). Plaintiff seeks damages of over $6.7 million from Defendant Robert T. Allen in its prayer for relief as to the seventh claim. (Doc. 1 at 15, ¶ 7).

         Motion for Order to Show Cause

         Plaintiff filed a motion for an order to show cause on Plaintiffs second claim for relief (claim and delivery under Montana law) late on the afternoon of February 28, 2019. (Doc. 6). On March 1, 2019, this Court set a hearing on Plaintiffs motion for March 29, 2019. (Doc. 7). The Court noted in its March 1, 2019, order that it was not its usual practice to enter an order to show cause as to a party that had not yet been served and ordered Plaintiff to serve both defendants with a summons and complaint, a copy of the motion, and a copy of the order on or before March 5, 2019.

         Service

         The summons and complaint, a copy of the motion, and a copy of the order were served on a legal assistant at Jackson, Murdo & Grant, the Registered Agent for Defendant Robert Allen Nissan of Helena, on March 4, 2019. (Doc. 13).

         The summons and complaint, a copy of the motion, and a copy of the order were served on Defendant Robert T. Allen at the dealership on March 4, 2019. (Doc. 14).

         Motion for TRO and Preliminary Injunction

         On March 6, 2019, Plaintiff filed a Motion for Temporary Restraining Order and Preliminary Injunction. (Doc. 8). Plaintiffs motion is supported by a brief (Doc. 9) and by the affidavit of Jeff Griffin. (Doc. 10). Mr. Griffin is NMAC's Senior Manager, Special Credit, and is responsible for the Nissan of Helena account. (Doc. 10 at ¶ 1). Mr. Griffin also serves as the custodian of records for ...


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