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Phillips v. Solutions

United States District Court, D. Nevada

August 28, 2014

MARY PHILLIPS, an individual, Plaintiff,
DIGNIFIED TRANSITION SOLUTIONS, a Delaware limited liability company; BANK OF AMERICA, N.A.; and DOES 1 through 10, inclusive, Defendants.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is a Partial Motion to Dismiss (ECF No. 8) filed by Defendants Dignified Transition Solutions ("DTS") and Bank of America, N.A. ("BOA") (collectively "Defendants") on December 27, 2013. Plaintiff Mary Phillips ("Plaintiff") filed her Response in Opposition (ECF No. 16) on February 3, 2014. Defendants filed a Reply in Support of their Motion to Dismiss (ECF No. 21) on February 27, 2014.

Subsequently, on April 9, 2014, Plaintiff filed a Motion for Leave to File a Surreply (ECF No. 22) arguing that Defendants had raised two new arguments in their Response. On April 17, 2014, Defendants filed a Response to the Motion for Leave to File (ECF No. 23) in which they oppose Plaintiff's filing of a surreply in regards to one of the arguments allegedly raised in the first time in their Reply but do not oppose a surreply on the other argument.


According to the Complaint (ECF No. 1-1), Plaintiff is an elderly woman currently residing in Dallas, Texas who began looking for a retirement home in Las Vegas in or around 2010 and 2011. (Compl. ¶¶ 1, 6, ECF No. 1-1.) Sometime in 2011, Plaintiff discovered a home in the Las Vegas Country Club Estates at 2911 Augusta Drive, Las Vegas, NV 89109 (the "Property") that met her "special and unique needs" because it was one-story and near her family. ( Id. ¶¶ 6-7.)

The Property was being marketed as part of a cooperative short sale program (the "Program") overseen by BOA and administered by DTS. ( Id. ¶ 8.) The promotions for the Program touted its ability to streamline and speed up the short sale process by, among other things, determining pre-approved listing prices for participating properties. ( Id. ¶¶ 9-11.)

In or around September of 2011, agents of DTS represented to Plaintiff that the preapproved listing price for the Property was $274, 753.00 and that, because of the streamlined process under the Program, they expected to close on the Property in three to four weeks. ( Id. ¶¶ 15-16.) Based on these representations, in September of 2011, Plaintiff entered into a purchase agreement with the seller to purchase the Property for $275, 000.00 and paid $10, 000.00 in earnest money. ( Id. ¶ 17.)

However, Plaintiff alleges that between September 2011 and December 2012, Defendants repeatedly delayed the closing on the Property by, inter alia, ignoring communications with Plaintiff, billing Plaintiff previously undisclosed costs, and unilaterally changing proposed closing dates and increasing the purchase price. ( Id. ¶¶ 18-21.) Eventually in March 2012, Plaintiff was advised by Defendants that the Property could be purchased at the original purchase price of $275, 000.00 with a closing date of April 15, 2012, but that date also came and went without any transaction taking place. ( Id. ¶¶ 22-23.) Finally, in December 2012, the Property was sold by DTS at a Trustee Sale to someone other than Plaintiff for $360, 000. ( Id. ¶ 27.)

Subsequently, on October 23, 2013, Plaintiff filed her Complaint (ECF No. 1-1) in state court asserting causes of action for (1) violations of Nevada's Deceptive Trade Practices Act ("DTPA"); (2) breach of contract; (3) interference with contractual relations; (4); fraud or intentional misrepresentation; (5) intentional infliction of emotional distress; (6) consumer fraud; (7) attorney's fees and costs; (8) negligent misrepresentation; and (9) promissory estoppel. ( Id. ¶¶ 28-82.) On December 6, 2013, Defendants filed a Notice of Removal (ECF No. 1) removing the action to this Court. Then on December 27, 2013, Defendants filed the pending Partial Motion to Dismiss, in which they seek dismissal of Plaintiff's claims for (1) violations of DTPA; (2) breach of contract; (4) fraud or intentional misrepresentation; (5) intentional infliction of emotional distress; and (8) negligent misrepresentation. (Mot. to Dismiss 1:22-2:4, ECF No 8.)


Rule 12(b)(6) of the Federal Rules of Civil Procedure mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See North Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555) (emphasis added).

In order to survive a motion to dismiss, a complaint must allege "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.... However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See FED. R. CIV. P. 12(d); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

If the court grants a motion to dismiss, it must then decide whether to grant leave to amend. Pursuant to Rule 15(a), the court should "freely" give leave to amend "when justice so requires, " and in the absence of a reason such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is ...

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