United States District Court, D. Nevada
C. NICHOLAS PEREOS aka COSTA N. PEREOS, Plaintiff,
NATIONSTAR MORTGAGE, LLC, et al., Defendants.
MIRANDA M. DU, District Judge.
Before the Court are the following motions: (1) Defendant Nationstar Mortgage, LLC's Motion to Dismiss ("Motion") Plaintiff's Second Amended Complaint ("SAC") (dkt. no. 41); and (2) Plaintiff C. Nicholas Pereos's Motion for Reconsideration of Order No. 62 (dkt. no. 63). For the reasons set out below, Defendant's Motion to Dismiss is granted and Plaintiff's Motion for Reconsideration is denied.
This dispute arises out of Defendant's furnishing of Plaintiff's information to credit reporting agencies. The following facts are taken from the SAC and the parties' briefs.
In 2004, Plaintiff obtained a mortgage loan ("Loan") and executed a promissory note secured by a deed of trust ("Deed of Trust") to effectuate the purchase of property in Las Vegas, Nevada. (Dkt. no. 39 at 2; dkt. no. 43-1.) Defendant acquired the servicing rights on the Loan and notified Plaintiff that it would begin servicing the Loan on October 15, 2011. (Dkt. no. 39 at 2; dkt. no. 43, Ex. 2.) The Deed of Trust was subsequently assigned to Defendant in July 2013. (Dkt. no. 41-2.) Defendant presently remains the servicer of the Loan.
Plaintiff asserts that he made all required monthly loan payments to Defendant. (Dkt. no. 39 at 2.) However, on or about the second quarter of 2012, Defendant reported to "credit reporting agencies" that Plaintiff was "delinquent on [his] mortgage." ( Id. at 3.) Plaintiff learned that his credit report contained this remark when he attempted to refinance several mortgage loans. (Dkt. no. 43-1.) Plaintiff notified Defendant that he was current on his payments and that Defendant reported inaccurate information to the credit reporting agencies. ( Id. ) Plaintiff also made numerous requests directly to Defendant to correct the reporting error, to no avail. (Dkt. no. 39 at 4; see dkt. no. 43, Exh. 4.) Plaintiff alleges that Defendant reported the delinquency knowing it would adversely affect his credit rating and cause him financial harm. (Dkt. no. 39 at 3.) According to Plaintiff, his credit rating has been negatively impacted, causing him to be unable to obtain favorable interest rates and insurance premiums. (Dkt. no. 43-1.)
Plaintiff asserts five state law claims: (1) "negligence, careless and intentional actions by the Defendant in publishing and reporting incorrect information;" (2) libel/slander; (3) "negligence and carelessness by Defendant in managing the information" regarding Plaintiff's account; (4) breach of contract; and (5) breach of the implied covenant of good faith and fair dealing. (Dkt. no. 39.)
A. Legal standard
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pleaded complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Rule 8 notice pleading standard requires Plaintiff to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (citation and internal quotation marks omitted). While Rule 8 does not require detailed factual allegations, it demands more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. When determining the sufficiency of a claim, "[w]e accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party[; however, this tenet does not apply to]... legal conclusions... cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation marks omitted). Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pleaded factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow a court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint "do[es] not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged" but it has not shown "that the pleader is entitled to relief." Id. at 679 (alteration and internal quotation marks omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. A complaint must contain either direct or inferential allegations concerning "all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989)) (internal quotation marks omitted).
Moreover, although pro se pleadings are to be liberally construed, a plaintiff must still present factual allegations sufficient to state a plausible claim for relief. Hebbe v. ...