ALDA A. ANDERSON, Plaintiff,
ASSESSMENT MANAGEMENT SERVICES, ELDORADO NEIGHBORHOOD SECOND HOMEOWNERS’ ASSOCIATION, TERRA WEST MANAGEMENT SERVICES, DOES I through X, inclusive, and ROES 1 through X, inclusive, Defendants.
Gloria M. Navarro, Chief Judge United States District Judge.
Pending before the Court is the Motion to Dismiss (ECF No. 14) filed by Defendants Eldorado Neighborhood Second Homeowners’ Association (“Eldorado” or the “HOA”) and Terra West Management Services (“Terra West”) (collectively “Defendants”) on September 24, 2014. Plaintiff Alda Anderson (“Plaintiff”) filed an untimely Response in Opposition (ECF No. 17) on November 11, 2014. Defendants then filed a Reply (ECF No. 20) on November 13, 2014.
This case arises out of a dispute regarding the imposition and collection of assessments by Eldorado pursuant to Declarations of Covenants, Conditions & Restrictions (“CC&Rs”) existing on certain real property owned by Plaintiff in Las Vegas, Nevada (the “Property”).
Accordingly to the Amended Complaint, (ECF No. 10), Plaintiff purchased the Property, which is located within the HOA and governed by the CC&Rs, sometime in 2002. (Am. Compl. ¶¶ 14–16, ECF No. 10). The CC&Rs provide for certain assessments to be paid by the Property owner to Eldorado, but they also require Eldorado to provide notice of the assessment to the Property owner at least ten days before it is imposed and limit the amount that can be assessed for delinquent payment. (Id. ¶ 21). From 2002 until 2009, Plaintiff received a notice from Eldorado and paid the assessment without incident. (Id. ¶¶ 22–23). However, Plaintiff alleges that she never received a notice in 2010. (Id. ¶ 24).
In April of 2011, Plaintiff received a notice from Terra West, a collection agency acting on behalf of Eldorado, seeking the normal annual assessment along with late fees for the 2010 assessment. (Id. ¶ 25). Plaintiff contacted Terra West and disputed the bill, refusing to pay the late fees. (Id. ¶ 26). Subsequently, in September of 2011, Plaintiff received another bill for the 2011 assessment along with a significantly hirer charge for late fees, this time from Assessment Management Services (“AMS”). (Id. ¶ 27). When further communications between Plaintiff and Defendants failed to resolve the dispute, AMS sent Plaintiff a Notice of Default and Intent to Sell the Property pursuant to an HOA lien. (Id. ¶¶ 28–30). In response, Plaintiff filed a complaint with the Real Estate Division of the Nevada Department of Business and Industry (“NRED”) seeking to stop the foreclosure and have the assessment lien removed from the Property. (Id. ¶¶ 31–32); see also (NRED Complaint, Am. Compl. Ex. 5, ECF No. 10-1). Mediation of this complaint, however, failed to reach a resolution. (Id. ¶¶ 32–40). Plaintiff subsequently sought to have her claim arbitrated by NRED. (Id. ¶ 42); see also (First NRED ADR Claim Form, Am. Compl. Ex. 8, ECF No. 10-1).
Before her claim was arbitrated, however, on November 7, 2013, Plaintiff received a Notice of Trustee Sale, stating that Plaintiff owed $3, 874.89 in assessments and late fees and scheduling the Property to be sold at foreclosure on December 2, 2013. (Id. ¶¶ 43–44). On November 25, 2013, Plaintiff filed her original Complaint (ECF No. 1) and sought a temporary restraining order and preliminary injunction barring AMS from foreclosing on the Property. This Court entered a temporary restraining order on November 26, 2013 and a preliminary injunction on December 10, 2013, enjoining Defendants from foreclosing on the Property and staying the case until Plaintiff’s administrative remedies were exhausted. (PI Order, ECF No. 8).
In June of 2014, the parties engaged in a mediation with NRED pursuant to Nevada Revised Statutes § 38.310. (Response 2:1–8, ECF No. 17); see also (Second NRED ADR Claim Form, ECF No. 20-1). This mediation was unsuccessful. (Response 2:1–8, ECF No. 17). Subsequently, on August 14, 2014, Plaintiff filed the current Amended Complaint, asserting the following causes of action against Defendants: (1) violation of the Fair Debt Collection Practices Act, (2) publishing a “shame list, ” (3) Deceptive Trade Practices Act/Consumer Fraud, (4) declaratory relief, (5) injunctive relief, and (6) accounting of fines in books and records in violation of NRS 116. (Am. Compl. ¶¶ 60–103, ECF No. 10). Defendants then filed the pending motion to dismiss for lack of jurisdiction based on Plaintiff failure to exhaust her administrative remedies under Nevada Revised Statutes § 38.310. (MTD, ECF No. 14).
II. LEGAL STANDARD
Rule 12(b)(1) of the Federal Rules of Civil Procedure permits motions to dismiss for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). When subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that “the party seeking to invoke the court’s jurisdiction bears the burden of establishing that jurisdiction exists”). Accordingly, the court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in response to the motion to dismiss. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376–78 (1994).
“In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “The court need not presume the truthfulness of the plaintiff’s allegations.” Id. “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Id.
“Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed without prejudice so that a plaintiff may reassert his claims in a competent court.” Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988) (per curiam). However, where there is no way to cure the jurisdictional defect, dismissal with prejudice is proper. See id.
In their motion, Defendants argue that this Court lacks subject matter jurisdiction over this case because Plaintiff has failed to comply with Nevada Revised Statutes § 38.310. (MTD ...