United States District Court, D. Nevada
before the court is defendants David Doto and Jenna
Wells-Doto's motion to dismiss (ECF No. 18) plaintiff
John Makransky's first amended complaint (ECF No. 17).
Plaintiff has filed a response (ECF No. 19), and defendants
have filed a reply (ECF No. 20).
instant dispute involves allegations that Mr. Doto and his
wife, Mrs. Wells-Doto, (hereinafter collectively referred to
as “the Dotos”) failed to repay a $171, 700 loan
to Mr. Makransky. (ECF No. 17 at 6). In September 2013, Mr.
Doto allegedly approached Mr. Makransky, with authority from
Mrs. Wells-Doto, to request a loan on both defendants'
behalf. (Id. at 2). Plaintiff maintains that Mr.
Doto claimed he and his wife were having “severe
financial difficulties” and had “no money to live
on.” (Id.). Allegedly, the parties agreed to a
$5, 000 per month loan, holding the Dotos jointly liable for
repayment as they would collectively share its use and
benefit. (Id. at 2-3). Mr. Makransky claims that the
terms of the loan also included reimbursement for his tax
liability stemming from a premature withdrawal of funds from
his individual retirement account to fund the loan.
(Id. at 3). Plaintiff contends that on October 14,
2013, the Dotos filed for divorce and that, soon after their
divorce, they requested an increase in the loan installments
to $9, 000 per month. (Id.).
alleged, the loan installments lasted from October 2013
through April 2015. (Id.). Plaintiff maintains that,
throughout this period, Mr. Doto had regular communication
with Mr. Makransky; each month he asked for money and updated
Mr. Makransky on the Dotos' financial status.
(Id.). On October 23, 2013, Mr. Doto allegedly wrote
to Mr. Makransky, “[a]s I told you my gratitude - our
gratitude - cannot be adequately expressed, ” and on
July 9, 2014, Mr. Doto supposedly told Mr. Makransky,
“[Mrs. Wells-Doto] will graduate from paralegal school
in October and . . . [t]hat should begin to pay off . . .
.” (Id. at 4). Plaintiff contends that by
April 2015, Mr. Makransky stopped granting monthly
installments on the loan and began demanding repayment from
the Dotos within a reasonable time. (Id. at 7).
contends that the Dotos began making monthly payments on the
loan beginning October 9, 2015. (Id.) Allegedly, the
Dotos repaid $200-$300 on the loan each month, and these loan
payments were drawn from the Dotos' joint bank account at
Nevada State Bank. (Id. at 8). Mr. Makransky claims
he requested that the Dotos substantially increase their
payments on the loan because their payments were unreasonably
small. (Id. at 8-9). In response, Mr. Doto allegedly
stated he was unable to repay the loan at an increased rate,
and that he could not “tap into [Mrs. Wells-Doto]'s
money” because “[t]hat money isn't mine and
[Mrs. Wells-Doto] needs that . . . .” (Id. at
Makransky's first amended complaint alleges six claims,
each against both defendants: (1) breach of contract; (2)
breach of the duty of good faith and fair dealing; (3) money
had and received; (4) quantum meruit; (5) fraudulent
transfers; and (6) fraud and conspiracy to defraud. (ECF No.
17) Defendants' motion to dismiss seeks to dismiss counts
one through four against Mrs. Wells-Doto, and counts five and
six in their entirety. (ECF No. 18)
Motion to dismiss
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 pled
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). Although rule 8 does not
require detailed factual allegations, it does require more
than labels and conclusions. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Furthermore, a
formulaic recitation of the elements of a cause of action
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009) (citation omitted). Rule 8 does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions. Id. at 678-79.
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Id. 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. When a complaint pleads facts that are
merely consistent with a defendant's liability, and shows
only a mere possibility of entitlement, the complaint does
not meet the requirements to show plausibility of entitlement
to relief. Id.
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering a
motion to dismiss. Id. First, the court must accept
as true all of the allegations contained in a complaint.
However, this requirement is inapplicable to legal
conclusions. Id. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Id. at 678. Where the complaint does not
permit the court to infer more than the mere possibility of
misconduct, the complaint has “alleged - but not shown
- that the pleader is entitled to relief.” Id.
at 679. When the allegations in a complaint have not crossed
the line from conceivable to plausible, plaintiff's claim
must be dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court held:
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued