United States District Court, D. Nevada
M. Navarro, Chief Judge.
before the Court are four Motions to Dismiss filed by the
following defendants (collectively “Defendants”):
(1) Summa, LLC, Lithium Corporation, and Henry Tonking
(collectively “Summa Defendants”), (ECF No. 6);
(2) Clayton P. Brust (“Brust”), (ECF No. 7); (3)
Greg Ekins and G.I.S. Land Services (collectively
“Ekins Defendants”) (ECF No. 11); and (4) Nye
County, Nevada, Sheree Stringer, Debbie Orrick, Brian Kunzi,
and Marla Zlotek, (ECF No. 51). The Motions are fully
briefed. For the reasons discussed below, the Court
GRANTS Defendants' Motions.
case arises out of the disputed ownership of certain real
property identified by parcel number APN 000-106-06 and
located in Nye County, Nevada, consisting of 58 patented
mining claims (the “Property”). (See
Compl. ¶¶ 56, 64, ECF No. 1). Plaintiff Jablonski
Enterprises' (“Plaintiff”) allegations center
around events related to a Petition for a Writ of Mandamus
filed by Summa in the Nye County District Court, allegedly
filed without notice to Plaintiff, the “real party in
interest.” (See, e.g., id.
¶¶ 64, 65). Plaintiff alleges that as a result of
those proceedings, “Nye County agreed to simply
transfer title [to the Property] without consulting counsel
for [Plaintiff].” (Id. ¶ 68). According
to Plaintiff, prior to these events, it was the titled legal
owner of the Property. (Id. ¶ 70).
on these allegations, Plaintiff filed its Complaint in this
Court alleging six causes of action: (1) violation of civil
rights pursuant to the United States and Nevada
constitutions; (2) forgery of conveyance pursuant to NRS
§ 205.090; (3) uttering a forged instrument pursuant to
NRS § 205.110; (4) conversion; (5) civil conspiracy; (6)
civil racketeering claims pursuant to NRS § 207.400,
et seq.; and (7) respondeat superior. (See
Compl. ¶¶ 77-141). Subsequently, Plaintiff filed an
identical Complaint in the Fifth Judicial District Court, Nye
County, Nevada. (See Ex. 2 to Ekins Defs.' Supp.
to MTD at 12, ECF No. 62). In both cases, Defendants filed
special Motions to Dismiss, (ECF No. 6, 7, 11, 51), seeking
dismissal of Plaintiff's claims pursuant to Nevada's
anti-Strategic Lawsuits Against Public Participation
(“SLAPP”) statute, NRS § 41.650, et
a hearing, Defendants' Motions in the state court case
were granted, and Plaintiff's Complaint was dismissed
with prejudice. (See Ex. 1 to Ekins Defs.' Supp.
to MTD at 8-10). The same Motions are currently pending
before this Court. In supplemental briefings to their Motions
to Dismiss, Defendants ask the Court to dismiss
Plaintiff's case as barred by the doctrine of res
judicata. (See Ekins Defs.' Supp. to MTD);
(Summa Defs.' Supp. to MTD, ECF No. 60); (Brust's
Supp. to MTD, ECF No. 61).
Rule of Civil Procedure (“Rule”) 12(b)(6)
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.
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, 129 S.Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 555) (emphasis added).
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). The Court need not
accept as true those allegations that contradict facts
properly subject to judicial notice. Shwarz v. United
States, 234 F.3d 428, 435 (9th Cir. 2000).
court grants a motion to dismiss for failure to state a
claim, leave to amend should be granted unless it is clear
that the deficiencies of the complaint cannot be cured by
amendment. DeSoto v. Yellow Freight Sys., Inc., 957
F.2d 655, 658 (9th Cir. 1992). 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).
judicata is an umbrella term that often refers to the concept
that a party cannot relitigate a cause of action or issue
that has already been determined by a court. Exec.
Mgmt., Ltd. v. Ticor Title Ins. Co., 963 P.2d
465, 473 (Nev. 1998). The general rule is that federal courts
must give the “same preclusive effect to state court
judgments that those judgments would be given in the courts
of the State from which the judgments emerged.”
Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 81 (1984) (quoting Kremer v.
Chem. Constr. Corp., 456 U.S. 461, 466 (1982)). Federal
courts must apply the res judicata rules of the court that
rendered the underlying judgment. See Id. at 81-82.
preclusion” is one subspecies of that rule. Exec.
Mgmt., Ltd., 963 P.2d at 473. Under Nevada law, three