United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Motion to Dismiss, (ECF No. 95),
filed by Defendant Faa Foi Tuitama ("Tuitama"),
Advanced Med, LLC ("Advanced Med"), and Green Tree
Services, LLC ("Green Tree") (collectively
"Moving Defendants"). Plaintiffs Allstate Insurance
Company, Allstate Property & Casualty Insurance Company,
and Allstate Indemnity Company (collectively
"Plaintiffs") filed a Response, (ECF No. 96), and
Defendants filed a Reply, (ECF No. 99). For the reasons
discussed below, the Court GRANTS Defendants' Motion to
dispute centers on Plaintiffs' attempts to collect on an
unpaid judgment awarded in their favor. On March 20, 2008,
Plaintiff filed a separate lawsuit against Obteen Nassiri,
Jennifer Nassiri, Albert Noorda, Advanced Accident
Chiropractic Care, Digital Imaging Services aka Digital
Imaging Services, LLC, J&O Holdings, LLC, and Maryland
Medical Center, LLC (collectively "Judgment
Defendants"). (Am. Compl. ¶ 22, ECF No. 40);
see Allstate Insurance Company v. Nassiri, No.
2:08-cv-00369-JCM-GWF (D. Nev. Sept. 10, 2013). Following a
jury verdict in Plaintiffs' favor, judgment was entered
against the Judgment Defendants in the amount of $8, 699,
298.78. (Am. Compl. ¶ 23).
instant case, Plaintiffs allege that certain Judgment
Defendants have acted in concert with the named
Defendants here to transfer assets to avoid execution
of Plaintiffs' judgment. (See Id. ¶¶
24-31). Based on this allegation, Plaintiffs assert that
Defendants have violated the Nevada Uniform Fraudulent
Transfer Act, NRS § 112.140 et seq. (Id.).
Moving Defendants' Motion asks the Court to dismiss the
Amended Complaint as asserted against them.
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 BellAtl. 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 implausible, 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. "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.
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 BeerDistrib.,
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).
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 clear that the deficiencies
of the complaint cannot be cured by amendment. See DeSoto
v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th
law provides for a claim of actual fraudulent transfer,
see NRS § 112.180(1)(a), as well as a claim of
constructive fraudulent transfer, see NRS §
112.180(1)(b). See Herup v. First Boston Fin., LLC,
162 P.3d 870, 873 (Nev. 2007). A transfer is actually
fraudulent "if the debtor made the transfer or incurred
the obligation [w]ith actual intent to hinder, delay or
defraud any creditor of the debtor." See NRS
§ 112.180(1)(a). A transfer is constructively fraudulent
if: (1) the debtor did not receive reasonably equivalent
value in exchange for the transfer; and (2) the debtor
"[i]ntended to incur, or believed or reasonably should
have believed that the debtor would incur, debts beyond his
or her ability to pay as they became due." NRS §
112.180(1)(b); see also Herup, 162 P.3d 873 n. 12.
Defendants argue that under either the actual or constructive
standard, Plaintiffs' claim fails under Rule 9(b)'s
heightened pleading standard. See Fed. R. Civ. P.
9(b) ("In alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or
Court agrees with Plaintiffs that, unlike actual fraud under
NRS § 112.180(a), constructive fraud under NRS §
112.180(b) need not be pled with particularity. See,
e.g., Lachapelle v. Kim, No. 15-CV-02195-JSC, 2015 WL
7753235, at *7 (N.D. Cal. Dec. 2, 2015) ("Unlike actual
fraudulent transfer, Rule 9(b)'s particularity
requirement does not apply to constructive fraudulent
transfer claims."). However, Plaintiffs' Amended
Complaint fails to identify which Defendants participated in
actual fraud and which Defendants participated in
constructive fraud. Instead, Plaintiffs' Amended
Complaint eludes the heightened pleading standard of Rule
9(b) with respect to some Defendants by alleging a single
claim against all Defendants, pleading against some
Defendants with particularity, and leaving the remaining
Defendants guessing whether or not the claims against them
are adequately pled. Likewise, the Court is unable to
determine what pleading standard to apply to Plaintiffs'
claims against Defendants.
extent Plaintiffs allege actual fraud against Defendants, the
Amended Complaint fails to satisfy Rule 9(b) 's
heightened pleading standard. Indeed, Plaintiffs fail to
allege Defendants' ...