United States District Court, D. Nevada
before the court is defendant Travata and Montage at
Summerlin Centre's (the “HOA”) motion to
dismiss. (ECF No. 18). Plaintiff Bank of America, N.A.
(“BANA”) filed a response (ECF No. 31), and
defendant filed a reply (ECF No. 32).
February 19, 2016, plaintiff filed a complaint in relation to
the May 24, 2013, non-judicial foreclosure sale of the real
property at 1887 Hollywell Street, Las Vegas, Nevada. (ECF
No. 1). Against the instant defendant, plaintiff asserts the
following causes of action: (1) quiet title/declaratory
judgment; (2) breach of Nevada Revised Statute
(“NRS”) § 116.1113's obligation of good
faith; and (3) wrongful foreclosure. (Id.). As an
initial matter, the court understands plaintiff's claims
to be based on the May 2013 sale of the underlying real
property; therefore, these claims are not time-barred.
See Nev. Rev. Stat. §§ 11.070,
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
Mediation requirement Section 38.310 of the NRS
provides, in relevant part:
civil action based upon a claim relating to [t]he
interpretation, application or enforcement of any covenants,
conditions or restrictions applicable to residential property
. . . or [t]he procedures used for increasing, decreasing or
imposing additional assessments upon residential property,
may be commenced in any court in this State unless the action
has been submitted to mediation. Nev. Rev. Stat. §
38.310(1). Subsection (2) continues, mandating that a
“court shall dismiss any civil action which is
commenced in violation of the provisions of subsection
1.” Nev. Rev. Stat. § 38.310(2).
(1) of NRS 38.330 states that “[u]nless otherwise
provided by an agreement of the parties, mediation must be
completed within 60 days after the filing of the written
claim.” Nev. Rev. Stat. § 38.330(1). However,
while NRS 38.330(1) explains the procedure for mediation, NRS
38.310 is clear that no civil action may be commenced
“unless the action has been submitted to
mediation.” Nev. Rev. Stat. § 38.310.
Specifically, NRS 38.330(1) offers in relevant part:
If the parties participate in mediation and an agreement is
not obtained, any party may commence a civil action in the
proper court concerning the claim that was submitted to
mediation. Any complaint filed in such an action must
contain a sworn statement indicating that the issues
addressed in the complaint have been mediated
pursuant to ...