United States District Court, D. Nevada
before the court is crossclaimant RLP Fern Crest, LLC, a
series of Red Lizard Productions, LLC's (“Fern
Crest”) motion for summary judgment. (ECF No. 48).
Plaintiff Bank of America, N.A., successor by merger to BAC
Home Loans Servicing, LP (“BANA”) (ECF No. 51)
and crossdefendant Treasures Landscape Maintenance
Association (the “HOA”) (ECF No. 55) filed
responses. Fern Crest has not replied, and the period to do
so has since passed.
before the court is BANA's motion for summary judgment.
(ECF No. 49). Fern Crest (ECF No. 53) and the HOA (ECF No.
54) filed responses, to which BANA replied (ECF No. 61).
before the court is the HOA's motion for summary
judgment. (ECF No. 50). BANA filed a response (ECF No. 52),
to which the HOA replied (ECF No. 57).
before the court is the HOA's motion to dismiss Fern
Crest's answer, counterclaim, and crossclaim (ECF No.
14). (ECF No. 56). BANA filed a response. (ECF No. 62). The
HOA has not replied, and the period to do so has since
passed. . . . . . .
case involves a dispute over real property located at 2913
Fern Crest Avenue, North Las Vegas, Nevada 89031 (the
and Amber Morris purchased the property on June 9, 2003. (ECF
No. 1 at 4). To refinance the property, they obtained a loan
in the amount of $235, 869.00, which was secured by a deed of
trust recorded on December 10, 2008. (ECF No. 1 at 4).
deed of trust was assigned to BANA via an assignment deed of
trust recorded April 16, 2010. (ECF No. 1 at 4).
20, 2011, defendant Nevada Association Services, Inc.
(“NAS”), acting on behalf of the HOA, recorded a
notice of delinquent assessment lien, stating an amount due
of $1, 343.40. (ECF No. 1 at 4). On July 18, 2011, NAS
recorded a notice of default and election to sell to satisfy
the delinquent assessment lien, stating an amount due of $1,
975.50. (ECF No. 1 at 4).
15, 2012, NAS recorded a notice of trustee's sale,
stating an amount due of $3, 146.17. (ECF No. 1 at 5). On
December 14, 2012, defendant Red Lizard Productions, LLC.
(“RLP”) purchased the property at the foreclosure
sale for $3, 955.00. (ECF No. 1 at 5-6). A foreclosure deed
in favor of RLP was recorded on December 20, 2012. (ECF No. 1
November 24, 2015, RLP recorded a grant, bargain, sale deed
conveying the property to Fern Crest. (ECF No. 1 at 6). Thus,
Fern Crest is the current record owner of the property.
February 24, 2016, BANA filed the underlying complaint,
alleging four causes of action: (1) quiet title/declaratory
judgment against all defendants; (2) breach of NRS 116.1113
against NAS and the HOA; (3) wrongful foreclosure against NAS
and the HOA; and (4) injunctive relief against RLP and Fern
Crest. (ECF No. 1). On February 17, 2017, the court dismissed
claims (2) through (4) of BANA's complaint for failure to
mediate pursuant to NRS 38.310. (ECF No. 70).
April 18, 2016, Fern Crest filed a counterclaim against BANA
and crossclaims against the HOA and NAS alleging four causes
of action: (1) declaratory relief/quiet title against all
parties; (2) preliminary and permanent injunction against
BANA from foreclosure action; (3) slander of title against
BANA; and (4) unjust enrichment against all parties. (ECF No.
instant motions, Fern Crest, BANA, and the HOA all move for
summary judgment in their favor (ECF Nos. 48, 49, 50), and
the HOA moves to dismiss Fern Crest's crossclaims (ECF
No. 56). The court will address each as it sees fit.
Motion to Dismiss
may dismiss a 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);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
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. (internal quotation marks
omitted). 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 stated, in relevant
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
Motion for Summary Judgment
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by producing competent evidence that
shows a genuine issue for trial. See Celotex, 477
U.S. at 324.
summary judgment, a court's function is not to weigh the
evidence and determine the truth, but to determine whether
there is a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The evidence of the nonmovant is “to be believed, and
all justifiable inferences are to be drawn in his
favor.” Id. at 255. But if the evidence of the
nonmoving party is merely colorable or is not significantly
probative, summary judgment may be granted. See Id.
initial matter, the court dismisses, without prejudice,
claims (2) through (4) of Fern Crest's answer,
counterclaim, and crossclaim (ECF No. 14).
Crest's preliminary and permanent injunction claim (claim
2) is dismissed because the court follows the well-settled
rule in that a claim for “injunctive relief”
standing alone is not a cause of action. See, e.g.,
In re Wal-Mart Wage & Hour Emp't Practices
Litig., 490 F.Supp.2d 1091, 1130 (D. Nev. 2007);
Tillman v. Quality Loan Serv. Corp., No. 2:12-CV-346
JCM RJJ, 2012 WL 1279939, at *3 (D. Nev. Apr. 13, 2012)
(finding that “injunctive relief is a remedy, not an
independent cause of action”); Jensen v. Quality
Loan Serv. Corp., 702 F.Supp.2d 1183, 1201 (E.D. Cal.
2010) (“A request for injunctive relief by itself does
not state a cause of action.”). Injunctive relief may
be available if Fern Crest is entitled to such a remedy on an
independent cause of action.
Crest's slander of title claim (claim 3) and unjust
enrichment claim (claim 4) are dismissed for the same reasons
set forth in the court's February 17th order (ECF No.
70)-namely, because they are subject to NRS 38.310's
mediation requirement. See Nev. Rev. Stat. §
38.310; see, e.g., Nationstar Mortg., LLC v.
Berezovsky, No. 215CV909JCMCWH, 2016 WL 1064477, at *2
(D. Nev. Mar. 17, 2016) (holding that unjust enrichment
claims are subject to NRS 38.310's mediation
requirement); McKnight Family, L.L.P. v. Adept
Mgmt., 310 P.3d 555, 559 (Nev. 2013) (holding that
slander of title claims are subject to NRS 38.310 ...