United States District Court, D. Nevada
before the court is defendant Desert Sands Villas
Homeowners' Association's (the “HOA”)
motion to dismiss. (ECF No. 11). Plaintiff Bank of America,
N.A. (“BANA”) filed a response (ECF No. 15), and
the HOA filed a reply (ECF No. 21).
case involves competing interests in the real property at 854
Stainglass Lane in Las Vegas, Nevada 89110 after a
nonjudicial HOA foreclosure sale. (ECF No. 11). Notably,
BANA's complaint alleges that BANA had attempted tender,
which was purportedly refused by an agent of the HOA. (ECF
asserts four claims in the present case: (1) Quiet
title/declaratory judgment against all defendants; (2) breach
of Nevada Revised Statutes (“NRS”) §
116.1113 against the HOA and co-defendant Nevada Association
Services, Inc. (“NAS”); (3) wrongful foreclosure
against the HOA and NAS; and (4) injunctive relief against
co-defendant Mr. Chun. (ECF No. 1).
the HOA argues, inter alia, that BANA has not
complied with NRS 38.310's mediation requirement and that
BANA's arguments and allegations in favor of its quiet
title claim are insufficient to support the claim.
See (ECF No. 11).
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
Wrongful foreclosure and ...