United States District Court, D. Nevada
before the court is defendant/crossdefendant Cascade
Homeowners Association, Inc.'s (the “HOA”)
motion to dismiss. (ECF No. 35). Defendant/crossclaimant
Daisy Trust (ECF No. 40) and plaintiff/counterdefendant Bank
of New York Mellon's (“BNYM”) (ECF No. 41)
filed responses, to which the HOA replied (ECF No. 45).
before the court is Daisy Trust's motion for summary
judgment. (ECF No. 37). BNYM filed a response (ECF No. 46),
to which Daisy Trust replied (ECF No. 49).
before the court is BNYM's motion for summary judgment.
(ECF No. 38). Daisy Trust (ECF No. 42) and the HOA (ECF No.
47) filed responses, to which BNYM replied (ECF Nos. 48, 50).
present case involves a dispute over real property located at
7840 Ithaca Falls Street, Las Vegas, NV 89149 (the
April 23, 2004, Patrick and Suzanne Simmons (the
“Simmonses”) purchased the property. (ECF No. 1
at 4). The Simmonses later refinanced the property by way of
a loan in the amount of $276, 000.00 evidenced by a note and
secured by a deed of trust recorded on November 9, 2004. (ECF
No. 1 at 4).
September 2, 2011, defendant/crossdefendant Absolute
Collection Services LLC (“ACS”), acting on behalf
of the HOA, recorded a notice of delinquent assessment lien,
stating an amount due of $2, 959.85. (ECF No. 1 at 4). On
November 9, 2011, ACS recorded a notice of default and
election to sell to satisfy the delinquent assessment lien,
stating an amount due of $3, 865.85. (ECF No. 1 at 4).
December 12, 2011, BNYM's predecessor-in-interest
contacted ACS, offering to tender the superpriority amount
and requesting a ledger. (ECF No. 1 at 5). The HOA/ACS
allegedly failed to respond. (ECF No. 1 at 5-6).
March 23, 2012, ACS recorded a notice of trustee's sale,
scheduling the trustee's sale for May 15, 2012, and
stating an amount due of $5, 505.85. (ECF No. 1 at 4-5). On
August 14, 2012, Daisy Trust purchased the property at the
trustee's sale for $7, 700.00. (ECF No. 1 at 6). On
August 15, 2012, a trustee's deed upon sale in favor of
Daisy Trust was recorded. (ECF No. 1 at 6).
the foreclosure sale extinguished the deed of trust, it was
assigned to BNYM via an assignment deed of trust recorded on
March 1, 2016. (ECF Nos. 1 at 4; 11 at 2).
14, 2016, BNYM filed the underlying complaint against the
HOA, Daisy Trust, and ACS alleging four causes of action: (1)
quiet title/declaratory relief against all defendants; (2)
breach of NRS 116.1113 against the HOA and ACS; (3) wrongful
foreclosure against the HOA and ACS; and (4) injunctive
relief against Daisy Trust. (ECF No. 1).
11, 2016, Daisy Trust filed a motion to dismiss the complaint
(ECF No. 11), which this court denied on January 20, 2017
(ECF No. 25).
February 6, 2017, Daisy Trust filed a counterclaim against
BNYM for quiet title/declaratory relief and a crossclaim
against the HOA and ACS for misrepresentation and unjust
enrichment. (ECF No. 26).
instant motions, the HOA moves to dismiss based on statute of
limitations (ECF No. 35) and Daisy Trust (ECF No. 37) and
BNYM (ECF No. 38) move for summary judgment.
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. 662, 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, claim (4) of BNYM's complaint will be
dismissed without prejudice as 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