United States District Court, D. Nevada
before the court is defendant Royal Highlands Street and
Landscape Maintenance Corporation's (“RHS”)
motion to dismiss. (ECF No. 8). Plaintiff Bank of New York
Mellon (“BNYM”) filed a response (ECF No. 12),
and RHS filed a reply and errata (ECF Nos. 14, 15).
issue in this case are the disputed property interests in the
wake of a February 13, 2013, nonjudicial HOA foreclosure sale
of the real property at 11080 Kilkerran Court, Las Vegas,
Nevada 89141. (ECF No. 1). Notably, BNYM initiated this case
on August 22, 2016. (Id.).
asserts four claims: (1) quiet title/declaratory judgment
against all defendants; (2) breach of Nevada Revised Statutes
(“NRS”) § 116.1113 against RHS and Alessi
& Koenig, LLC (“Alessi”); (3) wrongful
foreclosure against RHS and Alessi; and (4) injunctive relief
against SFR. (Id.).
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
Statute of limitations
three years have elapsed between the contested foreclosure
sale and the initiation of this action. (ECF No. 1). Thus,
plaintiff's claims under NRS 116.1113 and wrongful
foreclosure are time barred and will be dismissed with
prejudice. Bank of Am., N.A. v. Bar Arbor Glen at
Providence Homeowners Ass'n, No.
2:16-cv-253-JCM-GWF, 2017 WL 1550226, at *4 (D. Nev. ...