United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
case arises out of a homeowner association's
(“HOA”) foreclosure under NRS Chapter 116.
Pending before this Court is Defendant Thunder Properties,
Inc.'s (“Thunder”) second Motion to Dismiss
(“Motion”) (ECF No. 63). Plaintiff Pennymac Loan
Services, LLC (“Pennymac”) filed a response (ECF
No. 69), and Thunder did not file a reply.
reasons stated below, the Motion is denied.
initiated this action on August 8, 2016. (ECF No. 1.) In its
complaint, Pennymac brings two claims against Thunder: one
for quiet title and the other for injunctive relief. (ECF No.
1.) On June 6, 2017, this Court denied Thunder's first
motion to dismiss for lack of subject-matter jurisdiction
(ECF No. 21) and did not give Thunder leave to file a new
motion. (ECF No. 52, 53.) Moreover, Thunder has not yet filed
an answer to Pennymac's complaint.
Rule 12(b)(6), a complaint may be dismissed for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A properly pleaded
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). The Rule 8 notice
pleading standard requires Plaintiff to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Id. (internal
quotation marks and citation omitted). 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) (quoting
Twombly, 550 U.S. at 555). “Factual
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 (internal quotation marks omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pleaded factual allegations in the complaint;
however, legal conclusions are not entitled to the assumption
of truth. Id. at 678. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. Second, a district
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 a court to
draw a reasonable inference that the defendant is liable for
the alleged misconduct. 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 it has not show[n] ― that
the pleader is entitled to relief.” Id. at 679
(internal quotation marks omitted). When the claims in a
complaint have not crossed the line from conceivable to
plausible, the complaint must be dismissed. Twombly,
550 U.S. at 570. Moreover, a complaint must contain either
direct or inferential allegations concerning “all the
material elements necessary to sustain recovery under
some viable legal theory.” Id. at 562
(quoting Car Carriers, Inc. v. Ford Motor Co., 745
F.2d 1101, 1106 (7th Cir. 1989)).
Motion raises four arguments: (1) Pennymac lacks standing to
assert a violation of due process because it received actual
notice of the HOA foreclosure sale; (2) Pennymac has failed
to state a claim for quiet title because it did not possess
any interest in the property at the time of the HOA
foreclosure sale; (3) the fact that the Federal Housing
Authority insured the first deed of trust (“DOT”)
is irrelevant; and (4) the complaint's claim for
permanent injunction is not a stand-alone claim and fails
because Pennymac does not have a valid interest in the
property. The Court will consider the first argument only.
Untimeliness and Waiver
Court will not consider the second, third, and fourth
arguments in the Motion for two reasons.
Federal Rule of Civil Procedure 12(a)(4)(A) states that
“if the court denies the motion [to dismiss] . . .the
responsive pleading must be served within 14 days after
notice of the court's action.” Here, no responsive
pleading was filed by Thunder; instead, Thunder chose to file
a new motion to dismiss, in which it raised arguments for the
first time, more than two months after the Court denied its
prior motion to dismiss. ...