United States District Court, D. Nevada
DIMITRITZA H. TOROMANOVA, Plaintiff,
SUMMIT REAL ESTATE SERVICES, LLC, et al., Defendants.
J. Dawson, United States District Judge.
before the Court is Defendants' Motion to Dismiss
Complaint (#5) and Motion to Dismiss Amended Complaint (#13),
to which all Defendants have joined (#28). Plaintiff filed a
response (#16) to which Defendants replied (#19).
April 4, 2017, Plaintiff filed a lawsuit against Defendants
in the District Court for Clark County, Nevada (“State
Court”), Case No. A-17-753456-C (“State
Case”). In that State Case, Plaintiff sought a
“Writ of Mandate Without Notice, ” which the
State Court interpreted to be her complaint. There, Plaintiff
alleged a myriad of claims having to do with Defendants'
foreclosure on her real property located at 4174 Jacqueline
Way, Las Vegas, Nevada 89115 (“Jacqueline
Property”). On July 7, 2017, the State Court granted
Defendants' motion to dismiss Plaintiff's complaint,
reasoning that Defendants had standing to foreclose, and that
Plaintiff was not entitled to stop the foreclosure as a
remedy for an alleged violation of NRS 106.295(1), NRS
106.296, NRS 107.200, or NRS 107.210.
26, 2017, Plaintiff filed the present complaint. While
Plaintiff mentions many different statutes, her specific
causes of action are unclear. Additionally, Plaintiff makes
allegations of fraud, negligence, declaratory relief, and
injunctive relief, all having to do with the same foreclosure
she believes to be wrongful on her Jacqueline Property.
Plaintiff also, for the first time, mentions her real
property located at 10343 Ednor Court, Las Vegas, Nevada
89183 (“Ednor Property”). She does not state a
specific sum of damages or relief that she seeks, but wants
to prevent Defendants from taking any action toward her
Court notes that Plaintiff is pro se, meaning that
her submissions to the Court are “to be liberally
construed, and . . . however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” However, liberal construction of pro
se pleadings does not excuse pro se litigants
from adhering to the rules of procedure. See U.S. v.
Merrill, 746 F.2d 458, 465 (9th Cir. 1984). “Pro
se litigants must follow the same rules of procedure that
govern other litigants.” King v. Atiyeh, 814
F.2d 565, 567 (9th Cir. 1987). And, “while the
complaint must be liberally construed, a pro se's party
status does not relieve the party of the burden of alleging
sufficient facts on which a recognized legal claim could be
based.” Kerr v. Wanderer & Wanderer, 211
F.R.D. 625, 629 (D. Nev. 2002).
Motion to Dismiss
considering a motion to dismiss, “all well-pleaded
allegations of material fact are taken as true and construed
in a light most favorable to the non-moving party.”
Wyler Summit P'ship v. Turner Broadcasting System,
Inc., 135 F.3d 657, 661 (9th Cir. 1988) (citation
omitted). Consequently, there is a strong presumption against
dismissing an action for failure to state a claim. See
Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th
Cir. 1998) (citation omitted).
survive a motion to dismiss, a complaint must contain factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plausibility, in the context of a motion to dismiss, means
that the plaintiff has pleaded facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Iqbal evaluation illustrates a two-prong analysis.
First, the Court identifies the “allegations in the
complaint that are not entitled to the assumption of truth,
” that is, those allegations which are legal
conclusions, bare assertions, or merely conclusory.
Id. at 1949-51. Second, the Court considers the
factual allegations “to determine if they plausibly
suggest an entitlement to relief.” Id. at
1951. If the allegations state plausible claims for relief,
such claims survive the motion to dismiss. Id. at
preclusion prevents the relitigation of claims previously
tried and decided.” Littlejohn v. U.S., 321
F.3d 915, 920-21 (9th Cir. 1984). “[A] federal court
must give to a state-court judgment the same preclusive
effect as would be given that judgment under the law of the
State in which the judgment was rendered.” Migra v.
Warrant City Sch. Dist. Bd. of Ed., 465 U.S. 75, 84
(1984). Under Nevada's claim preclusion rules, “[a]
valid and final judgment on a claim precludes a second action
on that claim or any part of it.” Univ. of Nev. v.
Tarkanian, 110 Nev. 581, 599 (Nev. 1994). “[C]laim
preclusion embraces all grounds of recovery that were
asserted in a suit, as well as those that could have been
asserted.” Id. at 600. For claim preclusion to
apply, three factors must be present: “(1) the parties
or their privies are the same, (2) the final judgment is
valid, and (3) subsequent action is based on the same claims
or any part of them that were or could have been brought in
the first case.” Five Star Capital Corp. v.
Ruby, 124 Nev. 1048, 1054 (Nev. 2008).