United States District Court, D. Nevada
ORDER DEFENDANTS' MOTIONS TO DISMISS (ECF NOS.
44, 64, 68, AND 82); PLAINTIFF'S MOTIONS FOR SANCTIONS
(ECF NOS. 42 AND 77)
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court are Motions to Dismiss filed by Defendants Bayview
Loan Servicing, LLC (“Bayview”); Dorka Bouza
(“Bouza”), Matt Martin Real Estate Management
(“MMREM”), Charlotte Olmos (“Olmos”),
and SFR Investments Pool 1 (“SFR Investments”).
(ECF Nos. 44, 64, 68, and 82). Also before the Court are
Plaintiff's Motions for Sanctions. (ECF Nos. 42 and 77).
For the reasons stated below, Defendants' Motions to
Dismiss are granted and Plaintiff's Motions for Sanctions
following factual background is taken from Plaintiff's
Complaint filed on November 18, 2016. (ECF No. 1).
claims largely center around two alleged frauds perpetrated
against her that led to the sale of her Las Vegas home in a
non-judicial foreclosure sale. First, Plaintiff alleges that
when she originally purchased her home in 2005, Defendant
Aspen Mortgage never recorded a deed to the property and
“simply pocketed” over $200, 000 that Plaintiff
paid as a down payment. Plaintiff claims that she then
unknowingly paid $5, 000 a month in mortgage payments and
later paid another $50, 000 toward a loan modification
program, despite the fact that the various Defendants had no
recorded interest in her property. Second, Plaintiff claims
that the homeowner's association that eventually
foreclosed on her property did so based on inaccurate past
due payments that Plaintiff did not actually owe.
filed her Complaint filed on November 18, 2016. (ECF No. 1).
Defendants Bayview Bouza, and MMREM filed a Motion to Dismiss
Plaintiff's complaint on March 6, 2017. (ECF No. 44).
Defendant SFR Investments filed a Motion to Dismiss on April
13, 2017. (ECF No. 64). Defendant Olmos filed a Motion to
Dismiss on April 25, 2017. (ECF No. 68). On July 10, 2017,
Defendant MMREM filed an Amended Motion to Dismiss. (ECF No.
82). Plaintiff filed Motions for Sanctions on March 1, 2017
and May 31, 2017. (ECF No. 42); (ECF No. 77).
initial pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). The court may dismiss
a complaint for failing to state a claim upon which relief
can be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion
to dismiss, “[a]ll well-pleaded allegations of material
fact in the complaint are accepted as true and are construed
in the light most favorable to the non-moving party.”
Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017,
1019 (9th Cir. 2013) (citations omitted). In addition,
documents filed by a plaintiff who is proceeding without
counsel (as is the case here) must be liberally construed,
and a pro se complaint must be “held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)) (internal citations and quotation marks omitted);
see also Butler v. Long, 752 F.3d 1177, 1180 (9th
survive a motion to dismiss, a complaint need not contain
“detailed factual allegations, ” but it must do
more than assert “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 Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). In other words, a
claim will not be dismissed if it contains “sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face, ” meaning that the court
can reasonably infer “that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at
678 (internal quotation and citation omitted). The Ninth
Circuit, in elaborating on the pleading standard described in
Twombly and Iqbal, has held that for a
complaint to survive dismissal, the plaintiff must allege
non-conclusory facts that, together with reasonable
inferences from those facts, are “plausibly suggestive
of a claim entitling the plaintiff to relief.” Moss
v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.
a general rule, a district court may not consider any
material beyond the pleadings in ruling on a Rule 12(b)(6)
motion.” Lee v. City of Los Angeles, 250 F.3d
668, 688 (9th Cir. 2001) (quotation and citation omitted). In
deciding a motion to dismiss under Rule 12(b)(6), the
district court's review is limited to the complaint
itself; the court does not decide at this stage whether the
plaintiff will ultimately prevail on her claims, but rather
whether she may offer evidence to support those claims.
Cervantes v. City of San Diego, 5 F.3d 1273, 1274
(9th Cir. 1993) (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)).
district court relies on materials outside the pleadings
submitted by either party to the motion to dismiss, the
motion must be treated as a Rule 56 motion for summary
judgment. Anderson v. Angelone, 86 F.3d 932, 934
(9th Cir. 1996). However, two exceptions to this rule exist.
First, the court may consider extrinsic material
“properly submitted as part of the complaint, ”
meaning documents either attached to the complaint or upon
which the plaintiff's complaint necessarily relies and
for which authenticity is not in question. Lee, 250
F.3d at 688 (citation omitted). Second, the court “may
take judicial notice of matters of public record.”
Id. (citation omitted) (internal quotation marks
Motions to Dismiss a. Defendant
Olmos' Motion to Dismiss for Insufficient Service of
Court may dismiss a complaint under Federal Rule of Civil
Procedure 12(b)(5) for insufficient service of process.
Fed.R.Civ.P. 12(b)(5). Federal Rule of Civil Procedure 4(e)
provides that service may be effectuated either by serving
the individual in any manner allowed under the laws of the
state where the district court is located or by doing any of
the following: “(A) delivering a copy of the summons
and of the complaint to the individual personally; (B)
leaving a copy of each at the individual's dwelling or
usual place of abode with someone of suitable age and
discretion who resides there; or (C) delivering a copy of
each to an agent authorized by appointment or by law to
receive service of process.” Fed.R.Civ.P. 4(e). Nevada
state law regarding service tracks the Federal Rule of Civil
Procedure and does not provide any alternative means for
serving an individual defendant. Nev. R. Civ. P. 4(d)(6).
Under Federal Rule of Civil Procedure 4(m), the Court must
dismiss an action without prejudice if a defendant is not
served within 90 days of the filing of the complaint.
proof of service indicates that Defendant Charlotte Olmos was
served “c/o First American Title Insurance” at
the address for First American Title Insurance. (ECF No. 49
at 14). As First American Title Insurance is Defendant
Olmos' former employer, and not her dwelling or usual
place of abode, this service would only be sufficient if
Defendant Olmos was served personally at that location. As
Plaintiff indicates that the summons was left with a security
guard at First American and Defendant Olmos includes a
declaration stating that she has not appointed anyone at
First American to be her agent for service purposes, the
Court finds that service of process against Defendant Olmos
was insufficient. The Complaint was filed on November 18,
2016, well over 90 days ago. The Court will therefore dismiss
Defendant Olmos from this case with prejudice.
First Cause of Action - Fraudulent
Nevada, the plaintiff must allege the following elements for
fraudulent misrepresentation: (1) A false representation made
by the defendant; (2) defendant's knowledge or belief
that its representation was false or that defendant has an
insufficient basis of information for making the
presentation; (3) defendant intended to induce plaintiff to
act or refrain from acting upon the misrepresentation; (4)
plaintiff justifiably relied on the defendant's
misrepresentation or omission, and (5) damage to the
plaintiff as a result of justifiable reliance on the
misrepresentation. Barmettler v. Reno Air, Inc., 956
P.2d 1382, 1386 (Nev. 1998).
order to survive a Motion to Dismiss on a fraud claim, the
plaintiff must “state with particularity the
circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person's mind may be
alleged generally.” Fed.R.Civ.P. 9(b). This rule
applies to fraud claims under state law as well as federal
claims. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,
1103 (9th Cir. 2003). To meet the particularity requirement
of Rule 9(b), the complaint must identify the “who,
what, when, where, and how of the misconduct charged, as well
as what is false or misleading about the purportedly
fraudulent statement, and why it is false.” Salameh
v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013)
(quoting Cafasso v. Gen. Dynamics C4 Sys., Inc., 637
F.3d 1047, 1055 (9th Cir. 2011)). Moreover, “Rule 9(b)
does not allow a complaint to merely lump multiple defendants
together but requires plaintiffs to differentiate their
allegations when suing more than one defendant . . . and
inform each defendant separately of the allegations
surrounding his alleged participation in the fraud. In the
context of a fraud suit involving multiple defendants, a
plaintiff must, at a minimum, identify the role of each
defendant in the alleged fraudulent scheme.” Swartz
v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007)
(citations and internal quotation marks omitted).