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Agha-Khan v. Bank of New York Mellon

United States District Court, D. Nevada

March 30, 2018

SALMA AGHA-KHAN, MD., Plaintiff,
THE BANK OF NEW YORK MELLON, et al., Defendants.




         Before 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 are denied.


         The following factual background is taken from Plaintiff's Complaint filed on November 18, 2016. (ECF No. 1).

         Plaintiff's 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.

         Plaintiff 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).


         A. Rule 12(b)(6)

         An 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 Cir. 2014).

         To 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. 2009).

         “As 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)).

         If the 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 omitted).


         A. Motions to Dismiss a. Defendant Olmos' Motion to Dismiss for Insufficient Service of Process

         i. Legal Standard

         The 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.

         ii. Discussion

         Plaintiff's 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.

         b. First Cause of Action - Fraudulent Misrepresentation

         i. Legal Standard

         In 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).

         In 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).

         ii. ...

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