United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
motions come before the court in this
nonjudicial-foreclosure-sale matter. First, defendant SFR
Investments Pool 1, LLC (“SFR”) moves to demand
security for costs under Nevada Revised Statute
(“NRS”) § 18.130. ECF No. 8. Second,
defendant Curti Ranch Two Maintenance Association, Inc.
(“Curti Ranch”) moves to dismiss three claims in
the complaint. ECF No. 6. Plaintiff Nationstar Mortgage LLC
(“Nationstar”) opposed the motion to dismiss, and
Curti Ranch filed a reply. ECF Nos. 11, 12. The court now
denies SFR's demand of security for costs. The court also
denies in part and grants in part Curti Ranch's motion to
matter arises from a nonjudicial foreclosure sale occurring
in 2013 under NRS Chapter 116. ECF No. 1. Curti Ranch (a
homeowners' association) foreclosed on the at-issue
property on September 19, 2013, based on delinquent
homeowners' association fees. Id.
beneficiary of the first deed of trust on the
property-brought suit four years later, challenging the
constitutionality and the circumstances of the foreclosure
sale. Id. It filed the complaint on November 30,
2017, alleging (1) a claim to quiet title on the property,
(2) a claim for violations of NRS § 116.1113, (3) a
claim for wrongful foreclosure, and (4) a claim for
injunctive relief. Curti Ranch now moves to dismiss the first
three claims based on the applicable statute of limitation.
ECF No. 6.
may seek the dismissal of a complaint under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a legally
cognizable cause of action. See Fed. R. Civ. P.
12(b)(6) (stating that a party may file a motion to dismiss
for “failure to state a claim upon which relief can be
granted[.]”). To survive a motion to dismiss for
failure to state a claim, a complaint must satisfy the notice
pleading standard of Federal Rule 8(a)(2). See Mendiondo
v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th
Cir. 2008). Under Rule 8(a)(2), a complaint 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). Rule 8(a)(2) does not require detailed factual
allegations; however, a pleading that offers only
“‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action'” is insufficient and fails to meet this
broad pleading standard. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
sufficiently allege a claim under Rule 8(a)(2), viewed within
the context of a Rule 12(b)(6) motion to dismiss, a complaint
must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). A claim has facial plausibility when the
pleaded factual content allows the court to draw the
reasonable inference, based on the court's judicial
experience and common sense, that the defendant is liable for
the alleged misconduct. See Id. at 678-679 (stating
that “[t]he plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to
relief.”) (internal quotation marks and citations
omitted). Further, in reviewing a motion to dismiss, the
court accepts the factual allegations in the complaint as
true. Id. However, bare assertions in a complaint
amounting “to nothing more than a formulaic recitation
of the elements of a . . . claim . . . are not entitled to an
assumption of truth.” Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting
Iqbal, 556 U.S. at 698) (internal quotation marks
omitted). The court discounts these allegations because
“they do nothing more than state a legal conclusion-
even if that conclusion is cast in the form of a factual
allegation.” Id. “In sum, for a
complaint to survive a motion to dismiss, the non-conclusory
‘factual content, ' and reasonable inferences from
that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief.” Id.
court must decide two motions: (1) SFR's demand of
security for costs and (2) Curti Ranch's motion to
dismiss. The court considers each motion in turn.
Demand for Security for Costs
court first turns to SFR's demand for security for costs
under NRS § 18.130. The Nevada statute states:
“[w]hen a plaintiff in an action resides out of the
State, or is a foreign corporation, security for costs and
charges which may be awarded against such plaintiff may be
required by the defendant, by the filing and service on
plaintiff of a written demand therefor within the time
limited for answering the complaint.” Nev. Rev. Stat.
§ 18.130(1). While such security is not required under
the Federal Rules of Civil Procedure, “[i]t has been
the policy of the United States District Court for the
District of Nevada to enforce the requirements of NRS §
18.130 in diversity actions.” Hamar v. Hyatt
Corp., 98 F.R.D. 305 (D. Nev. 1983).
“[w]hen suit is brought under a federal statute, state
provisions requiring security for costs or expenses clearly
are inapplicable.” 10 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure §
2671 (3d ed.) Instead, the court may apply its own rules or
state practice to require security for costs as a
discretionary matter. Id. In doing so, the court may
consider the policy of the underlying federal statute, the
defendant's ability to recover costs from an out-of-state
plaintiff if the defendant prevails, the plaintiff's
solvency, and any other pertinent factors. Id.
matter centers on the constitutionality of Nevada's
statutes governing nonjudicial foreclosure sales; plaintiff
argues the statutes, as enforced in 2013, violate
plaintiff's due process rights under the U.S.
Constitution. ECF No. 1, ¶¶ 36-43; ECF No. 11 at 7
(describing the declaratory relief claim, which is based on
constitutional challenges to the Nevada statutes, as the
primary issue in this matter). Because this matter centers on
a claim asserting a constitutional challenge, the court finds
it would be contrary to public policy to require security for