United States District Court, D. Nevada
ORDER (1) GRANTING IN PART SFR'S MOTION TO
DISMISS; (2) GRANTING FOOTHILLS' MOTION TO DISMISS; AND
(3) DENYING FOOTHILLS' MOTION FOR SUMMARY JUDGMENT AS
MOOT [ECF NOS. 80, 81, 97]
P. GORDON, UNITED STATES DISTRICT JUDGE.
Bank of New York (BONY) sues to determine whether a
non-judicial foreclosure sale conducted by defendant
Foothills at MacDonald Ranch Master Association (Foothills)
extinguished BONY's deed of trust that encumbered
property located at 1680 Liege Drive in Henderson, Nevada.
Defendant SFR Investments Pool 1, LLC (SFR) purchased the
property at the homeowners association (HOA) foreclosure
sued for declarations that its deed of trust remains as an
encumbrance against the property and that it may enforce the
deed of trust through either a judicial or non-judicial
foreclosure sale. BONY also sued Foothills and its
foreclosure agent, defendant Nevada Association Services,
Inc. (NAS), for equitable indemnification and wrongful
foreclosure in the event that BONY's deed of trust was
extinguished by the HOA sale.
granted SFR and Foothills' motions to dismiss, ruling
that BONY's declaratory relief and wrongful foreclosure
claims were untimely. ECF No. 61. However, I granted BONY
leave to amend to allege facts that may support waiver,
estoppel, or equitable tolling of the limitations period.
Id. I also ruled that BONY's equitable
indemnification claim was timely and not subject to dismissal
on the grounds raised by Foothills but suggested that BONY
consider whether equitable indemnity was a viable claim in
the factual context of this case. Id.
filed a second amended complaint in which it reasserts its
claim for declaratory relief regarding the deed of
trust's validity. ECF No. 71 at 13-15. BONY also repleads
its wrongful foreclosure claim, but asserts it only against
Foothills' foreclosure agent, Nevada Association
Services, Inc. (NAS). Id. at 16-17. BONY dropped its
equitable indemnification claim and added a claim for breach
of the Covenants, Conditions, and Restrictions (CC&Rs)
against Foothills. Id. at 15-16.
Foothills move to dismiss, both arguing the declaratory
relief claim is untimely. SFR also contends the wrongful
foreclosure claim is untimely. SFR and Foothills argue that
my prior order did not grant BONY leave to add the new claim
for breach of the CC&Rs. Alternatively, Foothills
contends the new claim lacks merit. Foothills also moves for
summary judgment on a variety of grounds.
responds that it has adequately alleged a factual basis for
equitable tolling for the declaratory relief claim.
Alternatively, it requests I reconsider my ruling that a
four-year limitation period applies to this claim. BONY
contends it properly added a claim for breach of the
CC&Rs and that genuine issues of fact remain regarding
whether Foothills breached the CC&Rs.
parties are familiar with the facts, and I will not repeat
them here except where necessary to resolve the motions. I
grant SFR's and Foothills' motions to dismiss the
declaratory relief claim because BONY has not plausibly
alleged a basis for waiver, estoppel, or equitable tolling.
Additionally, I grant Foothills' motion to dismiss the
newly added claim for breach of the CC&Rs because I did
not grant leave for BONY to add a new claim, the time to
amend the pleadings has passed, and BONY has not shown good
cause to amend the scheduling order to allow late amendment
to add a claim it has known or should have known about since
the inception of this case. I deny SFR's motion to the
extent it is directed at the wrongful foreclosure claim
because that claim is asserted only against NAS. I deny
Foothills' motion for summary judgment as moot.
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 Broad. Sys., Inc.,
135 F.3d 658, 661 (9th Cir. 1998). However, I do not
necessarily assume the truth of legal conclusions merely
because they are cast in the form of factual allegations in
the complaint. See Clegg v. Cult Awareness Network,
18 F.3d 752, 754-55 (9th Cir. 1994). A plaintiff must make
sufficient factual allegations to establish a plausible
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007). Such allegations must amount to
“more than labels and conclusions, [or] a formulaic
recitation of the elements of a cause of action.”
Id. at 555.
claim may be dismissed as untimely pursuant to a 12(b)(6)
motion only when the running of the statute of limitations is
apparent on the face of the complaint.” United
States ex rel. Air Control Techs., Inc. v. Pre Con Indus.,
Inc., 720 F.3d 1174, 1178 (9th Cir. 2013) (alteration
and quotation omitted). A limitation period begins to run
“from the day the cause of action accrued.”
Clark v. Robison, 944 P.2d 788, 789 (Nev. 1997). A
cause of action generally accrues “when the wrong
occurs and a party sustains injuries for which relief could
be sought.” Petersen v. Bruen, 792 P.2d 18, 20
(Nev. 1990); see also State ex rel. Dep't of Transp.
v. Pub. Emps.' Ret. Sys. of Nev., 83 P.3d 815, 817
(Nev. 2004) (en banc) (“A cause of action
‘accrues' when a suit may be maintained
thereon.” (quotation omitted)). Nevada has adopted the
discovery rule, and thus time limits generally “do not
commence and the cause of action does not ‘accrue'
until the aggrieved party knew, or reasonably should have
known, of the facts giving rise to the damage or
injury.” G & H Assocs. v. Ernest W. Hahn,
Inc., 934 P.2d 229, 233 (Nev. 1997).
foreclosure sale took place on July 27, 2012, the
trustee's deed upon sale was recorded on August 1, 2012,
and BONY filed the original complaint in this matter on April
27, 2017. ECF Nos. 1 at 1; 24 at 7. As I stated in my prior
order, the four-year catchall limitation period in Nevada
Revised Statutes § 11.220 applies to BONY's claim
for a declaration that the deed of trust was not
extinguished, so the claim is untimely. I nevertheless gave
BONY leave to amend to allege facts supporting waiver,
estoppel, or equitable tolling.
did not oppose SFR and Foothills' motions arguing that
BONY had not alleged a basis for waiver or estoppel, so I
grant those portions of the motions as unopposed. LR 7-2(d).
However, the parties dispute whether BONY has adequately
alleged facts supporting equitable tolling.
tolling operates to suspend the running of a statute of
limitations when the only bar to a timely filed claim is a
procedural technicality.” State Dep't of
Taxation v. Masco Builder Cabinet Grp., 265 P.3d 666,
671 (Nev. 2011). Equitable tolling “is appropriate only
when the danger of prejudice to the defendant is absent and
the interests of justice so require.” Id.
(quotation omitted). The inquiry “focuses on whether
there was excusable delay by the plaintiff: If a reasonable
plaintiff would not have known of the existence of a possible
claim within the limitations period, then equitable tolling
will serve to extend the statute of limitations for filing
suit until the plaintiff can gather what information he
needs.” City of N. Las Vegas v. State Local
Gov't Employee-Mgmt. Relations Bd., 261 P.3d 1071,
1077 (Nev. 2011) (en banc) (quotation omitted). Nonexclusive
factors to consider when determining whether it would be just
to employ equitable tolling include: “the
[plaintiff]'s diligence, knowledge of the relevant facts,
reliance on misleading authoritative agency statements and/or
misleading . . . conduct [by the defendant], and any
prejudice to the [the defendant].” Id.