United States District Court, D. Nevada
ORDER (1) GRANTING MOTIONS TO DISMISS, (2) DENYING
MOTION FOR INJUNCTIVE RELIEF, AND (3) SETTING DEADLINE TO
AMEND [ECF NOS. 11, 13, 19]
GORDON UNITED STATES DISTRICT JUDGE.
Keith Patton sues defendants Citizen Bank, N.A.; the Eighth
Judicial District Court of Clark County, Nevada; and the law
firm Garcia-Mendoza & Snavely, claiming that Citizen Bank
improperly sued to recover on a loan in the Eighth Judicial
District Court after that debt had been discharged through
bankruptcy proceedings. Defendant Garcia-Mendoza &
Snavely employs Maria Garcia-Mendoza, who was appointed as an
arbitrator in the state court case.
moves to enjoin the defendants from proceeding further in the
state court action. Defendants Eighth Judicial District Court
and Garcia-Mendoza & Snavely oppose and move to dismiss,
arguing that any alleged violation of the bankruptcy
discharge injunction in 11 U.S.C. § 524 must be raised
in the bankruptcy court. They also argue that there was no
violation of the discharge injunction because Patton's
loan was a student loan that cannot be discharged through
bankruptcy absent an adversary proceeding, which did not
occur. They also contend the request for injunctive relief is
moot because the state court case has concluded. Finally,
they assert they are entitled to judicial immunity. Citizen
Bank joins these arguments and moves to dismiss.
responds that I should deny the defendants' motions
because they did not support them with a declaration or
affidavit, the motions are premature because there is no
scheduling order and the motions were filed before the
deadline for dispositive motions, and the defendants have
failed to timely file an answer to the amended complaint.
Patton also argues this court has jurisdiction because he has
alleged a violation of federal law. And he asserts I can
grant injunctive relief in the form of vacating the state
court judgment under Ex Parte Young. Finally, he
requests leave to amend his complaint to assert additional
claims and add parties, including the state court district
judge, Citizen Bank's lawyer, and the arbitrator.
the defendants' motion to dismiss. Patton's claims
are based on alleged violations of the bankruptcy discharge
injunction, so he must seek relief in the bankruptcy court. I
deny Patton's request for injunctive relief because I am
dismissing his amended complaint and because the state court
proceedings have concluded. I deny leave to amend as to
current defendants Eighth Judicial District Court and
Garcia-Mendoza & Snavely, and as to proposed defendants
Eva Garcia-Mendoza and the state court judge, because these
defendants would be entitled to absolute judicial or
quasi-judicial immunity, so amendment would be futile. I
grant leave to amend as to Citizen Bank if Patton can assert
a claim founded on something other than the alleged violation
of the discharge injunction.
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 assume
the truth of legal conclusions merely because they are cast
in the form of factual allegations. 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.
raises three procedural challenges to the defendants'
motions to dismiss: (1) the defendants did not support their
motions with a declaration or affidavit, (2) the motions are
premature because they were filed before the deadline for
dispositive motions, and (3) the defendants have failed to
timely file an answer. None of these provides a basis to deny
the motions. The defendants have moved to dismiss, not for
summary judgment, so they do not have to support their
motions with a declaration or affidavit. There is no
requirement that a defendant wait for a scheduling order or
the dispositive motion deadline to move for dismissal.
Finally, the defendants timely responded to the amended
complaint by filing their motions to dismiss. See
Fed. R. Civ. P. 12(a)(4), (b).
Walls v. Wells Fargo Bank, N.A., the Ninth Circuit
explained that, because the Bankruptcy Code provides no
private right of action for violation of a bankruptcy
court's discharge order, a plaintiff cannot bring a
functionally equivalent claim under the Fair Debt Collection
Practices Act. 276 F.3d 502, 510 (9th Cir. 2002). The court
reasoned that allowing a functionally equivalent claim to
proceed “would circumvent the remedial scheme of the
Code under which Congress struck a balance between the
interests of debtors and creditors by permitting (and
limiting) debtors' remedies for violating the discharge
injunction to contempt.” Id. Patton therefore
cannot pursue his claims that the defendants violated the
discharge injunction through his claims in this proceeding.
reliance on Randolph v. IMBS, Inc., 368 F.3d 726
(7th Cir. 2004) is misplaced. I am bound to follow Ninth
Circuit law. See Hasbrouck v. Texaco, Inc., 663 F.2d
930, 933 (9th Cir. 1981) (“District courts are bound by
the law of their own circuit.”); 28 U.S.C. § 41.
also cites to various bankruptcy court cases. But bankruptcy
courts cannot overrule controlling Ninth Circuit authority.
Moreover, the cases Patton cites do not assist him. In re
Arzuaga held that the discharge injunction did not apply
because the debt collector was pursuing post-petition debts
that were not discharged. See No. 03-01215 BKT, 2012
WL 1120673, at *3 (Bankr. D.P.R. Apr. 3, 2012). In contrast,
Patton contends that his loan was discharged in bankruptcy,
but Citizen Bank nevertheless sought to collect on this
pre-petition debt in violation of the discharge injunction.
Next, Patton cites In re Wilkinson, No. ADV
11-05056, 2012 WL 112945 (Bankr.W.D.Tex. Jan. 12, 2012). But
that case did not involve a violation of a bankruptcy
discharge injunction. Rather, the debtor there alleged that
the creditor foreclosed on property in violation of the
bankruptcy court's sale orders. Id. at *2.
Patton also cites to In re Frambes, but that court
held that the debtor's claims were based on post-petition
conduct and thus did not constitute property of the
bankruptcy estate. 454 B.R. 437, 443 (Bankr. E.D. Ky. 2011).
The Frambes court otherwise agreed with
Walls' “well-reasoned analysis . . . that
the only remedy for a debtor aggrieved by a violation of the
discharge injunction is to seek relief by virtue of a motion
in the main bankruptcy proceeding.” Id.
Finally, Patton relies on In re Atwood, 452 B.R. 249
(Bankr. D.N.M. 2011). But that case rejected
Walls' analysis, an option I do not have.
Id. at 252-53.
[Patton's] remedy for violation of § 524 no matter
how cast lies in the Bankruptcy Code, ” his
“simultaneous” civil claims are
“precluded.” Walls, 276 F.3d at 511. I
therefore dismiss ...