United States District Court, D. Nevada
GLENKIRK D. PETERS, Plaintiff,
MAXWELL & MORGAN, CORP., Defendant.
M. Navarro, United States District Judge.
before the Court is Defendant Maxwell & Morgan,
Corp.'s (“Defendant's”) Motion to
Dismiss, (ECF No. 20). Plaintiff Glenkirk Peters
(“Plaintiff) filed a Response, (ECF No. 21), and
Defendant filed a Reply, (ECF No. 26). For the
reasons discussed below, the Court GRANTS
Defendant's Motion to Dismiss.
case concerns Defendant's collection of a debt owed by
Plaintiff to the homeowner's association governing
Plaintiffs home in Arizona. (Am. Compl. ¶¶ 18-19).
Plaintiff alleges that, when he sold his Arizona home in
2013, he believed the proceeds of the sale “paid off
any debts relating to the house, including the homeowners
association, Rancho El Dorado HOA (the
‘HOA').” (Id. ¶ 19). After that
sale, Plaintiff moved to Las Vegas, where he worked for
Caesars Entertainment. (Id. ¶ 21). Plaintiff
states that he never worked for Caesars while in Arizona, nor
does Caesars have corporate offices in Arizona. (Id.
2016, Defendant sued Plaintiff in Arizona state court
alleging that Plaintiff had outstanding financial obligations
to the HOA. (Id. ¶¶ 23-24). Defendant then
served Plaintiff with this lawsuit through publication in
Arizona, though Plaintiff alleges that he did not know about
the suit at that time. (Id. ¶¶ 26-27).
Defendant eventually obtained a judgment against Plaintiff in
Arizona state court (the “Arizona Judgment”).
(Id. ¶ 28). From that lawsuit and judgment,
Defendant sought to garnish Plaintiffs wages to repay the
outstanding HOA debt by securing a Writ of Garnishment in the
Superior Court of the State of Arizona, County of Pinal.
(Id. ¶ 32). Defendant did not seek or secure a
writ of garnishment in Nevada. (Id. ¶ 34). As
of May 2018, Defendant garnished approximately $418.51 per
week of Plaintiff s wages earned at Caesars based on the
Arizona Judgment. (Id. ¶ 33).
filed his initial Complaint on July 27, 2018, asserting that
Defendant's garnishment of his wages was procedurally
incorrect under Nevada law. Defendant moved to dismiss the
initial Complaint on September 28, 2018, and also moved for
judgment on the pleadings. (Mot. Dismiss, ECF No. 16); (Mot.
J. on Pleadings, ECF No. 15). Roughly eleven days later,
Plaintiff amended his initial Complaint, (Am. Compl., ECF No.
17), and alleges that Defendant's actions in collecting
the HOA debt and garnishing his wages were improper under
Nevada laws, thus supporting a claim under the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692.
(Id. ¶¶ 38-65). Defendant thereafter filed
the instant Motion to Dismiss, (ECF No. 20).
Rule of Civil Procedure 12(b)(6) mandates that a court
dismiss a cause of action that fails to state a claim upon
which relief can be granted. See N. Star Int'l v.
Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.
1983). When considering a motion to dismiss under Rule
12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
Court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
1986). The Court, however, is not required to accept as true
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences. See
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001). A formulaic recitation of a cause of action
with conclusory allegations is not sufficient; a plaintiff
must plead facts showing that a violation is
plausible, not just possible. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
may also dismiss a complaint pursuant to Federal Rule of
Civil Procedure 41(b) for failure to comply with Federal Rule
of Civil Procedure 8(a). Hearns v. San Bernardino Police
Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2)
requires that a plaintiff's complaint contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
“Prolix, confusing complaints” should be
dismissed because “they impose unfair burdens on
litigants and judges.” McHenry v. Renne, 84
F.3d 1172, 1179 (9th Cir. 1996).
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion . . . .
However, material which is properly submitted as part of the
complaint may be considered on a motion to dismiss.”
Hal Roach Studios, Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence
201, a court may take judicial notice of “matters of
public record.” Mack v. S. Bay Beer Distrib.,
798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the
district court considers materials outside of the pleadings,
the motion to dismiss becomes a motion for summary judgment.
See Arpin v. Santa Clara Valley Transp. Agency, 261
F.3d 912, 925 (9th Cir. 2001).
court grants a motion to dismiss, it must then decide whether
to grant leave to amend. The court should “freely
give” leave to amend when there is no “undue
delay, bad faith[, ] dilatory motive on the part of the
movant . . . undue prejudice to the opposing party by virtue
of . . . the amendment, [or] futility of the amendment . . .
.” Fed.R.Civ.P. 15(a); Foman v. Davis, 371
U.S. 178, 182 (1962). Generally, leave to amend is only
denied when it is clear that the deficiencies of the
complaint cannot be cured by amendment. See DeSoto v.
Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.
moves to dismiss Plaintiff's Amended Complaint on the
ground that Defendant never sought to enforce or execute its
Arizona Judgment in Nevada; and thus, it did not engage in
abusive debt collection practices by violating Nevada law.
(Mot. Dismiss (“MTD”) 1:20-2:7, ECF No. 20).
Defendant claims that it merely served Caesars's
registered agent in Arizona with the Arizona Judgment and
court-authorized Writ of Garnishment in compliance with
Arizona's laws, and Caesars then properly garnished
Plaintiff's wages. (Id. 5:19-6:3). Accordingly,
Defendant contends that by not petitioning Plaintiff's
employer in Nevada, nor seeking to execute the Arizona
Judgment through Nevada courts, it had no obligation to
domesticate the Arizona Judgment in Nevada or comply with
Nevada's laws on execution of foreign judgments.
response, Plaintiff argues that, because he earned the
garnished wages in Nevada, Defendant had to comply with
Nevada's Uniform Enforcement of Foreign Judgments Act
(“UEFJA”), which consists of Nevada Revised
Statutes (“NRS”) §§ 17.330 to 17.400,
before garnishment could occur. (Am. Compl. ¶¶ 44);
(Resp. 9:4-21, ECF No. 21). By failing to domesticate the
Arizona Judgment under Nevada's UEFJA, Plaintiff contends