United States District Court, D. Nevada
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.
Zephyr Heights General Improvement District operates a storm
water drainage system that allegedly resulted in flooding of
615 Stanley Circle, Zephyr Cove, Nevada
(“Property”), which Plaintiff Rebecca Heizer
claims to own under the fictitious name “Holings
37.” (ECF No. 2 at 2-3.) Before the Court is
Defendant's second motion to dismiss (the
“Motion”). (ECF No. 14.) For the reasons explained
below, the Court will grant the Motion for lack of standing.
alleges the following claims in her amended complaint
(“FAC”): (1) Takings Clause; (2) Article I,
Section VIII(6) of the Nevada Constitution; (3) 42 U.S.C.
§ 1983; (4) attorneys fee under 42 U.S.C. §
1988(b); (5) negligence; (6) nuisance; (7) trespass; and (8)
denial of service. (ECF No. 9 at 7-12.) Plaintiff's
initial Complaint makes no mention of Holings 37 (ECF No. 1),
the current Property owner of record (see ECF Nos.
7-2 (Grant Deed from Plaintiff to Holings 37 (“Grant
Deed”), 14-2 (same)). It was not until Defendant filed
a first motion to dismiss attaching the Grant Deed (ECF No.
7-2 at 2) that Plaintiff amended her Complaint (ECF No. 9).
She now alleges that she holds title to the Property under
the fictitious name “Holdings 37, ” also known as
“Holings 37.” (ECF No. 9 at 3.) She further
alleges that she filed a Fictious Firm Name Certificate
(“Certificate”) in Douglas County pursuant to NRS
§ 602.010,  but she never filed the Certificate with
the Court. (Id.) Unlike Plaintiff's initial
Complaint, the caption of the FAC now reflects “REBECCA
HEIZER, individually and doing business as HOLDINGS 37, also
known as HOLINGS 37.” (Id. at 1.)
12(b)(1) of the Federal Rules of Civil Procedure allows
defendants to seek dismissal of a claim or action for a lack
of subject matter jurisdiction. Although the defendant is the
moving party in a motion to dismiss brought under Rule
12(b)(1), the plaintiff is the party invoking the court's
jurisdiction. As a result, the plaintiff bears the burden of
proving that the case is properly in federal court. See
McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir.
2001) (citing McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)). Plaintiff's burden
is subject to a preponderance of the evidence standard.
See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th
courts are courts of limited jurisdiction. See Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374
(1978). A federal court is presumed to lack jurisdiction in a
case unless the contrary affirmatively appears. See Stock
West, Inc. v. Confederated Tribes of the Colville
Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
“Because subject matter jurisdiction goes to the power
of the court to hear a case, it is a threshold issue and may
be raised at any time and by any party.” Mallard
Auto. Grp., Ltd. v. United States, 343 F.Supp.2d 949,
952 (D. Nev. 2004) (citing Fed.R.Civ.P. 12(b)(1)). The party
invoking federal jurisdiction, here Plaintiff, bears the
burden of establishing the constitutional minimum of
standing. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992). To establish standing, the plaintiff
must have personally suffered an injury in fact-an invasion
of a legally protected interest. Id.; see also
Kaviani v. Caliber Home Loan, No. 2-19-cv-111-MMD-CWH,
2019 WL 3219140, at *5 (D. Nev. July 17, 2019) (dismissing
case for lack of standing where plaintiff attempts to bring
claims relating to interest in real property without
demonstrating an individual ownership interest in the
property). Furthermore, standing must be established at the
time the complaint is filed to confer jurisdiction. See
Lujan, 504 U.S. at 606.
argues inter alia that Plaintiff lacks standing to
bring this action because an unknown entity named Holings
37-which is not identified as a person, company, or
corporation-owns the Property, not Plaintiff. (ECF No. 14 at
12-13; ECF No. 14-2.) Although Plaintiff alleges that she
holds title to Property under the fictitious name
“Holings 37” and “Holdings 37” (ECF
No. 9 at 3), Defendant argues that NRS § 111.055 does
not authorize anyone to own real property under a fictitious
name. (ECF No. 14 at 12-13.) That statute only says that
“[a]ny nonresident alien, person or
corporation may take, hold and enjoy any real property
or any interest in lands . . . within the State of Nevada as
fully, freely, and upon the same terms and conditions as any
resident citizen, person or domestic
corporation.” NRS § 111.055 (emphases added).
Plaintiff later concedes that “[a] transfer of property
to a fictitious person is a complete nullity, transferring no
title, ” and therefore Plaintiff remains the
Property's owner and has standing to pursue this action.
(ECF No. 16 at 10 (quoting Temora Trading Co. v.
Perry, 645 P.2d 436, 437-38 (1982)).) Defendant counters
that Plaintiff must first file a quiet title
action to have the correct ownership reflected in
the record. (ECF No. 14 at 14.) “Until this is done,
[Plaintiff] lacks standing to bring her claims.”
(Id.) The Court agrees.
has not established an interest in the Property nor standing
at the time she filed this action. See Lujan, 504
U.S. at 606. Holings 37, not Plaintiff, is the current owner
of the Property (ECF No. 14-2 at 2); and the initial
Complaint does not even mention Holings 37 (ECF No. 1).
Plaintiff now claims Holings 37 is her business alias (ECF
No. 9 at 3), but she has not presented the Certificate
(see id.) nor any other evidence. In fact, it is
unclear whether Holings 37 is a person, corporation or
something else. Plaintiff cannot attempt to establish her
interest in the Property now and retroactively confer
standing upon herself.
the Court grants the Motion pursuant to Rule 12(b)(1) for
lack of standing.
Court notes that the parties made several arguments and cited
to several cases not discussed above. The Court has reviewed
these arguments and cases and determines that they do not
warrant discussion as ...