Nguyen v. Washington Mutual Bank N.A. et al

Filing 51

ORDER Granting 43 Motion to Dismiss. Plaintiffs 42 Second Amended Complaint is DISMISSED in its entirety. Granting 44 Motion to Expunge Lis Pendens. Submission of Proposed Order due within 10 days. Signed by Judge Larry R. Hicks on 7/24/2013. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

*****

9

HANH NGUYEN,

10

Plaintiff,

11

vs.

12

WASHINGTON MUTUAL BANK, N.A.;
et al.,

13
Defendants.
14

)
) 2:11-cv-01799-LRH-NJK
)
) ORDER
)
)
)
)
)
)
)

15

Before the court is Defendants Washington Mutual Bank, N.A.; JPMorgan Chase Bank,

16

N.A.; and California Reconveyance Company’s (collectively, “Defendants”) motion to dismiss

17

for failure to state a claim. Doc. #43.1 Pro se Plaintiff Hanh Nguyen (“Nguyen”) has responded to

18

the motion (Doc. #48), to which Defendants have replied (Doc. #49). Also before the court is

19

Defendants’ Motion to Expunge Lis Pendens. Doc. #44.

20

I.

21

Facts and Procedural History
In September 2007, Nguyen purchased real property through a mortgage note and deed of

22

trust originated by Defendants. Eventually, Nguyen defaulted on the mortgage note and

23

Defendants initiated non-judicial foreclosure proceedings.

24

Subsequently, Nguyen filed a complaint against Defendants for wrongful foreclosure.

25

Doc. #1, Exhibit A. After she filed her initial complaint, the court granted Nguyen leave to file an

26

amended complaint. Doc. #28. After Plaintiff filed her second amended complaint (Doc. #42),

27

Defendants filed the instant motion to dismiss (Doc. #43) and motion to expunge lis pendens

28

(Doc. #44).
1

Refers to the court’s docket number.

1

II.

Legal Standard

2

Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for

3

failure to state a claim upon which relief can be granted. To survive a motion to dismiss for

4

failure to state a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2)

5

notice pleading standard. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th

6

Cir. 2008). That is, a complaint must contain “a short and plain statement of the claim showing

7

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard

8

does not require detailed factual allegations; however, a pleading that offers “‘labels and

9

conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” will not suffice.

10

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

11

U.S. 544, 555 (2007)).

12

Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter,

13

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 1949 (quoting

14

Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content

15

allows the court to draw the reasonable inference, based on the court’s judicial experience and

16

common sense, that the defendant is liable for the misconduct alleged. See id. at 1949-50. “The

17

plausibility standard is not akin to a probability requirement, but it asks for more than a sheer

18

possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely

19

consistent with a defendant’s liability, it stops short of the line between possibility and

20

plausibility of entitlement to relief.” Id. at 1949 (internal quotation marks and citation omitted).

21

In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as

22

true. Id. However, “bare assertions . . . amount[ing] to nothing more than a formulaic recitation

23

of the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret

24

Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951) (brackets in original)

25

(internal quotation marks omitted). The court discounts these allegations because “they do

26

nothing more than state a legal conclusion—even if that conclusion is cast in the form of a

27

factual allegation.” Id. (citing Iqbal, 129 S. Ct. at 1951.) “In sum, for a complaint to survive a

28

motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that

2

1

content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id.

2

III.

3

Discussion
In their motion to dismiss, Defendants included several documents, such as the deed of

4

trust and the purchase agreement to the underlying property. See Doc. #43, Exhibits A, B, C, D.

5

Nguyen argues that attaching these documents necessarily transforms Defendants’ motion to

6

dismiss into a motion for summary judgment. In this case, however, Defendants’ attached

7

documents are unnecessary and the court does not rely on them in its decision.2 Thus,

8

Defendants’ motion is properly treated as a Rule 12(b)(6) motion to dismiss.

9

In her second amended complaint, Nguyen appears to assert only a single claim for

10

declaratory judgment. Declaratory judgment, however, is merely a remedy available for

11

established causes of action, and is not itself a separate cause of action. Freeto v. Litton Loan

12

Servicing LP, 2010 WL 2730596, at *3 (D. Nev. July 6, 2010). Further, a claim for declaratory

13

judgment alone is insufficient to establish a district court’s jurisdiction. See Stock W., Inc. v.

14

Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (holding

15

the Declaratory Judgment Act, 28 U.S.C. § 2201, is not a basis for jurisdiction because the act

16

creates a remedy only). Therefore, the court finds Nguyen fails to state a claim for relief and shall

17

grant Defendants’ motion to dismiss

18

///

19

///

20

///

21
22
23
2

24
25
26
27
28

Even if the court were to rely on these documents, Defendants’ motion may still be
properly considered as a Rule 12(b)(6) motion to dismiss. Though courts generally “may not
consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion,” a court may
consider “matters of public record,” inasmuch as their factual contents are not “subject to
reasonable dispute.” United States v. Corinthian Colls., 655 F.3d 984, 998–99 (9th Cir. 2011)
(quoting Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001) (internal quotation
marks omitted). These documents are all matters of public record, and Nguyen does not dispute
any of these documents’ facts. Thus, the court would be justified in taking judicial notice of these
documents, while still maintaining Defendants’ motion as a proper Rule 12(b)(6) motion.
3

1
2
3

IT IS THEREFORE ORDERED that Defendants’ motion to dismiss (Doc. #43) is
GRANTED. Plaintiff’s Second Amended Complaint (Doc. #42) is DISMISSED in its entirety.
IT IS FURTHER ORDERED that Defendants’ motion to expunge lis pendens (Doc. # 44)

4

is GRANTED. Defendants shall have ten (10) days from entry of this order to prepare an

5

appropriate proposed order expunging the lis pendens and submit the same for signature.

6

IT IS SO ORDERED.

7

DATED this 24th day of July, 2013.

8
9

_______________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4