Marrocco v. Hill et al

Filing 15

ORDER Denying without prejudice 10 Motion to Dismiss. FURTHER ORDERED that 4 Motion for Order to Show Cause is GRANTED. FURTHER ORDERED that defendants shall file a brief with the court on or before 3/9/12 demonstrating why notice of lis pendens should not be expunged. Plaintiff may respond within 14 day and defendants may file a reply within 7 days. Signed by Judge James C. Mahan on 2/28/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DOMINIC ANTHONY MARROCCO,

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2:12-CV-28 JCM (RJJ)

Plaintiff,

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v.
MARK A. HILL, et al.,

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Defendants.

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ORDER

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Presently before the court is defendants Mark Hill, et. al.’s motion to dismiss pursuant to

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Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. #10). Plaintiff Dominic Anthony

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Marrocco filed a response. (Doc. #13). Defendants then filed a reply. (Doc. #14). Also before the

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court is plaintiff’s motion for order to show cause why notice of lis pendens should not be expunged.

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(Doc. #4).

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On January 9, 2012, plaintiff filed a complaint asserting four causes of action: (1) slander of

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title, (2) abuse of process, (3) conspiracy, and (4) racketeering. (Doc. #1; see also Doc. #12). The

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parties before the court are also involved in a case in the district court of Harris County, Texas: Hill

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v. Marrocco, 2010-05438. (Doc. #1; see also Doc. #12). In the Texas action, the parties are

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inverted, such that the plaintiff in this case is the defendant in the Texas case, and defendant Mark

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Hill is the plaintiff in the Texas case. (Doc. #1; see also Doc. #12).

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Here, the complaint alleges that defendants caused a notice of lis pendens to be recorded in

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the official records of the Clark County recorder based on the Texas action. (Doc. #1; see also Doc.

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James C. Mahan
U.S. District Judge

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#12). Further, defendants allegedly misrepresented the nature of the Texas action in the notice of

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lis pendens. Plaintiff asserts that the notice of lis pendens filed here in Nevada is “false and

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perjurious.” (Doc. #1; see also Doc. #12). The causes of action in the complaint all arise from the

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filing of this notice of lis pendens. (Doc. #1; see also Doc. #12).

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On January 27, 2012, defendants filed the instant motion to dismiss. (Doc. #10). Defendants

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argue that the complaint should be dismissed for failure to state a claim upon which relief can be

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granted and for lack of jurisdiction. (Doc. #10).

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Plaintiff filed a response and an amended complaint on February 13, 2012. (Docs. #12 and

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#13). Rather than respond to the substance of defendants’ motion to dismiss, plaintiff simply

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attached a copy of his amended complaint to his response, stating that he was responding by filing

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an amended complaint. (Doc. #13). Plaintiff amended his complaint as of right pursuant to Federal

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Rule of Civil Procedure 15(a)(1)(B).

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In their reply, defendants argue that plaintiff has not mooted their motion to dismiss by filing

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the first amended complaint. (Doc. #14). Defendants assert that there are no material differences

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between the amended complaint and the original complaint, so “it remains appropriate for the court

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to address and determine the motion to dismiss as filed on the original complaint with respect to

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addressing the entire action.” (Doc. #14).

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While many of the allegations in the first amended complaint are similar to the original

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complaint, the court is not inclined to find that there are no material differences between the two

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complaints. (See Docs. #1 and #12). Further, plaintiff has not responded to defendants’ substantive

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arguments in the motion to dismiss because plaintiff instead elected to file an amended complaint

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as a matter of course. (Docs. #12 and #13). Therefore, the court will not dismiss plaintiff’s first

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amended complaint based on the arguments in defendants’ previously filed motion to dismiss.

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Also before the court is plaintiff’s motion for order to show cause why notice of lis pendens

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should not be expunged. (Doc. #4). In their motion to dismiss, defendants assert that they

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discovered the erroneous nature of the lis pendens only once plaintiff filed the instant lawsuit. (Doc.

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#10). Further, defendants allegedly immediately removed the lis pendens once they became aware

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James C. Mahan
U.S. District Judge

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that it was filed in error. (Doc. #10).

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Although defendants assert that “there is no pending lis pendens,” (doc. #10), plaintiff’s first

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amended complaint asserts that defendants’ efforts to remove the lis pendens were insufficient or

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incomplete (doc. #12). Plaintiff notes that defendants caused a release of lis pendens to be recorded,

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but that the release was not signed by defendant Hill. (Doc. #12). Further, plaintiff obtained

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preliminary title reports on the disputed property, and the preliminary reports state that the release

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was insufficient. (Doc. #12). In light of the uncertain status of the notice of lis pendens, it is

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appropriate for the court to order further briefing on plaintiff’s motion for order to show cause.

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Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants Mark Hill, et.
al.’s motion to dismiss (doc. #10) be, and the same hereby is, DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for order to show cause why notice of
lis pendens should not be expunged (doc. #4) be, and the same hereby is, GRANTED.

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IT IS FURTHER ORDERED that defendants shall file a brief with the court demonstrating

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why notice of lis pendens should not be expunged on or before March 9, 2012. Plaintiff may

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respond within 14 days of the entry of the defendants’ brief, and defendants may file a reply within

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7 days of plaintiff’s response.

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DATED February 28, 2012.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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