Neal v. Bank of New York Mellon Trust Company, N.A.

Filing 48

ORDER Granting 30 and 32 Defendants' Motions to Dismiss. This action, 2:12-cv-1352-LRH-VCF is DISMISSED in its entirety. IT IS FURTHER ORDERED that 40 Plaintiffs Motion to Vacate reply and 42 Plaintiff's Motion to Vacate response are DENIED. Signed by Judge Larry R. Hicks on 06/28/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD LELAND NEAL

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Plaintiff,

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v.

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THE BANK OF NEW YORK MELLON
TRUST COMPANY,

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Defendant.
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2:12-cv-1352-LRH-VCF
ORDER

Before the court are defendant Silver Liege Development LLC’s (“Silver Liege”) motion to

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dismiss (Doc. #301) and defendant the Bank of New York Mellon Trust Company’s (“Mellon”)

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(collectively “defendants”) renewed motion to dismiss (Doc. #32). Pro se plaintiff Richard Leland

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Neal (“Neal”) filed oppositions (Doc. ##35, 37) to which defendants replied (Doc. ##36, 39).

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I.

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Facts and Background
On July 31, 2012, pro se plaintiff Neal filed a complaint against defendant Mellon for quiet

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title over real property. See Doc. #1. In response, Mellon filed a motion to dismiss (Doc. #11)

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which was granted by the court (Doc. #28). However, because Neal was representing himself

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pro se, the court granted him leave to file an amended complaint. See Doc. #28.

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On January 16, 2013, Neal filed an amended complaint against defendants alleging two
causes of action: (1) declaratory relief; and (2) quiet title. Doc. #29. Thereafter, defendants filed the

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Refers to the court’s docket number.

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present motions to dismiss. Doc. ##30, 32.

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II.

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

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

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a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading

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standard. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That

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is, a complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require

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detailed factual allegations; however, a pleading that offers “‘labels and conclusions’ or ‘a

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formulaic recitation of the elements of a cause of action’” will not suffice. Ashcroft v. Iqbal, 129 S.

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Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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

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

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

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

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

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

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

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defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to

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relief.” Id. at 1949 (internal quotation marks and citation omitted).

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

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

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

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

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(internal quotation marks omitted). The court discounts these allegations because “they do nothing

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more than state a legal conclusion—even if that conclusion is cast in the form of a factual
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allegation.” Id. (citing Iqbal, 129 S. Ct. at 1951.) “In sum, for a complaint to survive a motion to

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dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be

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plausibly suggestive of a claim entitling the plaintiff to relief.” Id.

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III.

Discussion

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Defendants move to dismiss this action on the basis that pro se plaintiff Neal does not have

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standing to challenge the underlying non-judicial foreclosure of the property formerly securing the

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mortgage loan of non-party Teresa Lopez (“Lopez”). See Doc. #32.

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The court has reviewed the documents and pleadings on file in this matter and agrees that
pro se plaintiff Neal does not have standing to challenge the underlying non-judicial foreclosure or

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Lopez’s mortgage agreement. The amended complaint is replete with allegations and claims

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asserted on behalf of Lopez regarding her loan and her void recorded instruments, and seeks relief

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on her behalf even though Neil has no interest in the property. Further, Neil was not a party to, and

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therefore cannot challenge, Lopez’s loan contract and its securitization, the assignments and

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agreements between other parties, or the non-judicial foreclosure of Lopez’s defaulted loan.

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Therefore, the court finds that Neal does not have standing to bring this action and the court shall

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grant defendants’ motions accordingly.

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IT IS THEREFORE ORDERED that defendants’ motions to dismiss (Doc. ##30, 32) are
GRANTED. This action, 2:12-cv-1352-LRH-VCF is DISMISSED in its entirety.
IT IS FURTHER ORDERED that pro se plaintiff’s motion to vacate reply (Doc. #40) and
motion to vacate response (Doc. #42) are DENIED.

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IT IS SO ORDERED.

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DATED this 28th day of June, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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