Beaty v. Santa Rosa III HOA

Filing 38

ORDER Granting 8 Defendant's Motion to Dismiss. IT IS FURTHER ORDERED that all pending motions are DENIED. The Clerk shall close the case. Signed by Chief Judge Robert C. Jones on 04/25/2013. (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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PIA BEATY,

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This case arises out of an HOA unit owner’s dissatisfaction with the location of her unit.

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Plaintiff,
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vs.
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SANTA ROSA III HOA,
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Defendant.

2:12-cv-01807-RCJ-NJK
ORDER

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Pending before the Court are a Motion to Dismiss (ECF No. 8), a Motion for Summary Judgment

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(ECF No. 11), and several other motions. For the reasons given herein, the Court grants the

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Motion to Dismiss and denies all other pending motions.

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I.

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FACTS AND PROCEDURAL HISTORY
Pro se Plaintiff Pia Beaty purchased a unit within Defendant Santa Rosa III HOA in North

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Las Vegas, Nevada sight unseen from her previous residence in Las Angeles County, California,

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completing the purchase via telephone, internet, and mail on October 14, 2009. (Compl. 8–9,

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Oct. 15, 2012, ECF No. 1). She is dissatisfied with that purchase, alleging that unbeknownst to

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her at the time of purchase, her unit was on the edge of the development. She therefore believed,

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based upon a Google Maps search, that a park on the other side of the fence were a part of the

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development. She is also dissatisfied that persons can see her exterior Jacuzzi area from the

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park, that there is damage to the wall from a tree planted in the park, that she has no easement

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over the park, and that her lot adjoins non-development property in general. Plaintiff sued

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Defendant in this Court on fourteen causes of action: (1)–(12) Misrepresentation; and (13)–(14)

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unspecified violations of federal law pursuant to 42 U.S.C. § 1983. Defendants have moved to

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dismiss. Plaintiff has moved for offensive summary judgment. Plaintiff has filed two motions in

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limine. Defendant has filed motions to strike one of the motions in limine, and to compel initial

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disclosures and for sanctions.

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II.

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DISCUSSION
The Court dismisses for lack of subject matter jurisdiction. The parties are both Nevada

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citizens, (see Compl. ¶¶ 29–30), and all the claims are state law claims, except for the § 1983

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claims, which are plainly not viable. The first § 1983 claim is based upon the allegation that

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Defendant’s actions violate Plaintiff’s Fifth Amendment right to due process before the taking of

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her property or liberty. The Court will treat the claim as a Fourteenth Amendment due process

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claim, as Defendant is alleged to have acted under color of state law. The claim is based upon

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alleged misrepresentations made to Plaintiff via the CC&R. This is a misrepresentation claim

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that does not sound in due process, even if Defendant could be considered a state actor for the

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purposes of § 1983, which it cannot be. Defendant is not a state actor simply because it was

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permitted or required by Chapter 116 of the Nevada Revised Statutes to promulgate the CC&R.

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If that theory of state action were viable, nearly every commercial actor would be subject to suit

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under § 1983 for its routine acts, because state regulation touches nearly every corner of

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commercial activity. State actors for the purposes of § 1983 are those who act on behalf of the

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state, not simply those whose actions are governed by the state’s regulations. Plaintiff has not

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and cannot allege that Defendant acted on behalf of the state. The second § 1983 claim appears

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to be some sort of Monell-type claim. That claim is also not viable, for the same reason. The

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remaining claims are state law misrepresentation claims, but there is no diversity of citizenship.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 8) is GRANTED.

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IT IS FURTHER ORDERED that all other pending motions are DENIED.

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IT IS FURTHER ORDERED that the Clerk shall close the case.

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IT IS SO ORDERED.

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Dated this 25th day April, 2013.
Dated this 11th day of of April, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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