Garcia vs Indymac Bank, et al

Filing 40

ORDERED that D's # 15 Motion to dismiss is GRANTED. Defendant Stewart Title Guaranty Company is DISMISSED as a defendant in this action. Signed by Judge Larry R. Hicks on 1/3/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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REYNALDO GARCIA GARCIA,

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Plaintiff,

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v.

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INDYMAC BANK, F.S.B.; et al.,

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Defendants.

3:11-cv-0629-LRH-WGC
ORDER

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Before the court is defendant Stewert Title Guaranty Company’s (“Stewart”) motion to

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dismiss. Doc. #15.1 Plaintiff Reynaldo Garcia Garcia (“Garcia”) filed an opposition (Doc. #33) to

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which Stewart replied (Doc. #35).

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I.

Facts and Procedural History

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In June, 2006, Garcia purchased real property through a mortgage note and deed of trust

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originated by defendant Indymac Bank, F.S.B. (“Indymac”). Eventually, Garcia defaulted on the

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mortgage note and defendants initiated non-judicial foreclosure proceedings.

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Subsequently, Garcia filed a complaint against defendants alleging six causes of action: (1)

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wrongful foreclosure; (2) unjust enrichment; (3) slander of title; (4) civil conspiracy; (5) declaratory

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relief; and (6) injunctive relief. Doc. #1, Exhibit A. Thereafter, Stewart filed the present motion to

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Refers to the court’s docket entry number.

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dismiss. Doc. #15.

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II.

Legal Standard

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Defendant Stewart seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for

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

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

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

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

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

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require 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.

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Discussion
In its motion, defendant Stewart argues that Garcia fails to state a single claim for relief

against it. See Doc. #15. The court agrees.

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Garcia’s complaint is based on an alleged defective foreclosure of his property, beginning in

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early 2011, and the allegedly improper actions defendants took during the foreclosure process. See

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Doc. #1, Exhibit A. Defendant Stewart was substituted out as the trustee on the deed of trust prior

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to the alleged foreclosure activities. Defendant NDEX West, LLC (“NDEX”) replaced Stewart as

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the new trustee, as was the defendant who filed the alleged improper notice of default. Further, it is

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undisputed that Stewart took no action in foreclosing on the property. Therefore, the court finds

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that Garcia has failed to state a claim against Stewart upon which relief can be granted.

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Accordingly, the court shall grant Stewart’s motion to dismiss.

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. #15) is
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GRANTED. Defendant Stewart Title Guaranty Company is DISMISSED as a defendant in this
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action.
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IT IS SO ORDERED.
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DATED this 3rd day of January, 2012.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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