Peters v. Maxwell & Morgan, Corp., No. 2:2018cv01399 - Document 38 (D. Nev. 2019)

Court Description: ORDER Denying as moot Defendant's 15 Motion for Judgment on the Pleadings and Denying as moot Defendant's 16 Motion to Dismiss. Defendant's 20 Motion to Dismiss is Granted. Plaintiff's 17 Amended Complaint is DISMISSED without prejudice. Second Amended Complaint deadline: 21 days from the date of this Order. Signed by Judge Gloria M. Navarro on 9/30/2019. (Copies have been distributed pursuant to the NEF - SLD)

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Peters v. Maxwell & Morgan, Corp. Doc. 38 11 UNITED STATES DISTRICT COURT 22 DISTRICT OF NEVADA 33 GLENKIRK D. PETERS, 44 Plaintiff, 55 vs. 66 77 MAXWELL & MORGAN, CORP., 88 Defendant. 99 ) ) ) ) ) ) ) ) ) ) Case No.: 2:18-cv-01399-GMN-EJY ORDER Pending before the Court is Defendant Maxwell & Morgan, Corp.’s (“Defendant’s”) 10 10 11 11 Motion to Dismiss, (ECF No. 20). Plaintiff Glenkirk Peters (“Plaintiff”) filed a Response, 12 12 (ECF No. 21), and Defendant filed a Reply, (ECF No. 26).1 For the reasons discussed below, 13 13 the Court GRANTS Defendant’s Motion to Dismiss. I. 14 14 BACKGROUND 15 15 This case concerns Defendant’s collection of a debt owed by Plaintiff to the 16 16 homeowner’s association governing Plaintiff’s home in Arizona. (Am. Compl. ¶¶ 18–19). 17 17 Plaintiff alleges that, when he sold his Arizona home in 2013, he believed the proceeds of the 18 18 sale “paid off any debts relating to the house, including the homeowners association, Rancho El 19 19 Dorado HOA (the ‘HOA’).” (Id. ¶ 19). After that sale, Plaintiff moved to Las Vegas, where he 20 20 worked for Caesars Entertainment. (Id. ¶ 21). Plaintiff states that he never worked for Caesars 21 21 while in Arizona, nor does Caesars have corporate offices in Arizona. (Id. ¶ 22). 22 22 23 23 24 24 25 25 1 Also pending before the Court are Defendant’s Motion for Judgment on the Pleadings, (ECF No. 15), and Motion to Dismiss, (ECF No. 16). After Defendant filed those Motions, Plaintiff amended the Complaint as a matter of right. (See Am. Compl., ECF No. 17). Because that amended supersedes the initial Complaint, the Court denies Defendant’s Motions, (ECF Nos. 16, 17), as moot. Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 531 (9th Cir. 2018); Verizon Delaware, Inc. v. Covad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004). Page 1 of 8 Dockets.Justia.com In 2016, Defendant sued Plaintiff in Arizona state court alleging that Plaintiff had 11 22 outstanding financial obligations to the HOA. (Id. ¶¶ 23–24). Defendant then served Plaintiff 33 with this lawsuit through publication in Arizona, though Plaintiff alleges that he did not know 44 about the suit at that time. (Id. ¶¶ 26–27). Defendant eventually obtained a judgment against 55 Plaintiff in Arizona state court (the “Arizona Judgment”). (Id. ¶ 28). From that lawsuit and 66 judgment, Defendant sought to garnish Plaintiff’s wages to repay the outstanding HOA debt by 77 securing a Writ of Garnishment in the Superior Court of the State of Arizona, County of Pinal. 88 (Id. ¶ 32). Defendant did not seek or secure a writ of garnishment in Nevada. (Id. ¶ 34). As of 99 May 2018, Defendant garnished approximately $418.51 per week of Plaintiff’s wages earned at 10 10 Caesars based on the Arizona Judgment. (Id. ¶ 33). 11 11 Plaintiff filed his initial Complaint on July 27, 2018, asserting that Defendant’s 12 12 garnishment of his wages was procedurally incorrect under Nevada law. Defendant moved to 13 13 dismiss the initial Complaint on September 28, 2018, and also moved for judgment on the 14 14 pleadings. (Mot. Dismiss, ECF No. 16); (Mot. J. on Pleadings, ECF No. 15). Roughly eleven 15 15 days later, Plaintiff amended his initial Complaint, (Am. Compl., ECF No. 17), and alleges that 16 16 Defendant’s actions in collecting the HOA debt and garnishing his wages were improper under 17 17 Nevada laws, thus supporting a claim under the Fair Debt Collection Practices Act, 15 U.S.C. 18 18 § 1692. (Id. ¶¶ 38–65). Defendant thereafter filed the instant Motion to Dismiss, (ECF No. 20). 19 19 II. 20 20 21 21 LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See N. Star Int’l v. Ariz. Corp. 22 22 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 23 23 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not 24 24 give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. 25 25 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the Page 2 of 8 11 complaint is sufficient to state a claim, the Court will take all material allegations as true and 22 construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 33 F.2d 896, 898 (9th Cir. 1986). The Court, however, is not required to accept as true allegations 44 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See 55 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation 66 of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts 77 showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 88 (2009) (citing Twombly, 550 U.S. at 555). 99 A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) 10 10 for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino 11 11 Police Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2) requires that a plaintiff's 12 12 13 13 complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Prolix, confusing complaints” should be dismissed because 14 14 “they impose unfair burdens on litigants and judges.” McHenry v. Renne, 84 F.3d 1172, 1179 15 15 (9th Cir. 1996). 16 16 “Generally, a district court may not consider any material beyond the pleadings in ruling 17 17 on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the 18 18 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard 19 19 Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, 20 20 “documents whose contents are alleged in a complaint and whose authenticity no party 21 21 questions, but which are not physically attached to the pleading, may be considered in ruling on 22 22 a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for 23 23 summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule 24 24 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay 25 25 Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers Page 3 of 8 11 materials outside of the pleadings, the motion to dismiss becomes a motion for summary 22 judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). 33 If the court grants a motion to dismiss, it must then decide whether to grant leave to 44 amend. The court should “freely give” leave to amend when there is no “undue delay, bad 55 faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party by 66 virtue of . . . the amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. 15(a); Foman 77 v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear 88 that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow 99 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 10 10 III. 11 11 DISCUSSION Defendant moves to dismiss Plaintiff’s Amended Complaint on the ground that 12 12 Defendant never sought to enforce or execute its Arizona Judgment in Nevada; and thus, it did 13 13 not engage in abusive debt collection practices by violating Nevada law. (Mot. Dismiss 14 14 (“MTD”) 1:20–2:7, ECF No. 20). Defendant claims that it merely served Caesars’s registered 15 15 agent in Arizona with the Arizona Judgment and court-authorized Writ of Garnishment in 16 16 compliance with Arizona’s laws, and Caesars then properly garnished Plaintiff’s wages.2 (Id. 17 17 5:19–6:3). Accordingly, Defendant contends that by not petitioning Plaintiff’s employer in 18 18 Nevada, nor seeking to execute the Arizona Judgment through Nevada courts, it had no 19 19 obligation to domesticate the Arizona Judgment in Nevada or comply with Nevada’s laws on 20 20 execution of foreign judgments. (Id. 8:5–24). 21 21 22 22 23 23 24 24 25 25 Defendant’s act of serving the Arizona Judgment and Writ of Garnishment on Caesars’s registered agent in Arizona is not alleged in the Amended Complaint. However, Plaintiff does not contest that this manner of service occurred. (See Resp., 13:15–14:16, ECF No. 21). Further, Defendant requests that the Court take judicial notice of this Arizona Judgment and other court filings related to that Judgment, and the Amended Complaint references the Arizona Judgment. (Req. Judicial Notice, Ex. 1 to MTD, ECF No. 20-1); (Am Compl. ¶¶ 30–32). Plaintiff does not contest that request. The Court accordingly grants Defendant’s request and will take judicial notice of the Exhibits attached to Defendant’s Motion to Dismiss to the extent that the documents are public records. Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). 2 Page 4 of 8 In response, Plaintiff argues that, because he earned the garnished wages in Nevada, 11 22 Defendant had to comply with Nevada’s Uniform Enforcement of Foreign Judgments Act 33 (“UEFJA”), which consists of Nevada Revised Statutes (“NRS”) §§ 17.330 to 17.400, before 44 garnishment could occur. (Am. Compl. ¶¶ 44); (Resp. 9:4–21, ECF No. 21). By failing to 55 domesticate the Arizona Judgment under Nevada’s UEFJA, Plaintiff contends that Defendants’ 66 garnishment was illegal and violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, 77 et seq. (Id. 10:21–23). 88 99 Nevada’s UEFJA governs the procedures for an entity or person seeking to execute a foreign judgment3 in Nevada. To invoke the UEFJA’s procedures, the entity or person seeking 10 10 recovery of the foreign judgment may file “an exemplified copy of [the] foreign judgment . . . 11 11 with the clerk of any district court of this state.” Nev. Rev. Stat. § 17.350. The party seeking 12 12 recovery of the foreign judgment in Nevada then must comply with the UEFJA’s filing and 13 13 notice requirements, as well as waiting the applicable time-period before executing or enforcing 14 14 the foreign judgment in Nevada. See Nev. Rev. Stat. § 17.360. In the alternative to filing an 15 15 exemplified copy of the foreign judgment with a district court clerk under NRS 17.300 to 16 16 17.400, “a judgment creditor may elect to bring an action to enforce his or her judgment.” See 17 17 Nev. Rev. Stat. § 17.390; Transfirst Grp., Inc. v. Magliarditi, No. 2:17-cv-00487-APG-VCF, 18 18 2017 WL 2294288, at *3 (D. Nev. May 25, 2017); see also Nev. R. Civ. P. 69 (“A money 19 19 judgment is enforced by a writ of execution, unless the court directs otherwise.”). 20 20 Plaintiff cites various cases both within and out of this District to argue that Defendant 21 21 could not have garnished Plaintiff’s wages in Nevada unless Defendant domesticated the 22 22 Arizona Judgment in Nevada and in compliance with Nevada’s UEFJA. (Resp. 10:1–23–12:6– 23 23 24 24 25 25 The UEFJA defines a “foreign judgment” as “any judgment of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Nev. Rev. Stat. § 17.340 (noting two minor exceptions for “a judgment to which chapter 130 of NRS applies” and “an order for protection issues for the purpose of preventing violent or threatening acts or harassment . . . .”). 3 Page 5 of 8 11 17) (citing, among others, Mem’l Hosp. of Martinsville v. D’Oro, No. 4:10MC00001, 2011 22 U.S. Dist. LEXIS 73278 (W.D. Va. July 8, 2011), Kabana, Inc. v. Best Opal, Inc., No. 2:06-cv- 33 00806-BES-GWF, 2007 U.S. Dist. LEXIS 10947 (D. Nev. Feb. 8, 2007); Haemerle v. YRC, 44 Inc., No. 2:15-cv-1245 JCM (CWH), 2016 U.S. Dist. LEXIS 14246 (D. Nev. Feb. 5, 2016)). 55 Plaintiff’s cited authority does not, however, support his argument in the context of this case. 66 Unlike here, at issue in most cases cited by Plaintiff was the transfer of a judgment from one 77 state to another, and the recipient court’s determination about whether that transferred judgment 88 could be executed under the recipient state’s laws. See Kabana, 2007 U.S. Dist. LEXIS 10947, 99 at *9 (concerning the transfer of a New Mexico judgment to a Nevada district court, 10 10 registration of that judgment in Nevada, and then attempted execution of the judgment through 11 11 the Nevada court without first complying with NRS 17.360); Haemerle, 2016 U.S. Dist. LEXIS 12 12 14246, at *3 (concerning similar circumstances as Kabana, but with regard to a Texas 13 13 judgment transferred to Nevada); Tomlin v. Tomlin, No. A-93-253, 1994 Neb. App. LEXIS 14 14 351, at *7 (Ct. App. Dec. 13, 1994) (concerning a challenge to the Nebraska district court’s 15 15 ability to take jurisdiction over, and enforce, outstanding alimony payments originally 16 16 authorized by a Kansas district court); Polacke v. Superior Court, 823 P.2d 84, 85 (Ariz. Ct. 17 17 App. 1991). Here, Defendant did not transfer the Arizona Judgment to Nevada or petition a 18 18 Nevada court to enforce it. (Am. Compl. ¶ 34). Thus, the Court is not presented with an issue 19 19 of scrutinizing a petition for execution in Nevada to determine if the underlying procedures 20 20 complied with Nevada law. 21 21 Moreover, Plaintiff is not challenging the Arizona court’s ability to authorize 22 22 garnishment of Plaintiff’s wages in connection to Caesars’s registered agent in Arizona. 23 23 Without that challenge, this case differs from the other authority Plaintiff cites in support of his 24 24 argument because the Court need not determine the scope of a state’s garnishment order. 25 25 Compare (Am. Compl. ¶ 8) (“Through this complaint, Plaintiff does not challenge any state Page 6 of 8 11 court judgment, and Plaintiff does not seek to reverse or modify any judgment of any state 22 court.”); with Mem'l Hosp. of Martinsville v. D'Oro, No. 4:10MC00001, 2011 U.S. Dist. 33 LEXIS 73278, at *8 (W.D. Va. July 8, 2011) (dealing with the creditor’s argument based on 44 Virginia law that, “because the Department of Veterans Affairs has hospitals in the Western 55 District of Virginia, [the Virginia Court] is able to execute upon and garnish any wages paid by 66 the VA, regardless of where the Debtor earns those wages”), and id. (“In coming to this 77 [Virginia] Court to seek execution upon the assets of a Debtor living and working in the Middle 88 District of Pennsylvania and garnishment upon a Garnishee located in the Northern District of 99 Ohio, the Creditor has not followed the proper enforcement procedure.”). Altogether, materially absent from the Amended Complaint are allegations that 10 10 11 11 Defendant took actions in Nevada to garnish Plaintiff’s wages. That is, Defendant provided the 12 12 Arizona Judgment to Caesars’s registered agent in Arizona and in alignment with Arizona 13 13 procedures. (See Application for Garnishment, Ex. F to MTD, ECF No. 20-3); (Writ of 14 14 Garnishment, Ex. G to MTD, ECF No. 20-3); Ellsworth Land & Livestock Inc. v. Bush, 224 15 15 Ariz. 542, 544, 233 P.3d 655, 657 (Ct. App. 2010); Randall v. Maxwell & Morgan, P.C., 321 F. 16 16 Supp. 3d 978, 984 (D. Ariz. 2018) (“[A]n examination of Arizona’s garnishment scheme shows 17 17 that a garnishment action is against the garnishee, not the judgment debtor.”). Because Plaintiff 18 18 does not challenge the authority of the Arizona Judgment or Writ of Garnishment, and because 19 19 Plaintiff does not allege that Defendant took actions to enforce its Arizona Judgment outside of 20 20 Arizona, Plaintiff has not plausibly demonstrated that Defendant had to comply with Nevada’s 21 21 UEFJA or otherwise petition a Nevada court before garnishment could occur.4 Consequently, 22 22 23 23 24 24 25 25 4 Plaintiff argues as a policy matter that, by permitting the Arizona court to garnish his wages earned in Nevada without domestication of the Arizona Judgment in Nevada, Plaintiff would have no opportunity to contest the underlying garnishment or defend himself. (Resp. 14:10–16, 17:2–11) (“Plaintiff had no real opportunity to defend himself in the Arizona case”). However, this argument goes to the Arizona court’s ability to enforce the Arizona Judgment based on his default in Arizona, and setting aside that default. This argument also appears to contest the Arizona Writ of Garnishment’s ability to encompass out-of-state wages. Cf. Restatement (Second) of Conflict of Laws § 68 (2019) (explaining how a court “may refuse to entertain garnishment proceedings against a Page 7 of 8 11 Plaintiff’s claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, fail because 22 they are premised on Defendant having violated Nevada law on domesticating or otherwise 33 executing foreign judgments in Nevada. (See Am. Compl. ¶¶ 38–65). The Court thus dismisses Plaintiff’s Amended Complaint, but does so without prejudice. 44 55 That is, in light of the absent allegations discussed above, it is not clear that the deficiencies of 66 the Amended Complaint cannot be cured with additional facts if true. See DeSoto v. Yellow 77 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Plaintiff shall have twenty-one days from 88 the date of this Order to file a second amended complaint. Failure to timely do so will 99 constitute dismissal of this matter with prejudice. 10 10 11 11 12 12 13 13 14 14 15 15 IV. CONCLUSION IT IS HEREBY ORDERED that Defendant’s Motion for Judgment on the Pleadings, (ECF No. 15), is DENIED as moot. IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss, (ECF No. 16), is DENIED as moot. IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss, (ECF No. 20), is 16 16 GRANTED. Plaintiff’s Amended Complaint, (ECF No. 17), is DISMISSED without 17 17 prejudice. Plaintiff shall have twenty-one days from the date of this Order to file a second 18 18 amended complaint. Failure to do so will constitute dismissal of this matter with prejudice. 19 19 29 day of September, 2019. DATED this _____ 20 20 21 21 22 22 23 23 24 24 25 25 ___________________________________ Gloria M. Navarro, District Judge United States District Court garnishee . . . .”). With this policy argument, the Court again notes that, in this case, Plaintiff “does not challenge any state court judgment, and [he] does not seek to reverse or modify any judgment of any state court.” (Am. Compl. ¶ 8). Page 8 of 8

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