Peters v. Maxwell & Morgan, Corp. ( 2019 )

111 UNITED STATES DISTRICT COURT 2222 DISTRICT OF NEVADA 3333 GLENKIRK D. PETERS, ) 4444 ) Plaintiff, ) Case No.: 2:18-cv-01399-GMN-EJY 5555 ) 6666 vs. ) ORDER ) 7777 MAXWELL & MORGAN, CORP., ) ) 8888 Defendant. ) ) 9999 11110000 Pending before the Court is Defendant Maxwell & Morgan, Corp.’s (“Defendant’s”) 11111111 Motion to Dismiss, (ECF No. 20). Plaintiff Glenkirk Peters (“Plaintiff”) filed a Response, 11112222 (ECF No. 21), and Defendant filed a Reply, (ECF No. 26).1 For the reasons discussed below, 11113333 the Court GRANTS Defendant’s Motion to Dismiss. 11114444 I. BACKGROUND 11115555 This case concerns Defendant’s collection of a debt owed by Plaintiff to the 11116666 homeowner’s association governing Plaintiff’s home in Arizona. (Am. Compl. ¶¶ 18–19). 11117777 Plaintiff alleges that, when he sold his Arizona home in 2013, he believed the proceeds of the 11118888 sale “paid off any debts relating to the house, including the homeowners association, Rancho El 11119999 Dorado HOA (the ‘HOA’).” (Id. ¶ 19). After that sale, Plaintiff moved to Las Vegas, where he 22220000 worked for Caesars Entertainment. (Id. ¶ 21). Plaintiff states that he never worked for Caesars 22221111 while in Arizona, nor does Caesars have corporate offices in Arizona. (Id. ¶ 22). 22222222 22223333 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 22224444 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 22225555 517, 531 (9th Cir. 2018); Verizon Delaware, Inc. v. Covad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004). 111 In 2016, Defendant sued Plaintiff in Arizona state court alleging that Plaintiff had 2222 outstanding financial obligations to the HOA. (Id. ¶¶ 23–24). Defendant then served Plaintiff 3333 with this lawsuit through publication in Arizona, though Plaintiff alleges that he did not know 4444 about the suit at that time. (Id. ¶¶ 26–27). Defendant eventually obtained a judgment against 5555 Plaintiff in Arizona state court (the “Arizona Judgment”). (Id. ¶ 28). From that lawsuit and 6666 judgment, Defendant sought to garnish Plaintiff’s wages to repay the outstanding HOA debt by 7777 securing a Writ of Garnishment in the Superior Court of the State of Arizona, County of Pinal. 8888 (Id. ¶ 32). Defendant did not seek or secure a writ of garnishment in Nevada. (Id. ¶ 34). As of 9999 May 2018, Defendant garnished approximately $418.51 per week of Plaintiff’s wages earned at 11110000 Caesars based on the Arizona Judgment. (Id. ¶ 33). 11111111 Plaintiff filed his initial Complaint on July 27, 2018, asserting that Defendant’s 11112222 garnishment of his wages was procedurally incorrect under Nevada law. Defendant moved to 11113333 dismiss the initial Complaint on September 28, 2018, and also moved for judgment on the 11114444 pleadings. (Mot. Dismiss, ECF No. 16); (Mot. J. on Pleadings, ECF No. 15). Roughly eleven 11115555 days later, Plaintiff amended his initial Complaint, (Am. Compl., ECF No. 17), and alleges that 11116666 Defendant’s actions in collecting the HOA debt and garnishing his wages were improper under 11117777 Nevada laws, thus supporting a claim under the Fair Debt Collection Practices Act, 15 U.S.C. 11118888 § 1692. (Id. ¶¶ 38–65). Defendant thereafter filed the instant Motion to Dismiss, (ECF No. 20). 11119999 II. LEGAL STANDARD 22220000 Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 22221111 that fails to state a claim upon which relief can be granted. See N. Star Int’l v. Ariz. Corp. 22222222 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 22223333 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not 22224444 give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. 22225555 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the 111 complaint is sufficient to state a claim, the Court will take all material allegations as true and 2222 construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 3333 F.2d 896, 898 (9th Cir. 1986). The Court, however, is not required to accept as true allegations 4444 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See 5555 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation 6666 of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts 7777 showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 8888 (2009) (citing Twombly, 550 U.S. at 555). 9999 A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) 11110000 for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino 11111111 Police Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2) requires that a plaintiff's 11112222 complaint contain “a short and plain statement of the claim showing that the pleader is entitled 11113333 to relief.” Fed. R. Civ. P. 8(a)(2). “Prolix, confusing complaints” should be dismissed because 11114444 “they impose unfair burdens on litigants and judges.” McHenry v. Renne, 84 F.3d 1172, 1179 11115555 (9th Cir. 1996). 11116666 “Generally, a district court may not consider any material beyond the pleadings in ruling 11117777 on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the 11118888 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard 11119999 Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, 22220000 “documents whose contents are alleged in a complaint and whose authenticity no party 22221111 questions, but which are not physically attached to the pleading, may be considered in ruling on 22222222 a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for 22223333 summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule 22224444 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay 22225555 Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers 111 materials outside of the pleadings, the motion to dismiss becomes a motion for summary 2222 judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). 3333 If the court grants a motion to dismiss, it must then decide whether to grant leave to 4444 amend. The court should “freely give” leave to amend when there is no “undue delay, bad 5555 faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party by 6666 virtue of . . . the amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. 15(a); Foman 7777 v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear 8888 that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow 9999 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 11110000 III. DISCUSSION 11111111 Defendant moves to dismiss Plaintiff’s Amended Complaint on the ground that 11112222 Defendant never sought to enforce or execute its Arizona Judgment in Nevada; and thus, it did 11113333 not engage in abusive debt collection practices by violating Nevada law. (Mot. Dismiss 11114444 (“MTD”) 1:20–2:7, ECF No. 20). Defendant claims that it merely served Caesars’s registered 11115555 agent in Arizona with the Arizona Judgment and court-authorized Writ of Garnishment in 11116666 compliance with Arizona’s laws, and Caesars then properly garnished Plaintiff’s wages.2 (Id. 11117777 5:19–6:3). Accordingly, Defendant contends that by not petitioning Plaintiff’s employer in 11118888 Nevada, nor seeking to execute the Arizona Judgment through Nevada courts, it had no 11119999 obligation to domesticate the Arizona Judgment in Nevada or comply with Nevada’s laws on 22220000 execution of foreign judgments. (Id. 8:5–24). 22221111 22222222 2 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 22223333 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 22224444 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 22225555 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). 111 In response, Plaintiff argues that, because he earned the garnished wages in Nevada, 2222 Defendant had to comply with Nevada’s Uniform Enforcement of Foreign Judgments Act 3333 (“UEFJA”), which consists of Nevada Revised Statutes (“NRS”) §§ 17.330 to 17.400, before 4444 garnishment could occur. (Am. Compl. ¶¶ 44); (Resp. 9:4–21, ECF No. 21). By failing to 5555 domesticate the Arizona Judgment under Nevada’s UEFJA, Plaintiff contends that Defendants’ 6666 garnishment was illegal and violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, 7777 et seq. (Id. 10:21–23). 8888 Nevada’s UEFJA governs the procedures for an entity or person seeking to execute a 9999 foreign judgment3 in Nevada. To invoke the UEFJA’s procedures, the entity or person seeking 11110000 recovery of the foreign judgment may file “an exemplified copy of [the] foreign judgment . . . 11111111 with the clerk of any district court of this state.” Nev. Rev. Stat. § 17.350. The party seeking 11112222 recovery of the foreign judgment in Nevada then must comply with the UEFJA’s filing and 11113333 notice requirements, as well as waiting the applicable time-period before executing or enforcing 11114444 the foreign judgment in Nevada. See Nev. Rev. Stat. § 17.360. In the alternative to filing an 11115555 exemplified copy of the foreign judgment with a district court clerk under NRS 17.300 to 11116666 17.400, “a judgment creditor may elect to bring an action to enforce his or her judgment.” See 11117777 Nev. Rev. Stat. § 17.390; Transfirst Grp., Inc. v. Magliarditi, No. 2:17-cv-00487-APG-VCF, 11118888 2017 WL 2294288, at *3 (D. Nev. May 25, 2017); see also Nev. R. Civ. P. 69 (“A money 11119999 judgment is enforced by a writ of execution, unless the court directs otherwise.”). 22220000 Plaintiff cites various cases both within and out of this District to argue that Defendant 22221111 could not have garnished Plaintiff’s wages in Nevada unless Defendant domesticated the 22222222 Arizona Judgment in Nevada and in compliance with Nevada’s UEFJA. (Resp. 10:1–23–12:6– 22223333 22224444 3 The UEFJA defines a “foreign judgment” as “any judgment of a court of the United States or of any other 22225555 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 . . . .”). 111 17) (citing, among others, Mem’l Hosp. of Martinsville v. D’Oro, No. 4:10MC00001, 2011 2222 U.S. Dist. LEXIS 73278 (W.D. Va. July 8, 2011), Kabana, Inc. v. Best Opal, Inc., No. 2:06-cv- 3333 00806-BES-GWF, 2007 U.S. Dist. LEXIS 10947 (D. Nev. Feb. 8, 2007); Haemerle v. YRC, 4444 Inc., No. 2:15-cv-1245 JCM (CWH), 2016 U.S. Dist. LEXIS 14246 (D. Nev. Feb. 5, 2016)). 5555 Plaintiff’s cited authority does not, however, support his argument in the context of this case. 6666 Unlike here, at issue in most cases cited by Plaintiff was the transfer of a judgment from one 7777 state to another, and the recipient court’s determination about whether that transferred judgment 8888 could be executed under the recipient state’s laws. See Kabana, 2007 U.S. Dist. LEXIS 10947, 9999 at *9 (concerning the transfer of a New Mexico judgment to a Nevada district court, 11110000 registration of that judgment in Nevada, and then attempted execution of the judgment through 11111111 the Nevada court without first complying with NRS 17.360); Haemerle, 2016 U.S. Dist. LEXIS 11112222 14246, at *3 (concerning similar circumstances as Kabana, but with regard to a Texas 11113333 judgment transferred to Nevada); Tomlin v. Tomlin, No. A-93-253, 1994 Neb. App. LEXIS 11114444 351, at *7 (Ct. App. Dec. 13, 1994) (concerning a challenge to the Nebraska district court’s 11115555 ability to take jurisdiction over, and enforce, outstanding alimony payments originally 11116666 authorized by a Kansas district court); Polacke v. Superior Court, 823 P.2d 84, 85 (Ariz. Ct. 11117777 App. 1991). Here, Defendant did not transfer the Arizona Judgment to Nevada or petition a 11118888 Nevada court to enforce it. (Am. Compl. ¶ 34). Thus, the Court is not presented with an issue 11119999 of scrutinizing a petition for execution in Nevada to determine if the underlying procedures 22220000 complied with Nevada law. 22221111 Moreover, Plaintiff is not challenging the Arizona court’s ability to authorize 22222222 garnishment of Plaintiff’s wages in connection to Caesars’s registered agent in Arizona. 22223333 Without that challenge, this case differs from the other authority Plaintiff cites in support of his 22224444 argument because the Court need not determine the scope of a state’s garnishment order. 22225555 Compare (Am. Compl. ¶ 8) (“Through this complaint, Plaintiff does not challenge any state 111 court judgment, and Plaintiff does not seek to reverse or modify any judgment of any state 2222 court.”); with Mem'l Hosp. of Martinsville v. D'Oro, No. 4:10MC00001, 2011 U.S. Dist. 3333 LEXIS 73278, at *8 (W.D. Va. July 8, 2011) (dealing with the creditor’s argument based on 4444 Virginia law that, “because the Department of Veterans Affairs has hospitals in the Western 5555 District of Virginia, [the Virginia Court] is able to execute upon and garnish any wages paid by 6666 the VA, regardless of where the Debtor earns those wages”), and id. (“In coming to this 7777 [Virginia] Court to seek execution upon the assets of a Debtor living and working in the Middle 8888 District of Pennsylvania and garnishment upon a Garnishee located in the Northern District of 9999 Ohio, the Creditor has not followed the proper enforcement procedure.”). 11110000 Altogether, materially absent from the Amended Complaint are allegations that 11111111 Defendant took actions in Nevada to garnish Plaintiff’s wages. That is, Defendant provided the 11112222 Arizona Judgment to Caesars’s registered agent in Arizona and in alignment with Arizona 11113333 procedures. (See Application for Garnishment, Ex. F to MTD, ECF No. 20-3); (Writ of 11114444 Garnishment, Ex. G to MTD, ECF No. 20-3); Ellsworth Land & Livestock Inc. v. Bush, 224 11115555 Ariz. 542, 544, 233 P.3d 655, 657 (Ct. App. 2010); Randall v. Maxwell & Morgan, P.C., 321 F. 11116666 Supp. 3d 978, 984 (D. Ariz. 2018) (“[A]n examination of Arizona’s garnishment scheme shows 11117777 that a garnishment action is against the garnishee, not the judgment debtor.”). Because Plaintiff 11118888 does not challenge the authority of the Arizona Judgment or Writ of Garnishment, and because 11119999 Plaintiff does not allege that Defendant took actions to enforce its Arizona Judgment outside of 22220000 Arizona, Plaintiff has not plausibly demonstrated that Defendant had to comply with Nevada’s 22221111 UEFJA or otherwise petition a Nevada court before garnishment could occur.4 Consequently, 22222222 22223333 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 22224444 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 22225555 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 111 Plaintiff’s claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, fail because 2222 they are premised on Defendant having violated Nevada law on domesticating or otherwise 3333 executing foreign judgments in Nevada. (See Am. Compl. ¶¶ 38–65). 4444 The Court thus dismisses Plaintiff’s Amended Complaint, but does so without prejudice. 5555 That is, in light of the absent allegations discussed above, it is not clear that the deficiencies of 6666 the Amended Complaint cannot be cured with additional facts if true. See DeSoto v. Yellow 7777 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Plaintiff shall have twenty-one days from 8888 the date of this Order to file a second amended complaint. Failure to timely do so will 9999 constitute dismissal of this matter with prejudice. 11110000 IV. CONCLUSION 11111111 IT IS HEREBY ORDERED that Defendant’s Motion for Judgment on the Pleadings, 11112222 (ECF No. 15), is DENIED as moot. 11113333 IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss, (ECF No. 16), is 11114444 DENIED as moot. 11115555 IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss, (ECF No. 20), is 11116666 GRANTED. Plaintiff’s Amended Complaint, (ECF No. 17), is DISMISSED without 11117777 prejudice. Plaintiff shall have twenty-one days from the date of this Order to file a second 11118888 amended complaint. Failure to do so will constitute dismissal of this matter with prejudice. 11119999 DATED this __2_9__ day of September, 2019. 22220000 22221111 ___________________________________ 22222222 Gloria M. Navarro, District Judge United States District Court 22223333 22224444 22225555 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).