1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Cesar Fierros, No. CV-25-00439-TUC-SHR
10 Plaintiff, ORDER
11 v.
12 CubeSmart Asset Management LLC,
13 Defendant. 14 15 16 Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s First 17 Amended Complaint. (Doc. 14.) The Motion is fully briefed. (Docs. 14, 15, 18.) For the 18 following reasons, the Court will deny Defendant’s Motion. 19 I. Background 20 On August 5, 2025, Plaintiff filed a Complaint against Defendant alleging 21 Defendant auctioned off Plaintiff’s personal property in violation of the Servicemembers 22 Civil Relief Act (SCRA), 50 U.S.C. § 3958(a)(1). (Doc. 1.) After Defendant failed to 23 respond, and pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, the Clerk of 24 Court entered default against Defendant on October 2, 2025. (Doc. 7.) Upon stipulation 25 of the parties, the Court set aside the Clerk’s Entry of Default on October 31, 2025, and let 26 the case proceed. (Doc. 9.) Plaintiff then filed his First Amended Complaint on December 27 5, 2025. (Doc. 11.) 28 Plaintiff’s First Amended Complaint alleges Defendant—a storage unit 1 management corporation—violated § 3958(a)(1) of the SCRA and was negligent by 2 foreclosing on his property without judicial approval while he was an active-duty 3 servicemember. (Doc. 11.) Plaintiff alleges he was storing personal property, including 4 Marine Corps Forces Special Operations Command (MARSOC) central issue facility gear, 5 family memorabilia, and other personal belongings, in a unit at Defendant’s facility 6 pursuant to a rental agreement between Defendant and Plaintiff’s wife. (Id.) The rental 7 agreement states, in the event of default, Defendant shall have “a lien on all [storage-unit] 8 contents, whether or not owned by [the contracting] customer.” (Doc. 14-2 at 3, 5.)1 After 9 Plaintiff and his wife failed to make monthly payments for the storage unit, Defendant 10 auctioned off all property within the unit using an online auction forum. (Doc. 11 at 5.) 11 Plaintiff alleges, as a result of Defendant’s actions, he faced disciplinary sanctions and 12 suffered reputational damage, including being relieved from his duties as a MARSOC 13 recruiter, having his Military Occupational Specialty reclassified, having his Marine 14 Special Operations Insignia revoked, and receiving a judge-ordered reduction of rank 15 resulting in a pay decrease. (Id. at 6.) On December 19, 2025, Defendant filed its Motion 16 to Dismiss the First Amended Complaint, arguing its auction of Plaintiff’s property did not 17 violate the SCRA and it owed no duty to Plaintiff. (Doc. 14.) 18 II. Legal Standard 19 On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), allegations 20 of material fact are assumed to be true and construed in the light most favorable to the 21 nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Dismissal 22 under Rule 12(b)(6) can be based on “the lack of a cognizable legal theory” or “the absence 23 1Defendant includes a copy of the rental agreement in its Motion to Dismiss. (Doc. 24 14-2.) When ruling on a motion to dismiss pursuant to Rule 12(b)(6), if a district court considers evidence outside the pleadings, it must normally convert the Rule 12(b)(6) 25 motion into a Rule 56 motion for summary judgment and give the nonmoving party an opportunity to file a response. See Fed. R. Civ. P. 12(d). “A court may, however, consider 26 certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to 27 dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Because the rental agreement is central to Plaintiff’s Complaint, the Court 28 will treat the document as part of the Complaint and assume its contents are true for purposes of Defendant’s Motion to Dismiss. See id. at 908. 1 of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 2 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To avoid dismissal, a complaint need contain 3 only “enough facts to state a claim [for] relief that is plausible on its face.” Bell Atl. Corp. 4 v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 5 pleads factual content that allows the court to draw the reasonable inference that the 6 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 7 (2009). “[C]onclusory allegations of law and unwarranted inferences are insufficient to 8 defeat a motion to dismiss.” Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001). If the court 9 finds a plaintiff does not allege enough facts to support a cognizable legal theory, the court 10 may dismiss the claim. SmileCare Dental Grp. v. Delta Dental Plan of Cal., Inc., 88 F.3d 11 780, 783 (9th Cir. 1996). “Dismissal without leave to amend is improper unless it is clear, 12 upon de novo review, that the complaint could not be saved by any amendment.” Polich 13 v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 1991). 14 III. Discussion 15 In its Motion to Dismiss, Defendant argues Plaintiff was a “stranger to the [rental] 16 agreement” and therefore fails to state a claim under the SCRA, which, Defendant 17 contends, requires privity of contract with the lienholder. (Doc. 14 at 2, 10.) Defendant 18 further contends it owed Plaintiff no duty of care because Defendant’s rental agreement for 19 the storage unit was with Plaintiff’s wife, not Plaintiff. (Id. at 12–13.) 20 The SCRA provides temporary suspension of judicial and administrative 21 proceedings and transactions that may adversely affect the civil rights of servicemembers 22 during their military service. 50 U.S.C. § 3902. Under § 3958, a “person holding a lien 23 on the property or effects of a servicemember may not, during any period of military service 24 of the servicemember and for 90 days thereafter, foreclose or enforce any lien on such 25 property or effects without a court order granted before foreclosure or enforcement.” § 26 3958(a)(1). The plain text of the SCRA makes it clear that a lien against an active 27 servicemember may be foreclosed only if judicial proceedings are undertaken and a court 28 order is issued. Consequently, a lienholder is generally prohibited from foreclosing on a 1 || lien without judicial review against property owned by an active-duty servicemember. 2 Accepting the Complaint’s allegations as true, Plaintiff has plausibly alleged || Defendant possessed a lien on the property within the storage unit, including □□□□□□□□□□□ property, and enforced such lien by selling the property while Plaintiff was an active-duty 5 || servicemember.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Cesar Fierros, No. CV-25-00439-TUC-SHR
10 Plaintiff, ORDER
11 v.
12 CubeSmart Asset Management LLC,
13 Defendant. 14 15 16 Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s First 17 Amended Complaint. (Doc. 14.) The Motion is fully briefed. (Docs. 14, 15, 18.) For the 18 following reasons, the Court will deny Defendant’s Motion. 19 I. Background 20 On August 5, 2025, Plaintiff filed a Complaint against Defendant alleging 21 Defendant auctioned off Plaintiff’s personal property in violation of the Servicemembers 22 Civil Relief Act (SCRA), 50 U.S.C. § 3958(a)(1). (Doc. 1.) After Defendant failed to 23 respond, and pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, the Clerk of 24 Court entered default against Defendant on October 2, 2025. (Doc. 7.) Upon stipulation 25 of the parties, the Court set aside the Clerk’s Entry of Default on October 31, 2025, and let 26 the case proceed. (Doc. 9.) Plaintiff then filed his First Amended Complaint on December 27 5, 2025. (Doc. 11.) 28 Plaintiff’s First Amended Complaint alleges Defendant—a storage unit 1 management corporation—violated § 3958(a)(1) of the SCRA and was negligent by 2 foreclosing on his property without judicial approval while he was an active-duty 3 servicemember. (Doc. 11.) Plaintiff alleges he was storing personal property, including 4 Marine Corps Forces Special Operations Command (MARSOC) central issue facility gear, 5 family memorabilia, and other personal belongings, in a unit at Defendant’s facility 6 pursuant to a rental agreement between Defendant and Plaintiff’s wife. (Id.) The rental 7 agreement states, in the event of default, Defendant shall have “a lien on all [storage-unit] 8 contents, whether or not owned by [the contracting] customer.” (Doc. 14-2 at 3, 5.)1 After 9 Plaintiff and his wife failed to make monthly payments for the storage unit, Defendant 10 auctioned off all property within the unit using an online auction forum. (Doc. 11 at 5.) 11 Plaintiff alleges, as a result of Defendant’s actions, he faced disciplinary sanctions and 12 suffered reputational damage, including being relieved from his duties as a MARSOC 13 recruiter, having his Military Occupational Specialty reclassified, having his Marine 14 Special Operations Insignia revoked, and receiving a judge-ordered reduction of rank 15 resulting in a pay decrease. (Id. at 6.) On December 19, 2025, Defendant filed its Motion 16 to Dismiss the First Amended Complaint, arguing its auction of Plaintiff’s property did not 17 violate the SCRA and it owed no duty to Plaintiff. (Doc. 14.) 18 II. Legal Standard 19 On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), allegations 20 of material fact are assumed to be true and construed in the light most favorable to the 21 nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Dismissal 22 under Rule 12(b)(6) can be based on “the lack of a cognizable legal theory” or “the absence 23 1Defendant includes a copy of the rental agreement in its Motion to Dismiss. (Doc. 24 14-2.) When ruling on a motion to dismiss pursuant to Rule 12(b)(6), if a district court considers evidence outside the pleadings, it must normally convert the Rule 12(b)(6) 25 motion into a Rule 56 motion for summary judgment and give the nonmoving party an opportunity to file a response. See Fed. R. Civ. P. 12(d). “A court may, however, consider 26 certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to 27 dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Because the rental agreement is central to Plaintiff’s Complaint, the Court 28 will treat the document as part of the Complaint and assume its contents are true for purposes of Defendant’s Motion to Dismiss. See id. at 908. 1 of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 2 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To avoid dismissal, a complaint need contain 3 only “enough facts to state a claim [for] relief that is plausible on its face.” Bell Atl. Corp. 4 v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 5 pleads factual content that allows the court to draw the reasonable inference that the 6 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 7 (2009). “[C]onclusory allegations of law and unwarranted inferences are insufficient to 8 defeat a motion to dismiss.” Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001). If the court 9 finds a plaintiff does not allege enough facts to support a cognizable legal theory, the court 10 may dismiss the claim. SmileCare Dental Grp. v. Delta Dental Plan of Cal., Inc., 88 F.3d 11 780, 783 (9th Cir. 1996). “Dismissal without leave to amend is improper unless it is clear, 12 upon de novo review, that the complaint could not be saved by any amendment.” Polich 13 v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 1991). 14 III. Discussion 15 In its Motion to Dismiss, Defendant argues Plaintiff was a “stranger to the [rental] 16 agreement” and therefore fails to state a claim under the SCRA, which, Defendant 17 contends, requires privity of contract with the lienholder. (Doc. 14 at 2, 10.) Defendant 18 further contends it owed Plaintiff no duty of care because Defendant’s rental agreement for 19 the storage unit was with Plaintiff’s wife, not Plaintiff. (Id. at 12–13.) 20 The SCRA provides temporary suspension of judicial and administrative 21 proceedings and transactions that may adversely affect the civil rights of servicemembers 22 during their military service. 50 U.S.C. § 3902. Under § 3958, a “person holding a lien 23 on the property or effects of a servicemember may not, during any period of military service 24 of the servicemember and for 90 days thereafter, foreclose or enforce any lien on such 25 property or effects without a court order granted before foreclosure or enforcement.” § 26 3958(a)(1). The plain text of the SCRA makes it clear that a lien against an active 27 servicemember may be foreclosed only if judicial proceedings are undertaken and a court 28 order is issued. Consequently, a lienholder is generally prohibited from foreclosing on a 1 || lien without judicial review against property owned by an active-duty servicemember. 2 Accepting the Complaint’s allegations as true, Plaintiff has plausibly alleged || Defendant possessed a lien on the property within the storage unit, including □□□□□□□□□□□ property, and enforced such lien by selling the property while Plaintiff was an active-duty 5 || servicemember. See § 3958(a). Contrary to Defendant’s assertions, Plaintiff's allegations 6|| are sufficient to allege a violation of the SCRA regardless of whether there was privity of || contract between Plaintiff and Defendant. See id. 8 Regarding Plaintiff's negligence claim, Defendant asserts the claim fails because “a 9|| negligence claim requires a duty imposed by law” and “Plaintiff never had any contractual relationship with [Defendant] concerning” the storage unit, “and therefore, [Defendant] 11 |} never owed him any duties with respect to” the unit. (Doc. 14 at 12-13.) As discussed || above, Plaintiff has stated a claim under the SCRA regarding Defendant’s sale of his 13 || personal property within the unit, and, consequently, has sufficiently alleged a negligence claim arising from Defendant’s potential statutory violation. 15 IV. Conclusion 16 IT IS ORDERED Defendant’s Motion (Doc. 14) is DENIED. 17 IT IS FURTHER ORDERED Defendant’s Motion to Dismiss (Doc. 10) is 18 || DENIED AS MOOT because it relates to Plaintiff's original Complaint (Doc. 1). 19 Dated this 18th day of June, 2026. 20
22 Honorable Scott H, Rash United States District Judge 23 24 25 26 27 28
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