3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 REBECCA HEIZER, Case No. 3:18-cv-00606-MMD-CLB
7 Plaintiff, ORDER v. 8 ZEPHYR HEIGHTS GENERAL 9 IMPROVEMENT DISTRICT, a General Improvement District of the County of 10 Douglas, Nevada; and DOES 1-100, inclusive, 11 Defendants. 12 13 I. SUMMARY 14 Defendant Zephyr Heights General Improvement District operates a storm water 15 drainage system that allegedly resulted in flooding of 615 Stanley Circle, Zephyr Cove, 16 Nevada (“Property”), which Plaintiff Rebecca Heizer claims to own under the fictitious 17 name “Holings 37.”1 (ECF No. 2 at 2-3.) Before the Court is Defendant’s second motion 18 to dismiss (the “Motion”).2 (ECF No. 14.) For the reasons explained below, the Court will 19 grant the Motion for lack of standing. 20 II. BACKGROUND 21 Plaintiff alleges the following claims in her amended complaint (“FAC”): (1) Takings 22 Clause; (2) Article I, Section VIII(6) of the Nevada Constitution; (3) 42 U.S.C. § 1983; (4) 23 attorneys fee under 42 U.S.C. § 1988(b); (5) negligence; (6) nuisance; (7) trespass; and 24 (8) denial of service. (ECF No. 9 at 7-12.) Plaintiff’s initial Complaint makes no mention of 25
26 1“Holdings 37” was presumably the intended name (see ECF No. 9 at 3), but “Holings 37” is the current owner of the Property so the Court will continue to refer to that 27 name in this order.
28 2The Court has reviewed Plaintiff’s opposition (ECF No. 16) and Defendant’s reply (ECF No. 17). 2 Deed from Plaintiff to Holings 37 (“Grant Deed”), 14-2 (same)). It was not until Defendant 3 filed a first motion to dismiss attaching the Grant Deed (ECF No. 7-2 at 2) that Plaintiff 4 amended her Complaint (ECF No. 9). She now alleges that she holds title to the Property 5 under the fictitious name “Holdings 37,” also known as “Holings 37.” (ECF No. 9 at 3.) She 6 further alleges that she filed a Fictious Firm Name Certificate (“Certificate”) in Douglas 7 County pursuant to NRS § 602.010,3 but she never filed the Certificate with the Court. (Id.) 8 Unlike Plaintiff’s initial Complaint, the caption of the FAC now reflects “REBECCA 9 HEIZER, individually and doing business as HOLDINGS 37, also known as HOLINGS 37.” 10 (Id. at 1.) 11 III. LEGAL STANDARD 12 Rule 12(b)(1) of the Federal Rules of Civil Procedure allows defendants to seek 13 dismissal of a claim or action for a lack of subject matter jurisdiction. Although the 14 defendant is the moving party in a motion to dismiss brought under Rule 12(b)(1), the 15 plaintiff is the party invoking the court’s jurisdiction. As a result, the plaintiff bears the 16 burden of proving that the case is properly in federal court. See McCauley v. Ford Motor 17 Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp., 18 298 U.S. 178, 189 (1936)). Plaintiff’s burden is subject to a preponderance of the evidence 19 standard. See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 20 Federal courts are courts of limited jurisdiction. See Owen Equip. & Erection Co. v. 21 Kroger, 437 U.S. 365, 374 (1978). A federal court is presumed to lack jurisdiction in a case 22 unless the contrary affirmatively appears. See Stock West, Inc. v. Confederated Tribes of 23 the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). “Because subject matter 24 jurisdiction goes to the power of the court to hear a case, it is a threshold issue and may 25 26 3“Every person doing business in this state under an assumed or fictitious name 27 that is in any way different from the legal name of each person who owns an interest in the business must file with the county clerk of each county in which the business is being 28 conducted a certificate containing the information required by NRS 602.020.” NRS § 602.010. 2 Supp. 2d 949, 952 (D. Nev. 2004) (citing Fed. R. Civ. P. 12(b)(1)). The party invoking 3 federal jurisdiction, here Plaintiff, bears the burden of establishing the constitutional 4 minimum of standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To 5 establish standing, the plaintiff must have personally suffered an injury in fact—an invasion 6 of a legally protected interest. Id.; see also Kaviani v. Caliber Home Loan, No. 2-19-cv- 7 111-MMD-CWH, 2019 WL 3219140, at *5 (D. Nev. July 17, 2019) (dismissing case for 8 lack of standing where plaintiff attempts to bring claims relating to interest in real property 9 without demonstrating an individual ownership interest in the property). Furthermore, 10 standing must be established at the time the complaint is filed to confer jurisdiction. See 11 Lujan, 504 U.S. at 606. 12 IV. DISCUSSION 13 Defendant argues inter alia that Plaintiff lacks standing to bring this action because 14 an unknown entity named Holings 37—which is not identified as a person, company, or 15 corporation—owns the Property, not Plaintiff. (ECF No. 14 at 12-13; ECF No. 14-2.) 16 Although Plaintiff alleges that she holds title to Property under the fictitious name “Holings 17 37” and “Holdings 37” (ECF No. 9 at 3), Defendant argues that NRS § 111.055 does not 18 authorize anyone to own real property under a fictitious name. (ECF No. 14 at 12-13.) That 19 statute only says that “[a]ny nonresident alien, person or corporation may take, hold and 20 enjoy any real property or any interest in lands . . . within the State of Nevada as fully, 21 freely, and upon the same terms and conditions as any resident citizen, person or 22 domestic corporation.” NRS § 111.055 (emphases added). Plaintiff later concedes that “[a] 23 transfer of property to a fictitious person is a complete nullity, transferring no title,” and 24 therefore Plaintiff remains the Property’s owner and has standing to pursue this action. 25 (ECF No. 16 at 10 (quoting Temora Trading Co. v. Perry, 645 P.2d 436, 437-38 (1982)).) 26 /// 27 /// 28 /// 2 ownership reflected in the record. (ECF No. 14 at 14.) “Until this is done, [Plaintiff] lacks 3 standing to bring her claims.” (Id.) The Court agrees. 4 Plaintiff has not established an interest in the Property nor standing at the time she 5 filed this action. See Lujan, 504 U.S. at 606. Holings 37, not Plaintiff, is the current owner 6 of the Property (ECF No. 14-2 at 2); and the initial Complaint does not even mention 7 Holings 37 (ECF No. 1). Plaintiff now claims Holings 37 is her business alias (ECF No.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 REBECCA HEIZER, Case No. 3:18-cv-00606-MMD-CLB
7 Plaintiff, ORDER v. 8 ZEPHYR HEIGHTS GENERAL 9 IMPROVEMENT DISTRICT, a General Improvement District of the County of 10 Douglas, Nevada; and DOES 1-100, inclusive, 11 Defendants. 12 13 I. SUMMARY 14 Defendant Zephyr Heights General Improvement District operates a storm water 15 drainage system that allegedly resulted in flooding of 615 Stanley Circle, Zephyr Cove, 16 Nevada (“Property”), which Plaintiff Rebecca Heizer claims to own under the fictitious 17 name “Holings 37.”1 (ECF No. 2 at 2-3.) Before the Court is Defendant’s second motion 18 to dismiss (the “Motion”).2 (ECF No. 14.) For the reasons explained below, the Court will 19 grant the Motion for lack of standing. 20 II. BACKGROUND 21 Plaintiff alleges the following claims in her amended complaint (“FAC”): (1) Takings 22 Clause; (2) Article I, Section VIII(6) of the Nevada Constitution; (3) 42 U.S.C. § 1983; (4) 23 attorneys fee under 42 U.S.C. § 1988(b); (5) negligence; (6) nuisance; (7) trespass; and 24 (8) denial of service. (ECF No. 9 at 7-12.) Plaintiff’s initial Complaint makes no mention of 25
26 1“Holdings 37” was presumably the intended name (see ECF No. 9 at 3), but “Holings 37” is the current owner of the Property so the Court will continue to refer to that 27 name in this order.
28 2The Court has reviewed Plaintiff’s opposition (ECF No. 16) and Defendant’s reply (ECF No. 17). 2 Deed from Plaintiff to Holings 37 (“Grant Deed”), 14-2 (same)). It was not until Defendant 3 filed a first motion to dismiss attaching the Grant Deed (ECF No. 7-2 at 2) that Plaintiff 4 amended her Complaint (ECF No. 9). She now alleges that she holds title to the Property 5 under the fictitious name “Holdings 37,” also known as “Holings 37.” (ECF No. 9 at 3.) She 6 further alleges that she filed a Fictious Firm Name Certificate (“Certificate”) in Douglas 7 County pursuant to NRS § 602.010,3 but she never filed the Certificate with the Court. (Id.) 8 Unlike Plaintiff’s initial Complaint, the caption of the FAC now reflects “REBECCA 9 HEIZER, individually and doing business as HOLDINGS 37, also known as HOLINGS 37.” 10 (Id. at 1.) 11 III. LEGAL STANDARD 12 Rule 12(b)(1) of the Federal Rules of Civil Procedure allows defendants to seek 13 dismissal of a claim or action for a lack of subject matter jurisdiction. Although the 14 defendant is the moving party in a motion to dismiss brought under Rule 12(b)(1), the 15 plaintiff is the party invoking the court’s jurisdiction. As a result, the plaintiff bears the 16 burden of proving that the case is properly in federal court. See McCauley v. Ford Motor 17 Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp., 18 298 U.S. 178, 189 (1936)). Plaintiff’s burden is subject to a preponderance of the evidence 19 standard. See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 20 Federal courts are courts of limited jurisdiction. See Owen Equip. & Erection Co. v. 21 Kroger, 437 U.S. 365, 374 (1978). A federal court is presumed to lack jurisdiction in a case 22 unless the contrary affirmatively appears. See Stock West, Inc. v. Confederated Tribes of 23 the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). “Because subject matter 24 jurisdiction goes to the power of the court to hear a case, it is a threshold issue and may 25 26 3“Every person doing business in this state under an assumed or fictitious name 27 that is in any way different from the legal name of each person who owns an interest in the business must file with the county clerk of each county in which the business is being 28 conducted a certificate containing the information required by NRS 602.020.” NRS § 602.010. 2 Supp. 2d 949, 952 (D. Nev. 2004) (citing Fed. R. Civ. P. 12(b)(1)). The party invoking 3 federal jurisdiction, here Plaintiff, bears the burden of establishing the constitutional 4 minimum of standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To 5 establish standing, the plaintiff must have personally suffered an injury in fact—an invasion 6 of a legally protected interest. Id.; see also Kaviani v. Caliber Home Loan, No. 2-19-cv- 7 111-MMD-CWH, 2019 WL 3219140, at *5 (D. Nev. July 17, 2019) (dismissing case for 8 lack of standing where plaintiff attempts to bring claims relating to interest in real property 9 without demonstrating an individual ownership interest in the property). Furthermore, 10 standing must be established at the time the complaint is filed to confer jurisdiction. See 11 Lujan, 504 U.S. at 606. 12 IV. DISCUSSION 13 Defendant argues inter alia that Plaintiff lacks standing to bring this action because 14 an unknown entity named Holings 37—which is not identified as a person, company, or 15 corporation—owns the Property, not Plaintiff. (ECF No. 14 at 12-13; ECF No. 14-2.) 16 Although Plaintiff alleges that she holds title to Property under the fictitious name “Holings 17 37” and “Holdings 37” (ECF No. 9 at 3), Defendant argues that NRS § 111.055 does not 18 authorize anyone to own real property under a fictitious name. (ECF No. 14 at 12-13.) That 19 statute only says that “[a]ny nonresident alien, person or corporation may take, hold and 20 enjoy any real property or any interest in lands . . . within the State of Nevada as fully, 21 freely, and upon the same terms and conditions as any resident citizen, person or 22 domestic corporation.” NRS § 111.055 (emphases added). Plaintiff later concedes that “[a] 23 transfer of property to a fictitious person is a complete nullity, transferring no title,” and 24 therefore Plaintiff remains the Property’s owner and has standing to pursue this action. 25 (ECF No. 16 at 10 (quoting Temora Trading Co. v. Perry, 645 P.2d 436, 437-38 (1982)).) 26 /// 27 /// 28 /// 2 ownership reflected in the record. (ECF No. 14 at 14.) “Until this is done, [Plaintiff] lacks 3 standing to bring her claims.” (Id.) The Court agrees. 4 Plaintiff has not established an interest in the Property nor standing at the time she 5 filed this action. See Lujan, 504 U.S. at 606. Holings 37, not Plaintiff, is the current owner 6 of the Property (ECF No. 14-2 at 2); and the initial Complaint does not even mention 7 Holings 37 (ECF No. 1). Plaintiff now claims Holings 37 is her business alias (ECF No. 9 8 at 3), but she has not presented the Certificate (see id.) nor any other evidence. In fact, it 9 is unclear whether Holings 37 is a person, corporation or something else. Plaintiff cannot 10 attempt to establish her interest in the Property now and retroactively confer standing upon 11 herself.5 12 In sum, the Court grants the Motion pursuant to Rule 12(b)(1) for lack of standing. 13 V. CONCLUSION 14 The Court notes that the parties made several arguments and cited to several cases 15 not discussed above. The Court has reviewed these arguments and cases and determines 16 that they do not warrant discussion as they do not affect the outcome of the Motion before 17 the Court. 18 4“NRS [§] 40.010 governs Nevada quiet title actions and provides: ‘An action may 19 be brought by any person against another who claims an estate or interest in real property, 20 adverse to the person bringing the action, for the purpose of determining such adverse claim.’” Nationstar Mortg., LLC v. Springs at Spanish Trail Ass'n, No. 2:15-cv-01217-JAD- 21 GWF, 2016 WL 1298106, at *2 (D. Nev. Mar. 31, 2016). “A plea to quiet title does not require any particular elements, but ‘each party must plead and prove his or her own claim 22 to the property in question’ and a ‘plaintiff's right to relief therefore depends on superiority of title.” Bank of New York Mellon v. Legends Maint. Corp., No. 2-16-cv-02567-MMD- 23 GWF, 2017 WL 3813904, at *2 (D. Nev. Aug. 31, 2017) (citing to Chapman v. Deutsche 24 Bank Nat'l Trust Co., 302 P.3d 1103, 1106 (Nev. 2013)).
25 5Setting aside the fact that the Court has no subject matter jurisdiction to even hear this case, there are two reasons why it is procedurally improper for Plaintiff to quiet title at 26 this juncture. Such relief must be pled pursuant to Federal Rule of Civil Procedure 8(a)(3) (“A pleading that states a claim for relief must contain . . . a demand for the relief sought.”). 27 Moreover, Plaintiff must join Holings 37 in this action because the Grant Deed reflects that the entity “claims an interest” in the Property, and therefore disposing this action in Holings 28 37’s absence would “as a practical matter impair or impede the [entity’s] ability to protect [its] interest.” Fed. R. Civ. P. 19(a)(1)(b)(i). 1 It is further ordered that Defendant’s motion to dismiss (ECF No. 14) is granted. 2 The Clerk of Court is directed to enter judgment in Defendant’s favor in accordance 3 || with this order and close this case. 4 DATED THIS 4" day of December 2019. 5 ff | { 6 MIRANDA M. DU ; CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28