FILED NOT FOR PUBLICATION JUN 2 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY ALEXANDER; et al., No. 20-16688
Plaintiffs-Appellants, D.C. No. 3:16-cv-00572-MMD-CLB v.
DEAN MEILING; et al., MEMORANDUM*
Defendants-Appellees.
JERRY ALEXANDER; et al., No. 21-15223
Plaintiffs-Appellees, D.C. No. 3:16-cv-00572-MMD-CLB v.
DEAN MEILING; et al.,
Defendants-Appellants,
and
JANET CHUBB; et al.,
Defendants.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted May 11, 2022 San Francisco, California
Before: W. FLETCHER and BUMATAY, Circuit Judges, and KANE,** District Judge.
In appeal No. 20-16688, Plaintiffs—twenty-two investors in and former
members of Metalast International, LLC (“MILLC”)—appeal from the district
court’s grant of a Rule 12(b)(6) motion to dismiss brought by Defendants Dean
Meiling; Madylon Meiling; Janet Chubb; Chemeon Surface Technology, LLC;
Metalast Surface Technology, LLC; D&M-MI, LLC; DSM Partners, Ltd.; Meiling
Family Partners, Ltd.; Meridian Advantage; and James Proctor. Plaintiffs allege
that Defendants conspired to fraudulently convert and acquire the assets of MILLC
through a Nevada state court receivership proceeding.
In appeal No. 21-15223, Defendants Dean Meiling; Madylon Meiling;
Chemeon Surface Technology, LLC; Metalast Surface Technology, LLC; D&M-
MI, LLC; Metalast Surface Technology, LLC; DSM Partners, Ltd.; and Meiling
Family Partners, Ltd. (collectively, “Meiling Defendants”), appeal from the district
** The Honorable Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation.
2 court’s denial of their motion for attorneys’ fees. The Meiling Defendants contend
that they are entitled to attorneys’ fees under the MILLC operating agreement
(“Operating Agreement”), as well as under Nevada Revised Statute § 18.010(2)(b).
We have jurisdiction under 28 U.S.C. § 1291. We affirm in appeal No. 20-
16688, and affirm in part and reverse in part in appeal No. 21-15223.
1. We review a grant of a Rule 12(b)(6) motion to dismiss de novo. Lacey v.
Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc). To survive a motion
to dismiss, the complaint “must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). We review the denial of leave to amend for
abuse of discretion. Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798 (9th Cir. 1991).
Plaintiffs argue that the district court erred in holding that their claims are
barred by Nevada’s litigation privilege. The privilege is “quite broad” under
Nevada law. Fink v. Oshins, 49 P.3d 640, 644 (Nev. 2002) (per curiam). The
privilege “immunizes from civil liability communicative acts occurring in the
course of judicial proceedings, even if those acts would otherwise be tortious,”
Greenberg Traurig v. Frias Holding Co., 331 P.3d 901, 902 (Nev. 2014) (en banc),
including statements made “when the motives behind them are malicious and they
3 are made with knowledge of the communications’ falsity,” Jacobs v. Adelson, 325
P.3d 1282, 1285 (Nev. 2014) (en banc). It extends to “communication[s] [] made
before a judicial proceeding is initiated,” but “only if the communication is made
in contemplation of initiation of the proceeding.” Fink, 49 P.3d at 644 (internal
quotation marks omitted). The communication “need not be strictly relevant to any
issue involved in the proposed or pending litigation, it only need be in some way
pertinent to the subject of controversy.” Id. (footnote and internal quotation marks
omitted). It applies to communications made by both attorneys and non-attorneys
relating to both judicial and quasi-judicial proceedings. Jacobs, 325 P.3d at 1285.
Nevada courts are to “apply the absolute privilege liberally, resolving any doubt in
favor of its relevancy or pertinency.” Fink, 49 P.3d at 644 (internal quotation
marks omitted).
We accept the allegations in Plaintiffs’ complaint as true. We agree with the
district court that all of Plaintiffs’ claims necessarily entail a challenge to
Defendants’ communications made either in anticipation of or during the Nevada
receivership proceeding in which Defendant D&M-MI, LLC, purchased the assets
of insolvent MILLC. The Meilings’ alleged false promises to lend additional funds
to MILLC, in addition to Proctor’s and Chubb’s misrepresentations about their
relationship with the Meilings, were all made with the intention of obtaining
4 MILLC’s financial information for use in support of the receivership action.
Defendants’ alleged collective orchestration of the appointment of Proctor as
receiver, Proctor’s placement of the Meilings in charge of operations at MILLC,
and the sale and transfer of MILLC’s assets to D&M-MI, LLC, all occurred during
the receivership proceeding. The litigation privilege thus bars Plaintiffs’ claims,
and the district court did not err in so holding. The district court did not abuse its
discretion in denying Plaintiffs’ request for leave to amend, concluding that
amendment would be futile. See AmerisourceBergen Corp. v. Dialysist W., Inc.,
465 F.3d 946, 951 (9th Cir. 2006).
2. We review a denial of attorneys’ fees for abuse of discretion. Avery v.
First Resol. Mgmt. Corp., 568 F.3d 1018, 1021 (9th Cir. 2009); Barber v. Hawai’i,
42 F.3d 1185, 1198 (9th Cir. 1994).
“Factual assertions in pleadings . . . , unless amended, are considered judicial
admissions conclusively binding on the party who made them.” Am. Title Ins. Co.
v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). “Judicial admissions are
formal admissions in the pleadings which have the effect of withdrawing a fact
from issue and dispensing wholly with the need for proof of the fact.” Id. (quoting
In re Fordson Eng’g Corp., 25 B.R. 506, 509 (Bankr. E.D. Mich. 1982)). The
Supreme Court has endorsed this standard in the context of a party’s attempt to
5 assert arguments contrary to its initial pleadings, finding that such factual
concessions are binding. Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S.
455, 470 n.6 (2013) (citing Lacelaw, 861 F.2d at 226).
The Meiling Defendants are entitled to attorneys’ fees as a result of the
binding admissions in the First Amended Complaint.
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FILED NOT FOR PUBLICATION JUN 2 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY ALEXANDER; et al., No. 20-16688
Plaintiffs-Appellants, D.C. No. 3:16-cv-00572-MMD-CLB v.
DEAN MEILING; et al., MEMORANDUM*
Defendants-Appellees.
JERRY ALEXANDER; et al., No. 21-15223
Plaintiffs-Appellees, D.C. No. 3:16-cv-00572-MMD-CLB v.
DEAN MEILING; et al.,
Defendants-Appellants,
and
JANET CHUBB; et al.,
Defendants.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted May 11, 2022 San Francisco, California
Before: W. FLETCHER and BUMATAY, Circuit Judges, and KANE,** District Judge.
In appeal No. 20-16688, Plaintiffs—twenty-two investors in and former
members of Metalast International, LLC (“MILLC”)—appeal from the district
court’s grant of a Rule 12(b)(6) motion to dismiss brought by Defendants Dean
Meiling; Madylon Meiling; Janet Chubb; Chemeon Surface Technology, LLC;
Metalast Surface Technology, LLC; D&M-MI, LLC; DSM Partners, Ltd.; Meiling
Family Partners, Ltd.; Meridian Advantage; and James Proctor. Plaintiffs allege
that Defendants conspired to fraudulently convert and acquire the assets of MILLC
through a Nevada state court receivership proceeding.
In appeal No. 21-15223, Defendants Dean Meiling; Madylon Meiling;
Chemeon Surface Technology, LLC; Metalast Surface Technology, LLC; D&M-
MI, LLC; Metalast Surface Technology, LLC; DSM Partners, Ltd.; and Meiling
Family Partners, Ltd. (collectively, “Meiling Defendants”), appeal from the district
** The Honorable Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation.
2 court’s denial of their motion for attorneys’ fees. The Meiling Defendants contend
that they are entitled to attorneys’ fees under the MILLC operating agreement
(“Operating Agreement”), as well as under Nevada Revised Statute § 18.010(2)(b).
We have jurisdiction under 28 U.S.C. § 1291. We affirm in appeal No. 20-
16688, and affirm in part and reverse in part in appeal No. 21-15223.
1. We review a grant of a Rule 12(b)(6) motion to dismiss de novo. Lacey v.
Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc). To survive a motion
to dismiss, the complaint “must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). We review the denial of leave to amend for
abuse of discretion. Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798 (9th Cir. 1991).
Plaintiffs argue that the district court erred in holding that their claims are
barred by Nevada’s litigation privilege. The privilege is “quite broad” under
Nevada law. Fink v. Oshins, 49 P.3d 640, 644 (Nev. 2002) (per curiam). The
privilege “immunizes from civil liability communicative acts occurring in the
course of judicial proceedings, even if those acts would otherwise be tortious,”
Greenberg Traurig v. Frias Holding Co., 331 P.3d 901, 902 (Nev. 2014) (en banc),
including statements made “when the motives behind them are malicious and they
3 are made with knowledge of the communications’ falsity,” Jacobs v. Adelson, 325
P.3d 1282, 1285 (Nev. 2014) (en banc). It extends to “communication[s] [] made
before a judicial proceeding is initiated,” but “only if the communication is made
in contemplation of initiation of the proceeding.” Fink, 49 P.3d at 644 (internal
quotation marks omitted). The communication “need not be strictly relevant to any
issue involved in the proposed or pending litigation, it only need be in some way
pertinent to the subject of controversy.” Id. (footnote and internal quotation marks
omitted). It applies to communications made by both attorneys and non-attorneys
relating to both judicial and quasi-judicial proceedings. Jacobs, 325 P.3d at 1285.
Nevada courts are to “apply the absolute privilege liberally, resolving any doubt in
favor of its relevancy or pertinency.” Fink, 49 P.3d at 644 (internal quotation
marks omitted).
We accept the allegations in Plaintiffs’ complaint as true. We agree with the
district court that all of Plaintiffs’ claims necessarily entail a challenge to
Defendants’ communications made either in anticipation of or during the Nevada
receivership proceeding in which Defendant D&M-MI, LLC, purchased the assets
of insolvent MILLC. The Meilings’ alleged false promises to lend additional funds
to MILLC, in addition to Proctor’s and Chubb’s misrepresentations about their
relationship with the Meilings, were all made with the intention of obtaining
4 MILLC’s financial information for use in support of the receivership action.
Defendants’ alleged collective orchestration of the appointment of Proctor as
receiver, Proctor’s placement of the Meilings in charge of operations at MILLC,
and the sale and transfer of MILLC’s assets to D&M-MI, LLC, all occurred during
the receivership proceeding. The litigation privilege thus bars Plaintiffs’ claims,
and the district court did not err in so holding. The district court did not abuse its
discretion in denying Plaintiffs’ request for leave to amend, concluding that
amendment would be futile. See AmerisourceBergen Corp. v. Dialysist W., Inc.,
465 F.3d 946, 951 (9th Cir. 2006).
2. We review a denial of attorneys’ fees for abuse of discretion. Avery v.
First Resol. Mgmt. Corp., 568 F.3d 1018, 1021 (9th Cir. 2009); Barber v. Hawai’i,
42 F.3d 1185, 1198 (9th Cir. 1994).
“Factual assertions in pleadings . . . , unless amended, are considered judicial
admissions conclusively binding on the party who made them.” Am. Title Ins. Co.
v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). “Judicial admissions are
formal admissions in the pleadings which have the effect of withdrawing a fact
from issue and dispensing wholly with the need for proof of the fact.” Id. (quoting
In re Fordson Eng’g Corp., 25 B.R. 506, 509 (Bankr. E.D. Mich. 1982)). The
Supreme Court has endorsed this standard in the context of a party’s attempt to
5 assert arguments contrary to its initial pleadings, finding that such factual
concessions are binding. Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S.
455, 470 n.6 (2013) (citing Lacelaw, 861 F.2d at 226).
The Meiling Defendants are entitled to attorneys’ fees as a result of the
binding admissions in the First Amended Complaint. These admissions establish
that: (1) the Meiling Defendants were members of MILLC under the Operating
Agreement; and (2) the Meiling Defendants, as members of MILLC, were “subject
to [MILLC]’s [O]perating [A]greement, and the various duties, rights, and
obligations contained therein.” Pursuant to these admissions, Plaintiffs sued to
enforce the terms of the Operating Agreement, which the Meiling Defendants had
purportedly breached. Section 12.2 of the Operating Agreement provides that the
“prevailing parties” to an action to enforce the agreement’s terms are entitled to
attorneys’ fees, and the Meiling Defendants are prevailing parties in such an action.
Cf. 145 E. Harmon II Tr. v. Residences at MGM Grand – Tower A Owner’s Ass’n,
460 P.3d 455, 458-59 (Nev. 2020). The district court erred in ignoring these
binding judicial admissions, and we therefore reverse and remand to the district
court to determine a reasonable award of contractual attorneys’ fees to the Meiling
6 The Meiling Defendants also assert that they are entitled to fees under
Nevada Revised Statute § 18.010(2)(b). However, we are limited to reviewing the
district court’s decision for abuse of discretion and cannot alter its judgment
simply because we may have ruled differently had we been the court of initial
review. Cf. Aircraft Serv. Int’l, Inc. v. Int’l. Broth. of Teamsters, 779 F.3d 1069,
1072 (9th Cir. 2015); United States v. Doe, 705 F.3d 1134, 1150 (9th Cir. 2013).
The district court did not abuse its discretion in declining to find that this case was
groundless or filed with intent to harass.1
AFFIRMED in No. 20-16688. REVERSED AND REMANDED IN
PART AND AFFIRMED IN PART in No. 21-15223.
1 We grant Plaintiffs’ request for judicial notice in appeal No. 21-15223 (Dkt. No. 28).