Fierros v. CubeSmart Asset Management LLC

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