This opinion is subject to revision before 

publication in the Pacific Reporter

2014 UT 49

IN THE

SUPREME COURT OF THE STATE OF UTAH

AMERICA WEST BANK MEMBERS, L.C.,

Appellant,

v.

STATE OF UTAH and its agents; UTAH DEPARTMENT OF 

FINANCIAL INSTITUTIONS; G. EDWARD LEARY,

Appellees.

No. 20120456

Filed October 24, 2014

Third District, Salt Lake

The Honorable Tyrone E. Medley

No. 110915676

Attorneys:

Douglas M. Durbano, L. Miles Lebaron, Jacob D. Briggs,

Layton, for appellant

Sean D. Reyes, Att‘y Gen., Peggy E. Stone,

Reed M. Stringham, III, Asst. Att‘ys Gen.,

Salt Lake City, for appellees

ASSOCIATE CHIEF JUSTICE NEHRING authored an opinion 

of the Court with respect to Parts I, II.A, II.C, and III, 

in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,

JUSTICE LEE, and JUSTICE PARRISH joined, and a 

dissenting opinion with respect to Part II.B.

JUSTICE LEE authored an opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,

and JUSTICE PARRISH joined.

ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court except 

as to Part II.B:
AMERICA WEST v. STATE

ACJ NEHRING, opinion of the Court except as to Part II.B

2

INTRODUCTION

¶ 1 America West Bank Members, L.C. (AWBM) challenges 

the district court‘s dismissal of its claims against the State of Utah, 

the Utah Department of Financial Institutions (UDFI), and the 

director of UDFI, Mr. G. Edward Leary (collectively referred to as 

the State).

1 AWBM asserts that the district court erred when it 

dismissed its claims for lack of sufficient factual allegations under 

rule 12(b)(6) of the Utah Rules of Civil Procedure. AWBM 

contends it pleaded sufficient factual allegations for breach of 

contract, breach of the covenant of good faith and fair dealing, 

violations of procedural and substantive due process under the 

Utah Constitution, and violation of the Takings Clause of the Utah 

Constitution. We affirm the decision of the district court 

dismissing AWBM‘s claims. 

BACKGROUND

¶ 2 America West Bank (Bank) is wholly owned by its 

members, AWBM. On May 1, 2009, UDFI filed a petition in 

district court for an order approving the seizure of the Bank. That 

same day, the district court granted the petition without the 

presence or participation of AWBM. UDFI then appointed the 

Federal Deposit Insurance Corporation (FDIC) as receiver of the 

Bank. The FDIC announced publicly it had been appointed 

receiver of the Bank and immediately began winding down the 

affairs of the Bank and liquidating its assets.

¶ 3 On June 28, 2011, AWBM filed a complaint in district 

court against the State of Utah; UDFI; the commissioner of UDFI, 

Mr. G. Edward Leary; and UDFI‘s supervisor of banks, Mr. Tom 

Bay. AWBM also filed a notice of claim against Mr. Leary, as 

required by the Utah Governmental Immunity Act (Immunity 

Act).2 AWBM alleged various claims, including common law tort, 

breach of contract, breach of the covenant of good faith and fair 

dealing, constitutional takings, and due process violations. 

Liquidation of the Bank‘s assets was ongoing when AWBM filed 

its complaint. The State filed a motion to dismiss the complaint 

1 AWBM initially included Mr. Tom Bay, the supervisor of 

banks for UDFI, as a party. However, Mr. Bay was not properly 

given notice of the claims as required by the Utah Governmental 

Immunity Act and was dismissed as a party.

2 See UTAH CODE § 63G–7–401 to -904.
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ACJ NEHRING, opinion of the Court except as to Part II.B

3

based on rules 12(b)(1) and 12(b)(6) of the Utah Rules of Civil 

Procedure. AWBM opposed the motion to dismiss.

¶ 4 In its opposition to the State‘s motion to dismiss, AWBM 

consented to the dismissal of some of its claims. AWBM 

acknowledged that it failed to file an appropriate notice of claim 

against Mr. Bay, as required by the Immunity Act, and as a result, 

all claims against Mr. Bay were dismissed.3 Additionally, AWBM 

conceded to the dismissal with prejudice of its claims of failure to 

disclose evidence at a hearing, negligent destruction of property, 

and negligence, based primarily on the existence of immunity 

enjoyed by the defendants.4

¶ 5 The district court did not hold a hearing on the motion 

to dismiss, but ―reviewed and considered all Memoranda in 

support, opposition and reply‖ and granted the State‘s motion to 

dismiss ―in full as prayed for based upon all of the reasons . . . and 

legal authorities set forth in [the State‘s] [m]emoranda in support 

and reply, including [AWBM‘s] concessions.‖ Based on the 

minute entry and the State‘s motion to dismiss and accompanying 

memorandum, the district court dismissed AWBM‘s breach of 

contract, breach of the covenant of good faith and fair dealing, 

and unconstitutional taking claims all due to insufficient factual 

allegations in the complaint. The district court also dismissed 

AWBM‘s claims of denial of procedural and substantive due 

process with prejudice, because it found that the right to a pre3 UDFI moved to dismiss AWBM‘s claims under both rules 

12(b)(1) and 12(b)(6) of the Utah Rules of Civil Procedure. The 

rule 12(b)(1) dismissal for lack of subject matter jurisdiction relates 

only to AWBM‘s ―fail[ure] to comply with the notice of claim 

provisions of the Utah Governmental Immunity Act‖ as it relates 

to Mr. Bay. Gurule v. Salt Lake Cnty., 2003 UT 25, ¶ 1, 69 P.3d 1287. 

AWBM conceded that proper notice was not given to Mr. Bay, 

and Mr. Bay is not a party to this appeal. Therefore, we address 

the dismissal of the remaining claims through the lens of rule 

12(b)(6) of the Utah Rules of Civil Procedure.

4 As is noted by AWBM in its brief, the district court did not 

specify which claims were dismissed with prejudice and which 

claims were dismissed without prejudice. The court‘s minute 

entry simply stated that UDFI‘s motion was granted in full. We 

rely on the designations used in UDFI‘s motion to determine 

whether claims were dismissed with or without prejudice.
AMERICA WEST v. STATE

ACJ NEHRING, opinion of the Court except as to Part II.B

4

seizure hearing was not clearly established and, therefore, could 

not form the basis of a due process claim. 

¶ 6 Following the district court‘s dismissal of AWBM‘s 

claims, AWBM filed a timely notice of appeal. AWBM appeals the 

dismissal of its claims for breach of contract, breach of the 

covenant of good faith and fair dealing, unconstitutional taking, 

denial of procedural due process, and denial of substantive due 

process. 

STANDARD OF REVIEW

¶ 7 AWBM contends the district court erred when it 

dismissed its causes of action for breach of contract, breach of the

covenant of good faith and fair dealing, unconstitutional taking, 

and violations of procedural and substantive due process under 

rule 12(b)(6) of the Utah Rules of Civil Procedure. ―A district 

court‘s grant of a motion to dismiss based upon the allegations in 

the plaintiff‘s complaint[] presents a question of law that we 

review for correctness.‖5 When ―reviewing a dismissal under 

Rule 12(b)(6) of the Utah Rules of Civil Procedure, we accept the 

plaintiff‘s description of facts alleged in the complaint to be true, 

but we need not accept extrinsic facts not pleaded nor need we 

accept legal conclusions in contradiction of the pleaded facts.‖6 

The district court‘s ruling ―should be affirmed only if it clearly 

appears that [the plaintiff] can prove no set of facts in support of 

his claim.‖7 ―Furthermore, it is well established that an appellate 

court may affirm the judgment appealed from if it is sustainable 

on any legal ground or theory apparent on the record, even if it 

differs from that stated by the trial court.‖8

ANALYSIS

¶ 8 AWBM appeals the district court‘s dismissal of its claims 

for breach of contract, breach of the covenant of good faith and 

fair dealing, unconstitutional taking, and violations of substantive 

5 Osguthorpe v. Wolf Mountain Resorts, L.C., 2010 UT 29, ¶ 10, 

232 P.3d 999 (alteration in original) (internal quotation marks 

omitted).

6 Id. (internal quotation marks omitted).

7 Colman v. Utah State Land Bd., 795 P.2d 622, 624 (Utah 1990).

8 Osguthorpe, 2010 UT 29, ¶ 10 (internal quotation marks 

omitted).
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ACJ NEHRING, opinion of the Court except as to Part II.B

5

and procedural due process. The district court granted the State‘s 

motion to dismiss all of AWBM‘s claims. The district court 

dismissed all of AWBM‘s claims under rule 12(b)(6) of the Utah 

Rules of Civil Procedure for ―failure to state a claim upon which 

relief can be granted.‖ The claims for breach of contract and 

breach of the covenant of good faith and fair dealing were 

dismissed without prejudice for failure to plead sufficient facts 

supporting the claims. The claim of an unconstitutional taking, 

which AWBM argued as a violation of substantive due process, 

was also dismissed without prejudice for failure to plead 

sufficient facts. Finally, the claims alleging a violation of 

substantive and procedural due process were dismissed with 

prejudice by the district court because it concluded there is no 

right to a pre-seizure hearing when the State takes a financial 

institution into receivership. 

¶ 9 As a threshold matter, we must determine if we have 

jurisdiction to hear this appeal.9 If we lack jurisdiction, we must 

dismiss the appeal.10 Only if we first determine that we have 

appropriate jurisdiction will we address the merits of a case.

I. THE DISTRICT COURT‘S DISMISSAL IS

A FINAL, APPEALABLE ORDER

¶ 10 The State argues that ―[t]here may be a question whether 

the [c]ourt has jurisdiction to hear [AWBM‘s] claims,‖ and 

contends that the order below may not be a final order subject to 

appeal. ―[T]he issue of subject matter jurisdiction is a threshold 

issue, which can be raised at any time and must be addressed 

before [turning to] the merits of other claims . . . .‖11 We have 

consistently upheld the ―final judgment‖ rule, which states that 

―[a]n appeal is improper if it is taken from an order or judgment 

that is not final.‖12 A ―final judgment for purposes of appeal is 

9 Thomas v. Lewis, 2001 UT 49, ¶ 13, 26 P.3d 217.

10 Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649.

11 Houghton v. Dep’t of Health, 2005 UT 63, ¶ 16, 125 P.3d 860 

(internal quotation marks omitted); see also State v. Sun Sur. Ins. 

Co., 2004 UT 74, ¶ 7, 99 P.3d 818 (―Questions of subject matter 

jurisdiction, because they are threshold issues, may be raised at 

any time and are addressed before resolving other claims.‖). 

12 Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649. There are 

exceptions to the ―final judgment‖ rule; however, none of the 

(con‘t.)
AMERICA WEST v. STATE

ACJ NEHRING, opinion of the Court except as to Part II.B

6

one that resolves all claims, counterclaims, cross-claims, and 

third-party claims before the court and fully and finally resolves 

the case.‖13

¶ 11 ―Utah has adopted the majority rule that an order of 

dismissal is a final adjudication, and thereafter, a plaintiff may not 

file an amended complaint,‖14 even if such a dismissal is without 

prejudice.15 This rule is rooted in the United States Supreme 

Court decision United States v. Wallace & Tiernan Co.

16 There, the 

Court found that dismissal ―without prejudice to filing another 

suit does not make the cause unappealable, for denial of relief and 

dismissal of the case ended [the] suit so far as the District Court 

was concerned.‖17 Our general rule in determining whether an 

order is final is ―whether the effect of the ruling is to finally resolve 

the issues.‖18 We do not focus on whether a dismissal was with or 

without prejudice, because the ―test to be applied is a pragmatic 

test.‖19

 

exceptions are relevant to the present case. Therefore, we focus 

only on whether this dismissal is final under the final judgment 

rule.

13 Merkey v. Solera Networks, Inc., 2009 UT App 130U, para. 4 

(per curiam); see also Bradbury, 2000 UT 50, ¶ 10 (―To be final, the 

trial court‘s order or judgment must dispose of all parties and 

claims to an action.‖).

14 Nichols v. State, 554 P.2d 231, 232 (Utah 1976).

15 See Steiner v. State, 495 P.2d 809, 810–11 (Utah 1972) (holding 

that a dismissal involving two defendants was a final appealable 

order despite one defendant being dismissed without prejudice 

while the other was dismissed with prejudice).

16 336 U.S. 793 (1949).

17 Id. at 794 n.1; see also Ciralsky v. CIA, 355 F.3d 661, 666 (D.C. 

Cir. 2004) (―Most courts that have considered the question have 

followed the Supreme Court‘s lead, holding that the dismissal of 

an action—whether with or without prejudice—is final and 

appealable.‖).

18 Bowles v. State ex rel. Utah Dep’t of Transp., 652 P.2d 1345, 

1346 (Utah 1982).

19 First of Denver Mortg. Investors v. C. N. Zundel & Assocs., 600 

P.2d 521, 528 (Utah 1979) (citing Brown Shoe Co. v. United States, 

(con‘t.)
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ACJ NEHRING, opinion of the Court except as to Part II.B

7

¶ 12 In the present case, there are no counterclaims, crossclaims, or third-party claims. The district court determined it did 

not have an adequately pleaded complaint before it and dismissed 

the complaint, thereby ending the suit as far as the district court 

was concerned.20 The pragmatic effect of the dismissal was to 

fully terminate the case in the district court. Because we follow 

the majority rule that an order of dismissal is a final adjudication, 

and because our test for finality is a pragmatic one, we conclude 

that we have jurisdiction to hear this appeal.

II. THE DISTRICT COURT DID NOT ERR WHEN

IT DISMISSED AWBM‘S CLAIMS

¶ 13 On appeal, AWBM relies heavily on the principle that, 

on a motion to dismiss, the court must ―accept the plaintiff‘s 

description of facts alleged in the complaint to be true.‖21 

Additionally, rule 8(a) of the Utah Rules of Civil Procedure sets a 

liberal standard for complaints, requiring only that a complaint 

―contain a short and plain: (1) statement of the claim showing that 

the party is entitled to relief; and (2) demand for judgment for 

specified relief.‖22 ―A dismissal is a severe measure and should be 

 

370 U.S. 294 (1962)); see also 15A CHARLES ALAN WRIGHT, ARTHUR 

R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND 

PROCEDURE § 3913 (2d ed. 2013) (―[T]he finality requirement 

should not be applied as a sterile formality, but instead should be 

applied pragmatically . . . .‖); Allied Air Freight, Inc. v. Pan Am. 

World Airways, Inc., 393 F.2d 441, 444 (2d Cir. 1968) (―We do not 

believe that this distinction should control: dismissals with and 

without prejudice are equally appealable as final orders.‖).

20 See Wallace & Tiernan Co., 336 U.S. at 794 n.1; Moore v. 

Pomory, 620 A.2d 323, 325 (Md. 1993) (holding that a dismissal of a 

plaintiff‘s complaint without prejudice ―does not mean that the 

case is still pending in the trial court and that the plaintiff may 

amend his complaint or file an amended complaint in the same 

action,‖ but rather ―the case is fully terminated in the trial court‖).

21 Osguthorpe v. Wolf Mountain Resorts, L.C., 2010 UT 29, ¶ 10, 

232 P.3d 999 (internal quotation marks omitted).

22 This court has not had occasion to address the heightened 

plausibility standard for pleadings set forth by the United States 

Supreme Court in Bell Atlantic Corporation v. Twombly, 550 U.S. 

544, 570 (2007), and we express no opinion here regarding that 

(con‘t.)
AMERICA WEST v. STATE

ACJ NEHRING, opinion of the Court except as to Part II.B

8

granted by the trial court only if it is clear that a party is not 

entitled to relief under any state of facts which could be proved in 

support of its claim.‖23 Keeping these principles in mind, we 

address each of AWBM‘s claims in turn.

A. The District Court Did not Err When It Dismissed AWBM’s

Claims for Breach of Contract and Breach of the 

Covenant of Good Faith and Fair Dealing

¶ 14 The district court dismissed AWBM‘s claims for breach 

of contract and breach of the covenant of good faith and fair 

dealing due to a lack of sufficient factual allegations in the 

complaint. AWBM argues that its complaint properly stated a 

claim for breach of contract. Particularly, AWBM claims it has

alleged the existence of a contract between the State and AWBM, 

that the State breached the contract, and that AWBM is entitled to 

damages as a result. AWBM claims that due to its assertion of a 

right to damages, it can be implied or inferred that AWBM 

performed its obligations under the contract. Conversely, the 

State argues that one cannot prove a breach of contract claim 

without alleging the actual existence of a contract. We agree with 

the State.

¶ 15 Because ―[r]ule 12(b)(6) concerns the sufficiency of the 

pleadings, not the underlying merits of a particular case[,] . . . the 

issue before the court is whether the petitioner has alleged enough 

in the complaint to state a cause of action, and this preliminary 

question is asked and answered before the court conducts any 

hearings on the case.‖24 The complaint need only ―contain a short 

and plain: (1) statement of the claim showing that the party is 

entitled to relief; and (2) demand for judgment for specified 

relief.‖25 In order to properly state a claim for a breach of contract, 

a party must ―allege[] sufficient facts, which we view as true, to 

satisfy each element.‖26 ―The elements of a prima facie case for 

breach of contract are (1) a contract, (2) performance by the party 

seeking recovery, (3) breach of the contract by the other party, and 

 

approach.

23 Colman v. Utah State Land Bd., 795 P.2d 622, 624 (Utah 1990).

24 Alvarez v. Galetka, 933 P.2d 987, 989 (Utah 1997).

25 UTAH R. CIV. P. 8(a).

26 MBNA Am. Bank v. Goodman, 2006 UT App 276, ¶ 6, 140 P.3d 

589.
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ACJ NEHRING, opinion of the Court except as to Part II.B

9

(4) damages.‖27 AWBM contends that it has alleged all of the 

required elements, either specifically or by implication and 

inference.28

¶ 16 Beyond stating the elements required to show a prima 

facie case for breach of contract, we have not specified what it 

means to provide a ―short and plain statement‖ of a breach of 

contract claim ―showing that the party is entitled to relief.‖29 We, 

as well as the court of appeals, have hinted at the requirements.30 

We take this opportunity to clarify what is required for a ―short 

and plain‖ statement for relief for a breach of contract claim under 

the Utah Rules of Civil Procedure.31

27 Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 14, 20 P.3d 388. 

28 AWBM‘s complaint regarding breach of contract states:

22. Defendants have breached a contract between the 

parties.

23. Plaintiffs have been damaged as a result of 

Defendants‘ breach.

24. Plaintiffs are entitled to recover damages in an 

amount to be proven at trial, which are currently 

unknown and ongoing, plus attorneys fees and 

interest.

29 UTAH R. CIV. P. 8(a)(1).

30 See Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, 

314 P.3d 1079. In Shah, the court of appeals found that a patient‘s 

complaint against her physician and hospital ―specifically 

identified contractual relationships‖ despite the absence of a 

written contract. Id. ¶ 17. The court of appeals ultimately rejected 

the plaintiff‘s claims on other grounds. Id. ¶ 18. Additionally, in 

Canfield v. Layton City, we concluded that a ―violation of . . . 

written employment rules‖ sufficiently ―outline[d] a breach of 

contract claim‖ and was sufficient to withstand dismissal for 

failure to state a claim upon which relief can be granted. 2005 UT 

60, ¶¶ 7, 15, 22–23, 122 P.3d 622.

31 See Peak Alarm Co. v. Salt Lake City Corp., 2010 UT 22, ¶ 70 

n.13, 243 P.3d 1221 (noting we have not addressed Twombly‘s 

heightened plausibility standard for pleadings under the Federal 

Rules of Civil Procedure).
AMERICA WEST v. STATE

ACJ NEHRING, opinion of the Court except as to Part II.B

10

¶ 17 The Utah Rules of Civil Procedure contain an appendix 

of forms, and we turn to those forms for guidance in outlining the 

pleading requirement of a ―short and plain statement‖ for breach 

of contract. Form four, entitled ―Complaint--Promissory Note,‖ 

and form five, entitled ―Complaint--Multiple Claims,‖ are 

particularly helpful. These forms illustrate the standard of 

pleading in a complaint for a breach of a promissory note, which 

is a contract, and a multi-count complaint that specifically 

includes a breach of contract. As exemplars, these forms indicate 

that, at a minimum, a breach of contract claim must include 

allegations of when the contract was entered into by the parties, 

the essential terms of the contract at issue, and the nature of the 

defendant‘s breach.32 These essential elements are required to 

fulfill the requirements of a ―short and plain‖ statement under our 

pleading standard. These minimal allegations will ―give the 

defendant fair notice of the nature and basis or grounds of the 

claim and a general indication of the type of litigation involved.‖33

¶ 18 AWBM has not met this standard. AWBM‘s complaint

implies the existence of a contract and a breach of that contract. 

However, AWBM made no allegations regarding the date when 

the contract was entered into, the essential terms of the contract, 

nor the nature of the defendant‘s breach. Without the allegations 

outlined above, there can be no claim for a breach of contract. We 

therefore affirm the district court‘s dismissal without prejudice of 

AWBM‘s breach of contract claim.

¶ 19 A claim for breach of the covenant of good faith and 

fair dealing is a derivative of the breach of contract claim. 

Because AWBM did not allege the existence of facts required to 

plead a breach of contract, it has also failed to plead a breach of 

the covenant of good faith and fair dealing. Accordingly, we 

affirm the district court‘s dismissal without prejudice of AWBM‘s 

claim for breach of the covenant of good faith and fair dealing. 

B. The District Court Did not Err When It Dismissed 

AWBM’s Due Process Claims with Prejudice

¶ 20 Today, the court concludes that AWBM‘s due process 

claims should be dismissed without prejudice. I disagree, and I 

32 See UTAH R. CIV. P., Forms 4 & 5.

33 Canfield, 2005 UT 60, ¶ 14 (internal quotation marks 

omitted). 
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ACJ NEHRING, opinion of the Court except as to Part II.B

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would hold that the district court properly dismissed the due 

process claims with prejudice. As the court notes,34 the district 

court dismissed AWBM‘s claims alleging violations of substantive 

and procedural due process with prejudice. The district court 

found that AWBM failed to demonstrate a ―clearly established‖ 

right to a pre-seizure hearing, which is a requirement to receive 

damages for a due process violation under the Utah 

Constitution.35 AWBM argues the district court erred when it 

dismissed its procedural and substantive due process claims. 

AWBM does not clearly state what constituted a violation of its 

procedural and substantive due process rights; however, on the 

face of its complaint and on appeal, AWBM argues that errors or 

inadequacies in the procedure surrounding the seizure of the 

Bank violated its right to due process.36 This is clearly a 

procedural due process claim.37 AWBM has not asserted it was 

34 Infra ¶ 37.

35 See Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87, ¶ 23, 

16 P.3d 533.

36 AWBM argues that UDFI did not show a sufficient 

emergency or special need for seizure of the Bank, and thus failed 

to follow the applicable statutes. However, AWBM has not 

challenged the findings of the commissioner, UDFI, or the district 

court regarding the seizure of the Bank. The record contains no 

evidence of the commissioner‘s findings or the seizure 

proceedings. AWBM has simply alleged that the proceedings 

violated their ―constitutional, common law, and statutory rights.‖ 

Without more, we must presume the regularity of those 

proceedings. State v. Chettero, 2013 UT 9, ¶ 32, 297 P.3d 582 

(―[W]hen crucial matters are not included in the record, the 

missing portions are presumed to support the action of the trial 

court.‖ (internal quotation marks omitted)); State v. Pritchett, 2003 

UT 24, ¶ 13, 69 P.3d 1278 (same). Thus, I decline to address this 

specific argument.

37 AWBM‘s complaint alleged violations of substantive due 

process. However, AWBM‘s allegations of substantive due 

process referred to the seizure of the bank without just 

compensation, a point AWBM concedes on appeal. Because 

AWBM‘s substantive due process claims are just another iteration 

of a takings claim, we examine them under the Takings Clause, 

infra, Part II.C.
AMERICA WEST v. STATE

ACJ NEHRING, opinion of the Court except as to Part II.B

12

deprived of any fundamental right. Therefore, I decline to 

address AWBM‘s allegation of substantive due process violations

as an independent claim. 

¶ 21 I agree with the court that the Spackman test must be 

satisfied in order for AWBM to be entitled to damages. I also 

agree with the court that the elements of Spackman are not set 

forth in the complaint and thus, the district court properly 

dismissed AWBM‘s due process claim under Utah Rule of Civil 

Procedure 12(b)(6).38 However, in my view, AWBM‘s due process 

claims were properly dismissed with prejudice. 

¶ 22 Under the first element of Spackman, AWBM must show 

that it ―suffered a flagrant violation of [its] constitutional rights.‖39

A right is ―not clearly established unless its contours are 

sufficiently clear that a reasonable official would understand that 

what he [or she] is doing violates that right.‖40 This ―ensures that 

a government employee is allowed the ordinary human frailties of 

forgetfulness, distractibility, or misjudgment without rendering 

[him or her]self liable for a constitutional violation.‖41 We have 

also recognized that ―it will be easier for a plaintiff to demonstrate 

a flagrant violation where precedent clearly establishes that the 

defendant‘s alleged conduct violates a provision of the 

constitution.‖42 Conversely, ―in the absence of relevant precedent 

recognizing the right and prohibiting the alleged conduct, it will 

be more difficult for a plaintiff to prevail.‖43 Additionally, there 

are circumstances where conduct ―will be so egregious and 

unreasonable that it constitutes a flagrant violation of a 

constitutional right even in the absence of controlling 

precedent.‖44

¶ 23 We have never addressed the question of whether a preseizure hearing is required when a financial institution is seized. 

38 Infra ¶ 40.

39 Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 58, 250 P.3d 

465 (internal quotation marks omitted).

40 Id. ¶ 66 (internal quotation marks omitted).

41 Id. (alteration in original) (internal quotation marks omitted).

42 Id. ¶ 67.

43 Id. 

44 Id.
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However, this question has been squarely addressed by the 

United States Supreme Court under the Federal Due Process 

Clause. While procedural due process generally requires notice 

and a hearing, ―[t]here are extraordinary situations that justify 

postponing notice and opportunity for a hearing.‖45 Those 

situations ―must be truly unusual,‖ and a ―seizure without 

opportunity for a prior hearing‖ is allowed ―[o]nly in a few 

limited situations.‖46 The Court has held that the limited 

situations justifying a seizure without a prior hearing must, at a 

minimum, meet three requirements:

First, in each case, the seizure [must be] directly 

necessary to secure an important governmental or 

general public interest. Second, there [must be] a 

special need for very prompt action. Third, the State 

[must keep] strict control over its monopoly of 

legitimate force; the person initiating the seizure 

[must be] a government official responsible for 

determining, under the standards of a narrowly 

drawn statute, that it was necessary and justified in 

the particular instance.47

The Court has held that seizure of property without a prior hearing

is justified ―to collect the internal revenue of the United States, to 

meet the needs of a national war effort, to protect against the 

economic disaster of a bank failure, and to protect the public from 

misbranded drugs and contaminated food.‖48 The court 

acknowledges that the United States Supreme Court concluded 

that a seizure without a prior hearing meets this standard.49 

¶ 24 In Fahey v. Mallonee, the Supreme Court was presented, 

as we are here, with the issue of whether a ―hearing after the 

conservator takes possession [of a bank] instead of before‖ was 

constitutional.50 The Court acknowledged that dispensing with a 

45 Fuentes v. Shevin, 407 U.S. 67, 90 (1972) (internal quotation 

marks omitted).

46 Id. at 90–91.

47 Id. at 91.

48 Id. at 91–92 (emphasis added) (footnotes omitted).

49 Infra ¶ 42 n.2.

50 332 U.S. 245, 253 (1947).
AMERICA WEST v. STATE

ACJ NEHRING, opinion of the Court except as to Part II.B

14

pre-seizure hearing when a financial institution is seized is indeed 

a ―drastic procedure,‖ but that ―the delicate nature of the 

institution and the impossibility of preserving credit during an 

investigation has made it an almost invariable custom to apply 

supervisory authority in this summary manner.‖51 The Court 

held that ―in the light of the history and customs of banking,‖ the 

seizure of a financial institution without a prior hearing is not 

―unconstitutional.‖52 Thus, procedural due process does not 

require a pre-seizure hearing when a state seizes a bank, provided 

a post-seizure hearing is available.

53 The Utah Financial 

Institutions Act provides a post-seizure hearing, and AWBM had 

the opportunity for a post-seizure hearing.54

¶ 25 The Utah Court of Appeals has also addressed this issue. 

In Brown v. Weis, the court of appeals addressed an argument 

similar to the one presented by AWBM.55 The court of appeals 

reiterated the three factors set forth in Fuentes and noted that 

―[o]ne of the very situations cited by the Fuentes court as 

ordinarily satisfying the above criteria is the necessity of 

protecting against the economic disaster of a bank failure.‖56 The 

court of appeals, relying primarily on Fuentes, concluded that the 

summary seizure of a failing financial institution is in the public 

interest and that due process did not require a pre-seizure 

hearing.57

51 Id.

52 Id. at 254.

53 Fahey, 332 U.S. at 253–54.

54 UTAH CODE § 7–2–3.

55 871 P.2d 552, 558 (Utah Ct. App. 1994).

56 Id. at 566 (citing Fuentes, 407 U.S. at 91–92).

57 Id. at 566–67; see also Roslindale Coop. Bank v. Greenwald, 638 

F.2d 258, 260 (1st Cir. 1981) (―The drastic consequences of bank 

failure or mismanagement and  ̳the impossibility of preserving 

credit during an investigation‘ call for prompt and decisive action 

and place this proceeding among the  ̳extraordinary situations‘ in 

which notice and hearing may be postponed until after seizure.‖ 

(quoting Fahey, 332 U.S. at 253; Fuentes, 407 U.S. at 90–91 & n.23)); 

Gregory v. Mitchell, 459 F. Supp. 1162, 1165–66 (M.D. Ala. 1978) 

(―Summary seizure of a bank[—]i.e., seizure without a prior 

(con‘t.)
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¶ 26 The court is correct that Fuentes outlines a contextdependent and fact-specific test.58 However, we need not ―assess 

the question based on the facts and circumstances‖ of every 

individual case, as the court suggests.59 The court notes that 

―Fuentes articulates the general standards under which property 

may be seized without a hearing‖ and Fahey concluded that a 

―seizure without a hearing had met that standard.‖60 However, the 

court fails to distinguish between a pre-seizure and post-seizure 

hearing, opting instead to lump the two together.61 Fuentes does 

not stand for the proposition that each and every due process 

challenge is subject to the fact-intensive three-part test announced 

in the opinion. Rather, the Fuentes Court was determining 

whether prejudgment replevin statutes should be included in the 

―few limited situations‖ where ―outright seizure [would be 

allowed] without opportunity for a prior hearing.‖62 The United 

States Supreme Court held that the replevin statutes at issue did 

require an opportunity to be heard before property was taken.63 

But what has been made clear by the Court is that ―in light of the 

history and customs of banking‖ and the need to protect both 

customers and the public from a bank failure, the seizure of a 

 

hearing[—]has been approved by many courts, including the 

Supreme Court of the United States, on the ground [that] such 

action is justified by the potential economic disaster of a bank 

failure.‖); Hoffman v. State, 834 P.2d 1218, 1219 n.2 (Alaska 1992) 

(―[T]he federal due process clause does not require a pre-seizure 

hearing when a state seizes a bank.‖ (citing Fahey, 332 U.S. at 253–

54)).

58 Infra ¶ 42.

59 Infra ¶ 42.

60 Infra ¶ 42 n.2 (emphases added).

61 Clearly, the lack of an opportunity to be heard, either pre- or 

post-seizure, would have immense due process implications.

62 Fuentes, 407 U.S. at 90–91 (footnote omitted). The court

acknowledges this proposition also. Infra ¶ 42 n.2.

63 Fuentes, 407 U.S. at 96. The Court also noted that its holding 

was ―a narrow one,‖ in that the State retained the power ―to seize 

goods before a final judgment in order to protect the security 

interests of creditors,‖ provided those creditors ―tested their claim 

to the goods through the process of a fair prior hearing.‖ Id.
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16

financial institution without a prior hearing does not violate the 

Due Process Clause if a post-seizure hearing is available.

64 In the 

present case, a post-seizure hearing was available, thus there is no 

violation of due process.

¶ 27 It is not correct that this holding would create a ―per se 

rule insulating all bank seizures from constitutional challenge 

under the Due Process Clause.‖65 Instead, I simply acknowledge

and agree with what the United States Supreme Court has held:

in the context of a bank seizure, due process does not require a 

pre-seizure hearing if a post-seizure hearing is available; a postseizure hearing is enough.

66 The seizure of a failed bank before a 

hearing meets the test in Fuentes. ―The drastic consequences of 

bank failure or mismanagement and the impossibility of 

preserving credit during an investigation call for prompt and 

decisive action and place [a bank seizure] among the 

extraordinary situations in which notice and hearing may be 

postponed until after seizure.‖67 A post-seizure hearing is 

available under the Utah Financial Institutions Act and may be 

initiated within ten days after a bank is seized.68 Additionally, the 

commissioner of the UDFI is the only government official capable 

of initiating a bank seizure.69 AWBM is not entitled to and has no 

constitutional right to a pre-seizure hearing.70 AWBM challenged

64 Id. at 91; Fahey, 332 U.S. at 254–56.

65 Infra ¶ 42.

66 See Fuentes, 407 U.S. at 90–91; Fahey, 332 U.S. at 253–54; 

accord First Fed. Savs. Bank & Trust v. Ryan, 927 F.2d 1345, 1358 (6th 

Cir. 1991); Roslindale Coop. Bank, 638 F.2d at 260; FDIC v. Am. Bank 

Trust Shares, Inc., 629 F.2d 951, 954–55 (4th Cir. 1980); Turner v. 

Officers, Dirs. & Emps. of Mid Valley Bank, 712 F. Supp. 1489, 1500–

02 (E.D. Wash. 1988); Salinas Valley Cmty. Fed. Credit Union v. Nat’l 

Credit Union Admin., 564 F. Supp. 701, 706 (N.D. Cal. 1983); FDIC 

v. Bank of San Marino (In re Bank of San Marino), 213 Cal. Rptr. 602, 

607 (Ct. App. 1985).

67 Roslindale Coop. Bank, 638 F.2d at 260 (citation omitted) 

(internal quotation marks omitted).

68 UTAH CODE § 7–2–3(1)(a).

69 Id. § 7–2–1.

70 Fahey, 332 U.S. at 253–54.
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the bank seizure under the Due Process Clause because the State 

seized its bank without first providing AWBM with a hearing. 

Thus, under no circumstance can AWBM prove facts that show

that it was entitled to a pre-seizure hearing. Thus, AWBM cannot 

meet the first element of Spackman showing that there was a 

flagrant violation of its constitutional right, as there is no right to a 

pre-seizure hearing.

71

¶ 28 AWBM cannot prove the first element of Spackman. 

There can be no flagrant violation of a non-existent right. Clear 

precedent from the United State Supreme Court indicates that 

there is no right to a pre-seizure hearing when a financial 

institution is seized by the state, and due process is satisfied if a 

post-seizure hearing is available.72 Therefore, AWBM has no 

clearly established right to a pre-seizure hearing. Its due process

71 It should also be said that it is not enough to merely allege a 

constitutional violation under the first element of Spackman. In 

order to meet the first Spackman element, the violation must be 

―flagrant.‖ 2000 UT 87, ¶ 23. To establish a ―flagrant violation,‖ a 

defendant must have violated a right whose ―contours [are] 

sufficiently clear that a reasonable official would understand that 

what he is doing violates that right.‖ Id. (internal quotation marks 

omitted). First, AWBM had no right to a pre-seizure hearing and 

thus the State‘s agents had no understanding that the seizure of 

the bank violated any right. Second, AWBM has made allegations 

of a flagrant violation, but it conceded to the dismissal of those 

claims with prejudice in the district court. The majority concludes 

otherwise. Infra ¶ 41. In its complaint, AWBM alleged that State 

agents either intentionally or negligently failed to disclose 

material information in a verified petition to the district court 

when seeking the bank seizure. On appeal, AWBM argues that 

this failure to disclose material information was a flagrant 

violation. But even if this were the case, AWBM has already 

conceded the dismissal of these allegations with prejudice. 

AWBM cannot now resurrect a forfeited argument and should not 

be given an opportunity to relitigate claims it has already 

conceded. Thus, under the circumstances, AWBM cannot prove 

any set of facts in support of a ―flagrant‖ violation. This further 

supports the district court‘s dismissal of AWBM‘s due process 

claim with prejudice.

72 Fuentes, 407 U.S. at 91–92; Fahey, 332 U.S. at 254–56.
AMERICA WEST v. STATE

ACJ NEHRING, opinion of the Court except as to Part II.B

18

rights are preserved by its opportunity for a post-seizure hearing, 

at which time AWBM could have brought constitutional 

challenges to the seizure of the bank. Thus, I would affirm the 

district court‘s dismissal of AWBM‘s due process claims with 

prejudice. 

C. The District Court Did not Err When It Dismissed AWBM’s 

Claim for an Unconstitutional Taking Without Prejudice 

Due to Insufficient Factual Allegations

¶ 29 The district court dismissed AWBM‘s Takings Clause 

claim for failure to allege sufficient facts to justify the cause of 

action. AWBM argues that it has pleaded sufficient facts to 

demonstrate that it had a protectable property interest, and that 

its property was taken by government action. AWBM argues that, 

therefore, it is entitled to ―just compensation.‖ 

¶ 30 Article I, section 22 of the Utah Constitution reads, 

―Private property shall not be taken or damaged for public use 

without just compensation.‖73 This section, Utah‘s Takings 

Clause, is ―distinct from, and provid[es] greater protection than, 

those constitutional provisions that provide compensation only 

for the  ̳taking‘ of private property.‖74 This broad guarantee of 

just compensation ―is triggered when there is any substantial 

interference with private property which destroys or materially 

lessens its value, or by which the owner‘s rights to its use and 

enjoyment is in any substantial degree abridged or destroyed.‖75

¶ 31 Although the Utah Takings Clause provides greater 

protection than its federal counterpart, we have adopted the 

federal distinction between a physical and regulatory taking.76 

This distinction is important, as the two takings have ―markedly 

73 The Takings Clause of the Utah Constitution expressly 

provides a damage remedy for a violation—―just compensation.‖ 

Because of this textual constitutional right to damages, we do 

not address AWBM‘s takings claim under Spackman. 2000 UT 87, 

¶ 20.

74 Utah Dep’t of Transp. v. Admiral Beverage Corp., 2011 UT 62, 

¶ 21, 275 P.3d 208.

75 Id. ¶ 22 (internal quotation marks omitted).

76 B.A.M. Dev., L.L.C. v. Salt Lake Cnty., 2006 UT 2, ¶ 32, 128 

P.3d 1161.
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different analytical formulas.‖77 Generally, there are two 

principal steps in the takings analysis.78 First, a claimant must 

demonstrate some protectable interest in property.79 Second, the 

claimant must show that the property interest was taken or 

damaged by government action.80 The district court dismissed 

AWBM‘s takings claim for a failure to allege sufficient facts to 

support the claim, particularly that AWBM did not demonstrate 

that the taking was for a public use. AWBM argues it has alleged 

these elements. We disagree and affirm the district court‘s 

dismissal without prejudice. 

¶ 32 A compensable taking may occur in either of two ways.81 

A property owner ―may suffer a physical invasion or permanent 

occupation of his or her property,‖ or may be deprived of 

property when a regulatory scheme ―go[es] too far and impinge[s] 

on private freedom.”82 ―Physical takings without just 

compensation are unconstitutional  ̳without regard to whether the 

action achieves an important public benefit or has only minimal

economic impact on the owner.‘‖83 Regulatory takings, unlike 

physical takings, ―do not always trigger an obligation to 

compensate the property owner.‖84 When a regulatory scheme 

does not involve a physical invasion or permanent occupation, 

“[t]he Supreme Court has assigned no set formula to determine 

whether a regulatory taking is unconstitutional‖; instead, the 

77 Id.; see also id. ¶¶ 32–33 (noting the difference between a 

physical and regulatory taking).

78 Admiral Beverage Corp., 2011 UT 62, ¶ 22.

79 Id.; Harold Selman, Inc. v. Box Elder Cnty., 2011 UT 18, ¶ 23, 

251 P.3d 804; Intermountain Sports, Inc. v. Dep’t of Transp., 2004 UT 

App 405, ¶ 8, 103 P.3d 716.

80 See Admiral Beverage Corp., 2011 UT 62, ¶ 22; Harold Selman, 

Inc., 2011 UT 18, ¶ 23; Intermountain Sports, Inc., 2004 UT App 405, 

¶ 8.

81 Golden Pac. Bancorp v. United States, 15 F.3d 1066, 1071–72 

(Fed. Cir. 1994).

82 Id. (internal quotation marks omitted).

83 B.A.M. Dev., L.L.C., 2006 UT 2, ¶ 32 (quoting Loretto v. 

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434–35 (1982)).

84 Id. ¶ 33.
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20

Court has engaged in an ―essentially ad hoc, factual inquir[y].‖85 

In conducting this inquiry, the Court looks to several factors, such 

as the ―economic impact of the regulation, its interference with 

reasonable investment-backed expectations, and the character of 

the government action.‖86 

¶ 33 According to AWBM‘s complaint, ―it appears that the 

Plaintiff and its Members have lost all of the ownership, goodwill, 

equity, capital, and investments that they made in the Bank.‖ This 

is the extent of AWBM‘s allegations contained in its complaint, 

and neither we nor the district court can discern whether this 

alleged taking constituted a physical or regulatory taking. This 

distinction has a marked impact on UDFI‘s response and defense, 

the district court‘s analysis, and the outcome. Without more, we 

cannot agree that AWBM has sufficiently pleaded a taking, and 

we thus affirm the district court‘s dismissal of the claim, but do so 

without prejudice.87

III. THE DISTRICT COURT DID NOT HOLD AWBM

TO A HEIGHTENED PLEADING STANDARD

¶ 34 AWBM argues that the district court erred when it 

dismissed AWBM‘s causes of action because it applied a higher 

pleading standard than that dictated by rule 8 of the Utah Rules of 

Civil Procedure. AWBM argues the district court erred when it 

relied on the State‘s motion to dismiss and accompanying 

memorandum that cited to Ellefsen v. Roberts88 and Heathman v. 

Hatch.

89 It argues that the district court‘s reliance on these cases 

resulted in the application of a heightened pleading standard. We 

disagree. Heathman involved a claim of fraud, which requires 

heightened pleading under rule 9 of the Utah Rules of Civil 

85 Id. (internal quotation marks omitted).

86 Id. (internal quotation marks omitted).

87 Although we announce today that a claim for a compensable 

taking under Article I, section 22 of the Utah Constitution must 

allege the type of taking (physical or regulatory), we express no 

opinion on the heightened pleading standard required by federal 

courts under Twombly. 

88 526 P.2d 912 (Utah 1974).

89 372 P.2d 990 (Utah 1962).
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Procedure.90 But the State did not argue that heightened pleading 

was required here. The State cited Heathman for the proposition 

that the objective of the pleading rules under the Utah Rules of 

Civil Procedure ―is to require that the essential facts upon which 

redress is sought be set forth with simplicity, brevity, clarity and 

certainty so that it can be determined whether there exists a legal 

basis for the relief claimed[.]‖91

¶ 35 Similarly, the State cited Ellefsen for the proposition that 

―[t]he sufficiency of plaintiff‘s pleadings, which are construed 

together, must be determined by the facts pleaded rather than the 

conclusions stated.‖92 There is no indication on the record, nor 

can we discern any evidence from the record, that the district 

court applied a heightened pleading standard.

CONCLUSION

¶ 36 We affirm the district court‘s dismissal of all of AWBM‘s 

claims. AWBM‘s claims for breach of contract and breach of the 

covenant of good faith and fair dealing are dismissed without 

prejudice. AWBM‘s due process claims are dismissed without

prejudice. Finally, AWBM has not adequately pleaded its takings 

claim, and the claim is dismissed without prejudice.

90 Id. at 991. Heathman also addressed claims of negligence. Id.

91 Id. at 992.

92 Ellefsen, 526 P.2d at 915.
AMERICA WEST v. STATE

JUSTICE LEE, opinion of the Court

22

JUSTICE LEE, opinion of the Court:

¶ 37 We affirm the district court‘s dismissal of plaintiff‘s 

procedural due process claim, but find error in the dismissal of 

the claim with prejudice. The defect in that claim is a failure to 

plead the claim at an adequate level of detail. And for that reason 

the dismissal should have been without prejudice. 

¶ 38 In order to state a claim for monetary damages for an 

alleged violation of the constitution, a plaintiff must allege three 

elements: (1) the plaintiff ―suffered a flagrant violation of his or 

her constitutional rights,‖ (2) ―existing remedies do not redress

[the plaintiff‘s] injuries,‖ and (3) ―equitable relief, such as an 

injunction, was and is wholly inadequate to protect the plaintiff‘s 

rights or redress his or her injuries.‖ Spackman ex rel. Spackman v. 

Bd. of Educ. of Box Elder Cnty. Sch. Dist., 2000 UT 87, ¶¶ 23–25, 16 

P.3d 533 (internal quotation marks omitted). 

¶ 39 The complaint under review falls far short of alleging 

those elements. It makes the limited allegation that due process 

required a pre-seizure hearing, by baldly asserting that the 

applicable legal standard was not met. Thus, according to the 

complaint, the seizure was not ―directly necessary to secure an 

important governmental or general public interest,‖ there was no 

―special need for very prompt action,‖ and the responsible 

governmental official had not concluded that the seizure was, 

―pursuant to a narrowly-drawn statute, necessary and justified in 

this particular instance.‖ See Fuentes v. Shevin, 407 U.S. 67, 91 

(1972) (articulating the test for determining when a pre-seizure 

hearing is required under the Due Process Clause). 

¶ 40 This is merely an allegation that a constitutional 

violation occurred, satisfying only half of the first element of the 

Spackman test. To survive a rule 12(b)(6) motion, the plaintiff also 

must allege that the violation was ―flagrant,‖ that alternative 

remedies would not redress the plaintiff‘s damages, and that 

equitable relief was ―wholly inadequate.‖ Spackman, 2000 UT 87, 

¶¶ 23, 25. These essential elements are set forth nowhere in the 

complaint. Thus, this claim was properly dismissed for failure to 

state a claim. 

¶ 41 The district court granted the defendants‘ motion to 

dismiss ―in full.‖ And the motion sought dismissal ―with 

prejudice,‖ so the district court‘s judgment was apparently a 

dismissal with prejudice. Such a dismissal is a ―drastic remedy,‖ 

Bonneville Tower Condo. Mgmt. Comm. v. Thompson Michie Assocs., 

728 P.2d 1017, 1020 (Utah 1986), which is generally appropriate 
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JUSTICE LEE, opinion of the Court

23

―only if it appears to a certainty that [a] plaintiff cannot state a

claim.‖ Alvarez v. Galetka, 933 P.2d 987, 991 (Utah 1997) (quoting 

5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL 

PRACTICE AND PROCEDURE § 1357 (2d ed. 1990)).1

¶ 42 Justice Nehring contends that a pre-seizure hearing is 

never required under the Due Process Clause. And he accordingly 

concludes that plaintiffs are categorically incapable of stating a 

claim as a matter of law. See supra ¶ 26. We see the matter 

differently. Granted, in Fahey v. Mallonee, 332 U.S. 245 (1947), the 

Supreme Court held that seizure of a financial institution under 

the Home Owners‘ Loan Act of 1933 was appropriate. See id. at 

253–54. But the operative test—subsequently articulated in 

Fuentes2—is a fact-intensive one. Thus, although no hearing was 

required in Fahey, there is no per se rule in controlling precedent. 

The governing test (in Fuentes) is more context-dependent and 

fact-specific. And that test is incompatible with the notion of a 

per se rule insulating all bank seizures from constitutional 

challenge under the Due Process Clause. Instead, Fuentes calls on 

courts to assess the question based on the facts and circumstances 

of an individual case, considering whether the specific seizure at 

issue is ―directly necessary to secure an important governmental 

interest‖; whether there is a ―special need for very prompt 

action‖; and whether the responsible state actor determined 

―under the standards of a narrowly drawn statute, that it was 

necessary and justified in the particular instance.‖ 407 U.S. at 91 

1 At some point, the failure to plead a claim at a sufficient level 

of detail could sustain a dismissal with prejudice, but that remedy 

is usually reserved for cases where the plaintiff has had multiple 

opportunities to amend and has continually failed to state a claim. 

Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that leave to 

amend should generally be freely given, unless the plaintiff 

―repeated[ly] fail[s] to cure deficiencies by amendments 

previously allowed‖). That exception has no application here, as 

this was plaintiff‘s first attempt to assert this claim.

2 Fuentes concerned a prejudgment writ of replevin statute, not 

a bank seizure. 407 U.S. at 69. But Fuentes articulates the general 

standards under which property may be seized without a hearing. 

Id. at 91. The Court then went on to list several examples where it 

had concluded that seizure without a hearing had met that 

standard, including in Fahey. Id. at 91–92 & nn. 24–28.
AMERICA WEST v. STATE

JUSTICE LEE, opinion of the Court

24

(emphasis added). Thus, Fahey may be read to deem it unlikely 

that a pre-seizure hearing is required by due process; but it does 

not state a per se rule, or necessitate such a result in all cases.

¶ 43 Under the fact-intensive Fuentes analysis, we cannot 

conclude ―to a certainty‖ that it is impossible for the plaintiff to 

allege facts sustaining the conclusion that a pre-seizure hearing 

was required by due process in this case. Here the complaint did 

little more than allege that a seizure occurred and summarily 

recite the Fuentes test. And in light of the limited factual basis set

forth in the complaint, it is impossible to conclude that there are 

no facts under which the plaintiff could allege a colorable due 

process claim. 

¶ 44 We affirm the dismissal of the plaintiff‘s procedural due 

process claim, but find error in the dismissal of the claim with 

prejudice and accordingly direct the district court to enter a 

judgment of dismissal without prejudice. 

——————