United States District Court, D. Nevada
before the court is defendant/third-party plaintiff Thomas
Jessup, LLC's (“Jessup”) motion to dismiss.
(ECF No. 47). Defendant/counterclaimant SFR Investments Pool
1, LLC (“SFR”) filed a response (ECF No. 51), to
which Jessup replied (ECF No. 55).
before the court is third-party defendant Daunshari
Wong-Culotta's (“Wong”) motion to dismiss.
(ECF No. 50). Jessup filed a response (ECF No. 56), to
which Wong replied (ECF No. 63).
before the court is plaintiff/counterdefendant Bank of
America, N.A., successor by merger to BAC Home Loans
Servicing, LP's (“BANA”) motion for summary
judgment. (ECF No. 59). Responses were filed by Jessup (ECF
No. 65), SFR (ECF No. 66), and defendant Davyn Ridge
Homeowners Association (the “HOA”) (ECF No. 72),
to which BANA replied 73).
before the court is the HOA's motion for summary
judgment. (ECF No. 60). BANA filed a response. (ECF No. 68).
The HOA has not replied, and the period to do so has since
before the court is SFR's motion for summary judgment.
(ECF No. 61). BANA filed a response (ECF No. 67), to which
SFR replied (ECF No. 71).
before the court is SFR's motion to certify a question of
law to the Nevada Supreme Court (ECF No. 83), in which the
HOA joined (ECF No. 86). BANA filed a response (ECF No. 84),
to which SFR replied (ECF No. 85).
case involves a dispute over real property located at 3917
Jamison Park Lane, North Las Vegas, Nevada 89032 (the
November 18, 2009, crossdefendant Donald Gould
(“Gould”) obtained a loan in the amount of $142,
373.00 from Ryland Mortgage Company and purchased the
property. (ECF No. 1 at 4). The loan was secured by a deed of
trust recorded November 20, 2009. (ECF No. 1 at 4).
deed of trust was assigned to BAC Home Loans Servicing, LP
f/k/a/ Countrywide Home Loans Servicing, LP
(“BAC”) via assignment deed recorded on July 21,
2011. (ECF No. 1 at 4). BAC subsequently merged into BANA.
(ECF No. 1 at 4).
December 9, 2011, Nevada Association Services, Inc.
(“NAS”), acting on behalf of the HOA, recorded a
notice of delinquent assessment lien, stating an amount due
of $1, 262.70. (ECF No. 1 at 5). On January 30, 2012, NAS
recorded a notice of default and election to sell to satisfy
the delinquent assessment lien, stating an amount due of $2,
448.50. (ECF No. 1 at 5).
February 2012, BANA's counsel Miles Bauer Bergstrom &
Winters, LLP (“MBBW”) request a payoff ledger,
but NAS refused. (ECF No. 1 at 6). BANA and its counsel
calculated the sum of nine-months of common assessments and
determined the superpriority amount to be $585.00. (ECF No. 1
at 6). On March 15, 2012, BANA tendered that amount to the
HOA, which the HOA refused. (ECF No. 1 at 6).
6, 2012, NAS recorded a notice of trustee's sale, stating
an amount due of $3, 442.17. (ECF No. 1 at 5). Jessup
purchased the property for $5, 500.00 at the foreclosure sale
on September 14, 2012. (ECF No. 1 at 6). A trustee's deed
upon sale in favor of Jessup was recorded on September 20,
2012. (ECF No. 1 at 6).
April 3, 2013, Jessup transferred title to SFR via a grant,
bargain, sale deed recorded on April 8, 2013. (ECF No. 1 at
September 14, 2015, BANA filed a complaint against SFR, the
HOA, and Jessup, alleging four causes of action: (1) quiet
title/declaratory judgment against SFR; (2) breach of NRS
116.1113 against the HOA; (3) wrongful foreclosure against
the HOA; and (4) injunctive relief against SFR. (ECF No. 1).
The court subsequently dismissed claims (2) through (4) in an
order granting the HOA's motion to dismiss (ECF No. 13),
but allowed claim 1 (quiet title/declaratory judgment) to
proceed. (ECF No. 58).
December 10, 2015, SFR filed a counterclaim against BANA and
a crossclaim against Gould, alleging two causes of action:
(1) declaratory relief/quiet title; and (2) preliminary and
permanent injunction. (ECF No. 27).
January 20, 2016, Jessup filed a third-party complaint
against Wong, alleging two causes of action: (1) fraud; and
(2) negligence and equitable indemnity. (ECF No. 38). Jessup
alleges that Wong is in the business of buying foreclosed
properties and that Wong placed Jessup's name on the
property after purchasing it at the foreclosure sale without
Jessup's knowledge or consent. (ECF No. 38). Jessup
alleges that thereafter, Wong induced Jessup into signing
over power of attorney to transfer the property to a
different company with a false story that the property was
inadvertently placed in Jessup's name. (ECF No. 38 at 5).
Jessup further alleges that Wong then executed a grant,
bargain, and sale deed of the property to SFR without
Jessup's knowledge or consent. (ECF No. 38 at 5).
instant motions, Jessup and Wong move to dismiss (ECF Nos.
47, 50), BANA, the HOA, and SFR move for summary judgment
(ECF Nos. 59, 60, 61), and SFR moves to certify a question of
law to the Nevada Supreme Court (ECF No. 83). The court will
address each in turn.
Motion to Dismiss
may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A properly pled complaint must provide “[a]
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. 662, 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged-but not shown-that the pleader is entitled to
relief.” Id. (internal quotation marks
omitted). When the allegations in a complaint have not
crossed the line from conceivable to plausible,
plaintiff's claim must be dismissed. Twombly,
550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court stated, in relevant
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the non-moving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by producing competent evidence that
shows a genuine issue for trial. See Celotex, 477
U.S. at 324.
summary judgment, a court's function is not to weigh the
evidence and determine the truth, but to determine whether
there is a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The evidence of the nonmovant is “to be believed, and
all justifiable inferences are to be drawn in his
favor.” Id. at 255. But if the evidence of the
nonmoving party is merely colorable or is not significantly
probative, summary judgment may be granted. See Id.
Certify Question of Law to the Nevada Supreme Court
Nevada Rules of Appellate Procedure provide that the Supreme
Court of Nevada has the power to answer “questions of
[state] law . . . which may be determinative of the cause
then pending in the certifying court and as to which it
appears to the certifying court there is no controlling
precedent in the decisions of the Supreme Court of
[Nevada].” Nev. R. App. P. 5(a).
Nevada Supreme Court “may answer questions of law
certified  by a federal court when (1) [the] answers to the
certified questions may be determinative of part of the
federal case, (2) there is no clearly controlling Nevada
precedent, and (3) the answers to the certified questions
will help settle important questions of law. See,
e.g., Hartford Fire Ins. Co. v. Tr. of Const.
Indus., 208 P.3d 884, 888 (Nev. 2009).
the question does not impact the merits of a claim pending
before the certifying court, the question should not be
certified to the Supreme Court. See Nev. R. App. P.
5(a) (requiring that certified question be
“determinative”); see also Volvo Cars of N.
Am., Inc. v. Ricci, 137 P.2d 1161, 1164 (Nev. 2006)
(declining to answer certified questions where “answers
to the questions posed  would not ‘be
determinative' of any part of the case”).
“The certification procedure is reserved for state law
questions that present significant issues, including those
with important public policy ramifications, and that have not
yet been resolved by the state courts.” Kremen v.
Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003).
courts have discretion to certify questions of state law.
Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
“Resort to certification is not mandatory where state
law is unclear on a particular issue.” Carolina
Cas. Ins. Co. v. McGhan, 572 F.Supp.2d 1222, 1225 (D.
Nev. 2008) (citing Lehman Bros., 416 U.S. at
390-91). Generally, “[w]hen a decision turns on
applicable state law and the state's highest court has
not adjudicated the issue, a federal court must make a
reasonable determination of the result the highest state
court would reach if it were deciding the case.”
Aetna Cas. & Sur. Co. v. Sheft, 989 F.2d 1105,
1108 (9th Cir. 1993).
a federal court may decline to certify a question where
controlling precedent is available for guidance. Slayman
v. FedEx Ground Package Sys., Inc., 765 F.3d 1033, 1041
(9th Cir. 2014); see also Kehoe v. Aurora Loan Servs.,
LLC, No. 3:10-cv-256-RCJ-RAM; 2010 WL 4286331, at *11
(D. Nev. Oct. 20, 2010) (declining to certify question ...