United States District Court, D. Nevada
C. MAHAN, UNITED STATES DISTRICT JUDGE
before the court is SFR Investments Pool 1, LLC's
(“SFR”) motion to certify question of law to the
Nevada Supreme Court. (ECF No. 21). Plaintiff JPMorgan Chase
Bank, N.A. (“JPMorgan”) filed a response (ECF No.
32), to which SFR replied (ECF No. 35).
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 to
Nevada Supreme Court where statutory language was
sufficiently clear for the court to apply).
a party must show “particularly compelling
reasons” for certification when that party first
requests it after losing on an issue. Complaint of
McLinn, 744 F.2d 677, 681 (9th Cir. 1984)
(“Ordinarily such a movant should not be allowed a
second chance at victory when, as here, the district court
employed a reasonable interpretation of state law.”).
requests that the court certify the following question to the
Nevada Supreme Court: “Whether NRS §
116.31168(1)'s incorporation of NRS § 107.090
requires homeowners' associations to provide notices of
default to banks even when a bank does not request
notice?” (ECF No. 21).
court declines to certify this question, as controlling
precedent is available for guidance. The Ninth Circuit, in
Bourne Valley Court Trust v. Wells Fargo Bank, N.A.,
832 F.3d 1154 (9th Cir. 2016)-which SFR cites to in its
motion-expressly answered this exact question in the
negative. More specifically, the Ninth Circuit held, in
relevant part, as follows:
Bourne Valley argues that Nevada Revised Statute section
116.31168(1), which incorporated section 107.090, mandated
actual notice to mortgage lenders whose rights are
subordinate to a homeowners' association super priority
lien. . . . According to Bourne Valley, this incorporation of
section 107.090 means that foreclosing homeowners'
associations were required to provide notice to mortgage
lenders even absent a request. . . . .
If section 116.31168(1)'s incorporation of section
107.090 were to have required homeowners' associations to
provide notice of default to mortgage lenders even absent a
request, section 116.31163 and section 116.31165 would have
been meaningless. We reject Bourne Valley's argument.
Bourne Valley Court Trust, 832 F.3d at 1159.
the court will deny SFR's motion to certify this question