United States District Court, D. Nevada
before the court is SFR Investments Pool 1, LLC's
(“SFR”) motion to certify question of law to the
Nevada Supreme Court. (ECF No. 20). Plaintiff Wells Fargo
Bank, N.A. (“Wells Fargo”) filed a response (ECF
No. 26), to which SFR replied (ECF No. 30).
before the court is defendant Foothills at MacDonald Ranch
Master Association's (the “HOA”) motion to
dismiss. (ECF No. 23). Wells Fargo filed a response (ECF No.
31), to which the HOA replied (ECF No. 35).
case involves a dispute over real property located at 1741
Choice Hills Drive, Henderson, Nevada 89012 (the
“property”). Theresa J. Wingender obtained a loan
from World Savings Bank FSB in the amount of $562, 500.00 to
purchase the property, which was secured by a deed of trust
recorded on June 23, 2003. (ECF No. 1). Wells Fargo is the
successor-in-interest to World Savings Bank FSB by merger.
(ECF No. 1).
January 17, 2007, defendant Homeowner Association Services,
Inc. (“HASI”), acting on behalf of the HOA,
recorded a notice of delinquent assessment lien, stating an
amount due of $1, 194.00. (ECF No. 1). On August 16, 2011,
HASI recorded a notice of delinquent assessment lien, stating
an amount due of $19, 454.00. (ECF No. 1). On August 29,
2011, HASI recorded a notice of default and election to sell
to satisfy the delinquent assessment lien, stating an amount
due of $24, 129.69. (ECF No. 1). On August 12, 2013, HASI
recorded a notice of trustee's sale, stating an amount
due of $33, 877.90. (ECF No. 1).
September 26, 2013, SFR purchased the property at the
foreclosure sale for $56, 000.00. (ECF No. 1). A
trustee's deed upon sale in favor of SFR was recorded on
January 14, 2014. (ECF No. 1).
September 26, 2016, Wells Fargo filed the underlying
complaint, alleging six causes of action: (1) declaratory
relief under the Takings Clause of the Fifth Amendment
against all defendants; (2) declaratory relief under the Due
Process Clause of the Fifth and Fourteenth Amendments against
all defendants; (3) wrongful foreclosure against all
defendants; (4) violation of NRS 116.1113 against the HOA and
HASI; (5) unjust enrichment against the HOA and SFR; and (6)
quiet title against all defendants. (ECF No. 1)
January 6, 2017, SFR filed a counterclaim against Wells Fargo
and a crossclaim against Transunion Settlement Solutions for
quiet title and injunctive relief. (ECF No. 18).
instant motions, SFR moves to certify a question of law to
the Nevada Supreme Court (ECF No. 20), and the HOA moves to
dismiss Wells Fargo's claims against it pursuant to NRS
38.310 and Federal Rule of Civil Procedure 12(b)(6) (ECF No.
23). The court will address each as it sees fit.
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 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.”). .
. . . . .
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. at 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 ...