United States District Court, D. Nevada
before the court is plaintiff Bank of New York Mellon's
(“BNYM”) motion for summary judgment. (ECF No.
70). Defendants Sierra Ranch Homeowners Association
(“Sierra Ranch”) and SFR Investments Pool 1, LLC
(“SFR”) filed responses (ECF Nos. 77, 80), to
which BNYM replied (ECF Nos. 85, 86).
before the court is defendant Sierra Ranch's motion for
summary judgment. (ECF No. 81). Plaintiff BNYM filed a
response (ECF No. 88), to which Sierra Ranch replied (ECF No.
before the court is defendant SFR's motion for summary
judgment. (ECF No. 82). Plaintiff BNYM filed a response (ECF
No. 87), to which SFR replied (ECF No. 93).
before the court is defendant SFR's motion to certify a
question of law to the Nevada Supreme Court (ECF No. 91),
which defendant Sierra Ranch joined (ECF No. 97). Plaintiff
BNYM filed a response (ECF No. 98), to which SFR and Sierra
Ranch replied (ECF No. 99).
present case involves a dispute over real property located at
308 Iron Summit Avenue, N. Las Vegas, Nevada (the
“property”). (ECF No. 1 at 3). Kari Krejci (the
“borrower”) purchased the property on May 2,
2007. (Id.). The borrower financed the purchase with
a $262, 750.00 loan that was secured by a deed of trust
recorded on May 4, 2011. (Id.).
19, 2011, the deed of trust was assigned to BNYM, via an
assignment of the same. (Id.).
August 15, 2011, Sierra Ranch, through its agent, recorded a
notice of delinquent assessment lien. (Id.). The
notice asserted that the borrower owed Sierra Ranch $2,
184.06 in fees. (Id.).
November 15, 2011, Sierra Ranch, through its agent, recorded
a notice of default and election to sell to satisfy the
delinquent assessment lien. (Id. at 5). The notice
stated that the borrower owed Sierra Ranch $3, 531.69 to
satisfy the outstanding balance of association fees on the
October 2, 2012, Sierra Ranch recorded a notice of
trustee's sale through its agent. (Id.). The
notice asserted that the borrower owed Sierra Ranch $6,
315.69 in fees. (Id.). The trustee's sale would
occur on December 6, 2012. (Id.).
December 12, 2013, Sierra Ranch conducted the trustee's
sale, and SFR was the highest bidder, purchasing the property
for $14, 000.00. (ECF No. 37 at 5). The foreclosure deed was
recorded on December 23, 2013. (ECF No. 1 at 6).
filed a complaint on October 6, 2015, asserting five (5)
claims against Sierra Ranch and SFR: (1) quiet
title/declaratory judgment; (2) injunctive relief against
SFR; (3) breach of Nevada Revised Statute (“NRS”)
116.1113 against Sierra Ranch; (4) wrongful foreclosure
against Sierra Ranch; and (5) deceptive trade practices
against Sierra Ranch. (ECF No. 1).
16, 2015, SFR filed an answer and counterclaim asserting
three claims for relief against BNYM and the borrower: (1)
declaratory relief/quiet title; (2) preliminary and permanent
injunction; and (3) slander of title. (ECF No. 37).
Ranch and SFR filed motions to dismiss BNYM's complaint.
(ECF Nos. 10, 22). On July 25, 2016, the court denied both
motions to dismiss. (ECF No. 60).
instant motions, BNYM, Sierra Ranch, and SFR move for summary
judgment (ECF Nos. 70, 81, 82), and SFR moves to certify a
question of law to the Nevada Supreme Court (ECF No. 91).
Motion for summary judgment
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).
Nonmovant's evidence 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. at 249-50.
. . . . . .
Certify question of law to the Nevada Supreme
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.”).
Motions for summary judgment  (ECF
Nos. 70, 81, 82)
initial matter, the court dismisses, without prejudice,
claims two (2) through five (5) of BNYM's complaint (ECF
No. 1), and claims two (2) and three (3) of SFR's answer,
counterclaim, and crossclaim (ECF No. 37) for the following
claim for injunctive relief (claim 2) and SFR's
preliminary and permanent injunction claim (claim 2) are
dismissed without prejudice because the court follows the
well-settled rule that a claim for injunctive relief standing
alone is not a cause of action. See, e.g., In re
Wal-Mart Wage & Hour Emp't Practices Litig., 490
F.Supp.2d 1091, 1130 (D. Nev. 2007); Tillman v. Quality
Loan Serv. Corp., No. 2:12-CV-346 JCM RJJ, 2012 WL
1279939, at *3 (D. Nev. Apr. 13, 2012) (finding that
“injunctive relief is a remedy, not an independent
cause of action”); Jensen v. Quality Loan Serv.
Corp., 702 F.Supp.2d 1183, 1201 (E.D. Cal. 2010)
(“A request for injunctive relief by itself does not
state a cause of action.”). . . . . . .
BNYM's third claim for breach of NRS 116.1113 against
Sierra Ranch and its fourth claim for wrongful foreclosure
against Sierra Ranch, and SFR's third claim for slander
of title against BNYM are dismissed without prejudice for
failure to mediate pursuant to NRS 38.330. See,
e.g., Nev. Rev. Stat. § 38.330(1); McKnight
Family, L.L.P. v. Adept Mgmt., 310 P.3d 555, 559 (Nev.
2013) (holding that slander of title claims are subject to
NRS 38.310 and must be submitted to mediation prior to being