                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 17 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



STATE OF NEVADA, ex rel. BARRETT                 No. 11–16310
R. BATES et al.,
                                                 D.C. No. 3:10-CV-00407-VPC
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, INC. et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Robert C. Jones, District Judge, Presiding

                             Submitted August 9, 2012 **
                              San Francisco, California

Before: SCHROEDER and CALLAHAN, Circuit Judges, and KORMAN, District
Judge.***


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
       ***
              The Honorable Edward R. Korman, District Judge for the United
States District Court for the Eastern District of New York, sitting by designation.
      Plaintiff Barrett R. Bates, a realtor, filed suit under the Nevada False Claims

Act (“NFCA”), Nev. Rev. Stat. §§ 357.010 et seq, against Defendants Mortgage

Electronic Registration System, Inc. (“MERS”), Bank of America, N.A.,

Citimortgage, Inc., GMAC Mortgage LLC,1 Wells Fargo, N.A., as well as a law

firm, Cooper Castle, and a trustee at a title company, Stanley S. Silva

(collectively, “Defendants”), on behalf of numerous Nevada counties. Bates

alleged that Defendants made false representations in naming MERS as a

beneficiary in recorded mortgage documents in order to avoid paying recording

fees. Defendants removed the case to federal court based on diversity of

citizenship. Bates then filed a motion to remand. The district court denied Bates’s

motion to remand and dismissed the case, concluding that it had diversity

jurisdiction and that Bates failed to state a claim for a violation of the NFCA. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.2

      1. As an initial matter, Bates contends that because the State of Nevada is a

real party in interest, diversity jurisdiction is defeated and the case should have

been remanded to state court. The district court properly determined that Bates did


      1
              GMAC Mortgage LLC has since filed a Notice of Bankruptcy, and
this appeal is automatically stayed as to GMAC.
      2
             Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                           2
not assert any plausible claims against Defendants on behalf of the State. Under

Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980), courts “must disregard

nominal or formal parties and rest jurisdiction only upon the citizenship of real

parties to the controversy.” Because Bates has not met his burden of pointing to

any allegations in the complaint to support his contention that the State is more

than a nominal party, the court properly denied the motion to remand.

      2. The NFCA provides that a defendant may be held liable if it

“[k]nowingly makes or uses . . . a false record or statement to conceal, avoid or

decrease an obligation to pay or transmit money or property to the State or a

political subdivision.” Nev. Rev. Stat. § 357.040(1)(g). Bates does not allege that

Defendants had an “obligation” to the Counties to record assignments of interests

in loans and pay corresponding recording fees. He cannot make this allegation

because there is no such “obligation” under Nevada law. Because Defendants had

no “obligation” to record assignments or other documents relating to securing

property, Bates failed to state a claim of liability under Nev. Rev. Stat. §

357.040(1)(g). Accordingly, he has not stated a claim under Rule 12(b)(6).3



      3
              Because we conclude that the district court did not err in dismissing
Bates’s claims for failure to state a claim under Rule 12(b)(6), we do not reach
Defendants’ argument that the dismissal may be upheld because Bates’s action is
jurisdictionally barred under the NFCA.

                                           3
      3. Bates contends that the district court erred in denying his motion to

certify a question to the Nevada Supreme Court.4 The district court properly

denied Bates’s motion because the question was not determinative. See Nev. R.

App. P. 5(a) (the Nevada Supreme Court will only accept certification of

“questions of law of this state which may be determinative of the cause then

pending in the certifying court.”). Several weeks after the district court issued an

order explaining that Bates had not stated a claim, Bates sought certification of an

issue that had nothing to do with the theories in his complaint. Thus, Bates

improperly sought certification of a question that was not before the district court,

and the court did not abuse its discretion in declining to certify the question.

      Accordingly, the district court’s judgment is AFFIRMED.




      4
             The requested question was:

      Under the Nevada nonjudicial foreclosure statute, when a Notice of
      Default is recorded by a Trustee or other purported agent of the
      beneficiary prior to the recording of a document appointing that
      Trustee or purported agent, is the resulting foreclosure invalid so as to
      require at least one additional document to be recorded to correct the
      foreclosure process?

                                           4
