FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE P. CHAPMAN, JR.; BRENDA
J. GULLY CHAPMAN,
Plaintiffs-Appellants,
v. No. 10-15215
DEUTSCHE BANK NATIONAL TRUST D.C. No.
COMPANY, as Trustee, a German 3:09-cv-00228-RCJ
District of Nevada,
national corporation; NATIONAL
DEFAULT SERVICING CORPORATION, Reno
an Arizona corporation; HOMEQ ORDER
SERVICING CORPORATION, a
California corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
May 12, 2011—San Francisco, California
Filed June 23, 2011
Before: Ronald M. Gould and Milan D. Smith, Jr.,
Circuit Judges, and Amy J. St. Eve,, District Judge.*
*The Honorable Amy J. St. Eve, United States District Judge for the
Northern District of Illinois, sitting by designation.
8555
8556 CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST
ORDER
“Where concurrent proceedings in state and federal court
are both suits in rem or quasi in rem, the court first assuming
jurisdiction over the property may maintain and exercise that
jurisdiction to the exclusion of the other.” Knaefler v. Mack,
680 F.2d 671, 675 (9th Cir. 1982) (footnote omitted). The
property at issue in this quiet title action was also the subject
of a previously filed unlawful detainer action that was pro-
ceeding concurrently in state court. In order to decide whether
the federal District Court properly exercised jurisdiction over
this action, we must determine whether Nevada law character-
izes quiet title actions and unlawful detainer actions as in rem,
quasi in rem, or in personam.
Because these questions of law are determinative of the
matter pending before this court, and there is no clearly con-
trolling precedent in the decisions of the Nevada Supreme
Court, we respectfully certify to the Nevada Supreme Court
the questions of law set forth in Part III of this order. See Nev.
R. App. P. 5.
I. BACKGROUND
A. Quiet Title Action
This appeal stems from a complaint (the Quiet Title
Action) filed by Plaintiffs-Appellants George and Brenda
Chapman (the Chapmans) against Defendants-Appellees
Deutsche Bank National Trust Company (Deutsche Bank),
National Default Servicing Corporation, and HomEq Servic-
ing Corporation (collectively, the Defendants). The complaint
was filed in the Second Judicial District Court of the State of
Nevada (the state District Court), and was subsequently
removed to the United States District Court for the District of
Nevada (the federal District Court).
In their complaint, the Chapmans alleged that “[t]hey fell
behind on payments on [their] mortgage,” and the Defendants
CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST 8557
initiated non-judicial foreclosure proceedings against the
Chapmans’ home (the Property). Deutsche Bank then pur-
chased the Property at an October 2008 trustee’s sale.
According to the complaint, the Defendants’ conduct alleg-
edly violated two rules governing trustee’s sales under
Nevada law: first, the Chapmans “were never given statutory
notice of the default” or “notice of trustee’s sale” as required
by Nevada Revised Statutes § 107.080, and second, the
Defendants did not “own[ ] [the Chapmans’] promissory note
or their deed of trust,” thus barring them from foreclosing and
obtaining title to the Property. The Chapmans sought the fol-
lowing relief: (1) declaratory relief determining that the trust-
ee’s sale was void ab initio, (2) a quiet title judgment
determining that they are owners of the Property in fee sim-
ple, and that the Defendants “have no right, title, estates, lien
or interest in the Property,” and (3) actual and punitive dam-
ages on account of the Defendants’ “massively disorganized”
conduct and “open disregard for the law.” Fairly read, the
Chapmans’ complaint included two causes of action: a
common-law claim for the tort of wrongful foreclosure, see
Collins v. Union Fed. Sav. & Loan Ass’n, 99 Nev. 284, 304,
662 P.2d 610, 623 (1983), and a statutory claim for quiet title,
see Nev. Rev. Stat. § 40.010.
B. Unlawful Detainer Action
Approximately three months prior to the time that the
Chapmans filed the Quiet Title Action, Deutsche Bank initi-
ated unlawful detainer proceedings (the Unlawful Detainer
Action) against the Chapmans in the Reno Justice Court of the
State of Nevada. Deutsche Bank alleged that it was the owner
of the Property, and accordingly requested restitution of the
premises from the Chapmans. From the record presented to
us, it appears that the Justice Court did not take any action in
the Unlawful Detainer Action until after the Quiet Title
Action was filed in state District Court.
8558 CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST
C. State and Federal Court Proceedings
After the Chapmans filed their Quiet Title Action against
Defendants, but before Defendants removed that action to
federal court, the Chapmans filed a motion in the Unlawful
Detainer Action to transfer that case from the state Justice
Court to the state District Court, where the Quiet Title Action
was pending. While the motion to transfer was pending in
state Justice Court, the Defendants removed the Quiet Title
Action to federal court. A week later, the state Justice Court
transferred the Unlawful Detainer Action to the state District
Court.
In the federal proceedings, the Chapmans filed a motion to
remand the action to state court under 28 U.S.C. § 1447(c).
The Chapmans contended (in relevant part) that the federal
court should abstain or dismiss the Quiet Title Action because
the Unlawful Detainer Action was proceeding simultaneously
in state court. The Defendants then filed a motion to dismiss
the Quiet Title Action for failure to state a claim under Fed-
eral Rule of Civil Procedure 12(b)(6). After holding a hearing
on the motions, during which the Chapmans’ attorney
informed the court that the Unlawful Detainer Action
remained pending in state District Court, the court denied the
motion to remand and granted the motion to dismiss the com-
plaint. The Chapmans timely appeal.
II. DISCUSSION
A. Jurisdiction and Standard of Review
We have jurisdiction over “all final decisions” issued by
federal district courts. 28 U.S.C. § 1291. “Ordinarily an order
dismissing the complaint rather than dismissing the action is
not a final order and thus not appealable. However, if it
appears that the district court intended the dismissal to dis-
pose of the action, it may be considered final and appealable.”
Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 983
CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST 8559
(9th Cir. 2000) (alteration and internal quotation marks omit-
ted). Here, the federal District Court intended to fully and
finally resolve this action. The court did not permit the Chap-
mans to amend their complaint, see, e.g., In re Ford Motor
Co./Citibank (S.D.), N.A., 264 F.3d 952, 957 (9th Cir. 2001),
and, after considering various pieces of evidence extrinsic to
the complaint, the court determined conclusively that the “De-
fendants complied with the non-judicial foreclosure require-
ments established under Nevada law.” We therefore have
jurisdiction under 28 U.S.C. § 1291.
We review de novo a district court’s denial of a motion to
remand to state court for lack of federal subject matter juris-
diction. United Computer Sys., Inc. v. AT&T Corp., 298 F.3d
756, 760 (9th Cir. 2002). Determinations regarding subject
matter jurisdiction are reviewed de novo, and factual findings
underlying those determinations are reviewed for clear error.
Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009).
We review underlying determinations of state law de novo.
Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991).
B. Prior Exclusive Jurisdiction Doctrine
Before we can address the merits of the Chapmans’ appeal,
we must determine whether the federal District Court had
jurisdiction to decide the Quiet Title Action while the Unlaw-
ful Detainer Action remained pending in the state District
Court. Ordinarily, “ ‘the pendency of an action in the state
court is no bar to proceedings concerning the same matter in
the Federal court having jurisdiction.’ ” Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005) (quoting
McClellan v. Carland, 217 U.S. 268, 282 (1910)). However,
“[c]omity or abstention doctrines may, in various circum-
stances, permit or require the federal court to stay or dismiss
the federal action in favor of the state-court litigation.” Id.
Relying on the “prior exclusive jurisdiction” doctrine, the
Chapmans contend that the federal District Court should have
8560 CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST
remanded the Quiet Title Action to state court. The prior
exclusive jurisdiction doctrine holds that “when one court is
exercising in rem jurisdiction over a res, a second court will
not assume in rem jurisdiction over the same res.” Marshall
v. Marshall, 547 U.S. 293, 311 (2006); see also Princess Lida
of Thurn & Taxis v. Thompson, 305 U.S. 456, 466-67 (1939).
“Although the doctrine is based at least in part on consider-
ations of comity and prudential policies of avoiding piecemeal
litigation, it is no mere discretionary abstention rule. Rather,
it is a mandatory jurisdictional limitation.” State Eng’r v. S.
Fork Band of Te-Moak Tribe of W. Shoshone Indians, 339
F.3d 804, 810 (9th Cir. 2003) (citations and internal quotation
marks omitted). As summarized by the Supreme Court:
Where the action is in rem the effect is to draw to the
federal court the possession or control, actual or
potential, of the res, and the exercise by the state
court of jurisdiction over the same res necessarily
impairs, and may defeat, the jurisdiction of the fed-
eral court already attached. The converse of the rule
is equally true, that where the jurisdiction of the state
court has first attached, the federal court is precluded
from exercising its jurisdiction over the same res to
defeat or impair the state court’s jurisdiction.
Kline v. Burke Constr. Co., 260 U.S. 226, 229 (1922).
When applying the doctrine, courts should not “exalt form
over necessity,” but instead should “look behind the form of
the action to the gravamen of a complaint and the nature of
the right sued on.” State Eng’r, 339 F.3d at 810 (internal quo-
tation marks omitted). If the action is not “ ‘strictly in
personam’ ”—that is, if the action is in rem or quasi in rem—
then the doctrine ordinarily applies. Id. at 811 (quoting Penn.
Gen. Cas. Co. v. Pennsylvania ex rel. Schnader, 294 U.S.
189, 195 (1935)). Accordingly, where parallel state and fed-
eral proceedings seek to “ ‘determine interests in specific
property as against the whole world’ ” (in rem), or where
CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST 8561
“ ‘the parties’ interests in the property . . . serve as the basis
of the jurisdiction’ ” for the parallel proceedings (quasi in
rem), then “the doctrine of prior exclusive jurisdiction fully
applies.” Id. (alterations omitted) (quoting Black’s Law Dic-
tionary 1245 (6th ed. 1990)).
Whether the doctrine is described as a rule of comity or
subject matter jurisdiction, see id. at 810 (subject matter juris-
diction); Metro. Finance Corp. of Cal. v. Wood, 175 F.2d 209,
210 & n.3 (9th Cir. 1949) (comity); see generally 13F Charles
Alan Wright et al., Federal Practice & Procedure § 3631 (3d
ed. Supp. 2010) (noting conflicting views), courts in this cir-
cuit are bound to treat the doctrine as a mandatory rule, not
a matter of judicial discretion, State Eng’r, 339 F.3d at 810;
United States v. One 1985 Cadillac Seville, 866 F.2d 1142,
1145 (9th Cir. 1989). If the doctrine applies, federal courts
may not exercise jurisdiction.1
C. Application of Prior Exclusive Jurisdiction Doctrine
1. Priority of Concurrent Actions
“Where the assertion of jurisdiction by the two courts is
nearly simultaneous, it becomes important . . . to determine
the precise time when the jurisdiction attaches.” Penn. Gen.
1
Applying this rule, we have affirmed a district court decision remand-
ing a federal action to state court, State Eng’r, 339 F.3d at 814; affirmed
a district court decision staying federal proceedings pending the outcome
of state proceedings, 40235 Washington St. Corp. v. Lusardi, 976 F.2d
587, 589 (9th Cir. 1992) (per curiam); and vacated a district court judg-
ment while remanding “for further factual determination” regarding the
doctrine’s application, One 1985 Cadillac Seville, 866 F.2d at 1146. In
other words, if the doctrine applies, it is legal error for a district court not
to remand, dismiss, or stay federal proceedings on account of the state
court’s prior exercise of jurisdiction, and any decision on the merits must
be vacated. E.g., 40235 Washington St. Corp., 976 F.2d at 589 (“[W]e
vacate the district court’s alternate holding on the merits.”); One 1985
Cadillac Seville, 866 F.2d at 1146 (“We thus reverse the order of summary
judgment forfeiting $434,097.”).
8562 CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST
Cas. Co., 294 U.S. at 196. The Nevada Justice Court first
asserted jurisdiction over the Unlawful Detainer Action when
Deutsche Bank filed its complaint on December 30, 2008, and
the federal District Court obtained jurisdiction over the Quiet
Title Action when Defendants filed their notice of removal on
April 29, 2009, see Resolution Trust Corp. v. Bayside Devel-
opers, 43 F.3d 1230, 1238 (9th Cir. 1994) (“[T]he state court
loses jurisdiction upon the filing of the petition for removal.”).2
2
The federal District Court properly concluded that the Quiet Title
Action satisfied the diversity jurisdiction requirements of 28 U.S.C.
§ 1332(a)(1), and the removal requirements of 28 U.S.C. §§ 1441(a) and
1446(a)-(b). It is undisputed that the parties are of diverse citizenship, and,
contrary to the Chapmans’ contention during oral argument, the District
Court properly held that this action satisfies the $75,000 amount-in-
controversy requirement. “ ‘In actions seeking declaratory or injunctive
relief, it is well established that the amount in controversy is measured by
the value of the object of the litigation.’ ” Cohn v. Petsmart, Inc., 281 F.3d
837, 840 (9th Cir. 2002) (per curiam) (quoting Hunt v. Wash. State Apple
Adver. Comm’n, 432 U.S. 333, 347 (1977)). Here, the object in litigation
is the Property, which was assessed at a value of more than $200,000, and
therefore satisfies the amount-in-controversy requirement. See Garfinkle v.
Wells Fargo Bank, 483 F.2d 1074, 1076 (9th Cir. 1973) (treating entire
value of real property as amount in controversy in action to enjoin foreclo-
sure sale); Woodside v. Ciceroni, 93 F. 1, 4 (9th Cir. 1899) (“In a suit to
quiet title, or to remove a cloud therefrom, it is not the value of the defen-
dant’s claim which is the amount in controversy, but it is the whole of the
real estate to which the claim extends.”).
The District Court also properly rejected the Chapmans’ argument that
the Defendants “waived their right to remove this action” on account of
their conduct in state court. A defendant “ ‘may waive the right to remove
to federal court where, after it is apparent that the case is removable, the
defendant takes actions in state court that manifest his or her intent to have
the matter adjudicated there, and to abandon his or her right to a federal
forum.’ ” EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 322
F.3d 635, 649 (9th Cir. 2003) (quoting Bayside Developers, 43 F.3d at
1240). However, such waiver “ ‘must be clear and unequivocal.’ ” Id.
(quoting Bayside Developers, 43 F.3d at 1240). The Defendants did not
file any pleadings in the Quiet Title Action prior to removing it to federal
court, and did not engage in any “actions . . . that manifest[ed] [their]
intent to have the matter adjudicated there, and to abandon [their] right to
a federal forum.” Id. (internal quotation marks omitted). We find no merit
in the Chapmans’ argument that the Defendants waived their right to
CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST 8563
Because the state Justice Court exercised jurisdiction over the
Unlawful Detainer Action before the federal court exercised
jurisdiction over the Quiet Title Action, the state court’s exer-
cise of jurisdiction takes priority.
2. Characterization of Concurrent Actions
We therefore must determine whether the two actions are
characterized as in rem, quasi in rem, or in personam under
Nevada law. If both the Unlawful Detainer Action and the
Quiet Title Action are characterized as in rem or quasi in rem,
the prior exclusive jurisdiction doctrine applies. For the fol-
lowing reasons, we conclude that the characterization of these
two actions is an open question of Nevada state law.
In order to characterize the actions as in rem, quasi in rem,
or in personam, we first must “look behind the form of the
action[s] to the gravamen of [the] complaint[s] and the nature
of the right[s] sued on.” State Eng’r, 339 F.3d at 810 (internal
quotation marks omitted). The gravamen of the Unlawful
Detainer Action is self-evident. The complaint in the Unlaw-
ful Detainer Action asserts a single cause of action and
requests a single form of relief: possession of the Property.
Nev. Rev. Stat. § 40.255(1)(c); see Gibby’s Inc. v. Aylett, 96
Nev. 678, 680, 615 P.2d 949, 951 (1980) (“Unlawful detainer
is an action designed to afford to a landlord a summary rem-
edy for the recovery of demised premises.” (internal quotation
marks omitted)). The Quiet Title Action likewise involves a
dispute over the Property. The Chapmans request that the
October 2008 trustee’s sale be declared void, and that the
Chapmans be declared owners of the Property in fee simple.
remove the Quiet Title Action because the Defendants previously filed the
Unlawful Detainer Action in state court. “A defendant’s conduct in a prior
lawsuit has no bearing on the removability of a later suit.” Hingst v.
Providian Nat’l Bank, 124 F. Supp. 2d 449, 452 (S.D. Tex. 2000) (citing
Baker v. Firestone Tire & Rubber Co., 537 F. Supp. 244, 247 (S.D. Fla.
1982), aff’d after trial, 793 F.2d 1196 (11th Cir. 1986)).
8564 CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST
See Nev. Rev. Stat. § 107.080(5)(a) (providing that a trustee’s
sale “may be declared void” if the statutory foreclosure
requirements are not “substantially compl[ied]” with); Title
Ins. & Trust Co. v. Chi. Title Ins. Co., 97 Nev. 523, 527, 634
P.2d 1216, 1218 (1981) (voiding sale where statutory notice
was not given). Although they also seek actual and punitive
damages, any damages that the Chapmans recover with
respect to their wrongful foreclosure tort claim are incidental
to the central relief requested in the complaint: possession of,
and title to, the Property. The gravamen of the Quiet Title
Action is therefore a claim for quiet title: the Defendants
“claim[ ] an . . . interest in real property, adverse to the”
Chapmans, and the Chapmans brought the action “for the pur-
pose of determining such adverse claim.” Nev. Rev. Stat.
§ 40.010.
We are not aware of any controlling precedents regarding
the characterization of quiet title actions and unlawful
detainer actions under Nevada law.3 Nevada follows general
3
Faced with a similar pairing of cases—one action involving a dispute
over possession of a property (as with the Unlawful Detainer Action), and
a separate action involving a dispute over ownership of that property (as
with the Quiet Title Action)—a number of circuit courts (including our
own) have invoked the prior exclusive jurisdiction doctrine to dismiss,
remand, or enjoin the second-filed action. See Crossman v. Fontainebleau
Hotel Corp., 273 F.2d 720, 729 (5th Cir. 1959) (holding that state unlaw-
ful detainer action should be enjoined during pendency of prior-filed
federal action for declaratory relief regarding ownership of lease interest);
Wolf v. Dist. Court, 235 F. 69, 73 (9th Cir. 1916) (holding that federal
action regarding possession of property should be stayed pending prior-
filed state action regarding ownership); Westfeldt v. N.C. Mining Co., 166
F. 706, 711-12 (Fuller, Circuit Justice, 4th Cir. 1909) (holding that federal
quiet title action must be dismissed because prior-filed ejectment action
was pending in state court); McAlpine v. Tourtelotte, 24 F. 69, 70-71 (Mil-
ler, Circuit Justice, C.C.D. Kan. 1885) (same).
Despite these persuasive precedents, the outcome here depends entirely
upon Nevada law’s characterization of quiet title actions and unlawful
detainer actions. If either action is in personam, then the prior exclusive
jurisdiction doctrine will not apply. E.g., Knaefler v. Mack, 680 F.2d 671,
CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST 8565
common-law principles distinguishing in rem actions from in
personam actions. “A judgment in rem is an adjudication pro-
nounced upon the status of some particular subject-matter,”
whereas a judgment in personam operates “between the par-
ties claiming the right.” State v. Cent. Pac. R.R., 10 Nev. 47,
80 (1875) (internal quotation marks omitted), overruled on
other grounds by State ex rel. State Bd. of Equalization v.
Barta, 124 Nev. 58, 188 P.3d 1092, 1102 (2008). “Judgments
in personam are binding only upon parties and privies, but
judgments in rem are binding not only upon parties and
privies but also upon strangers.” Id. Quasi in rem actions lie
between in rem and in personam:
A judgment quasi in rem, like a judgment in rem,
affects interests in a thing; but unlike a judgment in
rem it affects the interests of only particular persons
in the thing and not the interests of all persons in the
thing. It differs from a personal judgment in that it
does not impose a personal liability or obligation
upon anyone.
Restatement (Second) of Conflict of Laws, ch. 3, intro. note
(1971).
Applying these general rules, courts in other jurisdictions
have issued conflicting statements about the proper character-
ization of quiet title and unlawful detainer actions. Courts
have described quiet title actions as in rem, e.g., 40235 Wash-
ington St. Corp., 976 F.2d at 589 (“A quiet title action is a
proceeding in rem.”); in personam, e.g., Nevada v. United
States, 463 U.S. 110, 143-44 (1983) (“[Q]uiet title actions are
675-76 (9th Cir. 1982) (holding that later-filed federal ejectment action
need not be dismissed during pendency of prior-filed state foreclosure
action, because ejectment is in personam under Hawaii law); Lefkowitz v.
McQuagge, 296 F.2d 50, 52 (5th Cir. 1961) (reversing dismissal of federal
ejectment action where prior-filed state-court ejectment action was in per-
sonam under Florida law).
8566 CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST
in personam actions . . . .”); and quasi in rem, e.g., Humble
Oil & Ref. Co. v. Sun Oil Co., 191 F.2d 705, 718 (5th Cir.
1951) (“Suits to quiet title . . . may be characterized as quasi
in rem.”). Likewise, courts have described unlawful detainer
(or ejectment or eviction4) actions as in rem, e.g., Hepburn &
Dundas’ Heirs & Ex’rs v. Dunlop & Co., 14 U.S. (1 Wheat.)
179, 203 n.4 (1816) (“[I]n real actions and ejectment . . . the
proceedings are in rem . . . .”); in personam, e.g., Knaefler,
680 F.2d at 676 (“[T]he ejectment claims at issue here are in
personam actions under Hawaii law.”); and quasi in rem, e.g.,
United States v. Fairway Capital Corp., 483 F.3d 34, 40-41
(1st Cir. 2007).
The closest authority we have identified under Nevada law
is Robinson v. Kind, 23 Nev. 330, 339, 47 P. 977 (1897)
(order denying petition for rehearing). That case involved a
suit “to cancel a deed of conveyance . . . and revest the title
in the plaintiff.” Id. at 342, 47 P. at 978. The court explained
that an action between individuals for declaratory relief
regarding the status of real property is in rem or quasi in rem:
Where a court of equity is empowered to cancel a
deed and establish title to land within its jurisdiction
by mere force of its decree, to that extent its action
is in rem.
In Galpin v. Page, [9 F. Cas. 1126 (Field, Circuit
Justice, C.C.D. Cal. 1874) (No. 5,206)], the court
held that proceedings which are in form personal
suits, but which seek to subject property brought by
existing lien or by attachment under the control of
the court, and those which seek to dispose of prop-
erty, or relate to some interest therein, but which
touch the property or interest only through the judg-
4
See, e.g., 9 Richard R. Powell et al., Powell on Real Property
§ 68.09[2][a] (Supp. 2011) (describing unlawful detainer as a “statutory
substitute” for common-law ejectment action).
CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST 8567
ment recovered, while not strictly proceedings in
rem, so far as they affect property in the state, are
treated substantially as such proceedings. . . .
The case at bar is substantially a proceeding in
rem. Its direct object is to reach and dispose of the
property of the parties described in the complaint.
The decree of the trial court is substantially a decree
in rem.
Id. at 342-43, 47 P. at 978-79 (citation omitted).
This statement suggests that both the Quiet Title Action
and the Unlawful Detainer Action are substantially in rem, or
perhaps quasi in rem, because these actions require courts to
determine the parties’ respective possessory and/or ownership
interests in the Property. However, Robinson is not conclusive
of the issues presented in this appeal. The principles underly-
ing in rem actions have changed since Robinson was issued,
see, e.g., Restatement (Second) of Judgments § 6 cmt. a
(1982) (“[T]he notice requirement may erase the distinction
between in rem and quasi in rem proceedings. It is therefore
questionable whether the traditional distinction is useful for
any purpose.”), and persuasive authorities have disagreed
with the conclusions stated in Robinson, see, e.g., Nevada v.
United States, 463 U.S. at 143-44. In addition, as Defendants
observed at oral argument, Robinson might be distinguished
on its facts, as it involved an action to cancel a deed of con-
veyance, not a statutory action for quiet title, Nev. Rev. Stat.
§ 40.010; improper foreclosure, Nev. Rev. Stat.
§ 107.080(5)(a); or unlawful detainer, Nev. Rev. Stat.
§ 40.255(1)(c).
We believe that the Nevada Supreme Court should have an
opportunity to decide these questions in the first instance. The
resolution of these questions will determine the outcome of
this appeal, because if both the Quiet Title Action and the
Unlawful Detainer Action are characterized as in rem or quasi
8568 CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST
in rem, then the prior exclusive jurisdiction doctrine requires
us to vacate the District Court’s dismissal of the Quiet Title
Action.
III. THE QUESTIONS CERTIFIED
The questions of law we certify are:
1. Is a quiet title action under Nevada Revised Statutes
§ 40.010, which is premised on an allegedly invalid trustee’s
sale under Nevada Revised Statutes § 107.080(5)(a), properly
characterized under Nevada law as a proceeding in personam,
in rem, or quasi in rem?
2. Is an unlawful detainer action under Nevada Revised
Statutes § 40.255(1)(c) properly characterized under Nevada
law as a proceeding in personam, in rem, or quasi in rem?
IV. CONCLUSION
Because these open questions of Nevada state law will
determine the outcome of this case, we respectfully request
that the Nevada Supreme Court accept and decide the ques-
tions certified. We agree to abide by the Nevada Supreme
Court’s decision, as specified by Nevada Rule of Appellate
Procedure 5(h), which provides that “[t]he written opinion of
the Supreme Court stating the law governing the questions
certified . . . shall be res judicata as to the parties.”
The clerk of this court shall forward a copy of this order,
under official seal, to the Nevada Supreme Court, along with
copies of all briefs and excerpts of record that have been filed
with this court. The parties shall notify the clerk of this court
within seven (7) days of any decision by the Nevada Supreme
Court to accept or decline certification, and, if the Nevada
Supreme Court accepts certification, the parties shall then
notify the clerk of this court within seven (7) days of the issu-
ance of that Court’s opinion.
CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST 8569
If the Nevada Supreme Court accepts certification,
Plaintiffs-Appellants George and Brenda Chapman shall be
the appellants in that Court, and Defendants-Appellees Deut-
sche Bank National Trust Company, National Default Servic-
ing Corporation, and HomEq Servicing Corporation shall be
the respondents. As required by Nevada Rule of Appellate
Procedure 5(c)(5), the names and addresses of counsel appear
in the appendix.
IT IS SO ORDERED.
Respectfully submitted,
Ronald M. Gould and Milan D. Smith, Jr., Circuit Judges, and
Amy J. St. Eve, District Judge.
__________________
Ronald M. Gould
United States Circuit Judge, presiding
8570 CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST
APPENDIX
Terry J. Thomas, 7330 Hunter Glen Drive, Reno, NV 89523;
Geoffrey Lynn Giles, P.O. Box 93, Reno, NV 89504, for the
plaintiffs-appellants.
Jeffrey S. Allison, Houser & Allison, 9970 Research Drive,
Suite 100, Irvine, CA 92618; Stephanie Cooper Herdman,
The Cooper Castle Law Firm, LLP, 820 South Valley View
Boulevard, Las Vegas, NV 89107, for the defendants-
appellees.