NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF NEW YORK MELLON, FKA No. 19-15520
Bank of New York, as Trustee for the
Certificateholders of CWALT, Inc., D.C. No.
Alternative Loan Trust 2005-13CB, 2:17-cv-02161-APG-PAL
Mortgage Pass-Through Certificates, Series
2005-13CB,
MEMORANDUM*
Plaintiff-counter-
defendant-Appellee,
v.
SUN CITY ANTHEM COMMUNITY
ASSOCIATION, INC.; RED ROCK
FINANCIAL SERVICES, LLC,
Defendants,
and
2167 MAPLE HEIGHTS TRUST,
Defendant-counter-claimant-
Appellant.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted July 9, 2020**
Seattle, Washington
Before: HAWKINS, D.M. FISHER,*** and M. SMITH, Circuit Judges.
We have jurisdiction over this diversity quiet title dispute pursuant to 28
U.S.C. § 1291. Because we conclude that Appellant 2167 Maple Heights Trust’s
(Maple Heights) only argument on appeal was waived, we affirm the district
court’s grant of summary judgment for Appellee Bank of New York Mellon
(BNY).
Maple Heights’s single argument on appeal is that BNY’s quiet title action
was barred by the three-year statute of limitations in Nev. Rev. Stat. §
11.190(3)(a). However, Maple Heights concedes that it failed to raise its statute of
limitations argument before the district court, and fails to make a compelling
argument as to why we should consider it now.
We may consider an issue raised for the first time on appeal “under certain
narrow circumstances,” and only where consideration of the issue will not
prejudice the opposing party. Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996)
(citation omitted). We may exercise our discretion to consider such an argument in
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
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order “(1) to prevent a miscarriage of justice; (2) when a change in law raises a
new issue while an appeal is pending; and (3) when the issue is purely one of law.”
AlohaCare v. Hawaii Dep’t of Human Servs., 572 F.3d 740, 744–45 (9th Cir.
2009) (internal quotation marks and citation omitted).
Maple Heights argues that considering the statute of limitations applicable
here would be “important to the public.” But this argument is negated by the fact
that several Ninth Circuit panels are further along in the process of deciding the
precise issue argued by Maple Heights, including one panel which has certified
related questions to the Nevada Supreme Court. See Order Certifying Questions to
the Nevada Supreme Court, U.S. Bank, N.A. v. Thunder Props., Inc., Case No. 17-
16399 (9th Cir. May 1, 2020), ECF No. 62; see also Order, Prof-2013-S3 Legal
Title Tr. v. SFR Invs. Pool 1, LLC, No. 19-15260 (9th Cir. Apr. 3, 2020), ECF No.
51.
Maple Heights also argues that intervening case law made its statute of
limitations argument viable. But the single case that Maple Heights cites for this
proposition does not concern the statute of limitations applicable to quiet title or
declaratory relief actions like these. See Bank of Am., N.A. v. SFR Invs. Pool 1,
LLC, 427 P.3d 113 (Nev. 2018) (“Diamond Spur”) (en banc). Maple Heights
seems to argue that Diamond Spur, issued in September of 2018, opened the door
to certain new arguments to be made by banks like BNY here. But the district
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court docket confirms that Diamond Spur, which came down well before the
district court ruled on summary judgment, only supplemented the tender arguments
already made by BNY in its summary judgment briefing. See Dist. Ct. Dkt. Nos.
28, 36, 45 (Diamond Spur filed without additional argument). Moreover, between
the time that BNY filed Diamond Spur as supplemental authority and the district
court’s summary judgment ruling, five months elapsed in which Maple Heights
could have raised its statute of limitations argument. See Dist. Ct. Dkt. Nos. 45–
47. Maple Heights does not point to any other intervening change in law or
circumstance that explains its failure to raise the statute of limitations issue before
the district court.
Accordingly, although we agree that the question of whether the three-year
statute of limitations in Nev. Rev. Stat. § 11.190(3)(a) applies here is a pure
question of law, see Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1005 (9th Cir.
2011), Maple Heights nevertheless fails to convince us that “exceptional
circumstances,” AlohaCare, 572 F.3d at 744, are present here such that we should
exercise our discretion to hear its waived legal argument.
AFFIRMED.
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