United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
case arises out of an alleged incident of road rage. Pending
before the Court is a motion for judgment on the pleadings.
FACTS AND PROCEDURAL HISTORY
John Hunt sued Defendant Tom Harper for negligence in Nevada
state court based on a March 3, 2013 "road rage"
incident. According to Plaintiff, while driving on Veterans
Parkway in Reno, Nevada, his car approached Defendant's
car from behind. Defendant's vehicle was moving at
approximately 20-25 miles per hour in the left lane, despite
the posted speed limit of 45 miles per hour. When Plaintiff
tried to pass on the right, Defendant swerved in front of
Plaintiff s car. Further down the road, while Plaintiff was
stopped at a stop sign, Defendant got out of his car and
"rapidly approached" Plaintiffs car. Plaintiff
exited his car, and a "scuffle" ensued, during
which Plaintiff sustained a broken ankle, head trauma, facial
bruising, and multiple lacerations. Plaintiff also developed
an infection while in the hospital for treatment. Altogether,
he incurred medical expenses in excess of $540, 000.
state court dismissed Plaintiffs complaint without prejudice
for failure to serve Defendant within 120 days following a
court order extending the time for service. Subsequently, on
March 16, 2017, Plaintiff filed a virtually identical
Complaint in this Court. Defendant moved to dismiss based on
claim preclusion, but the Court denied the motion because the
state court dismissal was not a final judgment on the merits.
Defendant has now answered and has moved for judgment on the
pleadings based on the statute of limitations.
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c). The standards governing a Rule 12(c)
motion are the same as those governing a Rule 12(b)(6)
motion. See Dworkin v. Hustler Magazine, Inc., 867
F.2d 1188, 1192 (9th Cir. 1989) ("The principal
difference ... is the time of filing[T]he motions are
statute of limitations for a negligence claim, i.e., for
"an action to recover damages for injuries to a person
... caused by the wrongful act or neglect of another, "
is two years. Nev. Rev. Stat. 11.190(4)(e). The limitations
period is tolled while a defendant is absent from the state.
Id. § 11.300. A Defendant is not
"absent" from the state under the meaning of §
11.300, however, when he is otherwise amenable to service
within the state, e.g., via statutory agent or co-resident of
suitable age and discretion at his in-state abode. Bank
of Nevada v. Friedman, 420 P.2d 1, 2-4 (Nev. 1966).
Court rejects the argument that the present motion is barred
because Defendant has already made a motion under Rule 12.
See Fed. R. Civ. P. 12(g)(2). Rule 12(g)(2)
specifically excludes the defenses listed under Rule
12(h)(2), see id, and one such defense is failure to
state a claim made via motion for judgment on the pleadings
under Rule 12(c), see Fed. R. Civ. P. 12(h)(2),
(h)(2)(B). The defense of the statute of limitations is
properly characterized under the broader defense of
"failure to state a claim, " see, e.g., Ervin
v. L.A. Cnty., 848 F.2d 018, 1019 (9th Cir. 1988), and
the present motion for judgment on the pleadings is
permitted, because Defendant answered before filing it, and
no reply to the answer has been ordered, see Fed. R.
Civ. P. 7(a), 12(c). Still, the motion fails on the merits.
running of the limitations period is an affirmative defense,
and the Court therefore cannot adjudicate the issue on the
pleadings unless the defense appears on the face of the
challenged pleading. See Jones v. Bock, 549 U.S.
199, 214-15 (2007). The Complaint was filed more than two
years after the alleged date of the incident. However, the
Complaint also alleges that Defendant is a Colorado resident.
That implies Defendant left Nevada after the incident
occurred, and there is no allegation indicating Defendant was
liable to service in Nevada for a total period of two years
between the date of the incident and the date of the
Complaint. As an individual, he presumably has no agent for
service of process in Nevada, and he presumably has no abode
in Nevada if he is a Colorado resident.
fact that Defendant might have been amenable to service in
Colorado under Nevada's long-arm statute does not obviate
§ 11.300. See L.A. Airways, Inc. v. Estate of Howard
R. Hughes, 659 P.2d 871, 872-73 (Nev. 1983). A person
who resides in another state is "absent" from
Nevada, both literally and for the purposes of service of
process. Section 11.300 does not ask whether one is amenable
to service of process generally but whether one is
"absent" from the state. One is not
"absent" from Nevada when he may be served here
personally (literal presence), see Nev. Rev. Stat.
§ 11.300, or by proxy (legal presence), see Bank of
Nevada, 420 P.2d at 2-4 (interpreting § 11.300).
But the Nevada Supreme Court has explicitly declined to rule
that § 11.300 has been directly abrogated due to the
adoption of the long-arm statute, see L.A. Airways,
659 P.2d at 872-73; rather, it has taken the approach of
narrowly interpreting the word "absent" under
§ 11.300 to require the absence from Nevada not only of
the defendant himself but also of any person(s) who could
receive service on the defendant's behalf, see Bank
of Nevada, 420 P.2d at 2-4. A person who is outside of
Nevada, and who has no statutory agent or co-resident present
in Nevada to accept service, is "absent" from the
state for the purposes of § 11.300, and the possibility
of obtaining personal jurisdiction over such a person via
service in another state under the long-arm statute does not
obviate § 11.300. See L.A. Airways, 659 P.2d at
872-73 (declining to rule § 11.300 obsolete because the
Legislature has not seen fit to repeal it). That is the
balance the Court has struck between a strict approach that
would contravene the statute's purposes in broad classes
of cases and the judicially inappropriate approach of
ignoring the statute altogether. See id.
HEREBY ORDERED that the Motion for Judgment on the Pleadings