United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion to Dismiss (ECF No. 24)
and Plaintiff's Motion to Strike Defendants' Response
to Plaintiff's Supplemental Brief (ECF No. 52). For the
reasons below, the Court denies both motions.
filed the Complaint on July 26, 2018. ECF No. 1.
HILV Fee LLC and NAV-115 E. Tropicana, LLC filed the instant
Motion to Dismiss on February 1, 2019. ECF No. 24. Former
Defendant Hooters, Inc. filed a Motion to Dismiss on February
5, 2019. ECF No. 26. Plaintiff responded on March 1, 2019 and
March 5, 2019. ECF No. 33, 34. Defendants replied on March
11, 2019 and March 12, 2019. ECF Nos. 36, 37.
Court entered a discovery order on March 28, 2019. ECF No.
38. The Court granted a stipulation to stay discovery on
April 23, 2019. ECF No. 41.
Court held a hearing on June 14, 2019. ECF No. 45. The Court
granted Hooters, Inc.'s Motion to Dismiss and dismissed
Hooters, Inc. from the action due to an undisputed lack of
personal jurisdiction. The Court permitted supplemental
briefing as to HILV Fee LLC's and NAV-115 E. Tropicana,
LLC's Motion to Dismiss on the issue of equitable
tolling. The Court continued the discovery stay in this case
pending its instant ruling.
submitted his supplemental brief on July 8, 2019. ECF Nos.
46, 48. Defendants responded on July 26, 2019. ECF Nos. 49,
51. Plaintiff filed the instant Motion to Strike
Defendants' Response to Plaintiff's Supplemental
Brief. ECF No. 52.
Complaint alleges three causes of action arising from an
incident alleged to have occurred on July 25, 2016.
Plaintiff's first cause of action, negligence, carries a
two-year statute of limitations pursuant to Nevada Revised
Statute (“NRS”) 11.190(4)(e). Plaintiff's
second and third causes of action, battery and assault, each
also carry a two-year statute of limitations pursuant to NRS
11.190(4)(c). Therefore, the statute of limitations expired
on Plaintiff's claims on July 25, 2018. Plaintiff filed
the instant Complaint on July 26, 2018 - one day late.
argues that the statute of limitations in fact expired on
July 26, 2018 under Nevada law and that Plaintiff's
Complaint was therefore timely due to the leap year in 2016.
Nevada courts have expressly accounted for the extra day in a
leap year when applicable. Bellon v. State, 381 P.3d
594, *1 n.1 (2012). However, the extra day provided in the
2016 leap year occurred on February 29, 2016 - five months
prior to the July 25, 2016 incident. Therefore, the two-year
limitations period ran for two 365-day periods and did not
include the extra day.
upon review of the supplemental briefing, the Court finds
that equitable tolling applies to excuse the one-day delay.
The Court applies Nevada law governing equitable tolling.
See Fink v. Shedler, 192 F.3d 911, 916 (9th Cir.
1999). When considering equitable tolling, Nevada courts
evaluate whether there was excusable delay by the Plaintiff.
City of N. Las Vegas v. State Local Gov't
Employee-Mgmt. Relations Bd., 261 P.3d 1071, 1077 (Nev.
2011). Plaintiff in this case experienced hospitalization and
multiple surgeries over the past two years as an alleged
result of the incident. The Court finds that these medical
complications constitute excusable delay and therefore
equitably tolled the statute of limitations. The Court also
finds that Defendants are not prejudiced by Plaintiff's
negligible delay in bringing suit, as Plaintiff missed the
two-year deadline by a single day.
argue that equitable tolling does not apply to the statutes
of limitations for negligence, battery, and assault under
Nevada law, citing Seino v. Employers Ins. Co. of
Nevada, 111 P.3d 1107, 1112 (Nev. 2005). But the Nevada
Supreme Court in Seino held only that equitable
tolling does not apply “to statutory periods that are
mandatory and jurisdictional.” Id. The
statutes of limitations set by NRS 11.190 are not
jurisdictional, and the Nevada Supreme Court has conducted
equitable tolling analyses for ...