United States District Court, D. Nevada
JOHN ILIESCU JR. AND SONNIA SANTEE ILIESCU, as Trustees of the JOHN ILIESCU JR. AND SONNIA ILIESCU 1992 FAMILY TRUST AGREEMENT; JOHN ILIESCU, JR., individually, SONNIA SANTEE ILIESCU, individually, Plaintiffs,
JOHN SCHLEINING; and DOES 1 thru XX, Defendants.
R. HICKS UNITED STATES DISTRICT JUDGE.
the court is defendant John Schleining's motion to
dismiss the complaint arguing that the action is barred by
the two-dismissal rule. ECF No. 9; Errata, ECF No. 11.
Plaintiffs, John Iliescu Jr. and Sonnia Santee Iliescu,
individually and as Trustees of the John Iliescu Jr. and
Sonnia Iliescu 1992 Family Trust Agreement (collectively
“plaintiffs” or “Iliescu”) opposed
the motion (ECF No. 17), and defendant replied (ECF No. 30).
In conjunction with defendant's motion, he filed a
request for judicial notice (ECF No. 8), to which plaintiffs
responded (ECF No. 16), and defendant replied (ECF No. 29).
Plaintiffs likewise filed a request for judicial notice (ECF
No. 21), to which defendant filed a non-opposition (ECF No.
28). Because the two-discovery rule does not bar plaintiffs
from bringing this action, the court denies defendant's
motion to dismiss.
facts pertaining to this motion stem from two legal actions
filed in the Second Judicial District Court of the State of
Nevada. Numerous documents were filed in both actions, and
one action progressed to and was decided by the Nevada
Supreme Court. Given the aforementioned, the court relies on
those publicly recorded court documents in compiling a full
procedural history leading up to the instant action,
well as the facts as alleged by plaintiffs in their
In July 2005, [plaintiffs] John Iliescu, Jr., individually,
and Sonnia Iliescu and John Iliescu, Jr., as trustees of the
John Iliescu, Jr., and Sonnia Iliescu 1992 Family Trust
Agreement (collectively, Iliescu) entered into a Land
Purchase Agreement to sell four unimproved parcels in
downtown Reno to Consolidated Pacific Development (CPD) for
development of a high-rise, mixed use project to be known as
Wingfield Towers. The original agreement was amended several
times and, as finally amended, entitled Iliescu to over $7
million, a condominium in the development, and several other
Iliescu v. Steppan, 394 P.3d 930, 932 (Nev. 2017).
In September 2005, plaintiffs retained the Hale, Lane, Peek,
Dennison and Howard law firm (“Hale Lane”) to
“review, fine tune, clarify, and in all respects,
advise the Iliescus” regarding the Purchase Agreement.
ECF No. 1 ¶ 25. Plaintiffs allege that one addendum to
the Purchase Agreement, prepared by Hale Lane, provided that
“CPD was to indemnify, defend, and hold harmless the
[plaintiffs] from any lien claims against the Property, or
costs and expenses incurred by the sellers, due to any work
Buyer caused to be performed.” Id. ¶ 27.
escrow, CPD assigned the Land Purchase Agreement to an
affiliate, BSC Investments, LLC (BSC). BSC negotiated with a
California architectural firm, Fisher Friedman Associates, to
design the Wingfield Towers. . . . Mark Steppan, a Fisher
Friedman employee who is an architect licensed in Nevada,
served as the architect of record for Fisher Friedman.”
Iliescu, 394 P.3d at 932. Plaintiffs allege that an
additional indemnity agreement was signed by defendant
Schleining on December 8, 2006, which provided that he,
jointly and severally with others listed, would
“indemnify, defend, protect and hold Iliescu harmless
against all damages, losses, expenses, costs, liabilities . .
.” and “pay all attorney's fees and costs
incurred to contest and discharge the Mechanic's
Lien.” ECF No. 1 ¶ 41. “Financing for the
Wingfield Towers project was never obtained, escrow never
closed, and no on site improvements were ever performed on
the property. When the escrow was canceled, Iliescu's
unimproved property was subject to Steppan's multimillion
dollar lien claim for the unpaid invoices submitted to
BSC.” Iliescu, 394 P.3d at 932.
February 2007, plaintiffs sought release from Steppan's
mechanic's lien in Nevada's Second Judicial District
Court, case number CV07-00341. ECF No. 1 ¶ 43. Steppan
then filed his own action before the state court to foreclose
on his mechanic's lien, case number CV07-01021.
Id. ¶ 45. These two cases, consolidated into
case number CV07-00341, are referred to as the “Steppan
Lien Litigation". Id. ¶ 45. When
plaintiffs filed their answer to Steppan's complaint,
Iliescu filed a third-party complaint against Schleining to
enforce the indemnity agreement, and for malpractice and
negligence against Hale Lane and individual lawyer
defendants. ECF No. 8-4. The Honorable District Court Judge
Brent Adams initially presided over the litigation and did
not require either Steppan or the Iliescus to file early case
conference reports, as was required of a plaintiff under
Nevada Rule of Civil Procedure (“NRCP”) 16.1 (pre
March 2019 Amendments). See ECF No. 18, Ex. L. In
2011, Judge Adams recused himself, and the case was
reassigned to the Honorable District Court Judge Steven
Elliott. ECF No. 18, Ex. F; ECF No. 18, Ex. L.
2011, Hale Lane filed a supplement to a motion for summary
judgment, arguing that because Iliescu had failed to file a
case conference report within 30 days of each case conference
in violation of NRCP 16.1(c), the claims against them should
be dismissed pursuant to NRCP 16.1(e). ECF No. 18, Ex. G.
Judge Elliott granted Hale Lane's motion in part because
Iliescu had failed to file their NRCP 16.1(c) reports. ECF
No. 18, Ex. H. Three days later, Iliescu filed their own
motion to dismiss Steppan's complaint, arguing that
Steppan had also failed to file the required case conference
reports pursuant to NRCP 16.1(c). ECF No. 18, Ex. I.
Similarly, Judge Elliott granted Iliescu's motion and
Steppan's claims against Iliescu were dismissed without
prejudice pursuant to NRCP 16.1(e)(2). ECF No. 18, Ex. J.
on the same alleged failure to file the required NRCP 16.1(c)
report, defendant Schleining filed his own motion to dismiss
Iliescu's claims against him. ECF No. 8-5. Plaintiffs
responded to Schleining's motion stating: “Iliescu
has no substantive legal defense to the position of Third
Party Defendant John Schleining and believes that in order to
be consistent with prior rulings regarding NRCP 16.1, the
Court should grant the Motion and dismiss Iliescus'
claims against John Schleining, all without prejudice.”
ECF No 8-6 at 4. Judge Elliott granted Schleining's
motion to dismiss finding that Iliescu admitted it had
“no substantive legal defense to the Motion, ”
and that “Iliescu consents to the granting of the
Motion and to the dismissal of Iliescu's claims against
Schleining without prejudice.” ECF No. 8-7 at 7.
motioned the court to reconsider its order dismissing his
claims against Iliescu and attached an affidavit from Judge
Adams in which he stated: “At all times, your
undersigned District Court Judge and the lawyers practicing
before me treated the case as one managed by the Court under
Rule 16. The Court did not expect any party to file an early
case conference report under Rule 16(e)(2).” ECF No.
18, Ex. K. Upon review, Judge Elliott granted Steppan's
motion for reconsideration and denied Illiescu's motion
to dismiss. ECF No. 18, Ex. L. While the parties did not
provide the court with the court filings, Judge Elliott's
order also granted a motion for reconsideration of Hale
Lane's motion for summary judgment, and denied the
underlying motion in its entirety. Id. Judge
Elliott's order makes no mention of Schleining's
motion to dismiss, and neither party provides any court
filing that the decision was reversed-Schleining remained
dismissed from the Steppan Lien Litigation following Judge
Elliott's November 22, 2011 order. After 5 more years of
litigation, in May 2017, the Nevada Supreme Court held that
Steppan failed to “provide Iliescu with the required
pre-lien notice, ” reversed “the district
court's order foreclosing Steppan's mechanic's
lien, ” and remanded “the matter to the district
court for it to enter judgment in favor of Iliescu.”
Iliescu, 394 P.3d at 936.
in July 2015, the plaintiffs filed another complaint in the
Second Judicial District Court against defendant Schleining,
Holland & Hart, L.P.,  and other individual lawyer defendants
(the “second state court action”). ECF No. 8-8.
On August 28, 2018, before Schleining filed his answer to the
complaint, plaintiffs filed a notice of voluntary dismissal
without prejudice, pursuant to NRCP 41(a)(1). ECF No. 8-18.
then filed the instant action in this court on December 26,
2018 against defendant Schleining, alleging claims for breach
of contract and specific performance based on the alleged
indemnity agreement. See ECF No. 1. Schleining filed
a motion to dismiss based on the “two dismissal rule,
” Federal Rule of Civil Procedure 41(a)(1)(B)
(“FRCP”), arguing that because Schleining was
dismissed from the Steppan Lien Litigation in 2011 and then
voluntarily dismissed by notice in August 2018 from the
second state court action, plaintiffs are barred from
litigating the same issue a third time before this court. ECF
No. 9. Plaintiffs argue that because Schleining was not
voluntarily dismissed from the Steppan Lien Litigation under
FRCP 41(a)(1), it does not count toward the two-dismissals
which would bar plaintiffs from bringing this action. ECF No.