United States District Court, D. Nevada
THOMAS W. MCNAMARA, as Court-Appointed Monitor, Plaintiff,
INTERCEPT CORPORATION, et al., Defendants.
M. Navarro, District Judge
before the Court is the Motion to Dismiss, (ECF No. 17),
filed by Defendants Craig Dresser, Intercept Corporation,
Connie Mosier, and Bryan Smith (collectively,
“Defendants”). Plaintiff Thomas W. McNamara, as
Court-Appointed Monitor in Case No. 2:12-cv-00536-GMN-VCF
(“Plaintiff”), filed a Response, (ECF No. 20),
and Defendants filed a Reply, (ECF No. 24). For the reasons
discussed below, the Court orders Plaintiff to file
supplemental briefing addressing whether his claims are
time-barred by Nevada's applicable statutes of
their Motion to Dismiss, Defendants initially argue that
Kansas's statutes of limitations apply two-year
limitations windows to each of Plaintiff's claims. (Mot.
Dismiss (“MTD”), 11:14-15, ECF No. 17). Choice of
law principals command that district courts in Nevada
generally apply the statute of limitations of the forum.
See Asian Am. Entm't Corp v. Las Vegas Sands,
Inc., 324 Fed.Appx. 567, 568 (9th Cir. 2009) (affirming
that Nevada courts sitting in diversity apply Nevada's
statute of limitations to claims accruing out of the state);
Lien Huynh v. Chase Manhattan Bank, 465 F.3d 992,
997 (9th Cir. 2006) (finding that federal common law dictates
that the law of the forum governs statute of limitations
issues in federal question cases); see also
Restatement (Second) of Conflict of Laws § 142
(“In general, unless the exceptional circumstances of
the case make such a result unreasonable: (1) The forum will
apply its own statute of limitations barring the
claim.”). However, Nevada has a “borrowing
statute, ” which applies the statute of limitations of
the state where the claims accrued if the action could not be
maintained in that state “by reason of lapse of
time.” Nev. Rev. Stat. 11.020. Alleging that
Kansas's two-year statutes of limitations would bar
Plaintiff's claims, Defendants' Motion asserts that
“Kansas law applies.” (MTD 12:3-4).
their contention that the Kansas law governs the applicable
limitations periods, Defendants argue, relying on Nevada law,
that Plaintiff's claims are untimely. Defendants cite a
recent case decided by Judge Dorsey, which held that a
court-appointed receiver's fraudulent-transfer claims
were time-barred because the claims began to accrue when the
acts giving rise to the claims occurred, and the claims were
not otherwise tolled until the appointment of the receiver.
(Id. 13:20-15:2) (citing McNamara v. Voltage Pay
Inc. (“Voltage Pay”), No.
2:15-cv-02177-JAD-GWF, 2017 U.S. Dist. LEXIS 137558 at *8 (D.
Nev. Aug. 28, 2017)). Accordingly, they argue that
Plaintiff's claims are time barred because they began to
accrue in 2012. (MTD 13:20-15:22).
Response, Plaintiff presumes that Kansas law applies, but
argues that the adverse domination doctrine tolled the
statutes of limitations under Kansas law until his
appointment. (Resp. 20:17-23:11, ECF No. 20). He argues that
Voltage Pay is not controlling because it applied a
Nevada statute of limitations, which does not provide
equitable defenses available under Kansas law. (Id.
reply, Defendants modify their position regarding the
applicable law. They argue that if the adverse domination
doctrine were to apply in this case under Kansas law, then
Nevada's statutes of limitations would apply. (Reply
7:2-8:4). The Court agrees. Nevada's borrowing statute
only applies another state's statute of limitations if
“by the laws thereof an action thereon cannot there be
maintained against a person by reason of lapse of time . . .
.” Nev. Rev. Stat. 11.020. If, under Kansas law, the
adverse domination doctrine tolled the statutes of
limitations, then the action could be maintained under Kansas
law. Therefore, because Plaintiff would not be precluded from
raising its claims under Kansas law “by reason of lapse
of time, ” Nevada's borrowing statute would not
apply, and its own statutes of limitations would control.
does not recognize the adverse domination doctrine. See
USACM Liquidating Tr. v. Deloitte & Touche, 754 F.3d
645, 649 (9th Cir. 2014). Additionally, Plaintiffs only
argument distinguishing Voltage Pay, the one case
either party cites discussing the operation of a statute of
limitations in the context of a monitor or receivership,
would likewise be of no avail.
claims are barred by the Nevada statutes of limitations, then
the Court should dismiss the Complaint. See Eriksen v.
Wash. State Patrol, 308 Fed.Appx. 199, 200 (9th Cir.
2009) (affirming dismissal with prejudice of state law claims
that the district court correctly concluded were time
barred). However, Plaintiff has not briefed a response to
Defendants' arguments predicated upon the application of
IT IS HEREBY ORDERED that Plaintiff shall
file a supplemental brief, not to exceed ten (10) pages,
addressing whether its claims are time-barred under Nevada
law within fourteen (14) days from entry of this Order.
IS FURTHER ORDERED that Defendants may file a
response, not to exceed ten (10) pages, within seven (7) days