Vignola et al v. Gilman et al

Filing 120

ORDER Granting 112 Motion to Strike Offer of Judgment. Signed by Magistrate Judge George Foley, Jr on 7/17/2012. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

5
6
LOUIS VIGNOLA, et al.,
7
8
9
10
11
12

)
)
Plaintiffs,
)
)
vs.
)
)
CHARLES ALFRED GILMAN, JR., et al.,
)
)
Defendants. )
__________________________________________)

Case No. 2:10-cv-02099-PMP-GWF
ORDER
Motion to Strike Plaintiffs’
Offer of Judgment (#112)

This matter comes before the Court on Defendant Auto-Owner Insurance Company’s

13

Motion to Strike Plaintiffs’ Officer of Judgment (#112), filed on June 20, 2012; Plaintiffs’

14

Response to Defendant’s Motion to Strike (#116), filed on July 6, 2012 and Auto-Owners’ Reply

15

(#119), filed on July 16, 2012.

16

Defendant request the Court strike Plaintiffs’ offer of judgment as improper. Specifically,

17

Defendant argues that Fed. R. Civ. P. 68 applies to this case and only provides that “a party

18

defending against a claim may serve on an opposing party an offer to allow judgment on specified

19

terms. . . .” Defendant argues that because Plaintiffs are not defending any claims in this matter,

20

Plaintiffs’ offer of judgment is improper under Rule 68. In response, Plaintiffs argue they properly

21

served their offer of judgment under NRS 17.115, which is applicable to this action under Erie as

22

the substantive law of the state. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

23

In diversity cases, the court applies federal law if the law is procedural and state law if the

24

law is substantive. Walsh v. Kelly, 203 F.R.D. 597, 598 (D. Nev. 2001) (citing Erie R.R. Co. v.

25

Tompkins, 304 U.S. 64 (1938)). Generally, when determining whether a specific provision of law

26

is substantive or procedural under Erie, the Court would conduct an outcome determinative

27

analysis. See Guaranty Trust Co. v. York, 326 U.S. 99 (1945). However, that analysis is not

28

necessary in this case. On April 13, 2012, the Court entered an Order (#90), finding that “the Court

1

will apply Colorado law to Plaintiffs’ bad faith, unfair claims practices, and contractual claims

2

against Auto-Owners.” Plaintiffs served their offer of judgment, dated June 19, 2012, pursuant to

3

Nevada Revised Statute (“NRS”) 17.115. See Defendant’s Motion (#112), Exhibit A. Even if the

4

Court were to determine that offers of judgment should be governed by the state law, Colorado

5

state law would apply, not Nevada state law. The Court therefore finds that Plaintiffs’ offer of

6

judgment under Nevada state law is improper and should be stricken. Accordingly,

7
8
9

IT IS HEREBY ORDERED that Defendant Auto-Owner Insurance Company’s Motion to
Strike Plaintiffs’ Officer of Judgment (#112) is granted.
DATED this17th day of July, 2012.

10
11
12

______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2