Feagins et al v. Trump Organization et al

Filing 29

ORDER Granting 4 Motion for Demand for Security of Costs. FURTHER ORDERED that 16 Motion to Dismiss is DENIED without prejudice. FURTHER ORDERED that 5 Motion to Strike is DENIED without prejudice. FURTHER ORDERED that this case is STAYED pend ing Plaintiffs' compliance with the provisions of NRS 18.130, or upon further order of the Court. FURTHER ORDERED that Plaintiffs shall have until 4/2/12 to either file a motion requesting in forma pauperis status, or to submit a bond pursuant t o NRS 18.130 in the amount of $500.00 per defendant from each plaintiff. Failure to do so by Monday, April 2, 2012, shall constitute grounds for dismissal of the complaint. Signed by Judge Gloria M. Navarro on 3/19/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN FEAGINS, et al.,
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Plaintiffs,

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vs.

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THE TRUMP ORGANIZATION, et al.,
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Defendants.

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Case No.: 2:11-cv-01121-GMN-GWF
ORDER

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Before the Court is a Demand for Cost Bond (ECF No. 4) pursuant to Nevada Revised

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Statutes 18.130, filed by Defendant Trump Ruffin Tower I, LLC (“Trump Ruffin”), erroneously

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sued as The Trump Organization, Trump Ruffin Commercial LLC, and Trump International

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Hotel & Tower – Las Vegas Unit Owners Association1. Also before the Court, is a Motion to

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Strike Plaintiffs’ Prayer for Punitive or Exemplary Damages Pursuant to FRCP 12(f) (ECF No.

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5), filed by Defendant Trump Ruffin. As well as a Motion to Dismiss (ECF No. 16) filed by

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Defendant Otis Elevator Company.

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I.

BACKGROUND
Plaintiffs filed the instant personal injury complaint in the Eighth Judicial District Court,

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Clark County, Nevada, on May 9, 2011. (ECF No. 1.) Plaintiffs allege that they suffered when

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they were trapped inside an elevator at the Trump Hotel International Las Vegas that went into

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free fall for twenty stories. (Id.) This case was removed on July 7, 2011, but before removal

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Defendant Otis Elevator Company served Plaintiffs with a demand for security for costs pursuant

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to NRS 18.130. Upon removal, Defendant Trump Ruffin filed its demand (ECF No. 4).

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Plaintiffs do not concede that Defendant The Trump Organization was erroneously named in this action instead of
Trump Ruffin. (See Pls.’ Response to Motion to Strike, 2:2 n.1, ECF No. 11.) However, since Plaintiffs accept
Trump Ruffin’s appearance “as a voluntarily appearing Doe, or Unnamed, Defendant in order to dispose of the
motion[s] on the merits,” the Court will do so as well.

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II.

LEGAL STANDARD

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Under Nevada law, “[w]hen a plaintiff in an action resides out of the State, or is a foreign

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corporation, security for the costs and charges which may be awarded against such plaintiff may

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be required by the defendant.” NRS 18.130(1). “[W]hen so required, all proceedings in the

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action shall be stayed until such an undertaking . . . be filed with the clerk . . . .” Id. “After the

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lapse of 30 days from the service of notice that security is required . . . upon proof thereof, and

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that no undertaking as required has been filed, the court or judge may order the action to be

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dismissed.” NRS 18.130(4).

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It is the policy of the United States District Court for the District of Nevada to enforce the

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requirements of NRS 18.130 in diversity actions. Hamar v. Hyatt Corp., 98 F.R.D. 305, 305-306

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(D. Nev. 1983); Arrambide v. St. Mary’s Hosp., Inc., 647 F.Supp. 1148, 1149 (D. Nev. 1986).

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Each plaintiff is required to provide security in the amount of $500 per defendant,

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pursuant to NRS 18.130. Truck Ins. Exchange v. Tetzlaff, 683 F.Supp. 223, 227 (D. Nev. 1988).

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However, an indigent plaintiff need not provide security under NRS 18.130. Id. (citing

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Arrambide, 647 F.Supp. 1148 (D. Nev. 1986)). If a plaintiff “is in fact indigent, he must

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demonstrate this in detail by affidavit.” Arrambide, 647 F.Supp. at 1149.

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III.

DISCUSSION

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Here, Plaintiffs have not provided security as required by NRS 18.130. Plaintiffs’

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arguments that Defendants have waived or are estopped from enforcing the security requirement

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are unavailing, and they cite no case law that supports this argument where Defendants’ demands

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for security were timely filed. However, Plaintiffs have also alleged that they are indigent and

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are therefore not required to post a bond. The Court finds that Plaintiffs’ affidavits are not

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sufficiently detailed to establish their indigent status. Accordingly, by April 2, 2012, Plaintiffs

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are directed to either pay the required security or file a motion before this Court requesting leave

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to proceed in forma pauperis pursuant to Local Rule of Special Proceedings and Appeals 1-1.

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Pending resolution of this issue, the case will be stayed, other pending motions will be denied

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without prejudice, and the parties will be given leave to re-file the motions upon lifting of the

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stay.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion Demanding Security of Costs (ECF No. 4)

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is GRANTED. IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 16) is

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DENIED without prejudice.

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IT IS FURTHER ORDERED that the Motion to Strike (ECF No. 5) is DENIED
without prejudice.
IT IS FURTHER ORDERED that this case is STAYED pending Plaintiffs’ compliance
with the provisions of NRS 18.130, or upon further order of the Court.
IT IS FURTHER ORDERED that Plaintiffs shall have until April 2, 2012 to either file a

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motion requesting in forma pauperis status which is in compliance with Local Rule of Special

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Proceedings and Appeals 1-1, or to submit a bond pursuant to NRS 18.130 in the amount of

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$500.00 per defendant from each plaintiff. Failure to do so by Monday, April 2, 2012, shall

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constitute grounds for dismissal of the complaint.

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DATED this 19th day of March, 2012.

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_______________________________
Gloria M. Navarro
United States District Judge

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