Moon v. Wynn Las Vegas, LLC

Filing 20

ORDER Denying 11 Defendants' Motion to Dismiss. IT IS FURTHER ORDERED that 14 Plaintiffs' Cross Motion to Waive Cost Bond is Granted. Signed by Judge Miranda M. Du on 1/24/13. (Copies have been distributed pursuant to the NEF - EDS)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9

***

10

TRACEY MOON,

Case No. 2:12-cv-00745-MMD-VCF
Plaintiff,

11

ORDER
v.

12
13

WYNN LAS VEGAS, LLC, et al.,

(Defs’ Motion to Dismiss – dkt. no. 11;
Plf.’s Cross Motion to Waive Cost Bond
– dkt. no. 14)

Defendants.

14
15
16

I.

SUMMARY

17

Before the Court is Defendants’ Wynn Las Vegas, LLC, Wynn Las Vegas Capital

18

Corp. and Wynn Resorts Limited’s Motion to Dismiss for Failure to File Non-Resident

19

Cost Bond. (Dkt. no. 11.) Also before the Court is Plaintiff Tracey Moon’s Cross-Motion

20

to Waive Cost Bond. (Dkt. no. 14.)

21

motion is denied and Plaintiff’s motion is granted.

22

II.

For the reasons discussed below, Defendants’

DISCUSSION

23

NRS 18.130 provides that a non-resident plaintiff may be required to post a cost

24

bond of $500 upon written demand by the defendant. After the lapse of thirty (30) days

25

from service of the written demand and if plaintiff fails to post the cost bond, the Court

26

may order dismissal of the action. NRS § 18.130(4). The decision to require a cost bond

27

or to dismiss for failure to post the bond is within the Court’s discretion. Brion v. Union

28

Plaza Corp., 763 P.2d 64 (Nev. 1988).

1

Here, three Defendants collectively demanded posting of the cost bond in the

2

amount of $1500.00 ($500.00 per defendant). (Dkt. no 4.) Plaintiff did not post the cost

3

bond or seek judicial relief before the lapse of thirty (30) days. Defendants moved to

4

dismiss the Complaint. (Dkt. no. 11.) Plaintiff opposed the motion and filed a cross-

5

motion to waive the bond claiming via declaration that she is financially unable to post

6

the bond. (Dkt. no. 14.) Plaintiff subsequently posted a cash bond in the amount of

7

$500.00 with the Clerk of the Court. (Dkt. no. 16.) Because Plaintiff has posted part of

8

the cost bond, the Court will construe Plaintiff’s motion as a request to waive the

9

remaining bond amount.

10

Defendants argue that plaintiff is required to post the bond and the failure to post

11

the bond requires dismissal. (Dkt. no. 13 at 1-2.) This statement of law is patently

12

incorrect. The word “may” in the statute clearly indicates that it is within this Court’s

13

discretion whether to require the bond or dismiss the case.

14

Defendants rely on Arrambide v. St. Mary’s Hosp., Inc., 647 F.Supp. 1148, 1149

15

(D. Nev. 1986) to argue that the Court must make a finding that plaintiff is indigent to

16

waive the bond and Plaintiff should have submitted a sworn affidavit, not a declaration,

17

to establish indigent status. However, Arrambide is distinguishable because plaintiff in

18

that case was seeking to proceed in forma pauperis. Here, Plaintiff only seeks waiver of

19

the cost bond.

20

statements under penalty of perjury, she did attest to the truth of her statements in the

21

declaration.

While the declaration does not state that Plaintiff was making the

22

The Court finds that Plaintiff has demonstrated good cause for part of the bond to

23

be waived. Plaintiff has posted one-third of the cost bond. She has demonstrated that

24

requiring the full bond would pose a financial hardship. Under these circumstances, the

25

Court finds that dismissal is not proper.

26

III.

27
28

CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (dkt. no. 11) is

DENIED.
2

1
2
3

IT IS FURTHER ORDERED that Plaintiff’s Cross Motion (dkt. no. 14) is
GRANTED.
DATED THIS 24th day of January 2013.

4
5
6

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3