First Commerce, LLC vs Sheck Gaming, Inc., et al

Filing 31

ORDER. IT IS HEREBY ORDERED that 20 Sheckells's motion for summary judgment is DENIED. IT IS FURTHER ORDERED THAT 28 the joint request for a settlement conference is GRANTED. This matter is referred to a magistrate judge to schedule a mandatory settlement conference at the earliest available date. Signed by Judge Jennifer A. Dorsey on 7/13/17. (Copies have been distributed pursuant to the NEF - ADR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

FIRST COMMERCE, LLC,

5

Plaintiff

6

v.

7

SHECK GAMING, INC. and NOEL C.
SHECKELLS,

8

2:16-cv-00573-JAD-GWF
Order Denying Defendant’s Motion for
Summary Judgment and Granting the
Parties’ Joint Request for a Settlement
Conference
[ECF Nos. 20, 28]

Defendants

9
10

First Commerce, LLC sues Sheck Gaming, Inc. for breach of contract and Noel Sheckells

11
12

for breach of guaranty arising from a 61-month restaurant-equipment lease for Sheck Gaming

13

that Sheckells personally guaranteed.1 Sheckells now moves for summary judgment, arguing that

14

the statute of limitations on both claims is four years and that it has run. Sheckells also argues

15

that he was relieved of any liability as a guarantor when the lease was amended.2 I deny

16

Sheckells’s motion for summary judgment because First Commerce’s claims are governed by a

17

six-year statute-of-limitations period, and it appears that the claims are timely; and the contract

18

unambiguously states that Sheckells’s personal liability survived the lease amendment. I also find

19

that this case is suitable for a settlement conference, so I grant the parties’ joint motion for a

20

settlement conference and refer this case to the magistrate judge to schedule one.

21
22
23
24
25
26
27
28

1

ECF No. 1.

2

ECF No. 20.

1

Background

2

Sheck Gaming entered into a 61-month restaurant-equipment lease with Triad Leasing &

3

Financial, Inc. in 2006.3 Noel Sheckells, the president of Sheck Gaming, signed the lease on

4

behalf of the company and personally guaranteed its obligations under the lease.4 The parties

5

amended the lease twice to alter the payment arrangements.5 Under the second amendment,

6

installment payments were due each month beginning July 3, 2009, and ending March 3, 2013.6

7

After the amendments, Triad Financing assigned the lease and guaranty to First

8

Commerce.7 When Sheck Gaming fell behind on its lease payments, First Commerce sent a

9

letter to Sheck Gaming on February 23, 2010, demanding that it pay the outstanding balance due

10

under the lease.8 By April 26, 2010, Sheck Gaming had brought the lease current through March

11

3, 2010, and paid part of the installment due for the month of April.9 When Sheck Gaming’s

12

restaurant went out of business, Sheckells began making only small payments to First Commerce

13

in amounts ranging from $100 to $300 until March 12, 2012.10 First Commerce filed suit on

14

March 15, 2016, alleging two claims: breach of contract against Sheck Gaming and breach of

15

guaranty against Sheckells.11

16
17
18
3

ECF No. 20-2.

20

4

Id.

21

5

Id. at 10–12.

22

6

ECF No. 20-2 at 12.

7

ECF No. 21-4 at 2.

8

ECF No. 21-5 at 2.

9

ECF No.21 at 3.

19

23
24
25
26
27

10

ECF No. 20-3 at 6–14.

28

11

ECF No. 1.
2

1
2

Discussion
A.

3

Summary-judgment standard
Summary judgment is appropriate when the pleadings and admissible evidence “show

4

there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

5

matter of law.”12 When considering summary judgment, the court views all facts and draws all

6

inferences in the light most favorable to the nonmoving party.13 If reasonable minds could differ

7

on material facts, summary judgment is inappropriate because summary judgment’s purpose is to

8

avoid unnecessary trials when the facts are undisputed, and the case must then proceed to the

9

trier of fact.14

10

If the moving party satisfies Rule 56 by demonstrating the absence of any genuine issue

11

of material fact, the burden shifts to the party resisting summary judgment to “set forth specific

12

facts showing that there is a genuine issue for trial.”15 The nonmoving party “must do more than

13

simply show that there is some metaphysical doubt as to the material facts”; he “must produce

14

specific evidence, through affidavits or admissible discovery material, to show that” there is a

15

sufficient evidentiary basis on which a reasonable fact finder could find in his favor.16

16

B.

17

Sheckells’s failure to plead the statute-of-limitations defense in his answer does not
preclude him from arguing the defense because First Commerce has not shown
prejudice from the omission.

18

Affirmative defenses, like the assertion that a claim is barred by the statute of limitations,

19

must be raised in a defendant’s initial pleading.17 When a defendant fails to plead an affirmative

20
21

12

See Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citing FED. R. CIV. P. 56(c)).

22

13

Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

23

14

24

Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995); see also Nw. Motorcycle Ass’n
v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994).

25

15

26

16

27
28

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Celotex, 477 U.S. at 323.

Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted); Bhan v.
NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991); Anderson, 477 U.S. at 248–49.
17

FED. R. CIV. P. 8(c).
3

1

defense in his answer, cannot raise it as a ground for summary judgment if doing so would

2

prejudice the plaintiff.18 First Commerce does not claim any prejudice here, so I will consider the

3

merits of Sheckells’s statute-of-limitations argument.19

4

C.

5

First Commerce’s claims fall within the applicable six-year limitations period.
Sheckells argues that NRS 11.190(2)(a)’s four-year limitations period applies and bars

6

First Commerce’s claims. First Commerce contends that it is NRS 11.190(1)(b)’s six-year

7

limitations period that applies, making both of its claims timely.20

8

1.

9

NRS 11.190(2)(a) governs an “action on an open account for goods, wares and

First Commerce’s claims are subject to a six-year limitations period.

10

merchandise sold and delivered.”21 NRS 11.190(1)(b), on the other hand, applies when an action

11

is based upon a “contract, obligation, or liability founded upon an instrument in writing.”22 NRS

12

11.190(1)(b)’s six-year limit applies to First Commerce’s claims because First Commerce sues

13

on a written contract for the lease of restaurant equipment.23 Sheckells argues that this is not a

14

written-contract case because his personal guarantee did not survive the lease amendments,24 but

15
16

18

Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984).

17

19

Id.

18

20

19
20
21
22
23

Even though the contract calls for Oregon law to apply, ECF No. 20-2 at 3, ¶ 18, both parties
argue for Nevada law. Like Nevada, Oregon has a six-year limitations period and treats
installment-contract breaches the same (i.e., each failure to pay is a new breach and the statute of
limitations runs from each new breach). See, e.g., Fed. Recovery of Washington, Inc. v.
Wingfield, 986 P.2d 67, 71 (Or. 1999) (finding that, for installment contracts, a six-year statute of
limitations applies and begins to run from the date each payment is missed); Clayton v. Gardner,
813 P.2d 997, 999 (Nev. 1991) (holding that the statute of limitations “begins to run only with
respect to each installment when due”). So the result here is the same whether I apply Nevada or
Oregon law.

24
21

NEV. REV. STAT. ANN. § 11.190(2)(a).

22

NEV. REV. STAT. ANN. § 11.190(1)(b).

27

23

ECF No. 20-2 at 2.

28

24

ECF No. 22 at 3.

25
26

4

1

his defense does not alter the fact that First Commerce’s claims are founded on a written

2

instrument, triggering the six-year period of NRS 11.190(1)(b).

3

2.

4

NRS 11.200 provides that the limitations period begins to run from the date of “the last

5

transaction or the last item charged or last credit given; and whenever any payment on principal

6

or interest has been or shall be made upon an existing contract . . . the limitation shall commence

7

from the time the last payment was made.”25 When a contract requires installment payments, the

8

statute begins to run when each installment is due, unless the lender has and exercises its ability

9

under an acceleration clause to render all payments due at once.26

10

First Commerce’s claims are timely.

Sheckells argues that the limitations period on First Commerce’s claims began to run on

11

February 23, 2010, because that is the date that he received a demand letter from First Commerce

12

telling him the lease was in default.27 Sheckells appears to interpret this letter as having the

13

effect of causing the whole obligation to mature at once. But the letter explicitly requires

14

payment only of all “past due amounts” (as Sheckells himself admits28) without any reference to

15

the remaining balance on the lease. So this letter cannot be reasonably interpreted as accelerating

16

the payment obligations.29 And neither the lease agreement nor any amendment to it contains an

17

automatic acceleration clause.30 Because the payment obligations were not accelerated, each

18
19

25

20

26

21
22
23

NEV. REV. STAT. ANN. § 11.200.

Clayton, 813 P.2d 999; Blacks Law Dictionary (10th ed. 2014) (defining acceleration clause as
“a loan-agreement provision that requires the debtor to pay off the balance sooner than the due
date if some specified event occurs, such as failure to pay an installment or to maintain
insurance”).
ECF No. 20.

28

Id. at 5.

29

24

27

ECF No. 20-3 at 2.

25
26
27
28

30

The only clause that comes close is paragraph 17(b), but it merely provides the lessor with the
option to sue in the event of default and seek all past due and future obligations. See ECF No.
20-2 at 3, ¶17(b).
5

1

failure to timely pay constitutes a separate breach, and the limitations period begins to run from

2

each breach.31

3

Under the terms of the second amendment, installment payments were due each month

4

beginning July 3, 2009, and ending March 3, 2013.32 Because First Commerce filed its

5

complaint on March 15, 2016, its claims can reach back—absent tolling—to breaches that

6

occurred on or after March 15, 2010. Although Sheck Gaming initially defaulted on the lease

7

prior to March 15, 2010, Sheck Gaming made five payments between February 25, 2010, and

8

April 26, 2010, bringing the lease obligations current through March, 2010.33 First Commerce’s

9

claims thus fall within the applicable limitations period.34 I therefore deny Sheckells’s motion

10

for summary judgment on statute-of-limitations grounds.35

11
12

D.

Sheckells’s failure-to-mitigate-damages argument was improperly raised and will
not be considered.

13

Sheckells argues for the first time in his reply brief that First Commerce’s failure to

14

repossess or accept surrender of the leased equipment amounts to a failure to mitigate damages

15

for which summary judgment should be granted.36 Because this argument was not raised in

16

Sheckells’s motion for summary judgment, and the delay in raising this argument deprived First

17
18

31

Clayton, 813 P.2d at 999.

32

ECF No. 20-2.

33

ECF No. 21 at 3.

22

34

ECF No. 21 at 3.

23

35

19
20
21

24
25
26
27
28

In his reply brief, Sheckells asks for leave to amend his answer to expressly include the statuteof-limitations defense. Because I am overlooking this omission for purposes of this motion, I
deny the request as moot. It is also fatally late. Sheckells makes this request well after the
deadline to amend expired (see scheduling order at ECF No. 11) and fails to demonstrate any
excusable neglect. Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) (holding
excusable neglect is a determination that will only be granted if the failure to timely file a motion
is attributed to negligence and would be an equitable decision for the case).
36

ECF No. 22 at 5–6.
6

1

Commerce of a fair opportunity to respond to it, I do not consider it.37

2

E.

Sheckells remains obligated under his guaranty.

3

Sheckells argues that, because he was not specifically named in his individual capacity in

4

the amendments to the lease, he no longer bears responsibility as a personal guarantor.38 He then

5

argues that First Commerce is the wrong party to bring this case.39 First Commerce agrees that

6

Sheckells is not a party to the amendments or the lease terms themselves, but argues that this

7

does not matter because it is not suing him for breach of the lease terms.40 Instead, First

8

Commerce sues Sheckells in his capacity as the personal guarantor of Sheck Gaming’s

9

obligations under the lease. The lease and the guaranty are two separate contracts under Nevada

10

law.41 The fact that Sheckells is not named as a party to the lease is therefore irrelevant.42

11

First Commerce also argues that the plain language of the guaranty keeps Sheckells on

12

the hook despite any amendment to the lease agreement itself.43 Under Nevada law, contract

13

interpretation is a question of law.44 And whether a contract is ambiguous is also a question of

14
15
16
17

37

State of Nev. v. Watkins, 914 F.2d 1545, 1559–60 (9th Cir. 1990) (disregarding issues raised
for the first time in a reply brief).

18
38

19

ECF No. 20 at 6–7.

39

20
21
22
23
24
25

ECF No. 22 at 5. Sheckells claims that because First Commerce failed to provide the original
assignment documents that demonstrate Triad Financing gave it the lease, First Commerce has
failed to establish itself as the proper plaintiff. Sheckells failed to raise this argument in his
original summary-judgment motion, so I do not consider it. State of Nev., 914 F.2d 1159–60.
40

ECF No. 21 at 9.

41

Bank of Nevada v. Friedman, 420 P.2d 1, 5 (Nev. 1966) (holding that “a contract of guaranty is
a separate contract, and is to be separately considered”).
42

Id.

27

43

ECF No. 21 at 10.

28

44

Galardi v. Naples Polaris, LLC, 301 P.3d 364, 366 (Nev. 2013).

26

7

1

law.45 A contract is ambiguous when its meaning is obscure or its terms could have multiple

2

meanings.46

3

The language in the personal guaranty clause unambiguously provides that “[e]xtensions,

4

renewals, or modifications of the lease shall be binding upon the Guarantor.”47 When the lease

5

was amended, it was not an entirely new contract as Sheckells presumes, but merely a

6

“modification”48 to the already existing one. Based on the express language stating that

7

Sheckells will remain personally liable through any modification to the lease, I find that no

8

further guaranty clause was necessary, and Sheckells remains responsible as the guarantor.

9

F.

Settlement conference
Finally, the parties jointly move for a settlement conference.49 The local rules of this

10
11

district authorize me to “set any appropriate civil case for settlement conference . . . .”50 I find

12

that this case is suitable for a settlement conference.

13

Conclusion

14
15

Accordingly, IT IS HEREBY ORDERED that Sheckells’s motion for summary judgment
[ECF No. 20] is DENIED;

16

IT IS FURTHER ORDERED THAT the joint request for a settlement conference [ECF

17

No. 28] is GRANTED. This matter is referred to a magistrate judge to schedule a mandatory

18

settlement conference at the earliest available date.

19

DATED: July 13, 2017.

20

_______________________________
__________________
_
_ _ _ _
U.S. District Judge Jennifer A Dorsey
trict Judge Jennifer A.
c ud
nn e

21
22

45

Id.

46

Id.

47

ECF No. 20-2 at 2.

23
24
25
26
27

48

A modification is “an alteration to something; a change or amendment.” Black’s Law
Dictionary (10th ed. 2014).

49

ECF No. 28.

50

L.R. 16-5.

28

8