Thompson et al v. Lake et al

Filing 12

ORDER DENYING Ds' 9 Motion for Demand for Security for Costs. Signed by Judge Larry R. Hicks on 2/15/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RICHARD THOMPSON, a Nevada resident; )
KEVIN BATTERSHELL, a California
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resident,
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Plaintiffs,
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v.
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KEVIN LAKE, a Nevada resident; ERIC
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MARCONATO, a Nevada resident;
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ANTHONY MARCONATO, a Nevada
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resident; JAMES ADHUNKO, a Nevada
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resident; CHRIS ROWE, a Nevada resident; )
WESLEY KELLER, a Nevada resident; the )
CITY OF SPARKS, NEVADA,
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Defendants.
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3:11-cv-00644-LRH-WGC
ORDER

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Before the court is Defendants’ Demand for Security for Costs (#91) pursuant to NRS

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§ 18.130(1). Plaintiff Kevin Battershell filed an opposition (#10), to which Defendants replied

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(#11).

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This is civil rights action under 42 U.S.C. § 1983 and Nevada law. It arises out of an

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incident on September 8, 2009, on Highway 95 near Fernley, Nevada, in which Plaintiffs Richard

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Thompson and Kevin Battershell allegedly were nearly run off the road by two vehicles and, after

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Refers to the court’s docket entry number.

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they caught up to the vehicles at a stop light and attempted to make contact with one of the drivers,

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they discovered the vehicles were unmarked police vehicles occupied by six Sparks police officers

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dressed in plain clothes who pulled guns on them. Battershell was cited by a Lyon County Sheriff’s

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deputy for assault upon the driver, but the charges were later dropped. Thompson and Battershell

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then filed this action on September 2, 2011. In their First Amended Complaint (#5), filed on

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December 5, 2011, they allege causes of action for (1) violations of their constitutional rights under

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§ 1983, (2) assault, (3) battery, (4) false imprisonment, (5) malicious prosecution, (6) respondeat

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superior liability against the City of Sparks.

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On January 3, 2012, Defendants filed the instant demand for security for costs pursuant to

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NRS § 18.130(1), which provides in pertinent part: “When a plaintiff in an action resides out of the

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State, . . . security for costs and charges which may be awarded against such plaintiff [not to exceed

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$500] may be required by the defendant, by the filing and service on plaintiff of a written demand

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therefor within the time limited for answering the complaint. When so required, all proceedings in

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the action shall be stayed” until such security is given. Relying principally on Truck Ins. Exch. v.

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Tetzlaff, 683 F. Supp. 223, 227 (D. Nev. 1988), Defendants accordingly demand that Plaintiff

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Battershell, who is a resident of California, provide each of the seven named defendants with

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security for costs in the amount of $500 per defendant, totaling $3,500.

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“It has been the policy of the United States District Court for the District of Nevada to

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enforce the requirements of NRS § 18.130 in diversity actions.” Hamar v. Hyatt Corp., 98 F.R.D.

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305 (D. Nev. 1983); accord Simulnet E. Assocs. v. Ramada Hotel Operating Co., 37 F.3d 573, 574

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(9th Cir. 1994). However, “[w]hen suit is brought under a federal statute, state provisions requiring

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security for costs or expenses clearly are inapplicable.” Wright, Miller, Kane & Marcus, Federal

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Practice and Procedure § 2671 (3d ed.) (footnotes omitted). Instead, the court may apply its own

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rules or state practice to require security for costs as a discretionary matter, taking into account the

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policy of the underlying federal statute, the defendant’s ability to recover costs from an out-of-state

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plaintiff if the defendant prevails, the plaintiff’s solvency, and any other pertinent factors. Id.
This is not a diversity action. Instead, it arises under this court’s original jurisdiction over

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§ 1983 actions and supplemental jurisdiction over Plaintiffs’ pendent state law claims.

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Furthermore, this court has not adopted a rule or practice relating to security for costs in federal

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question actions. Whether to require security for costs therefore remains within the court’s sound

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discretion.

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Here, the court finds that it would be contrary to the strong public policies underlying the

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federal civil rights laws to automatically require security for costs under NRS § 18.130, even where

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as here the action includes pendent state law claims. Furthermore, Defendants have made no

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attempt to present grounds for requiring security for costs on the facts of this case. Instead, they

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merely argue that, as a matter of law, the court’s practice of applying NRS § 18.130 in diversity

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actions also governs federal question cases involving pendent state law claims. The court rejects

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this argument and, in the absence of any factual showing to justify requiring security for costs in

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this case, the court will deny Defendants’ demand.

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IT IS THEREFORE ORDERED that Defendants’ Demand for Security for Costs (#9) is
DENIED.

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IT IS SO ORDERED.

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DATED this 15th day of February, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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