Tocker v. Gainey

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Julian Tocker, 2:25-cv-01050-ART-MDC 4 Plaintiff(s), ORDER DENYING MOTION FOR 5 vs. SECURITY OF COSTS (ECF No. 7) 6 Officer Zachary Gainey, et al., 7 Defendant(s). 8 Pending before the Court is defendants’ Motion for Demand of Security of Costs (“Motion”) 9 (ECF No. 7). Defendants move for plaintiff to post a cost bond of $500 under Nev. Rev. Stat. 18.130(1), 10 which states: 11 When a plaintiff in an action resides out of the state, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required [12] by the defendant, by the filing and service on plaintiff of a written demand therefor within the time limited for answering the complaint. [13] Nev. Rev. Stat. 18.130(1). [14] While the Federal Rules of Civil Procedure do not address security for costs, “[i]t has been the [15] policy of this district to enforce the requirements of NRS § 18.130 in diversity actions.” Hamar v. Hyatt [16] Corp., 98 F.R.D. 305 (D. Nev. 1983) (emphasis added). “However, ‘[w]hen suit is brought under a [17] federal statute, state provisions requiring security for costs or expenses clearly are inapplicable.’” Wells [18] Fargo Bank, N.A. v. SFR Invs. Pool 1, LLC, 257 F.Supp. 3d 1110, 1111-12 (D. Nev. 2017) (citing 10 [19] Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2671 (3d ed.)). Although [20] defendants state that plaintiff is an out of state resident, they removed the action pursuant under 28 21 U.S.C. § 1331 (i.e., original jurisdiction). See ECF No. 1. A review of the Complaint shows that [22] plaintiff’s claims are primarily constitutional in nature. See ECF No. 1-1. “The court finds that it would [23] be contrary to public policy to automatically require security for costs under NRS 18.130 in cases [24] involving alleged violations of the U.S. Constitution.” Wells Fargo Bank, N.A., 257 F.Supp. 3d at 1112 . [25] 1 || Furthermore, defendants state that security of costs should also be required because plaintiff asserts a 2 || Monell claim against LVMPD, which is likely to fail. See ECF No. 7. However, plaintiff filed a non3 || opposition to defendants’ Motion to Dismiss stating, he “did not intend to plead a Monell claim against 4 || Defendant LVMPD.” ECF No. 10 at 1. Therefore, the Court does not find an adequate basis to require 5 || plaintiff to post a security of costs in a case based on federal-question jurisdiction. 6 ACCORDINGLY, 7 IT IS ORDERED that the Motion for Security of Costs (ECF No. 7) is denied without 8 || prejudice. 4 _ 9 DATED this 21" day of July 2025. | Aff i “ (fp . fA 10 IT IS SO ORDERED. ip My \ é “ nati Til United Stat¢s Magystrate Judge