Tocker v. Gainey

• Court: District Court, D. Nevada
• Decided: July 21, 2025
• Docket: 2:25-cv-01050
• Status: Unknown

Opinion

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 non- 3 || 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 13 14 15 16 17 18 19 20 21 22 23 24 25