Tocker v. Gainey

Opinion

Julian Tocker, 2:25-cv-01050-ART-MDC Plaintiff(s), ORDER DENYING MOTION FOR vs. SECURITY OF COSTS (ECF No. 7) Officer Zachary Gainey, et al., Defendant(s). Pending before the Court is defendants’ Motion for Demand of Security of Costs (“Motion”) (ECF No. 7). Defendants move for plaintiff to post a cost bond of $500 under Nev. Rev. Stat. 18.130(1), which states:

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 by the defendant, by the filing and service on plaintiff of a written demand therefor within the time limited for answering the complaint. Nev. Rev. Stat. 18.130(1). While the Federal Rules of Civil Procedure do not address security for costs, “[i]t has been the policy of this district to enforce the requirements of NRS § 18.130 in diversity actions.” Hamar v. Hyatt Corp., 98 F.R.D. 305 (D. Nev. 1983) (emphasis added). “However, ‘[w]hen suit is brought under a federal statute, state provisions requiring security for costs or expenses clearly are inapplicable.’” Wells Fargo Bank, N.A. v. SFR Invs. Pool 1, LLC, 257 F.Supp. 3d 1110, 1111-12 (D. Nev. 2017) (citing 10 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2671 (3d ed.)). Although defendants state that plaintiff is an out of state resident, they removed the action pursuant under 28 U.S.C. § 1331 (i.e., original jurisdiction). See ECF No. 1. A review of the Complaint shows that plaintiff’s claims are primarily constitutional in nature. See ECF No. 1-1. “The court finds that it would be contrary to public policy to automatically require security for costs under NRS 18.130 in cases involving alleged violations of the U.S. Constitution.” Wells Fargo Bank, N.A., 257 F.Supp. 3d at 1112. Furthermore, defendants state that security of costs should also be required because plaintiff asserts a Monell claim against LVMPD, which is likely to fail. See ECF No. 7. However, plaintiff filed a non- opposition to defendants’ Motion to Dismiss stating, he “did not intend to plead a Monell claim against Defendant LVMPD.” ECF No. 10 at 1. Therefore, the Court does not find an adequate basis to require plaintiff to post a security of costs in a case based on federal-question jurisdiction. IT IS ORDERED that the Motion for Security of Costs (ECF No. 7) is denied without prejudice. 4 _ DATED this 21" day of July 2025. | Aff i “ (fp . fA IT IS SO ORDERED. ip My \ é “ nati Til United Stat¢s Magystrate Judge