Kenneth Nogle v. Beech Street Corp , 619 F. App'x 639 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KENNETH NOGLE, No. 13-15635
Plaintiff - Appellant, D.C. No. 2:10-cv-01092-KJD
v.
MEMORANDUM*
BEECH STREET CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, Senior District Judge, Presiding
Argued and Submitted August 12, 2015
San Francisco, California
Before: KOZINSKI and TALLMAN, Circuit Judges and RAYES,** District Judge.
The district court properly found no genuine issue of material fact
concerning whether plaintiff Kenneth Nogle’s complaint against defendant Beech
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
Street Corporation (“Beech Street”) was barred by the two-year statute of
limitations applicable to negligence actions in Nevada. See Nev. Power Co. v.
Monsanto Co., 955 F.2d 1304, 1306–07 (9th Cir. 1992); Nev. Rev. Stat. §
11.190(4)(e). Under Nevada’s discovery rule, the statute of limitations is tolled
until the injured party discovers or reasonably should have discovered facts giving
rise to his cause of action. Peterson v. Bruen, 792 P.2d 18, 20 (Nev. 1990).
The district court properly found that Nogle had sufficient information
available to him in March 2008 to investigate and identify Beech Street as a
potential defendant. Specifically, Nogle should have discovered Beech Street’s
role in assuring the quality of the endoscopy provider by pursuing leads from
information contained in at least three documents: 1) the pre-approval letter from
November 6, 2006, 2) the 2007 Summary Plan Description, and 3) the insurance
card. Accordingly, Nogle’s September 8, 2010 complaint against Beech Street was
untimely because it was filed more than two years after he reasonably should have
known that he had a cause of action against Beech Street.
AFFIRMED.
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