Kohlrautz v. Oilmen Particiaption Corp.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACY O’REILLY KOHLRAUTZ, 
Plaintiff,
OILMEN PARTICIPATION
CORPORATION,
Counter-claimant,
v.
OILMEN PARTICIPATION
CORPORATION,
No. 03-16340
Defendant,
D.C. No.
TRACY O’REILLY KOHLRAUTZ,
Counter-defendant,  CV-00-00042-
RLH/PAL
v.
OPINION
OILMEN PARTICIPATION
CORPORATION,
Third-party-plaintiff-
Appellee,
v.
CHRISTOPHER J. WEBER, Receiver,
Third-party-defendant-
Appellant.

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted
February 16, 2005—San Francisco, California
Submission withdrawn February 18, 2005
Resubmitted March 20, 2006
3269
3270 KOHLRAUTZ v. OILMEN PARTICIPATION CORP.
Filed March 27, 2006
Before: Dorothy W. Nelson, William A. Fletcher, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge William A. Fletcher
KOHLRAUTZ v. OILMEN PARTICIPATION CORP. 3273
COUNSEL
Terence L. Thompson, Office of the Attorney General, Aus-
tin, Texas, for the defendant-appellant.
Lawrence A. Kasten, Phoenix, Arizona; Von S. Heinz, Lewis
& Roca, Las Vegas, Nevada; Mara E. Fortin, Morris Polich
& Purdy, Las Vegas, Nevada, for the plaintiff-appellee.
3274 KOHLRAUTZ v. OILMEN PARTICIPATION CORP.
OPINION
W. FLETCHER, Circuit Judge:
Christopher Weber was appointed by a Texas state court as
a receiver for the marital estate of Tracy O’Reilly Kohlrautz
and Franz-Wilhelm Kohlrautz. Weber thereafter participated
in a Nevada state court suit brought by Ms. Kohlrautz against
Oilmen Participation Corporation (“Oilmen”). Oilmen
removed the suit to federal district court, and then filed what
it called a “third-party complaint” against Weber alleging
abuse of process. Weber moved for summary judgment based
on official immunity as a court-appointed receiver. The dis-
trict court denied Weber’s motion, and Weber now appeals.
We first hold that state rather than federal official immunity
law applies to this case. Then, based on Nevada choice-of-law
rules, we hold that Nevada rather than Texas law applies.
Applying Nevada’s law of official immunity for court-
appointed receivers, we affirm the district court’s denial of
summary judgment.
I. Background
The Kohlrautzes were married in Luxembourg in 1981.
Four years later, they moved to Freeport, Grand Bahamas. On
September 17, 1997, Ms. Kohlrautz flew to Texas. Two days
after arriving in Texas, Ms. Kohlrautz filed for divorce in that
state. The Bexar County district court held that Mr. and Ms.
Kohlrautz were domiciled in Texas for purposes of divorce
proceedings in that state. It entered a divorce decree on
December 1, 1997.
On November 14, 1997, the Texas court appointed a
receiver “to manage, control, and preserve the property” of
the marital estate. Ten months later, the court replaced the
original receiver with Weber, the appellant in this case. Deter-
mining what assets belong to the marital estate has been a
KOHLRAUTZ v. OILMEN PARTICIPATION CORP. 3275
hotly contested matter involving extensive litigation in many
jurisdictions.
On December 20, 1999, Ms. Kohlrautz filed suit against
Oilmen in state court in Nevada. Her complaint alleges that
two pieces of Nevada property owned by Oilmen are assets of
the marital estate. Oilmen removed the suit to federal district
court based on diversity of citizenship. See 28 U.S.C. § 1332.
After removal, Oilmen filed a counterclaim against Kohlrautz,
as well as what it called a “third-party claim” against Weber.
Oilmen’s central contention against Weber was that he
engaged in tortious abuse of process in assisting Ms. Kohl-
rautz in bringing the Nevada suit against Oilmen.
Weber moved for summary judgment in the federal district
court based on a defense of official immunity as a court-
appointed receiver. Apparently applying federal law, the dis-
trict court concluded that Weber was protected by absolute
immunity for acts within the scope of his authority as
receiver. However, the court held that there were triable ques-
tions of fact as to whether he committed acts outside his
authority. It accordingly denied Weber’s motion. Weber has
timely appealed.
We have asked for and received supplemental briefing on
the issue of what law is applicable to this case. We hold that
Nevada’s law of official immunity for court-appointed receiv-
ers applies. Based on that law, we affirm the result reached by
the district court.
II. Interlocutory Review and Standard of Review
[1] We do not ordinarily have jurisdiction to review a
denial of a motion for summary judgment because such a
denial is not a final judgment. However, we do have jurisdic-
tion over interlocutory appeals in suits brought under 42
U.S.C. § 1983, or brought as so-called “Bivens” actions, if the
denial of summary judgment is based on a rejection of a
3276 KOHLRAUTZ v. OILMEN PARTICIPATION CORP.
defense of official immunity from suit. See, e.g., Schwenk v.
Hartford, 204 F.3d 1187, 1195 (9th Cir. 2000) (suit brought
under § 1983); Lee v. Gregory, 363 F.3d 931, 932 (9th Cir.
2004) (suit brought directly under the Fourth Amendment
pursuant to Bivens v. Six Unknown Named Agents of Federal
Narcotics Bureau, 403 U.S. 388 (1971)). Although neither the
Supreme Court nor this circuit has had occasion to uphold
interlocutory appeals in suits where official immunity is
asserted as a defense to a state-law cause of action, we believe
that the principle allowing interlocutory review in official
immunity cases applies more broadly than merely to actions
under federal law. See, e.g., Will v. Hallock, 126 S. Ct. 952,
958 (2006) (stating without qualification that “orders rejecting
absolute immunity . . . and qualified immunity” are “immedi-
ately appealable”). We therefore hold that we have jurisdic-
tion over this appeal.
Our review is limited to issues of law and “does not extend
to claims in which the determination of [official] immunity
depends on disputed issues of material fact.” Bingham v. City
of Manhattan Beach, 341 F.3d 939, 942 (9th Cir. 2003) (cita-
tion and internal quotation marks omitted). To the degree the
facts are in dispute, we assume the facts for which Oilmen has
provided evidentiary support are correct in determining
whether the district court should have denied Weber’s motion
for summary judgment. See id.
III. Discussion
A. State Rather than Federal Official Immunity Law
We must first decide whether federal or state official
immunity law applies to this case. There are two possible
lines of analysis, both leading to the same conclusion.
[2] The first is an Erie analysis under Hanna v. Plumer,
380 U.S. 460 (1965). A federal court follows federal proce-
dural law and, where it applies, state substantive law. See
KOHLRAUTZ v. OILMEN PARTICIPATION CORP. 3277
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427
(1996) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).
A defense based on official immunity could conceivably
come within the category described in Hanna as “falling
within the uncertain area between substance and procedure
[and] rationally capable of classification as either.” 380 U.S.
at 472. If there is an applicable federal rule of civil procedure,
and if that rule is valid under the Rules Enabling Act, 28
U.S.C. § 2072, that rule should be applied. Id. at 473-74.
[3] In the case now before us, however, there is no applica-
ble federal rule of civil procedure. Absent a valid and applica-
ble federal rule, we fall back on the “outcome-determinative”
test first articulated in Guaranty Trust Co. v. York, 326 U.S.
99 (1945), and the interest-balancing test first articulated in
Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525
(1958). The outcome-determinative test instructs federal
courts to apply state law when the difference between the
state and federal rule would determine the outcome of the liti-
gation. The interest-balancing test instructs federal courts to
evaluate and balance the federal and state interests in deciding
whether to apply the state or federal rule. The two tests are
not mutually exclusive, but rather complementary. See
Gasperini, 518 U.S. at 431-33 (applying both a York and a
Byrd analysis).
[4] The application of the outcome-determinative test is
“guided by ‘the twin aims of the Erie rule: discouragement of
forum-shopping and avoidance of inequitable administration
of the laws.’ ” Id. at 428 (quoting Hanna, 380 U.S. at 468).
We must ask “whether application of the [state] rule would
make so important a difference to the character or result of the
litigation that failure to enforce it would unfairly discriminate
against citizens of the forum State,” and “whether application
of the rule would have so important an effect upon the for-
tunes of one or both of the litigants that failure to enforce it
would be likely to cause a plaintiff to choose the federal
3278 KOHLRAUTZ v. OILMEN PARTICIPATION CORP.
court.” Hanna, 380 U.S. at 468 n.9; see also Gasperini, 518
U.S. 428 (quoting from this passage in Hanna).
[5] Applying this test, we conclude that an official immu-
nity rule is outcome-determinative, and that we should there-
fore apply state rather than federal law. The defense is both
an immunity from suit and, in practical effect, an immunity
from liability. Depending on the scope of the immunity pro-
vided, a suit may or may not be allowed to go forward against
a defendant claiming this defense. Where there is a material
difference between the federal and state law for official
immunity — as there is for at least one of the two state laws
potentially applicable in this case — there is an obvious
incentive to choose either federal or state court if that choice
is tantamount to a choice between federal and state law.
[6] The application of the interest-balancing test also leads
to the application of state law. Weber, the party asserting offi-
cial immunity, was appointed as a judicial receiver by a Texas
state court. Oilmen alleges that Weber has engaged in tortious
abuse of judicial process under Nevada state law in Nevada
state courts. Oilmen asserts no federal claim. We see no fed-
eral interest in applying federal official immunity law against
a state court-appointed quasi-judicial officer in a suit brought
in state court and based on state law. Rather, we believe that
a state has a strong interest in applying state official immunity
law in such a suit. Therefore, we conclude under both the
outcome-determinative and interest-balancing tests that state
rather than federal official immunity law is applicable to this
case.
[7] A second analysis would treat official immunity as a
substantive rule of law. This analysis is appropriate if official
immunity law does not fall within Hanna’s “uncertain area
between substance and procedure [and] rationally capable of
classification as either,” but is, rather, simply a substantive
rule. The outer boundaries of the grey area under Hanna —
the area in which a federal rule of civil procedure could per-
KOHLRAUTZ v. OILMEN PARTICIPATION CORP. 3279
missibly be applicable — are defined by the Rules Enabling
Act. That Act provides that the federal rules “shall not
abridge, enlarge or modify any substantive right.” 28 U.S.C.
§ 2072(b). We believe that a defense of official immunity
would most likely “abridge, enlarge or modify” a substantive
right within the meaning of the Act, and that official immu-
nity therefore cannot be governed by a federal rule of civil
procedure. If this is so, the outcome-determinative and
interest-balancing tests cannot be applied in the manner con-
templated in Hanna.
[8] Instead, we are faced with a straightforward choice
between the substantive official immunity law of a state and
the analogous substantive federal official immunity law. The
Rules of Decision Act, 28 U.S.C. § 1652, provides:
The laws of the several states, except where the Con-
stitution or treaties of the United States or Acts of
Congress otherwise require or provide, shall be
regarded as rules of decision in civil actions in the
courts of the United States, in cases where they
apply.
Not only may state law be overridden by the federal Constitu-
tion, treaties, and federal statutes, as provided in the explicit
terms of the Act. In addition, federal common law may over-
ride state law. See, e.g., Clearfield Trust Co. v. United States,
318 U.S. 363 (1943) (applying federal common law rather
than the law of Pennsylvania to determine the timeliness of
notification of a forged endorsement on a check issued by the
federal government). But the Rules of Decision Act only tells
us what we already know — that state law applies unless
overridden by federal law. It does not tell how to choose
between state and federal substantive laws.
An example of such a choice may be seen in O’Melveny &
Meyers v. FDIC, 512 U.S. 79, 80-81 (1994), in which the
Supreme Court was asked to decide whether “a federal-law or
3280 KOHLRAUTZ v. OILMEN PARTICIPATION CORP.
rather a state-law rule of decision . . . govern[ed] the tort lia-
bility of attorneys who provided services to [a federally
insured] bank.” More specifically, the Court was asked to
choose between an asserted federal common law rule and the
state-law rule in determining whether knowledge held by cor-
porate officers should be imputed to the corporation itself.
The Court declined to create a federal common law, writing
that “this is not one of those extraordinary cases in which the
judicial creation of a federal rule of decision is warranted.” Id.
at 89.
This case is like O’Melveny in the sense that we must
choose between a state rule and a federal common law rule.
However, it is unlike O’Melveny in the sense that we are not
being asked to create the rule. Rather, a federal common law
rule of immunity for judicial and quasi-judicial officers
already exists. See, e.g., Stump v. Sparkman, 435 U.S. 349
(1978) (judicial immunity); Davis v. Bayless, 70 F.3d 367 (5th
Cir. 1995) (immunity for court-appointed receiver); New
Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298 (9th Cir.
1989) (same). The question is whether to apply that federal
rule.
[9] We conclude the federal government has virtually no
interest in applying the federal rule in this case, and that, by
contrast, the two states involved both have strong interests in
applying a state rule. (We decide, infra, which of the two
competing state rules to apply.) Federal official immunity law
has largely been developed in the context of damage suits
brought under 42 U.S.C. § 1983 alleging constitutional viola-
tions by state and local officers, and to a lesser extent in the
context of Bivens actions alleging violations by federal offi-
cials. For reasons specific to § 1983 and Bivens suits, the con-
tours of federal official immunity law have been carefully
drawn to provide appropriate vindication of federal rights but,
at the same time, to provide appropriate levels of protection
for governmental officials. See, e.g., Harlow v. Fitzgerald,
457 U.S. 800 (1982); Stump, 435 U.S. 349. Those reasons are
KOHLRAUTZ v. OILMEN PARTICIPATION CORP. 3281
not necessarily relevant to appropriate levels of official immu-
nity for state or local officials from damage suits alleging vio-
lations of state law. We believe that in general a defense of
official immunity based on state law is appropriate when the
underlying cause of action is based on state rather than federal
law. We believe that this is certainly the case here, where a
state court-appointed receiver has been sued under state law
for alleged tortious abuse of process using state courts.
[10] We therefore conclude, under either line of analysis,
that state rather than federal official immunity law for court-
appointed receivers should be applied to this case. We now
turn to the question whether that law should be the law of
Nevada or Texas.
B. Nevada Rather than Texas Law
Oilmen owns property in Nevada. It was sued in Nevada
state courts by Ms. Kohlrautz on the asserted ground that the
property is part of the marital estate. It then brought a claim
against Weber, alleging abuse of process under Nevada state
law using the Nevada courts. Oilmen contends that any offi-
cial immunity defense available to Weber should be based on
Nevada law.
Weber was appointed by a Texas state court as receiver for
the marital estate in a divorce proceeding in that court. His
authority as a receiver is determined in accordance with Texas
law and with the terms of his appointment. He contends that
his official immunity defense should be based on Texas law.
[11] We therefore must choose between Nevada and Texas
law of official immunity for court-appointed receivers. In
determining what state law to apply, a federal court applies
the choice-of-law rules of the state in which it sits. Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). In
this case, we therefore look to the choice-of-law rules of
Nevada. In Motenko v. MGM Dist., Inc., 921 P.2d 933 (Nev.
3282 KOHLRAUTZ v. OILMEN PARTICIPATION CORP.
1996), the Nevada Supreme Court abandoned the “vested
interest” analysis of the Restatement (First) of Conflict of
Laws in tort cases in favor of a new analysis. The Nevada
Supreme Court was unwilling to adopt the “significant rela-
tionship” approach of the Restatement (Second) of Conflict of
Laws because of the indeterminacy of that approach. It
adopted instead a modified version of the Second Restate-
ment. In the view of the Nevada Supreme Court, this modified
approach best accommodates the twin goals of achieving
“certainty, predictability and uniformity of result” and of
allowing a Nevada court “to more frequently apply the law
with which it is most familiar.” Id. at 935.
[12] Under the approach adopted in Motenko, Nevada
courts apply a “presumption that Nevada law governs” in tort
cases. Id. at 936. They apply the law of another state only if
that state has an “overwhelming interest” in the application of
its law. Id. at 935. Specifically,
Another state has an overwhelming interest if two or
more of the following factors are met:
(a) it is the place where the conduct giving
rise to the injury occurred;
(b) it is the place where the injury is suf-
fered;
(c) the parties have the same domicile, res-
idence, nationality, place of incorporation,
or place of business and it is different from
the forum state;
(d) it is the place where the relationship, if
any, between the parties is centered.
Id. at 935.
 KOHLRAUTZ v. OILMEN PARTICIPATION CORP. 3283
[13] We conclude that the Motenko analysis applies not
only to the question of which state’s tort liability law applies,
but also to the question of which state’s official immunity law
applies as a defense in a state-law tort suit. Applying
Motenko, we conclude that a Nevada court would apply
Nevada official immunity law in this case.
[14] The alleged tort at the center of Oilmen’s complaint
against Weber is abuse of process in the use of the Nevada
courts. The first Motenko factor is the place where the alleged
tortious conduct occurred; that place is clearly Nevada rather
than Texas. The second factor is where the injury was suf-
fered. That place may be, in part, Nevada. It may also be, in
part, the place where Oilmen has its headquarters or principal
place of business, or perhaps the place where its owner or
owners are located. Oilmen is a Liberian corporation; there is
nothing in the record to indicate that its headquarters, its prin-
cipal place of business, or its owner(s) are in Texas. We are
therefore confident in concluding that the place of injury was
not Texas. The third factor is the requirement that the parties
have the same domicile, residence, nationality, place of incor-
poration, or place of business, and that that place be different
from the forum state. Weber is domiciled in Texas; Oilmen,
by contrast, is a Liberian corporation with no demonstrated
connection to Texas. The parties therefore do not have the
same domicile, residence, etc. Finally, the fourth factor is the
place where the relationship between the parties is centered.
The precise application of this factor to the facts of this case
is somewhat unclear, but we may, for the sake of argument,
conclude that the relationship is centered in Texas, given that
Weber has been appointed as receiver for marital property by
a Texas court, and that Ms. Kohlrautz and Weber contend that
Oilmen’s two Nevada properties are part of the marital estate.
[15] Even on the assumption that this dispute satisfies the
fourth factor of the Motenko test, we must apply Nevada law.
Motenko requires that at least two of the four factors be satis-
fied, and this dispute satisfies at most only one of them.
3284 KOHLRAUTZ v. OILMEN PARTICIPATION CORP.
Under Motenko, Texas therefore does not have an “over-
whelming interest” in the application of its law to this case.
We are reinforced in our conclusion that Nevada official
immunity law applies by a pre-Motenko decision. In Mianecki
v. Wisconsin Second Judicial Dist. Court, 658 P.2d 422, 423
(Nev. 1983), according to the allegations of the complaint,
Blake, a convicted sex offender, was placed on probation by
a Wisconsin court for first degree sexual assault of a young
boy in Wisconsin. During his probationary period, Blake was
permitted by the Wisconsin Division of Corrections to relo-
cate to Nevada. Shortly after arriving in Nevada, Blake
moved into the home of the Averetts, who were not informed
of his criminal history. Blake subsequently victimized the
Averetts’ minor son. The Averetts brought suit in Nevada
state court against the State of Wisconsin and Mianecki, the
Wisconsin official who approved Blake’s travel to Nevada.
Both Wisconsin and Mianecki moved to quash the complaint
based on a defense of sovereign immunity. Id.
The Nevada Supreme Court had little hesitation in denying
the motion. “We . . . hold that where the injured party is a citi-
zen of this state, injured in this state and sues in the courts of
this state, there is no immunity, by law or as a matter of com-
ity, covering a sister state activities in this state.” Id. at 423-
24. Rejecting Wisconsin’s comity argument, the court wrote,
“we believe greater weight is to be accorded Nevada’s interest
in protecting its citizens from injurious operational acts com-
mitted within its borders by employees of sister states, than
Wisconsin’s policy favoring governmental immunity.” Id. at
425.
We recognize that there are differences between Mianecki
and this case. For example, the plaintiffs in Mianecki were cit-
izens of Nevada. Oilmen, by contrast, is a Liberian corpora-
tion merely owning property in Nevada. Further, the
immunity at issue in Mianecki was sovereign rather than offi-
cial immunity. Nonetheless, we read Mianecki as a statement
KOHLRAUTZ v. OILMEN PARTICIPATION CORP. 3285
that the immunity laws of other states are disregarded by
Nevada courts when important Nevada interests are at stake.
In this case, such interests would include the protection of
owners of property located in Nevada, as well as enforcement
of Nevada law forbidding abuse of process by means of the
Nevada judicial system. See, e.g., LaMantia v. Redisi, 38 P.3d
877, 879 (Nev. 2002) (“Abuse of process can arise from both
civil and criminal proceedings.”).
Finally, we note the unpublished decision of the Nevada
Supreme Court described in Franchise Tax Board of Califor-
nia v. Hyatt, 538 U.S. 488 (2003). Plaintiff Hyatt filed suit in
Nevada state court alleging that the California taxing author-
ity, the Franchise Tax Board, had committed various torts
under Nevada law in assessing allegedly unpaid California
income tax against him. Id. at 491. The Nevada Supreme
Court declined to honor the Franchise Tax Board’s defense of
sovereign immunity. Id. at 492. As described by the United
States Supreme Court, the Nevada court
held that “affording [CFTB] statutory immunity . . .
does contravene Nevada’s policies and interests in
this case.” . . . Because Nevada “does not allow its
agencies to claim immunity for discretionary acts
taken in bad faith, or for intentional torts committed
in the course and scope of employment,” the
[Nevada] Court held that “Nevada’s interest in pro-
tecting its citizens from injurious intentional torts
and bad faith acts committed by sister states’ govern-
ment employees” should be accorded greater weight
“than California’s policy favoring complete immu-
nity for its taxation agency.”
Id. at 493-94 (internal quotations indicate language taken
from the Nevada Supreme Court’s unpublished opinion). The
United States Supreme Court in Hyatt held that the Full Faith
and Credit Clause of the United States Constitution did not
require Nevada to honor the Franchise Tax Board’s sovereign
3286 KOHLRAUTZ v. OILMEN PARTICIPATION CORP.
immunity defense. Id. at 499. More to the immediate point,
Hyatt provides one more example of the Nevada Supreme
Court declining to honor an immunity defense based on the
law of another state.
[16] Based on Motenko, Mianecki, and on the Nevada
Supreme Court’s decision described in Hyatt, we conclude
that a Nevada court would apply Nevada rather than Texas
law of official immunity for court-appointed receivers.
C. Nevada’s Official Immunity Law
The controlling Nevada case on the scope of official immu-
nity for court-appointed receivers is Anes v. Crown Partner-
ship, 932 P.2d 1067 (Nev. 1997). A court-appointed receiver,
Crown Partnership, was given the task of increasing occu-
pancy in an office building after a primary partner of the
owner filed for bankruptcy. One of the building’s tenants filed
suit against Crown Partnership for breach of contract, breach
of the covenant of quiet enjoyment, and breach of the duty of
good faith and fair dealing. Crown Partnership moved for
summary judgment on a number of claims, including the
defense of official immunity as a court-appointed receiver.
[17] The Nevada Supreme Court noted that under Nevada
law “[g]enerally, a receiver cannot be sued without leave of
the appointing court.” Id. at 1070. “However, where the
receiver acts beyond the scope of its court-derived authority
such that it may be sued as an individual, leave of the court
is unnecessary.” Id. The court continued:
A receiver appointed by the court acts as an offi-
cer of the court. A receiver who faithfully and care-
fully carries out the orders of the appointing judge
shares the judge’s judicial immunity. . . .
However, the receiver must not exceed the limits
of the authority granted by the court and must act for
KOHLRAUTZ v. OILMEN PARTICIPATION CORP. 3287
the benefit of all persons interested in the property.
Indeed, a receiver may be personally liable if he or
she acts outside the authority granted by the court.
Id. at 1071 (internal quotation marks and citations omitted).
The scope of Weber’s authority is, of course, determined
by the authority granted to him by the Texas court. Restate-
ment (Second) Conflict of Laws § 403 cmt. a (1971). We will
not engage in an extended analysis of the precise scope of that
authority, or of the evidence before the district court tending
to show that he exceeded it. It is enough to affirm the district
court’s denial of Weber’s motion for summary judgment to
point out the following.
The authority given by the Texas court to Weber, and to his
predecessor as receiver, was the authority “to manage, con-
trol, and preserve the property as the Receiver sees fit in the
Receiver’s sole and undivided discretion, upon such terms
and conditions that may be approved by the Court.” The
receiver was required to “[act] faithfully and discharge the
Receiver’s duties as Receiver in this action and obey the
orders of this Court.” In his Responses to Oilmen’s Requests
for Admissions in the district court, Weber stated that as
receiver he is “obligated to discharge the duties of [his] office
of Receiver with the utmost impartiality and without bias or
prejudice.”
[18] The evidence in the record, when viewed in the light
most favorable to Oilmen, supports Oilmen’s claims that
Weber has acted outside the scope of his authority as receiver.
For example, Oilmen has presented evidence that Weber has
acted partially toward Ms. Kohlrautz by providing legal
advice and accepting loans and advances from her. Oilmen
has also presented evidence that Weber made misrepresenta-
tions to the court in order to bring Oilmen into the litigation.
Even assuming that the Texas court had provided Weber with
authority to pursue Oilmen, such evidence of Weber’s partial-
3288 KOHLRAUTZ v. OILMEN PARTICIPATION CORP.
ity and misrepresentation, when viewed in the light most
favorable to Oilmen, is a sufficient basis for denying sum-
mary judgment to Weber on his defense of official immunity.
IV. Conclusion
[19] We hold that Weber, as a court-appointed receiver,
may assert official immunity as a defense in accordance with
Nevada law. Applying that law, we AFFIRM the decision of
the district court denying Weber’s motion for summary judg-
ment.
AFFIRMED.