David Fagin v. Doby George, Llc

FILED
NOT FOR PUBLICATION MAY 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID K. FAGIN, an individual on No. 11-17126
behalf of himself and derivatively on
behalf of Nominal Defendant Western D.C. No. 3:08-cv-00314-ECR-RAM
Title Exploration and Development
Limited; et al.,
MEMORANDUM *
Plaintiffs - Appellants,
v.
DOBY GEORGE, LLC, a Nevada Limited
Liability Company; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Submitted May 17, 2013 **
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: CLIFTON and BEA, Circuit Judges, and KORMAN, District Judge.***
Plaintiffs appeal the district court’s order granting Defendants’ motion for
summary judgment as to Plaintiffs’ claims of conspiracy and breach of fiduciary
duty. We affirm.
The district court determined that the law of Yukon, Canada applied to
Plaintiffs’ derivative claims, brought as shareholders on behalf of Western
Exploration and Development Limited (“WEX”), because WEX was incorporated
under Yukon law. That decision was correct. See Restatement (Second) of Conflict
of Laws § 309 (1971) (providing that the local law of the state of incorporation
shall determine the liability of directors to the corporation and its shareholders);
see also Dictor v. Creative Mgmt. Servs., LLC., 223 P.3d 332, 335 (Nev. 2010)
(noting that Nevada has adopted the Second Restatement as the relevant authority
for its choice-of-law jurisprudence in tort cases).
Yukon law requires that a plaintiff seek certification with the Supreme Court
of Yukon prior to commencing a derivative action on behalf of a corporation.
Yukon Business Corporations Act, R.S.Y. 2002, c. 20, § 241 (Can.). Plaintiffs
***
The Honorable Edward R. Korman, District Judge for the Eastern
District of New York, sitting by designation.
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sought no such certification. We therefore affirm the district court as to Plaintiffs’
derivative claims.
The district court also granted summary judgment as to Plaintiffs’ individual
claims, because those claims were barred by the statute of limitations. Though
typically a question of fact left to the jury, the date on which a plaintiff became
aware of a fraud can be grounds for summary judgment when the facts are not
“susceptible to opposing inferences.” Millspaugh v. Millspaugh, 611 P.2d 201, 202
(Nev. 1980). The district court concluded that a jury could not reasonably find for
Plaintiffs regarding the accrual date of their claims. We agree.
The record establishes that Plaintiffs were aware of the facts constituting the
fraud in February 2000. Thus, Plaintiffs’ claims are barred regardless of which
statute of limitations we apply. Colo. Rev. Stat. § 13-80-101(1)(c) (2011); Nev.
Rev. Stat. § 11.220 (2011); Limitation of Actions Act, R.S.Y. 2002, c. 139, § 2(1)
(Can.). Accordingly, summary judgment was appropriate.
AFFIRMED.
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