Unpublished Disposition, 851 F.2d 361 (9th Cir. 1985)

MEMORANDUM^* 

Plaintiff Kenneth Volz appeals the summary judgment against him on his diversity action for personal injuries against defendants DeLorean Manufacturing Corp. and Logan Manufacturing Corp.

Volz was injured in 1984 while operating a snow tractor at a ski area in California. At the time of the accident, Volz and his wife lived in California. In September 1984, the couple moved to Carson City, Nevada, where they lived until their return to California in December 1985.

Volz filed this action in Nevada state court on November 23, 1985, after the expiration of the California statute of limitations. The defendants removed the action to federal district court on diversity grounds and then moved for summary judgment based upon the Nevada borrowing statute, Nev.Rev.Stat. Sec. 11.020 (1986). That statute provides:

When a cause of action has arisen in another state, ... and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of a citizen thereof who has held the cause of action from the time it accrued.

The district court, relying upon analogy to case law from Idaho, Utah, and California, found that the exception to the borrowing statute applies only to plaintiffs who are citizens of Nevada at the time that the accident occurred. See Miller v. Stauffer Chem. Co., 99 Idaho 299, 581 P.2d 345, 347 (1978); Allen v. Greyhound Lines, Inc., 583 P.2d 613 (Utah 1978); Biewend v. Biewend, 17 Cal. 2d 108, 109 P.2d 701 (1941). Because Volz's cause of action would have been barred in California courts by the one-year statute of limitations of Cal.Civ.P.Code Sec. 340 (West 1982), the court found that the cause of action was barred in Nevada by Nev.Rev.Stat. Sec. 11.020. The district court therefore declined to decide whether Volz ever became a citizen of Nevada capable of invoking the borrowing statute.

Upon appeal, Volz argues first that the district court erred in finding that the defendants had successfully pleaded the California statute of limitations and in refusing to strike the affirmative defenses related to the California statute of limitations. Logan stated as an affirmative defense that "Plaintiff's First Amended Complaint is barred by the statute of limitations." DeLorean stated as an affirmative defense that "Plaintiff's claims for relief are barred by the applicable statute of limitations of the State of Nevada."

We review the district court's denial of a motion to strike affirmative defenses for abuse of discretion. Supermarket of Homes, Inc. v. San Fernando Valley Bd. of Realtors, 786 F.2d 1400, 1409 (9th Cir. 1986). Volz cites only one case to support his argument, Valz v. First Nat'l Bank of Birmingham, 96 Ky. 543, 29 S.W. 329, 330 (1895), which held that a plea of a statute of limitations of another state must allege the terms and provisions of the statute of such other state. However, the Federal Rules of Civil Procedure have supplanted the technical requirements of code pleading, rendering this Kentucky case obsolete. See Fed. R. Civ. P. 8(e) (1) (observing that " [n]o technical forms of pleadings or motions are required"). Under federal pleading rules, identification of the particular limitations statute relied upon is not required. Santos v. District Council of New York City, 619 F.2d 963, 967 (2d Cir. 1980); Odence v. Salmonson Ventures, 108 F.R.D. 163, 165-66 (D.R.I. 1985); Amelio v. Yazoo Mfg. Co., 98 F.R.D. 691, 693-94 (N.D. Ill. 1983).

Because Nev.Rev.Stat. Sec. 11.020 provides the basis for the application of out-of-state statutes of limitation, the defendants adequately pleaded the statute of limitations as an affirmative defense.

Volz next contends that the district court's interpretation of Nev.Rev.Stat. Sec. 11.020 was erroneous. Volz argues that the statute's proper interpretation is that so long as a Nevada citizen held a cause of action from the time the cause of action accrued, that citizen is exempt from the borrowing statute, regardless of whether the individual was a citizen of Nevada at the time the cause of action accrued. Under his theory he need only show he was a citizen when he filed his action.

Under Nev.Rev.Stat. Sec. 10.155 (1986), "the legal residence of a person with reference to his ... right to maintain ... any suit ... is that place where he has been physically present within the state...." Because Volz's claim that he is a citizen of Nevada hinges upon his claim that he established residency there, the case law defining "legal residence" will be applicable to our determination whether Volz was at any time a citizen of Nevada and therefore able to invoke the Nevada borrowing statute.

Cases decided under Nev.Rev.Stat. Sec. 10.155 have recognized that mere physical presence in Nevada is insufficient for residency and that the individual's presence must be accompanied by the intention of remaining a resident of the state. See, e.g., Aldabe v. Aldabe, 84 Nev. 392, 396, 441 P.2d 691, 694 (1968), cert. denied, 393 U.S. 1042 (1969); Presson v. Presson, 38 Nev. 203, 147 P. 1081, 1081-83 (1915) (interpreting the predecessor to Nev.Rev.Stat. Sec. 10.155 as requiring that an individual have the "intention of making [Nevada] his permanent abiding place"). See also Carter v. McConnel, 576 F. Supp. 556, 558 (D. Nev. 1983) (recognizing that, for the purposes of diversity jurisdiction, an individual may obtain a state domicile only by demonstrating "the intention to remain there for an indefinite period of time").

In his deposition testimony, Volz stated that he moved to Nevada so that he could attend a course in computer science. He stated that he did not at that time intend to remain in Nevada and that he intended to return to California to seek employment after he completed the course. During the time that he was in Nevada, he retained his California driver's license and continued to receive worker's compensation from the state of California. He neither obtained a Nevada driver's license nor registered to vote in that state. Although Volz stated that he might have remained in Nevada if he had found a job there, he never obtained such a job and therefore never formed an intent to remain in Nevada.

Based upon Volz's statements, we find that he never became a citizen of Nevada and that he thus may not avail himself of the Nevada borrowing statute. We therefore find it unnecessary to determine whether the district court was correct in its construction of the Nevada borrowing statute.

Because the issues raised by the plaintiff at trial and on appeal were not frivolous, we deny the defendants' request for attorneys' fees.

AFFIRMED.