New Amsterdam Project Management Humanitarian Foundation v. Laughrin , 400 F. App'x 250 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NEW AMSTERDAM PROJECT No. 09-16357
MANAGEMENT HUMANITARIAN
FOUNDATION, a Dutch non-profit D.C. No. 5:07-cv-00935-JF
corporation,
Plaintiff - Appellant, MEMORANDUM *
v.
KELLY LAUGHRIN, an individual;
CAMPBELL, WARBURTON,
FITZSIMMONS, SMITH, MENDELL &
PASTORE, a California professional
corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted October 7, 2010
San Francisco, California
Before: THOMPSON, SILVERMAN and McKEOWN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff-appellant New Amsterdam Project Management Humanitarian
Foundation (“NAF”) appeals the district court’s grant of summary judgment in
favor of the appellees finding NAF’s conversion, common count, and restitution
claims to be time-barred. NAF argues that appellee Kelly Laughrin’s failure to
disclose her receipt of $200,000, coupled with her statement that “[t]here is
nothing else to report,” amounted to fraudulent concealment and effectively
“lulled” NAF into inaction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.1
The fraudulent concealment doctrine “does not come into play, whatever the
lengths to which a defendant has gone to conceal the wrongs, if a plaintiff is on
notice of a potential claim.” Snapp & Assocs. Ins. Servs., Inc. v. Malcolm Bruce
Burlingame Robertson, 96 Cal. App. 4th 884, 890-91 (2002) (citation and internal
quotation marks omitted); accord Bernson v. Browning-Ferris Indus., 7 Cal. 4th
926, 931 (1994) (concluding that tolling was available “‘only for that period during
which the claim is undiscovered by plaintiff or until such time as plaintiff, by the
exercise of reasonable diligence, should have discovered it’” (citation omitted)).
Once the plaintiff suspects wrongdoing, and therefore has an incentive to sue, “she
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our disposition.
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must decide whether to file suit or sit on her rights.” Jolly v. Eli Lilly & Co., 44
Cal. 3d 1103, 1111 (1988). “So long as a suspicion exists, it is clear that the
plaintiff must go find the facts; she cannot wait for the facts to find her.” Id.In the present case, even if there was fraudulent concealment, NAF was on
inquiry notice of its claims against the appellees by 2003 at the latest, when it knew
of the underlying conversion and knew that the appellee law firm received some
portion of the converted funds. The fact that NAF was not aware of the full extent
of the appellees’ participation is not dispositive. The general rule in California is
that “ignorance of the identity of the defendant is not essential to a claim and
therefore will not toll the statute [of limitations].” Bernson, 7 Cal. 4th at 932(citations omitted). Once the plaintiff is aware of “a defendant,” he can file a
timely complaint naming Doe defendants and can then utilize the available
discovery tools to identify and serve any Doe defendants within the applicable
three-year statute of limitations. Id. at 932-33. Accordingly, the district court did
not err when it concluded that NAF could have filed a complaint naming Doe
defendants to ascertain the extent of the appellees’ role in the conversion.
Moreover, NAF could have pursued other avenues that would have allowed
it to trace the money to the appellees. There is no dispute that NAF knew the U.S.
Bank account into which its converted funds were initially deposited. Having this
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information, NAF could have sought to subpoena the bank records, which would
have allowed it to trace the money to the law firm and to Kelly Laughrin. NAF,
however, has provided no evidence to demonstrate either that it tried to subpoena
those records or that such an attempt would have been unsuccessful.
Accordingly, because NAF was on notice of the potential claim against the
appellees by 2003 at the latest, and because it could have either sought to subpoena
the bank records from U.S. Bank or named Doe defendants in the already-pending
lawsuit against Margaret Laughrin, the district court did not err in finding that the
three-year statute of limitations began to run in 2003. See C AL. C IV. P ROC. C ODE §
338(c). All of NAF’s claims are therefore time-barred.
AFFIRMED.
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