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ORDER - 1 

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DANITA CHRISTIE, on behalf of herself and

derivatively on behalf of CYBERECORD, INC.,

Plaintiff(s),

v.

BRENT NELSON, JAMES LUCAS,

KATHERINE NELSON, CYBERECORD, INC.,

and Does 1 thru 100, inclusive,

Defendant(s).

JAMES LUCAS, on behalf of himself and

derivatively on behalf of CYBERECORD, INC.,

 Third Party Plaintiff(s),

v.

GLENN KIMBALL, and JANE DOE

KIMBALL, individually and as members of the

marital community comprised thereof,

 Third Party Defendant(s).

GLENN KIMBALL, and PAULETTE

KIMBALL, individually and as members of the

marital community comprised thereof, on behalf

of themselves and derivatively on behalf of

CYBERECORD, INC.,

Fourth Party Plaintiff(s),

No. C05-0775 MJP

ORDER GRANTING MOTION TO

DISMISS CONVERSION CLAIM

v.

MAREK A. NICZYPORUK, aka MAREK

ALEXANDER

Fourth Party Defendant.

Case 2:05-cv-00775-MJP Document 57 Filed 12/08/06 Page 1 of 7
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1 Although the Fourth Party Complaint identifies Mr. Lucas only as the President and CEO

of CybeRecord, Ms. Christie’s Complaint identifies him as the President, Director, Chairman, and CEO

of CybeRecord. (Compl. ¶ 5).

ORDER - 2 

This matter comes before the Court on a motion to dismiss the Fourth Party conversion claim

by Fourth Party Defendant Marek Alexander (fka Marek A. Nicyporuk). (Dkt. No. 40). Glenn

Kimball is the Fourth Party Plaintiff and Marek Alexander is the Fourth Party Defendant. Having

reviewed the parties’ briefs, the Court GRANTS Defendant’s Motion to Dismiss the Conversion

Claim and DENIES Mr. Kimball’s request for leave to amend the Fourth Party Complaint.

I. Background

According to Mr. Kimball’s Fourth Party Complaint, in 1999, James Lucas, Third Party

Plaintiff, and Mr. Kimball started a business named CybeRecord to develop a digital microfilm

scanner known as the “ScanServer.” Mr. Lucas was President and CEO of CybeRecord, and Mr.

Kimball was the engineer responsible for designing and developing the ScanServer. In June 1999,

Mr. Alexander was hired to be Vice President of Software and to write operating software for the

ScanServer. Mr. Alexander was also hired to write test software for the ScanServer by March or

April 2000. Mr. Alexander estimated that completion of the software would take one year. But Mr.

Alexander did not release the test software until late August 2000. Mr. Kimball alleges that because

of the late release, he was unable to test the ScanServer prototype on schedule.

In September 2000, Mr. Lucas directed Mr. Alexander to collect all the ScanServer

intellectual assets, which he did. Mr. Lucas fired Mr. Kimball on October 31, 2000. Mr. Lucas was

unable to complete the ScanServer. In early 2001, CybeRecord ceased operations.

In April 2005, Plaintiff Danita Christie, proceeding pro se, filed a shareholder derivative

complaint for fraud, breach of fiduciary duties, and SEC violations against the directors of

CybeRecord, including Mr. Lucas.1

 Mr. Lucas filed a third party claim against Mr. Kimball alleging

that Mr. Kimball is liable in whole or in part for Ms. Christie’s claims. Mr. Kimball, proceeding pro

se, in turn, filed a fourth party claim against Mr. Alexander, asserting claims for contribution and

conversion.

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ORDER - 3 

Fourth Party Defendant Alexander has filed a motion to dismiss the conversion claim based on

statute of limitations grounds. (Dkt. No. 40). Mr. Kimball has responded (Dkt. No. 41) and has

requested that if the Court grants the motion to dismiss, that it also grant Mr. Kimball leave to amend

his Fourth Party Complaint. 

II. Analysis

A. Standard

A motion to dismiss is proper under Rule 12(b)(6) where the pleadings fail to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “A court may dismiss a complaint only if

it is clear that no relief could be granted under any set of facts that could be proved consistent with

the allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In ruling on a Rule 12(b)(6)

motion, the complaint is construed in the light most favorable to the non-moving party and all

material allegations in the complaint are taken to be true. Sanders v. Kennedy, 794 F.2d 478, 481 (9th

Cir. 1986). A statute of limitations defense may be raised by a motion to dismiss if the running of the

statute is apparent on the face of the complaint. Vaughan v. Grijalva, 927 F.2d 476, 479 (9th Cir.

1991). 

B. The Applicable Statute of Limitations Bars Mr. Kimball’s Conversion Claim

Mr. Alexander argues that the fourth party conversion claim should be dismissed as untimely.

Washington Revised Code (RCW) § 4.16.080(2) imposes a three-year statute of limitations for claims

based on conversion. Under Washington law, a cause of action accrues and the statute of limitations

begins to run when a party has the right to apply to a court for relief. Hudson v. Condon, 101 Wn.

App. 866, 874, 6 P.3d 615 (2000). This right to apply for relief arises when the plaintiff can establish

each element of the action. Id. Mr. Alexander argues that the alleged conversion took place in

October 2000. Mr. Kimball did not file his fourth party complaint until June 26, 2006. 

On its face, the Fourth Party Complaint indicates that the alleged conversion took place in

October 2000. The complaint states that “[i]n October 2000 Mr. Alexander, directed by Lucas, took

possession and control of ScanServer documentation, hardware and software.” (Fourth Party

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ORDER - 4 

Complaint (“FPC”) ¶ 31). The complaint also states that on October 1, 2000, Mr. Alexander “sent an

. . . email to Kimball asking Kimball to turn over all ScanServer parts in his possession . . . .” (FPC ¶

32). And the complaint asserts that Mr. Alexander is either now using the intellectual property or

may have destroyed or discarded it. (FPC ¶¶ 35-36). Thus, the complaint suggests that the claim is

untimely because Mr. Alexander took possession of the property in October 2000, Mr. Kimball knew

that Mr. Alexander took possession of the property at that time, and Mr. Kimball did not file his

complaint until more than five years after he had knowledge of the conversion. 

Mr. Kimball argues that the statute of limitations has not run because (1) the complaint does

not allege that conversion occurred in October 2000, (2) the complaint alleges that the conversion is

continuing at present, and (3) RCW § 4.16.180 tolled the statute while Mr. Alexander was not a

resident of the state. 

In his Response, Mr. Kimball states that the conversion could not have occurred in October

2000 because “[c]onversion begins when authorized custody ends” and that Mr. Alexander was

authorized by CybeRecord to possess the property in October 2000. (Resp. at 6). Mr. Kimball argues

that “[conversion] occurred sometime after 2001 when CybeRecord ceased operations and Mr.

Alexander either failed to return company assets or destroyed, sold, abandoned or otherwise

converted ScanServer to his own use.” (Resp. at 6). Construed in the light most favorable to Mr.

Kimball, Mr. Kimball is correct that the complaint does not identify a specific date on which the

conversion occurred. But the complaint states that Mr. Kimball turned over the property to Mr.

Alexander in 2000, that CybeRecord ceased operations in “early 2001,” and that Mr. Alexander is

either using the intellectual property or has destroyed or discarded it. Thus, at the very latest, the

Fourth Party Complaint identifies the date of conversion as “early 2001.” Because Mr. Kimball did

not file his claim until 2006, the claim is untimely under RCW § 4.16.080(2).

Moreover, the Fourth Party Complaint does not allege a continuing tort. Under Washington

law, “a tort is continuing if the intrusive condition is reasonably abatable and not permanent.” Pac.

Sound Resources, et al. v. Burlington N. Santa Fe Ry. Corp., 130 Wn. App. 926, 941, 125 P.3d 981

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2 In a separate motion, Mr. Kimball requested relief from the discovery deadline, apparently

so that he could obtain information about the disposition of the ScanServer property. In a separate order,

the Court has denied Mr. Kimball’s motion to extend the discovery deadline. (Dkt. No. 52).

ORDER - 5 

(2005). “When a tort is continuing, the statute of limitations runs from the date each successive

cause of action accrues as manifested by actual and substantial damages.” Id. (internal quotation

marks omitted). Mr. Kimball’s complaint does not allege any successive damages.2 Mr. Kimball

believes (it seems) that because Mr. Alexander may continue to possess the property, that the tort is

continuing. But Mr. Kimball misunderstands the nature of the continuing tort doctrine; he has not

alleged a continuing tort, but a single tort that occurred sometime between October 2000 and early

2001.

Mr. Kimball’s argument that RCW § 4.16.180 tolled the statute while Mr. Alexander was not

a resident of the state is also without merit. The Washington Supreme Court has explained that RCW

§ 4.16.180 does not operate to toll the applicable statute of limitations when the defendant was

absent from the state but the plaintiff was aware of the defendant’s place of residence and could have

proceeded against the defendant under the long-arm statute. Summerise v. Stephens, 75 Wn.2d 808,

812-13, 454 P.2d 224 (1969); Im Ex Trading Co. v. Faisal Assad Raad, et al., 92 Wn. App. 529, 540,

963 P.2d 952 (1998). 

Here, the statute was not tolled. Although the complaint alleges that Mr. Alexander was not a

resident of Washington until 2005, (FPC ¶ 5) it also identifies his whereabouts before then as “Palo

Alto, California.” (Id.) Mr. Kimball did not allege that he did not know Mr. Alexander’s place of

residence and it would be inconsistent for Mr. Kimball to argue it at this point given that the

complaint identifies Mr. Alexander’s whereabouts before 2005. Moreover, as Mr. Alexander points

out in his Reply, this Court had personal jurisdiction over Mr. Alexander during the limitations period

because Mr. Alexander transacted business with and for CybeRecord in the State of Washington as an

officer and employee of CybeRecord. Because Mr. Kimball could have served Mr. Alexander under

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3 Washington’s long-arm statute, RCW § 4.28.185, makes it possible to secure personal

service outside the state in certain classes of cases, including “[t]he commission of a tortious act within

this state.” RCW § 4.28.185(1)(b).

ORDER - 6 

Washington’s long-arm statute3 during the limitations period, the statute was not tolled. See

Summerrise, 75 Wn.2d at 811-13.

III. Leave to Amend

Mr. Kimball requests that he be granted leave to amend the Fourth Party Complaint. But

leave to amend would be futile. Mr. Kimball does not allege that he has a property interest in the

assets Mr. Alexander allegedly converted. And Mr. Kimball’s conversion claim is not proper because

a conversion claim cannot be brought as a derivative claim under Fed. R. Civ. P. 14(a).

“A third party claim may be asserted only when the third party’s liability is in some way

dependant on the outcome of the main claim and is secondary or derivative thereto.” Stewart v. Am.

Int’l Oil & Gas Co., 845 F.2d 196, 199 (9th Cir. 1988). As the Ninth Circuit explained in Stewart, 

[The claim] cannot simply be an independent or related claim but must be based on

Plaintiff’s claim against defendant. The crucial characteristic of a Rule 14 claim is that

the defendant is attempting to transfer to the third-party the liability asserted against

him by the original plaintiff. The mere fact that the alleged third-party claim arises

from the same transaction or set of facts as the original claim is not enough.

Stewart, 845 F.2d at 200 (quoting WRIGHT & MILLER, 6 FED. PRAC. & PROC. § 1446 at 257 (1971));

see also WRIGHT & MILLER, 6 FED. PRAC. & PROC. § 1446 at 355-69 (2d ed. 1990). Plaintiff Danita

Christie has brought a shareholder derivative suit alleging breach of fiduciary duties, fraud, intentional

and negligent misrepresentation, and SEC violations. Mr. Kimball’s claim for conversion is not at all

dependent on the outcome of Plaintiff Christie’s claims against Defendants. Because Mr. Alexander’s

alleged liability is not derivative of Plaintiff Christie’s claims, the conversion claim is not a proper

fourth party claim. Leave to amend would therefore be futile.

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ORDER - 7 

III. Conclusion

Because the statute of limitations bars Mr. Kimball’s conversion claim, the Court GRANTS

Mr. Alexander’s motion to dismiss the conversion claim in the Fourth Party Complaint. In addition,

because leave to amend would be futile, the Court DENIES Mr. Kimball’s request for leave to amend

the Fourth Party Complaint.

Dated this 8th day of December, 2006.

AMarsha J. Pechman

 United States District Judge

Case 2:05-cv-00775-MJP Document 57 Filed 12/08/06 Page 7 of 7