SUPREME COURT 

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NEVADA 

131 Nev., Advance Opinion ti 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

BRYAN FERGASON, 

Appellant, 

vs. 

LAS VEGAS METROPOLITAN POLICE 

DEPARTMENT, 

Respondent. 

No. 62357 

FLED 

DEC 2 4 2015 

TRACE K LINDEMAN 

CLERK OF SUPREME COURT 

DEPUTY CLERK 

Appeal from a district court summary judgment in a forfeiture 

action. Eighth Judicial District Court, Clark County; Doug Smith, Judge. 

Reversed and remanded. 

Bailey Kennedy and Dennis L. Kennedy and Paul C. Williams, Las Vegas, 

for Appellant. 

Thomas Joseph Moreo, Chief Deputy District Attorney, Clark County; 

Marquis Aurbach Coffing and Micah S. Echols, Las Vegas, 

for Respondent. 

BEFORE SAITTA, GIBBONS and PICKERING, JJ. 

OPINION 

By the Court, PICKERING, J.: 

Bryan Fergason appeals the district court's entry of summary 

judgment in favor of the Las Vegas Metropolitan Police Department (the 

State), which resulted in the forfeiture o . $125,000 from his 

bank accounts. Because the State failed to present evidence showing an 

absence of genuine issue of material fact regarding whether the funds 

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seized from Fergason's bank accounts were subject to forfeiture as 

proceeds attributable to the commission of a felony, the district court erred 

by granting summary judgment; and we reverse and remand for further 

proceedings. 

I. 

In 2010 Bryan Fergason was convicted of burglary, possession 

of stolen property, conspiracy to possess stolen property and/or to commit 

burglary, possession of burglary tools, and larceny. During the preceding 

criminal investigation, the State had located and seized, among other 

things, approximately $125,000 from bank accounts kept by Fergason at 

Bank of America. The State filed a complaint against the seized money in 

March 2007, pleading a single cause of action in forfeiture pursuant to 

NRS 179.1164(1). The complaint alleges that the money seized represents 

proceeds attributable to the commission or attempted commission of a 

felony. 

The State served the forfeiture complaint and summons on 

Fergason, and he answered, affirming that he was a claimant to the 

property. The case was then stayed pending the outcome of criminal 

proceedings. Following this court's affirmance of Fergason's criminal 

convictions, Fergason v. State, Docket No. 52877 (Order of Affirmance, 

Aug. 4, 2010), the district court lifted the stay in the forfeiture 

proceedings, and the State moved for summary judgment four days later. 

After the State filed its motion, Fergason's attorney moved to withdraw 

from the case, and the motion was granted. Fergason filed his opposition 

to summary judgment in pro se while incarcerated. In his opposition, 

Fergason argues straightforwardly: "None of the cited to allegations in the 

Complaint or Motion for Summary Judgment indicate that the amounts 

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seized from Fergason's account were attributable to felonies allegedly 

committed by Fergason." 

Following a hearing, the district court granted summary 

judgment in favor of the State. In its findings of undisputed fact, the 

district court recited the convictions in the criminal cases; and in its 

conclusions of law, the district court said, "Mlle Judgments of Conviction 

in the criminal cases have become final. The proof of the facts necessary 

to sustain the conviction are, therefore, conclusive evidence in this 

forfeiture action against [Fergasonl and satisfy all elements of the 

forfeiture complaint." The court further stated that as to Fergason, "the 

money was seized from his bank account as proceeds from illegal 

activities." This appeal followed. 

A. 

We review a district court's grant of summary judgment "de 

novo, without deference to the findings of the lower court." Wood v. 

Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005) (citing GES, 

Inc. v. Corbitt, 117 Nev. 265, 268, 21 P.3d 11, 13 (2001)). Summary 

judgment is appropriate where "the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law." NRCP 56(c). 

"If the moving party will bear the burden of persuasion, that 

party must present evidence that would entitle it to a judgment as a 

matter of law in the absence of contrary evidence." Cuzze v. Univ. & 

Cmty. Coll. Sys., 123 Nev. 598, 602, 172 P.3d 131, 134 (2007). Put more 

simply: "The burden of proving the nonexistence of a genuine issue of 

material fact is on the moving party." Maine v. Stewart, 109 Nev. 721, 

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726-27, 857 P.2d 755, 758 (1993) (citing Shapro v. Forsythe, 103 Nev. 666, 

668, 747 P.2d 241, 243 (1987)). 

When the party moving for summary judgment fails to bear 

his burden of production, "the opposing party has no duty to respond on 

the merits and summary judgment may not be entered against him." 

Maine, 109 Nev. at 727, 857 P.2d at 759 (reversing summary judgment 

where burden of production never shifted) (citing Clauson v. Lloyd, 103 

Nev. 432, 435, 743 P.2d 631, 633 (1987) (reversing summary judgment 

where movant did not meet the test in NRCP 56)); see NRCP 56(e) 

(summary judgment burden shifts to the non-movant only when the 

motion is "made and supported as provided in this rule"). Because the 

State was the plaintiff and the movant, it was required to show that no 

genuine issue of material fact existed as to its claim for forfeiture. Cuzze, 

123 Nev. at 602, 172 P.3d at 134. 

The district court ruling on a motion for summary judgment 

"must view the evidence presented through the prism of the substantive 

evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 

(1986) (applying rule to "clear and convincing" standard); Bulbman, Inc. v. 

Nev. Bell, 108 Nev. 105, 110-11, 825 P.2d 588, 592 (1992) (affirming 

summary judgment for defendant where plaintiff failed to show genuine 

issue of material fact as to fraud by clear and convincing evidence); see 

also Kaelin v. Globe Commc'ns Corp., 162 F.3d 1036, 1039 (9th Cir. 1998); 

Flowers v. Carville, 310 F. Supp. 2d 1157, 1161 (D. Nev. 2004). 

In this case the State's complaint consists of a single cause of 

action pursuant to NRS 179.1164(1), which provides that "[ably proceeds 

attributable to the commission or attempted commission of any felony" are 

property "subject to seizure and forfeiture in a proceeding for forfeiture." 

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NRS 179.1164(1)(a). "Proceeds' means any property, or that part of an 

item of property, derived directly or indirectly from the commission or 

attempted commission of a crime." NRS 179.1161. 

Nevada law is clear that forfeiture of funds seized from a bank 

account will not stand in the absence of evidence linking the money to 

criminal activity. Schoka v. Sheriff, Washoe Cnty., 108 Nev. 89, 91, 824 

P.2d 290, 291-92 (1992) (reversing forfeiture where there was "no evidence 

which traced any of the funds in the account to any criminal activity"). At 

the time the court decided Schoka, the State's burden of proof was by a 

preponderance of the evidence, and the burden is even higher today. As 

amended in 2001, NRS 179.1173(4) now requires the State to "establish 

proof by clear and convincing evidence that the property is subject to 

forfeiture," see 2001 Nev. Stat., ch. 176, § 1, at 874; Hearing on S.B. 36 

Before the Senate Committee on the Judiciary (Statement of Sen. Mark A. 

James, Chairman, S. Comm. on Judiciary) (amendment raising the State's 

burden to clear and convincing evidence is designed to avoid "injustice" 

where government's proof is "not so compelling"), a burden that applies to 

each element of the claim. See Albert H. Wohlers & Co. v. Bartgis, 114 

Nev. 1249, 1260-61, 969 P.2d 949, 957-58(1999) (citing Bulbman, 108 

Nev. at 111, 825 P.2d at 592, for the proposition that each element of a 

fraud claim must be proven by clear and convincing evidence). Therefore, 

the State must establish by clear and convincing evidence (1) that a felony 

was committed or attempted, and (2) that the funds seized from 

Fergason's bank account are "attributable to" or "derived directly or 

indirectly from" the commission or attempt. NRS 179.1161; NRS 

179.1164(1)(a); NRS 179.1173(4). 

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Clear and convincing evidence is a higher standard than proof 

by the preponderance of the evidence and requires "evidence establishing 

every factual element to be highly probable." In re Discipline of Drakulich, 

111 Nev. 1556, 1567, 908 P.2d 709, 715 (1995) (quoting Butler v. Poulin, 

500 A.2d 257,•260 n.5 (Me. 1985)). Thus, to determine whether the State's 

motion was properly supported, we must assess whether the record 

contains evidence from which a reasonable jury could find it highly 

probable that the money seized from Fergason was attributable to the 

commission of a felony. We examine each argument offered by the State 

to determine whether it satisfied its burden. 

1. 

In Nevada, where a forfeiture plaintiff presents proof that the 

claimant has been convicted of a criminal offense and that the conviction 

is final, then such proof is "conclusive evidence of all facts necessary to 

sustain the conviction." NRS 179.1173(6). The State argued below that 

Fergason's convictions for burglary, larceny, and possession of stolen 

property provide conclusive evidence sufficient to satisfy its summary 

judgment burden because "Mlle cause of action set forth in this forfeiture 

action mirrors the criminal charges set forth in the criminal cases" and is 

"supported by the same facts." However, the State did not demonstrate 

that the source of funds in Fergason's bank account was "necessary to 

sustain" his convictions as required by NRS 179.1173(6), and in fact the 

record indicates otherwise. 

Fergason's criminal informations detail the facts on which his 

burglary charge is premised, as well as catalog the tangible items on 

which his larceny and possession of stolen property charges are based. 

First, burglary—unlawful entering with intent to commit larceny—bears 

no "proceeds" as a matter of law; it concerns the act of unlawful entry and 

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does not require the acquisition of money or property. See MRS 205.060. 

Possession of stolen property, without more, likewise does not establish 

the funds in Fergason's bank accounts as the proceeds of those crimes but, 

rather, his possession of specific items of stolen property. See NRS 

205.275. 1And while Fergason's larceny charge allegedly include some 

money, in addition to property, and could have concerned property stolen 

and converted to money via sale, see NRS 205.220, the State presented the 

district court with no evidence even suggesting that it was. Without 

evidence that the property on which Fergason's larceny conviction was 

based had been converted to money, the State cannot begin to 

demonstrate both (1) that such money came to rest in Fergason's seized 

bank accounts and (2) that this evidence was "necessary to sustain" the 

conviction, 2which is the predicate for applying NRS 179.1173(6). 

In this case MRS 179.1173(6) does not apply to satisfy the 

State's summary judgment burden. 

1Fergason's conspiracy conviction was based on his agreement to 

"commit burglary and/or possess stolen property," thus the same analysis 

governs. See NRS 199.480. In addition, because both the conspiracy 

charge and possession of burglary tools charge are gross misdemeanors, 

see NRS 205.080, "proceeds attributable to" these charges could not be a 

predicate for forfeiture under NRS 179.1164 because that statute requires 

connection to a felony. See NRS 179.1164(1)(a). 

2Even if the State had shown that the property listed in the larceny 

count of Fergason's information had been converted to proceeds and 

placed in his bank account, whether those facts would be "necessary to 

sustain the conviction" so as to invoke MRS 179.1173(6) is unlikely but not 

evaluated here. 

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2. 

The State further argues that this court's opinion affirming 

Fergason's criminal convictions constitutes law of the case, precluding him 

from contending that no evidence connects his convictions to the seized 

funds. Specifically, the State relies on the following two sentences of our 

order as "dispositive": "Thefl officers who executed search warrants on 

Fergason's storage units, apartment, bank accounts, and safety deposit 

box also testified. These searches resulted in the discovery of evidence 

that directly or inferentially linked Fergason to the crimes of burglary 

and/or possession of stolen property." Fergason v. State, Docket No. 52877 

(Order of Affirmance, Aug. 4, 2010). 

Under the doctrine of the law of the case, "when an appellate 

court decides a principle or rule of law, that decision governs the same 

issues in subsequent proceedings in that case." Dictor v. Creative Mgmt. 

Servs., LLC, 126 Nev. 41, 44, 223 P.3d 332, 334 (2010); Rebel Oil Co. v. Atl. 

Richfield Co., 146 F.3d 1088, 1093 (9th Cir. 1998) (doctrine generally 

precludes a court from "reconsidering an issue that has already been 

decided by the same court, or a higher court in the identical case') 

(quoting United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997)). 

Application of the doctrine requires that the appellate court 

"actually address and decide the issue explicitly or by necessary 

implication." Dictor, 126 Nev. at 44, 223 P.3d at 334 (citing Snow-Erlin v. 

United States, 470 F.3d 804, 807 (9th Cir. 2006)); Rebel Oil Co., 146 F.3d 

at 1093. "A significant corollary to the doctrine is that dicta have no 

preclusive effect." Rebel Oil Co., 146 F.2d at 1093 (quoting Milgard 

Tempering, Inc. v. Selas Corp., 902 F.2d 703, 715 (9th Cir. 1990), and 

rejecting application of law of the case where based on dicta). 

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In this case Fergason's bank account was not relevant to the 

crimes with which he was charged, as discussed above. Nor did our order 

in the criminal case relate them: We said, in the context of the conspiracy 

charge, that (1) officers who executed search warrants on various places 

including his bank testified, and (2) the totality of the searches resulted in 

discovery of evidence linking Fergason to the crimes. As it concerns the 

bank account, the court's order is a description, not a disposition, and 

therefore does not qualify for deference pursuant to law of the case. See 

Rebel Oil Co., 146 F.3d at 1094 (explaining that where a court's 

statements are "better read as descriptions rather than dispositions" of 

claims, law of the case does not apply). 

3. 

Because the State has failed to establish that its summary 

judgment burden was satisfied by the fact of Fergason's convictions or by 

law of the case, it was required to present evidence below sufficient to 

allow a reasonable jury to find that it was highly probable the money 

seized from Fergason's bank account was related to a felony. 

In the district court, the State first supported its motion with 

grand jury testimony by Tonya Trevarthen, the girlfriend of Fergas on's codefendant Daimon Monroe. According to her testimony, 

• "probably the majority of everything taken [by police]" had been 

stolen, but Trevarthen had not read a list of the items seized, 

• Daimon Monroe considered stealing to be his job, 

• Monroe came home with cash, 

• Monroe kept cash at the home he shared with her, 

• Monroe deposited cash into Trevarthen's bank account via ATM, 

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* the cash described above came from burglaries and selling stolen 

items, and 

• Monroe sold property from their home almost every weekend. 

None of the attached grand jury testimony refers to Fergason or his bank 

account. 

The State further presented testimony by Trevarthen from the 

trials of Fergason and Monroe. At trial Trevarthen repeated much of her 

grand jury testimony and added that 

* she knew Fergason "pretty well" and saw him "pretty often," 

• Fergason and Monroe "never hid" that they committed burglaries 

and returned with stolen property, 

• "cash would accumulate" in the home she shared with Monroe, 

• she and Monroe deposited accumulated cash into her bank accounts, 

• Monroe did not always have a job, 

• income from her teaching job did not pay all the bills she and 

Monroe incurred, 

• the home she shared with Monroe contained items of personal 

property that she did not pay for, 

• she either knew or believed that "those items" had been stolen, 3 

• she withdrew $145,000 from her bank account and gave it to 

defendant Robert Holmes, and 

• she characterized the money she gave Holmes as cash that was 

made by selling stolen property. 

3The transcript does not make clear whether Trevarthen knew or 

believed items were stolen, or the exact items to which she refers. 

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None of the trial testimony offered by the State in support of summary 

judgment refers to Fergason's bank account, any possession of cash by 

Fergason, or any conversion of stolen property to proceeds by Fergason. 4 

In Schoka v. Sheriff, Washoe County, this court held that 

where "there was no evidence which traced any of the funds in the 

[claimant's] account to any criminal activity," the account was not 

forfeitable as the proceeds of crime under NRS Chapter 179. 108 Nev. 89, 

91, 824 P.2d 290, 291-92 (1992). In that case, the State alleged that 

Schoka conducted a scheme of real estate fraud: specifically, that he would 

purchase properties with assumable loans, collect rent, and then fail to 

make the mortgage payments. Id. at 90-91, 824 P.2d at 291. The State 

sought forfeiture of an investment account and a Mercedes Benz vehicle; 

and following an evidentiary hearing, the district court ordered forfeiture. 

Id. We reversed, concluding that although the State presented "several 

witnesses who testified to fraudulent conduct on the part of Schoka," 

4In its answering brief on appeal, the State relies on pages of 

additional factual statements that were never presented to the district 

court below. Some statements are supported by materials in its three 

volumes of supplemental appendix, which consists of trial transcripts from 

the criminal cases that were never presented to the district court. Other 

statements are not supported at all. This evidence may not be considered 

on appeal: "Matters outside the record on appeal may not be considered by 

an appellate court." Hooper v. State, 95 Nev. 924, 926, 604 P.2d 115, 116 

(1979); Smith v. U.S. Customs & Border Prot., 741 F.3d 1016, 1020 n.2 

(9th Cir. 2014) (refusing to consider claim that "rest[ed] on facts and 

documents that were never before the district court"). "Papers not filed 

with the district court or admitted into evidence by that court are not part 

of the clerk's record and cannot be part of the record on appeal." Kirshner 

v. Uniden Corp., 842 F.2d 1074, 1077 (9th Cir. 1988) (citing United States 

v. Walker, 601 F.2d 1051, 1054-55 (9th Cir. 1979)); see NRAP 10(a) ("trial 

court record consists of the papers and exhibits filed in the district court"). 

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forfeiture would not lie because the evidence relating to the car and 

account was "very limited." Id. at 91, 584 P.2d at 291. 

The forfeiture decisions of other jurisdictions are in accord. In 

Dobyne v. State, an Alabama appellate court held that summary judgment 

was improper where the state had failed to present evidence "indicating 

that the money Dobyne carried on his person was derived from the sale of 

illegal drugs, was intended to be used to purchase illegal drugs, or was 

intended to be used in some way to facilitate Dobyne's illegal-drug trade." 

4 So. 3d 506, 512 (Ala. Civ. App. 2008). That court announced that 

"Em]oney cannot be seized and forfeited merely because the person to 

whom it belongs is a convicted drug dealer. The State must prove to a 

'reasonable satisfaction' an actual link between the money sought to be 

forfeited and a violation of the controlled-substances laws of this State." 

Id. at 512 (citing Thompson v. State, 715 So. 2d 224, 226 (Ala. Civ. App. 

1997)); McHugh v. Reid, 324 P.3d 998, 1005-06 (Idaho Ct. App. 2014) 

(reversing partial summary judgment where, despite claimants' guilty 

pleas to manufacture and distribution of a controlled substance, state 

failed to establish "essential" element of forfeiture: "the required nexus 

between the vehicle [seized] and its use for the purpose of distribution or 

receipt of marijuana"). 

In Ivy v. State, an Indiana court reversed summary judgment 

due to lack of a connection between the seized money and criminal activity 

under similar circumstances. 847 N.E.2d 963, 967 (Ind. Ct. App. 2006). 

Ivy's money was seized from his person at the time of arrest for giving a 

false name to an officer. Id. at 964. Ivy's false informing charge was 

eventually dismissed, but he was convicted on separate drug charges 

arising six weeks after the first arrest. Id. at 964-65. The state presented 

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no evidence in the forfeiture case other than relating the circumstances of 

Ivy's first arrest. Id. at 967. The court concluded, 

In short, there was a complete lack of evidence 

that Ivy's money was connected to drug dealing. 

This is not to say that the State cannot establish 

the connection . . . at a full trial, but in the context 

of this summary judgment hearing, Ivy was 

deprived of his day in court. 

Id.; see also Bolden v. State, 127 So, 3d 1195, 1201 (Ala. Civ. App. 2012) 

(following its decision in Dobyne to reverse summary judgment, concluding 

that "felvidence indicating that Bolden has sold drugs at some indefinite 

time in the past coupled with the discovery of $8,265 in his vehicle is 

insufficient to establish that the $8,265 was due to be forfeited"). 

The State cites United States v. Thomas, 913 F.2d 1111 (4th 

Cir. 1990), to argue that certain factors have been held "suggestive of 

proceeds of criminal activity," including possession of quantities of cash 

that vastly exceed income. Thomas does not guide this court's decision for 

two important reasons: First, no such evidence was presented by the State 

below, see supra (listing entire body of evidence presented to the district 

court), and the district court made no such findings. In fact, the district 

court made no findings other than recognizing the judgments of conviction; 

it relied exclusively on application of NRS 179.1173(6). 

Second, Thomas was governed by a statutory scheme that was 

abrogated by the federal Civil Asset Forfeiture Reform Act (CAFRA) in 

2000. See United States v. $80,180.00 in U.S. Currency, 303 F.3d 1182, 

1184 (9th Cir. 2002) (explaining that CAFRA was enacted "Din response to 

widespread criticism of [the existing proof] regime"). At the time of 

Thomas, the government's only burden in forfeiture cases was to show 

"probable cause" that the seized property was subject to forfeiture, then 

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the burden shifted to the claimant, to prove by the preponderance of the 

evidence that the property was not forfeitable. Thomas, 913 F.2d at 1114. 

Under CAFRA, however, the government bears the entire burden to prove 

all elements of forfeiture by a preponderance of the evidence. $80,180.00, 

303 F.3d at 1184 (also noting that probable cause is a lower standard than 

preponderance of the evidence). As discussed above, Nevada requires even 

more than that—clear and convincing evidence of every element. 

The Nevada statutory forfeiture scheme indicates that One 

1979 Ford 15V v. State, 721 So. 2d 631 (Miss. 1998), provides the better 

result. In that case, the trial court determined forfeiture of bank accounts 

was proper where the proof showed that the claimant was convicted of 

felony drug crimes and had "amounts of cash in excess of what would 

normally be expected from the operation of a store or working at a 

factory," despite no evidence of "any drug sale or transaction that 

contributed proceeds to" the accounts. Id. at 636-37. The supreme court 

found the trial court's decision clearly erroneous, concluding there was "no 

nexus between the bank and the crime committed" by the claimant. Id. at 

637. 

Finally, the State suggests that Fergason's conspiracy 

conviction "raises the notion" that he was jointly and severally liable for 

forfeited proceeds of the conspiracy, relying on United States v. Corrado, 

227 F.3d 543 (6th Cir. 2000), and United States v. Simmons, 154 F.3d 765 

(8th Cir. 1998). These two decisions were expressly rejected by the D.C. 

Circuit in a lengthy, detailed discussion. United States v. Cano-Flores, 

796 F.3d 83, 91 (D.C. Cir. 2015). 

We need not evaluate an inter-circuit disagreement, however, 

because the State offered no evidence that Fergason's bank account 

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contained proceeds of anyone's criminal activity, which is required under 

its own cited authority. See Corrado, 227 F.3d at 552 (prior to assigning 

joint and several liability to RICO coconspirators, district court must 

determine whether "the facts support a finding of a sufficient nexus 

between the property to be forfeited and the RICO violation"); Simmons, 

154 F.3d at 771 (finding forfeiture proper as to amount district court 

determined was "achieved through these specific wrongful acts,' but not 

the total income of the codefendants' public relations firms); cf. United 

States v. $814,254.76 in U.S. Currency, 51 F.3d 207, 209 (9th Cir. 1995) 

(discussing federal provision allowing money in a bank account to be 

forfeited when not directly traceable to laundered funds so long as account 

previously contained funds traceable to illegal activity). 

Had the State presented clear and convincing evidence that 

Fergason's bank account contained proceeds of Monroe's crimes, for 

example, the court could begin to determine whether joint and several 

liability should apply to cause forfeiture as to Fergason. However, it did 

not, speculating without record support that "Monroe had the ability to 

transfer funds to and from Trevarthen's Bank of America account, which 

would presumably include Fergason's accounts." For this and foregoing 

reasons, the State failed to establish it was entitled to judgment as a 

matter of law, and the burden to produce evidence never shifted to 

Fergason. 

B. 

The State argues that Fergason lacks standing in this case 

because he failed to describe in his answer the interest he asserts in the 

seized bank funds. The State presented this argument for the first time 

on appeal, but we briefly address it because Fergason's standing is clear 

under Nevada law. 

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The primary authority cited by the State, United States v. 

$133,420.00 in U.S. Currency, 672 F.3d 629 (9th Cir. 2012), concerns 

federal, Article III constitutional standing. Id. at 637-38. Under federal 

forfeiture law, a party asserting standing must fulfill both statutory and 

constitutional standing requirements. United States v. 17 Coon Creek Rd., 

787 F.3d 968, 973-74 (9th Cir. 2015). Nevada, however, does not require 

constitutional standing where the Legislature has provided a statutory 

right to sue. Stockmeier v. Nev. Dep't of Corr., 122 Nev. 385, 393-94, 135 

P.3d 220, 226 (2006), disavowed in part on other grounds by Buzz Stew, 

LLC v. City of N. Las Vegas, 124 Nev. 224, 228 n.6, 181 P.3d 670, 672 n.6 

(2008); accord Heller v. Nev. State Leg., 120 Nev. 456, 461 n.3, 93 P.2d 

746, 749 n.3 (2004) ("State courts are not bound by federal standing 

principles, which derive from the 'case or controversy' component of the 

United States Constitution."). In particular, we have adopted the view 

that 

"lsltanding is a self-imposed rule of restraint 

State courts need not become enmeshed in the 

federal complexities and technicalities involving 

standing and are free to reject procedural 

frustrations in favor of just and expeditious 

determination on the ultimate merits." 

Stockmeier, 122 Nev. at 393, 135 P.3d at 225 (quoting 59 Am. Jur. 2d 

Parties § 30 (2002)). 

Instead, this court looks to "the language of the statute itself' 

to determine a party's qualification. Id. (reversing dismissal for failure to 

state a claim where open meeting law provided that "[alny person denied a 

right conferred by this chapter may sue"). Nevada has a "long-standing 

history of recognizing statutory rights that are broader than those 

afforded to citizens by constitutional standing." Citizens for Cold Springs 

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v. City of Reno, 125 Nev. 625, 633, 218 P.3d 847, 852 (2009) (following 

Hantges v. City of Henderson, 121 Nev. 319, 322-23, 113 P.3d 848, 850 

(2005), to apply "the principle of statutory standing"). 

In Cold Springs, the plaintiff challenged an annexation 

decision by Reno pursuant to NRS 268.668, which confers standing on 

"any person. . . claiming to be adversely affected by" an annexation 

proceeding. 125 Nev. at 628-30, 218 P.3d at 849-50. There we held that 

under the statute, "only a claim of adverse effect is necessary for standing 

purposes"—whether the plaintiff could actually demonstrate an adverse 

effect did not relate to standing but rather to the merits. Id. at 633-34, 

218 P.3d at 852-53; see also id. at 628, 218 P.3d at 849 (finding standing 

despite district court's characterization of claims of injury as 

"speculative"). 

Following our holding in Cold Springs, in this case only a 

claim to any right, title, or interest of record is necessary to establish 

standing under Nevada's forfeiture law. NRS 179.1171(7) provides that 

the proper parties to a Nevada civil forfeiture case are "the plaintiff and 

any claimant." A claimant is "any person who claims to have. . . any 

right, title or interest of record in the property or proceeds subject to 

forfeiture." NRS 179.1158(1). 

Fergason alleged in the district court that the State 

impermissibly seized funds from a bank account registered in his name, 

therefore he is a person claiming to have a right, title, or interest of record 

in the property subject to forfeiture. Moreover, the State conceded 

Fergason's title to the bank account in its complaint, when it pleaded that 

officers "seized U.S. CURRENCY $124,216.36 from the account of BRYAN 

FERGASON . . . at Bank of America," thus it conceded Fergason's 

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standing under NRS 179.1158(1) and the "statutory standing" principle 

recognized by Hantges and confirmed in Cold Springs. 

The State nevertheless contends that Fergason lacks standing 

because he did not comply with NRS 179.1171, which provides that "[ti he 

claimant . . . shall, in short and plain terms, describe the interest which 

the claimant asserts in the property." NRS 179.1171(6). The State cites 

no Nevada law holding or suggesting that the failure to strictly comply 

with NRS 179.1171(6) vitiates standing to contest a forfeiture, and we see 

nothing to suggest that Fergason's minor omission is fatal to his case. 

First, as we said in Stockmeier, state courts are 'free to reject 

procedural [standing] frustrations in favor of just and expeditious 

determination on the ultimate merits." Stockmeier, 122 Nev. at 393, 135 

P.3d at 225 (quoting 59 Am Jur. 2d Parties § 30 (2002)). Second, MRS 

179.1171(6) mirrors the "short and plain statement of the claim" language 

found in NRCP 8(a), 5which courts, including this one, have long construed 

liberally, requiring only that the adverse party have notice of the claims 

being pleaded. See Chavez v. Robberson Steel Co., 94 Nev. 597, 599, 584 

P.2d 159, 160 (1978). 

In this case, the State was on notice that Fergason claimed an 

interest in the money at issue because it seized the money from his bank 

account. In addition, the State recognized Fergason as a claimant when it 

named him as such in the complaint and caused him to be served with the 

forfeiture complaint pursuant to MRS 179.1171(5), which requires 

5"A pleading which sets forth a claim for relief. . . shall contain. .. a 

short and plain statement of the claim showing that the pleader is entitled 

to relief . ." NRCP 8(a). 

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plaintiffs to serve "each claimant whose identity is known to the plaintiff 

•or who can be identified through the exercise of reasonable diligence." 

Ninth Circuit law also supports this conclusion: In 17 Coon 

Creek Road, the court noted that courts may "overlook" the failure to 

comply with similar pleading requirements in federal forfeiture law. 787 

F.3d at 974 (quoting United States v. $11,500 in U.S. Currency, 710 F.3d 

1006, 1012 (9th Cir. 2013), and citing United States v. 4492 S. Livonia Rd., 

889 F.2d 1258, 1262 (2d Cir. 1989), for the proposition that courts may 

"excus[e] technical noncompliance with procedural rules governing filing 

of claims on ground that claimant made sufficient showing of interest in 

property.") 

The government argued in 17 Coon Creek Road that the 

claimant lacked standing because he failed to respond to special 

interrogatories requesting him to describe his interest in the property. Id. 

at 971. The Ninth Circuit concluded, 

[B] ecause it cannot reasonably be disputed that 

Pickle's interest in the defendant property was 

sufficient to establish his statutory standing at the 

inception of the proceedings—recall that both 

parties alleged that Pickle was the "recorded 

owner" of the defendant property, and the 

government further alleged that Pickle and his 

son both resided on the property—Pickle's failure 

to respond to the government's special 

interrogatories did not alone vitiate his ability to 

maintain his claim. 

Id. at 977; see also id. (citing United States v. $154,853 in U.S. Currency, 

744 F.3d 559, 564 (8th Cir. 2014) (reversing district court's striking of 

claim for noncompliance with same procedural requirements where 

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claimant "had adequately claimed to have earned the defendant funds 

through legitimate employment")). 

In this case, where the State was unquestionably on notice 

that Fergason claimed an interest in the funds, to characterize his answer 

as defective for failing to further describe his interest would be nothing 

more than a "procedural frustration" hindering the just determination of 

the merits in this case. See Stockmeier, 122 Nev. at 393, 135 P.3d at 225. 

Because the State failed to present evidence sufficient to 

satisfy its burden, the burden of production did not shift to Fergason, and 

the district court improperly granted summary judgment. Accordingly, we 

reverse and remand to the district court for further proceedings. 

J. 

We concur: 

Gibbons 

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