                                                                           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                            NOT FOR PUBLICATION                             OCT 21 2010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


                                           -3-
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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