                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 31 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DAVID K. FAGIN, an individual on                 No. 11-17126
behalf of himself and derivatively on
behalf of Nominal Defendant Western              D.C. No. 3:08-cv-00314-ECR-RAM
Title Exploration and Development
Limited; et al.,
                                                 MEMORANDUM *
              Plaintiffs - Appellants,

  v.

DOBY GEORGE, LLC, a Nevada Limited
Liability Company; et al.,

              Defendants - Appellees.




                   Appeal from the United States District Court
                            for the District of Nevada
                 Edward C. Reed, Senior District Judge, Presiding

                             Submitted May 17, 2013 **
                              San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: CLIFTON and BEA, Circuit Judges, and KORMAN, District Judge.***

      Plaintiffs appeal the district court’s order granting Defendants’ motion for

summary judgment as to Plaintiffs’ claims of conspiracy and breach of fiduciary

duty. We affirm.

      The district court determined that the law of Yukon, Canada applied to

Plaintiffs’ derivative claims, brought as shareholders on behalf of Western

Exploration and Development Limited (“WEX”), because WEX was incorporated

under Yukon law. That decision was correct. See Restatement (Second) of Conflict

of Laws § 309 (1971) (providing that the local law of the state of incorporation

shall determine the liability of directors to the corporation and its shareholders);

see also Dictor v. Creative Mgmt. Servs., LLC., 223 P.3d 332, 335 (Nev. 2010)

(noting that Nevada has adopted the Second Restatement as the relevant authority

for its choice-of-law jurisprudence in tort cases).

      Yukon law requires that a plaintiff seek certification with the Supreme Court

of Yukon prior to commencing a derivative action on behalf of a corporation.

Yukon Business Corporations Act, R.S.Y. 2002, c. 20, § 241 (Can.). Plaintiffs




        ***
             The Honorable Edward R. Korman, District Judge for the Eastern
District of New York, sitting by designation.

                                           2
sought no such certification. We therefore affirm the district court as to Plaintiffs’

derivative claims.

      The district court also granted summary judgment as to Plaintiffs’ individual

claims, because those claims were barred by the statute of limitations. Though

typically a question of fact left to the jury, the date on which a plaintiff became

aware of a fraud can be grounds for summary judgment when the facts are not

“susceptible to opposing inferences.” Millspaugh v. Millspaugh, 611 P.2d 201, 202

(Nev. 1980). The district court concluded that a jury could not reasonably find for

Plaintiffs regarding the accrual date of their claims. We agree.

      The record establishes that Plaintiffs were aware of the facts constituting the

fraud in February 2000. Thus, Plaintiffs’ claims are barred regardless of which

statute of limitations we apply. Colo. Rev. Stat. § 13-80-101(1)(c) (2011); Nev.

Rev. Stat. § 11.220 (2011); Limitation of Actions Act, R.S.Y. 2002, c. 139, § 2(1)

(Can.). Accordingly, summary judgment was appropriate.

      AFFIRMED.




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