Opinion
21-16377
08-23-2022
DARREN HEYMAN, Plaintiff-Appellant, v. STATE OF NEVADA, ex rel; on behalf of Board of Regents of the Nevada System of Higher Education; on behalf of University of Nevada, Las Vegas; NEAL SMATRESK; DONALD SNYDER; STOWE SHOEMAKER; RHONDA MONTGOMERY; CURTIS LOVE; SARAH TANFORD; PHILIP BURNS; KRISTIN MALEK; LISA MOLL-CAIN; DEBRA L. PIERUSCHKA; ELDA M. SIDHU, Defendants-Appellees.
NOT FOR PUBLICATION
Submitted August 22, 2022 [**] San Francisco, California
Appeal from the United States District Court No. 2:15-cv-01228-APG-BNW for the District of Nevada Andrew P. Gordon, District Judge, Presiding
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
MEMORANDUM [*]
Darren Heyman appeals pro se the district court's decision to remand his case to Nevada state court and various rulings rendered prior to remand. Heyman instituted this action against the University of Nevada Las Vegas ("UNLV") and several individuals asserting a Title IX claim and numerous state law claims. We affirm.
Education Amendments of 1972 § 901, 20 U.S.C. § 1681.
The district court did not abuse its discretion when District Judge Gordon, Magistrate Judge Foley, and Magistrate Judge Weksler declined to recuse themselves. "'[M]inimal alumni contacts'" to a defendant university and adverse rulings are not bases for recusal. In re Complaint of Jud. Misconduct, 816 F.3d 1266, 1267 (9th Cir. 2016); see also Taylor v. Regents of the Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993) (per curiam).
See Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993).
Nor did the district court plainly err due to District Judge Boulware's failure to sua sponte recuse himself earlier in the case. See United States Courts, Guide to Judiciary Policy, Vol. 2B, Ch. 3 § 3.4-3; Jud. Misconduct, 816 F.3d at 1267. Moreover, were there any error, it was harmless. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 862, 108 S.Ct. 2194, 2203-04, 100 L.Ed.2d 855 (1988) (harmless error review may apply to violations of 28 U.S.C. § 455).
See United States v. Holland, 519 F.3d 909, 911-12 (9th Cir. 2008).
The district court did not abuse its discretion in declining to exercise supplemental jurisdiction because the only federal claim had been dismissed. See 28 U.S.C. § 1367(c)(3); Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010). "Whether a federal court should exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) is an issue 'which remains open throughout the litigation.'" Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1181 n.28 (9th Cir. 2003).
See San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir. 1998).
The district court did not err in dismissing certain of Heyman's claims and his requests for punitive damages. His claims relating to the alleged complaint filed with the State Bar of Nevada were barred by Nevada Supreme Court Rule 106(1). Additionally, as outlined by the district court, his Title IX claim and punitive damage requests were not sufficiently alleged. See Ashcroft v.Iqbal, 556 U.S. 662, 677-79 (2009). Nor was his Nevada Fair Employment Practices Act claim, which improperly included individual defendants in their individual capacities, see Miller v. Maxwell's Intern. Inc., 991 F.2d 583, 587 (9th Cir. 1993); Nev. Rev. Stat. § 613.310(2), and failed to allege facts that Heyman's employer took "retaliatory and adverse action" against him on the basis of his "sex and/or gender," see Iqbal, 556 U.S. at 677-79. In other words, the employment discrimination claims were properly dismissed, not because of a failure to allege an employment relationship as the district court erroneously ruled, but because the other requisite allegations were conclusory and lacked the minimum factual detail necessary to state cognizable employment claims.
See Burgert v. Lokelani Bernice Pauahi Bishop Tr., 200 F.3d 661, 663 (9th Cir. 2000).
Claims 18-25.
Nor did the district court err in its summary judgment rulings. Heyman did not present sufficient evidence of an agreement among the defendants to sustain his claims of civil conspiracy and concert of action. See Dow Chem. Co. v. Mahlum, 970 P.2d 98, 112 (Nev. 1998), abrogated on other grounds by GES, Inc. v. Corbitt, 21 P.3d 11, 14-15 (Nev. 2001) (per curiam); see also FTC v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997). Nor was his negligence claimproperly alleged. See Clark Cnty. Sch. Dist. v. Payo, 403 P.3d 1270, 1279 (Nev. 2017); see also Devereaux, 263 F.3d at 1076.
See Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc).
Claims 3, 4, and 31.
Claim 16 (investigation of rumor).
Summary judgment was proper as to defendants Curtis Love, Rhonda Montgomery, and Sarah Tanford for the claims relating to the publication of the alleged rumor. The record supports the district court's holding that Love's statements were privileged. See Circus Circus Hotels, Inc. v. Witherspoon, 657 P.2d 101, 105 (Nev. 1983). As to Montgomery and Tanford, the district court did not abuse its discretion in excluding Merrick McKeig's affidavit regarding an alleged statement by Toni Repetti. See Fed.R.Evid. 802; Orr, 285 F.3d at 778-79 &779 n.27; Weil v. Citizens Telecom Servs. Co., LLC, 922 F.3d 993, 999 (9th Cir. 2019).
Claims 1-2, 5-9, 13, and 16.
See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
The district court did not abuse its discretion in ordering supplemental motions for summary judgment from the parties regarding certain claims or in identifying potentially relevant case law. See Fed.R.Civ.P. 56(f). Additionally, the district court's finding that Heyman's separation from UNLV was unintentional is supported by the record, despite Heyman's speculation to the contrary. See Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996).
See Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010).
Claims 27-30.
There was a sound basis for the denial of Heyman's motion to disqualify defendant Montgomery's counsel, thus the district court did not abuse its discretion. See Cohn v. Rosenfeld, 733 F.2d 625, 631 (9th Cir. 1984); see also Nev. Rules of Pro. Conduct r. 1.18(c), (d).
Finally, the district court did not abuse its wide discretion in limiting Heyman to eleven depositions. See Blackburn v. United States, 100 F.3d 1426, 1436 (9th Cir. 1996); see also Jeff D. v. Otter, 643 F.3d 278, 289 (9th Cir. 2011); Fed.R.Civ.P. 30(a). Nor did it abuse its discretion in sanctioning him for his unjustified noncompliance with its orders. Fed.R.Civ.P. 37(b)(2); id. 16(f); cf. Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993).
See Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1070 (9th Cir. 2016).
We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). We decline the request for judicial notice by the jointly-represented defendants. See Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 393 n.7 (9th Cir. 2000).
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).