Herbert Moreira-Brown v. Las Vegas Review Journal Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT MOREIRA-BROWN, No. 17-17119
Plaintiff-Appellant, D.C. No. 2:16-cv-02002-JAD-VCF
v.
MEMORANDUM*
LAS VEGAS REVIEW JOURNAL INC.; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
Herbert Moreira-Brown appeals pro se from the district court’s judgment
dismissing his diversity action alleging that defendants defamed him. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Palm v. L.A. Dep’t of
Water & Power, 889 F.3d 1081, 1085 (9th Cir. 2018) (dismissal for failure to state
*
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).
a claim); Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (dismissal for
lack of personal jurisdiction). We affirm in part, vacate in part, and remand.
The district court properly dismissed the claims against defendant Ademiluyi
because Moreira-Brown failed to allege that Ademiluyi had sufficient contacts
with Nevada to provide the court with specific personal jurisdiction over
Ademiluyi. See Boschetto, 539 F.3d at 1015-16 (setting forth the due process
requirement of “minimum contacts” and the three-part test for establishing specific
jurisdiction); Myers v. Bennett Law Offices, 238 F.3d 1068, 1072 (9th Cir. 2001)
(Nevada’s long-arm statute permits the exercise of personal jurisdiction provided
that it comports with due process). We do not consider any evidence Moreira-
Brown failed to raise in his opposition to Ademiluyi’s motion to dismiss.
The district court properly dismissed Moreira-Brown’s intentional infliction
of emotional distress and negligent infliction of emotional distress claims because
Moreira-Brown failed to allege facts sufficient to show that defendants’ conduct
was extreme and outrageous or that their conduct caused physical injury or illness.
See Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998) (negligent
infliction of emotional distress claim requires either a “physical impact” or
“serious emotional distress causing physical injury or illness”); Star v. Rabello,
625 P.2d 90, 91-92 (Nev. 1981) (elements of an intentional infliction of emotional
distress claim); see also Maduike v. Agency Rent–A–Car, 953 P.2d 24, 26 (Nev.
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1998) (“[E]xtreme and outrageous conduct is that which is outside all possible
bounds of decency and is regarded as utterly intolerable in a civilized community.”
(citation and internal quotation marks omitted)).
The district court dismissed Moreira-Brown’s defamation claim against
defendants Las Vegas Review Journal, Inc. and Thevenot under Nevada’s anti-
Strategic Lawsuits Against Public Participation statutes, specifically finding their
communications protected under Nev. Rev. Stat. § 41.637(3). In Patin v. Lee, 429
P.3d 1248, 1251-52 (Nev. 2018), which was decided after the district court’s
judgment in this case, the Nevada Supreme Court adopted a new rule regarding
whether a statement is protected under Nev. Rev. Stat. § 41.637(3). Because the
district court did not have the benefit of the decision in Patin when it entered
judgment, we vacate the judgment in part, and remand on Moreira-Brown’s
defamation claim against Las Vegas Review Journal, Inc. and Thevenot so the
district court can consider Patin in the first instance.
We lack jurisdiction to consider the district court’s order denying Moreira-
Brown’s post-judgment motion for reconsideration because Moreira-Brown failed
to file a new or amended notice of appeal after the district court denied his motion.
See Harris v. Mangum, 863 F.3d 1133, 1138 n.1 (9th Cir. 2017).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
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The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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