Darren Heyman v. State of Nevada

FILED
NOT FOR PUBLICATION
AUG 23 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARREN HEYMAN, No. 21-16377
Plaintiff-Appellant, D.C. No.
2:15-cv-01228-APG-BNW
v.
STATE OF NEVADA, ex rel; on behalf of MEMORANDUM*
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.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted August 22, 2022**
San Francisco, California
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
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 IX1 claim and numerous state law claims. We
affirm.
The district court did not abuse its discretion2 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).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Education Amendments of 1972 § 901, 20 U.S.C. § 1681.
2
See Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993).
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Nor did the district court plainly err3 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).
The district court did not abuse its discretion4 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).
The district court did not err5 in dismissing certain of Heyman’s claims and
his requests for punitive damages. His claims relating to the alleged complaint
3
See United States v. Holland, 519 F.3d 909, 911–12 (9th Cir. 2008).
4
See San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 478
(9th Cir. 1998).
5
See Burgert v. Lokelani Bernice Pauahi Bishop Tr., 200 F.3d 661, 663
(9th Cir. 2000).
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filed with the State Bar of Nevada6 were barred by Nevada Supreme Court Rule
106(1). Additionally, as outlined by the district court, his Title IX claim and
punitive damage requests7 were not sufficiently alleged. See Ashcroft v.Iqbal, 556
U.S. 662, 677–79 (2009). Nor was his Nevada Fair Employment Practices Act
claim,8 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.
Nor did the district court err9 in its summary judgment rulings. Heyman did
not present sufficient evidence of an agreement among the defendants to sustain his
6
Claims 18–25.
7
Nev. Rev. Stat. § 41.035.
8
Nev. Rev. Stat. § 613.330.
9
See Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc).
4 21-16377
claims of civil conspiracy and concert of action.10 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 claim11
properly alleged. See Clark Cnty. Sch. Dist. v. Payo, 403 P.3d 1270, 1279 (Nev.
2017); see also Devereaux, 263 F.3d at 1076.
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.12 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 discretion13 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).
10
Claims 3, 4, and 31.
11
Claim 16 (investigation of rumor).
12
Claims 1–2, 5–9, 13, and 16.
13
See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
5 21-16377
The district court did not abuse its discretion14 in ordering supplemental
motions for summary judgment from the parties regarding certain claims15 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).
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 discretion16 in sanctioning him for his
14
See Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir.
2010).
15
Claims 27–30.
16
See Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1070 (9th Cir.
2016).
6 21-16377
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).
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.
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