Nancy Nolette v. City of Boulder

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY NOLETTE, No. 18-16620
Plaintiff-Appellant, D.C. No.
2:12-cv-01414-JCM-PAL
v.
CITY OF BOULDER, MEMORANDUM * P0F P
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted March 2, 2020** P 1F P
Pasadena, California
Before: KLEINFELD and CALLAHAN, Circuit Judges, and CHRISTENSEN,** * P 2F P
District Judge.
Plaintiff-Appellant, Nancy Nolette (“Nolette”), appeals from the district
court’s dismissal of her action pursuant to 42 U.S.C. § 1983, alleging that
*
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).
***
The Honorable Dana L. Christensen, United States Chief District
Judge for the District of Montana, sitting by designation.
Defendant-Appellee, City of Boulder City (“City”), violated her constitutional
rights by filing several Nevada state lawsuits against her and other Boulder City
residents in response to their ballot initiative efforts. Three of these lawsuits, filed
by the City in 2010, were consolidated on appeal before the Nevada Supreme
Court, and eventually resulted in dismissal on the ground that the lawsuits violated
Nevada’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law, Nev.
Rev. Stat. § 41.660. The state court judgment dismissing the 2010 lawsuits also
awarded Nolette and her codefendants attorney’s fees as authorized under Nev.
Rev. Stat. § 41.670.
While the 2010 state lawsuits were still pending appeal, Nolette filed this
civil rights action in federal court. After the Nevada state courts issued final
judgment in those cases, the district court dismissed this action as barred under
Rooker-Feldman and the Younger abstention doctrine. We reversed that order and
remanded for the district court to consider issues of preclusion. See Nolette v.
Tobler, 699 F. App’x 740 (9th Cir. 2017). On remand, the district court dismissed
Nolette’s claims as barred by claim preclusion. We have jurisdiction under 28
U.S.C. § 1291 and affirm the district court’s order.
Claim preclusion, also known as res judicata, “is a broad doctrine that bars
bringing claims that were previously litigated as well as some claims that were
never before adjudicated.” Clements v. Airport Auth. of Washoe Cty., 69 F.3d 321,
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327 (9th Cir. 1995). The Full Faith and Credit Act, 28 U.S.C. § 1738, requires
federal courts to “apply the res judicata rules of a particular state to judgments
issued by courts of that state.” Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th
Cir. 1998). Under Nevada law, claim preclusion applies when: (1) the parties or
their privies are the same in the instant lawsuit as they were in the previous
lawsuit, or the defendant can demonstrate that he or she should have been included
as a defendant in the earlier suit and the plaintiff fails to provide a good reason for
not having done so; (2) the final judgment is valid; and (3) the subsequent action is
based on the same claims or any part of them that were or could have been brought
in the first case. See Five Star Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev.
2008), as modified by Weddell v. Sharp, 350 P.3d 80, 81 (Nev. 2015). Nolette
concedes that the first two Five Star requirements are met in her case. She
disputes only whether her claims in the current action “were or could have been
brought” in the prior state lawsuits.
“The test for determining whether the claims, or any part of them, are barred
in a subsequent action is if they are ‘based on the same set of facts and
circumstances as the [prior action].’” Mendenhall v. Tassinari, 403 P.3d 364, 370
(Nev. 2017) (citing Five Star, 194 P.3d at 714). Nolette’s civil rights claims in the
instant action are based on the facts and circumstances surrounding the City’s
pattern of litigation against Nolette and her fellow citizens for their ballot initiative
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efforts. These facts that give rise to her claims had emerged by the time the City
filed the 2010 lawsuits and are generally the same set of facts on which the 2010
lawsuits were based. As such, Nolette could have raised her civil claims as
counterclaims in the 2010 lawsuits. Thus, Nolette’s civil rights claims are barred
by claim preclusion. See Five Star, 194 P.3d at 715 (“[C]laim preclusion applies to
prevent a second suit based on all grounds of recovery that were or could have
been brought in the first suit.” (emphasis added)).
We are unpersuaded by Nolette’s argument that her claims are not precluded
by res judicata because they were permissive, rather than compulsory,
counterclaims in the prior lawsuits. None of the Nevada cases cited by Nolette
directly support her proposition that claim preclusion extends only to compulsory,
but not permissive, counterclaims. Even assuming a permissive counterclaim
exception exists under Nevada’s claim preclusion doctrine, we agree with the
district court that Nolette’s civil rights claims would have been compulsory
counterclaims in the 2010 lawsuits because “the pertinent facts of the different
claims [were] so logically related that issues of judicial economy and fairness
mandate that all issues be tried in one suit.” Mendenhall, 403 P.3d at 370; see also
Nev. R. Civ. P. 13(a).
We also reject Nolette’s assertion that claim preclusion should not apply
because she has “good reason” for not raising her civil rights claims as
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counterclaims in the 2010 lawsuits. Under Weddell, 350 P.3d at 81, a showing of
“good reason” is relevant only to the privity factor of the Five Star test. As Nolette
concedes, the privity requirement is satisfied because the parties are the same in
both the instant and prior state lawsuits. Moreover, even if “good reason” could
excuse Nolette’s failure to raise her counterclaims in the prior suits, we find that
her proffered reasons are inadequate and unpersuasive in that regard.
Because Nolette could have raised the claims in this action in the prior state
lawsuits, they are barred by claim preclusion under Nevada law. The district
court’s order of dismissal is AFFIRMED.
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