Deborah Bradley v. Total Facility, Inc. ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBORAH ANN BRADLEY, No. 20-16732
Plaintiff-Appellant, D.C. No.
2:19-cv-01413-KJD-BNW
v.
TOTAL FACILITY, INC.; COOL AIR MEMORANDUM*
REFRIGERATION, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted July 28, 2022**
Pasadena, California
Before: PAEZ and WATFORD, Circuit Judges, and BENNETT,*** District Judge.
Deborah Ann Bradley appeals from the district court’s order granting
summary judgment in her personal injury action on the basis that amendments to
*
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 Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
Page 2 of 3
her complaint identifying Doe defendants as Total Facility, Inc. and Cool Air
Refrigeration, Inc. did not relate back to her original complaint for statute of
limitations purposes. We affirm.
Under Nevada law, if the name of a defendant is initially unknown, “the
defendant may be designated by any name,” and once “the defendant’s true name
is discovered, the pleader should promptly substitute the actual defendant for a
fictitious party.” Nev. R. Civ. P. 10(d). To satisfy this rule, a party must: (1) plead
the Doe defendants in the caption of the complaint; (2) plead “the basis for naming
defendants by other than their true identity, and clearly specify[] the connection
between the intended defendants and the conduct, activity, or omission upon which
the cause of action is based”; and (3) “exercis[e] reasonable diligence in
ascertaining the true identity of the intended defendants and promptly mov[e] to
amend the complaint in order to substitute the actual for the fictional.”
Nurenberger Hercules-Werke GMBH v. Virostek, 822 P.2d 1100, 1106 (Nev.
1991).
The district court properly determined that Bradley failed to exercise
reasonable diligence in ascertaining the true identity of the defendants. Bradley
did not use available “judicial mechanisms such as discovery” to attempt to
identify the Doe defendants for nearly 14 months. Sparks v. Alpha Tau Omega
Fraternity, Inc., 255 P.3d 238, 243 (Nev. 2011) (internal quotations and citation
Page 3 of 3
omitted). The first time Bradley conducted any discovery regarding the HVAC
unit was more than 400 days after she filed her initial complaint. Indeed, the
original complaint made no mention of the HVAC unit; the first reference to
servicing of the HVAC unit did not appear until the filing of the first amended
complaint in June 2019. Moreover, Bradley was made aware by at least September
2018 of a claim note from the workers’ compensation carrier, dated just days after
the incident, indicating that the HVAC unit was the cause of the collapsed ceiling
which inflicted her injuries. This delay demonstrated a lack of reasonable
diligence. See id. at 244.
Bradley asserts that the district court erred in finding the absence of
reasonable diligence as a matter of law because “issues regarding the accrual of
statutes of limitations are factual issues that are reserved for the jury.” That
argument fails because Nevada law makes clear that reasonable diligence is a legal
issue, not a factual one, and Bradley herself did not identify any disputed facts
below. Nurenberger, 822 P.2d at 1105. Thus, the district court did not err in
granting defendants’ motions for summary judgment.
AFFIRMED.