Jacquelynn Nickler v. Clark County ( 2020 )

FILED
NOT FOR PUBLICATION
FEB 12 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUELYNN NICKLER, No. 19-15761
Plaintiff-Appellant, D.C. No.
2:18-cv-01668-JCM-VCF
v.
CLARK COUNTY; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted February 5, 2020
Pasadena, California
Before: THOMAS, Chief Judge, and WARDLAW and NGUYEN, Circuit Judges.
Jacquelynn Nickler appeals the district court’s order dismissing without
prejudice her suit against Kathleen Lambermont, Steven Grierson, and Clark
County, Nevada. Because the parties are familiar with the facts, we need not
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291,1 and we
affirm in part, and reverse and remand in part.
We review a district court’s order granting a motion to dismiss de novo. Lee
v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). We take as true all
factual allegations in Nickler’s complaint, and construe them in the light most
favorable to her. See id. We also review de novo a district court’s application and
interpretation of state substantive law. See Giles v. Gen. Motors Acceptance Corp.,
494 F.3d 865, 872 (9th Cir. 2007).
1. The district court did not err in dismissing Nickler’s state tort claims
as time-barred. Nickler concedes that the statutes of limitations bar her state tort
claims unless the continuing violation or continuous accrual doctrine applies. The
Nevada Supreme Court has not addressed whether either doctrine applies to an
intentional interference with prospective economic advantage (“IIPEA”) claim. To
the extent that we can look to the guidance of other courts, see Giles, 494 F.3d at
872, Nickler cites no cases applying either the continuing violation doctrine or the
continuous accrual doctrine to an IIPEA-style tort. Given the lack of Nevada state
1
Despite the fact that the district court dismissed the case without prejudice,
“its entry of judgment constituted a final decision of the court” under the
circumstances presented by this case. Applied Underwriters, Inc. v. Lichtenegger,
913 F.3d 884, 890 (9th Cir. 2019).
2
law or persuasive out-of-jurisdiction authority, we conclude that the district court
did not err in dismissing Nickler’s IIPEA claim as time-barred. Because the tort
of civil conspiracy is a derivative claim that cannot proceed alone, the district court
also did not err in dismissing that claim. See Bergen v. Mortg. Lender Servs., Inc.,
No. 58557, 2013 WL 214377, at *1 (Nev. Jan 17, 2013) (holding that derivative
claim for civil conspiracy was properly dismissed when underlying civil claim was
dismissed). We decline Nickler’s request to certify this question to the Nevada
Supreme Court. Because Nickler’s state tort claims are time-barred by the statutes
of limitations, we need not and do not reach the question of whether issue
preclusion would also bar these claims. Given the determination that the state law
claims were time-barred, the district court did not err in dismissing the claims
without granting leave to amend. See Lockman Found. v. Evangelical All. Mission,
930 F.2d 764, 772 (9th Cir. 1991).
2. Based on the information presented to it, the district court did not err
in dismissing Nickler’s federal discrimination claims as time-barred. However,
because it is possible that the complaint could have been saved by amendment, the
district court should have granted Nickler leave to amend to allow her the
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opportunity to plead sufficient facts to establish timeliness as to the federal claims.2
See Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 1991). Therefore,
we must reverse the dismissal of the federal discrimination claims and remand with
instructions to grant Nickler leave to amend as to those claims.
The parties shall bear their own costs.
AFFIRMED in part, REVERSED and REMANDED in part.
2
42 U.S.C. § 2000e-5(e)(1) requires that an aggrieved individual file a claim
with the Equal Employment Opportunity Commission (“EEOC”) within 180 days
after an alleged unlawful employment action, or within 300 days if the individual
first files a claim with an authorized state agency. Authorized state agencies can
enter into worksharing agreements with the EEOC which provide that a filing with
one agency is constructively deemed a filing with the other agency. Fort Bend
Cty., Tex. v. Davis, 139 S. Ct. 1843, 1846 (2019) (“If the state or local agency has a
‘worksharing’ agreement with the EEOC, a complainant ordinarily need not file
separately with federal and state agencies. She may file her charge with one
agency, and that agency will then relay the charge to the other.”). These
worksharing agreements can also waive the 60-day statutory period during which
the state agency has the initial right to process the discrimination claim, meaning
that a claim constructively filed with the state agency within 300 days could be
considered timely filed with the EEOC. See Laquaglia v. Rio Hotel & Casino,
Inc., 186 F.3d 1172, 1174-75 (9th Cir. 1999). On appeal, Nickler alleges that there
is a worksharing agreement between the EEOC and the Nevada Equal Rights
Commission that would render her claims timely. There are sufficient indicia in
our caselaw that such an agreement exists and would be relevant to the timeliness
of the claims. See, e.g., id. However, the agreement is not in the record, nor is
there sufficient briefing to ascertain its implications for this case. We leave that
issue for further development on remand.
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