Patrick Moers v. Josh Reid ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK MOERS, No. 19-15256
Plaintiff-Appellant, D.C. No.
2:18-cv-01418-JCM-NJK
v.
JOSH MCCALLISTER REID; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted May 7, 2020**
Portland, Oregon
Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA,***
District Judge.
Patrick Moers appeals from the district court’s order granting the
defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b). We
*
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 Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
Page 2 of 3
affirm.
1. The district court properly dismissed Moers’s federal claims with
prejudice under Rule 12(b)(6). The separation agreement Moers signed released
all of his claims under 42 U.S.C. § 1983 against all of the defendants.1 The release
provision covers “the City and each of its City Councilmembers, agents,
employees, representatives, attorneys, and all persons acting through or in concert
with any of them.” Contrary to Moers’s argument, the defendants plainly fall
within the scope of the release, despite not being specifically named. The
provision releases “any and all matters, causes of action, charges, complaints, [and]
claims, . . . whether known or unknown, arising from or relating to, directly or
indirectly, [Moers’s] employment with and separation from the City.” All of
Moers’s § 1983 claims fall squarely within this language, as they all arise from the
defendants’ alleged participation in an unlawful scheme designed to oust Moers as
chief of police.
Moers argues that the release is invalid because it had to be executed by the
city council rather than the city manager. According to Moers, the city manager
lacked authority to execute a severance agreement with him because the city
manager has no supervisory powers over executive officers appointed directly by
1
Moers voluntarily signed the separation agreement while represented by counsel.
We therefore reject Moers’s argument, raised for the first time in his reply brief on
appeal, that he signed the agreement under duress.
Page 3 of 3
the city council. See Henderson Municipal Code § 2.10.020(A); Henderson City
Charter art. I, § 1.090. That argument is without merit. The city council does not
directly appoint the chief of police; the city manager does. Henderson Municipal
Code § 2.10.020(C)(1). Accordingly, the city manager—who has general
supervisory powers, including the authority to execute severance agreements, over
all departments of the City—was authorized to execute Moers’s separation
agreement. See id. §§ 2.10.020(A), 2.10.040(G).
2. The district court did not err in dismissing without prejudice Moers’s
state law claims because Moers failed to name the State or appropriate political
subdivision as a defendant. See Nev. Rev. Stat. § 41.0337(1).
AFFIRMED.