FILED
NOT FOR PUBLICATION
MAY 13 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTY HENDERSON, No. 14-15944
Plaintiff - Appellant, D.C. No. 2:13-cv-01921-RCJ-VCF
v.
MEMORANDUM*
JOHN BONAVENTURA; LOU
TOOMIN; LAS VEGAS TOWNSHIP
CONSTABLE’S OFFICE; CLARK
COUNTY,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Senior District Judge, Presiding
Argued and Submitted April 14, 2016
San Francisco, California
Before: WALLACE, SCHROEDER, and KOZINSKI, Circuit Judges.
Kristy Henderson appeals from the judgment entered against her and raises
issues with two of the district court’s orders. First, she challenges the district
court’s order dismissing four of her claims. Second, she contends that the court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
erred in granting summary judgment in favor of Appellees on her Title VII claims.
We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.
Henderson does not challenge the district court’s dismissal of Clark County
as a defendant. Accordingly, we do not address that ruling. Any reference we make
to “Appellees” in this disposition excludes Clark County.
We first address our jurisdiction to hear this case. Appellees initially argued
that we lacked jurisdiction because Henderson’s notice of appeal was not filed
within thirty days after the district court’s January 10, 2014 dismissal order. But, at
oral argument, counsel wisely withdrew this argument, since Rule 54(b) of the
Federal Rules of Civil Procedure provides that unless the district court directs entry
of a final judgment, any order adjudicating “fewer than all the claims . . . does not
end the action as to any of the claims or parties.” Because the district court did not
direct entry of a final judgment after issuing its January 10, 2014 dismissal order,
that order became appealable only after the district court issued its judgment
disposing of all the claims. Accordingly, we have jurisdiction to review all the
issues before us.
Henderson contends that the district court erred in dismissing claims four
(breach of contract), five (violations of Nevada state law and the United States and
Nevada Constitutions), and six (breach of the implied covenant of good faith and
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fair dealing) of her complaint under the anti-claim-splitting doctrine. We review
the district court’s application of this doctrine for an abuse of discretion. Adams v.
Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), overruled on other
grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). The anti-claim-splitting
doctrine prevents a party from maintaining “two separate actions involving the
same subject matter at the same time in the same court and against the same
defendant.” Id. at 688 (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir.
1977) (en banc)). To determine whether an action is barred under the doctrine, “the
appropriate inquiry is whether, assuming that the first suit were already final, the
second suit could be precluded pursuant to claim preclusion.” Id. at 689 (quoting
Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 987 n.1
(10th Cir. 2002)).
The district court abused its discretion in applying the anti-claim-splitting
doctrine here. Adams holds that the doctrine applies where a party maintains two
actions “in the same court.” Id. at 688 (quoting Walton, 563 F.2d at 70). Here,
Henderson filed one complaint in state court and another in federal court. Because
she filed her complaints in separate courts, the proper inquiry for the district court
was whether to abstain from the case. The Supreme Court has explained that
federal courts should assess the “appropriateness of dismissal in the event of an
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exercise of concurrent jurisdiction” by applying a non-exhaustive list of factors.
Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 818 (1976).
These factors include: (1) “the inconvenience of the federal forum,” (2) “the
desirability of avoiding piecemeal litigation,” and (3) “the order in which
jurisdiction was obtained by the concurrent forums.” Id. (citations omitted). We
therefore reverse the district court’s dismissal of claims four, five, and six, and
remand for further consideration of these claims in light of Henderson’s voluntary
dismissal of her state-court action.
The district court also dismissed claim seven (wrongful discharge) of the
complaint, concluding that Henderson was an at-will employee and had not shown
her employer terminated her in violation of Nevada public policy. We reverse and
remand on this claim because the district court did not properly apply the Nevada
Supreme Court’s decision in Allum v. Valley Bank of Nev., 970 P.2d 1062 (Nev.
1998). There, the Nevada Supreme Court held that “[a] claim for tortious discharge
should be available to an employee who was terminated for refusing to engage in
conduct that he, in good faith, reasonably believed to be illegal.” Id. at 1068. But
instead of assessing whether Henderson had a good faith belief that participating in
the reality-TV show would be illegal, the district court “estimated that the Nevada
Supreme Court would likely only recognize termination of an employee for refusal
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to participate in serious felonies as sufficient to invoke an exception to the at-will
employment doctrine.” This stated standard conflicts with Allum. Accordingly, we
reverse and remand for the district court to apply Allum properly.
We now turn to the district court’s summary judgment. The district court
granted Appellees summary judgment on Henderson’s Title VII claims (claims one
through three of her complaint), concluding that Henderson was judicially
estopped from pursuing those claims because she failed to list them in a separate
bankruptcy filing. We review the district court’s application of judicial estoppel for
an abuse of discretion. Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC,
692 F.3d 983, 992 (9th Cir. 2012).
Under the doctrine of judicial estoppel, “where a party assumes a certain
position in a legal proceeding, and succeeds in maintaining that position, he may
not thereafter, simply because his interests have changed, assume a contrary
position, especially if it be to the prejudice of the party who has acquiesced in the
position formerly taken by him.” Davis v. Wakelee, 156 U.S. 680, 689 (1895). The
doctrine’s “purpose is to protect the integrity of the judicial process by prohibiting
parties from deliberately changing positions according to the exigencies of the
moment.” New Hampshire v. Maine, 532 U.S. 742, 750–51 (2001) (internal
quotation marks and citations omitted). Several factors “inform the decision
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whether to apply the doctrine in a particular case,” id. at 750, including: (1)
whether the party’s later position is clearly inconsistent with its earlier one, (2)
whether the party was successful in persuading the court of its earlier position, and
(3) whether the opposing party would suffer any prejudice. Id. at 750–51.
We hold that the district court abused its discretion in applying judicial
estoppel to Henderson’s Title VII claims. The district court premised its
application of judicial estoppel on the notion that Henderson took an inconsistent
position by failing to disclose her claims in her pending bankruptcy action. But an
examination of the record shows that this premise is faulty. Henderson filed for
bankruptcy on August 3, 2012, which was about three weeks before she filed a
charge of discrimination with the EEOC. On the same day she filed her charge of
discrimination, she amended her bankruptcy schedules to disclose her potential
claims against her employer. The district court apparently missed this amendment
since it mistakenly observed that “[Henderson] does not appear to have ever
disclosed to the bankruptcy court the existence of her contingent claims.” This
statement is plainly erroneous and thus we must reverse the district court’s
summary judgment in favor of Appellees on Henderson’s Title VII claims, and we
remand for further consideration.
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We reverse the district court’s determinations that Toomin cannot be sued
under Title VII and that Bonaventura can only be sued in his official capacity. The
district court erred by considering these arguments after Appellees raised them in
their reply brief and without giving Henderson an opportunity to respond. See
Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). On remand, the district
court shall permit Henderson to address these arguments.
Henderson’s motion for judicial notice is granted.
REVERSED AND REMANDED.
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FILED
Henderson v. Bonaventura, No. 14-15944
MAY 13 2016
WALLACE, J., concurring in part and dissenting in part MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the panel’s disposition except for the holding reversing the
district court’s determinations that Deputy Constable Lou Toomin and Constable
John Bonaventura cannot be held liable under Title VII. While the disposition
correctly holds that the district court’s failure to give Henderson an opportunity to
address these issues is reversible error under Provenz v. Miller, 102 F.3d 1478,
1483 (9th Cir. 1996), instead of reversing and remanding for the district court to
allow Henderson to address the issues, I would follow Provenz’s lead by
considering Henderson’s proposed surreply in deciding whether the district court
erred in its determinations. Id.
Henderson argues that the district court erred in holding that Toomin “is not
an ‘employer’ who can be sued under Title VII at all.” While the court was correct
insofar as Toomin cannot be held liable in his individual capacity, Miller v.
Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993), it nonetheless erred by
holding that he cannot be held liable “at all” because an employee can create
liability for an employer under the theory of respondeat superior. Id. at 588 (“No
employer will allow supervisory or other personnel to violate Title VII when the
employer is liable for the Title VII violation”). Thus, I would vacate and remand
the district court’s ruling as to Toomin because the district court’s blanket holding
fails to recognize that Toomin’s actions may create liability for the Constable’s
Office.
Henderson also argues that the district court erred in holding that
Bonaventura could be held liable only in his official capacity. I would affirm this
portion of the court’s ruling since an employee cannot be held liable under Title
VII in his individual capacity. Id. at 587.
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