FILED
NOT FOR PUBLICATION SEP 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WAYNE ROMANS, No. 11-17153
Plaintiff - Appellant, D.C. No. 3:10-cv-00403-RCJ-VPC
v.
MEMORANDUM *
INCLINE VILLAGE GENERAL
IMPROVEMENT DISTRICT,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, Chief Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Wayne Romans appeals from the district court’s judgment dismissing his
action alleging violations of the Americans with Disabilities Act and Arizona state
law. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion the district court’s application of laches. Grupo Gigante SA De CV v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Dallo & Co., 391 F.3d 1088, 1101 (9th Cir. 2004). We reverse and remand.
The district court abused its discretion by sua sponte dismissing the action
based on laches because, at this point in the proceedings, the record is insufficient
to determine whether Romans received a valid right-to-sue letter from the Nevada
Employment Rights Commission giving him notice of his deadline to file suit,
whether Romans delayed filing his suit, and whether defendant was prejudiced.
See Brown v. Cont’l Can Co., 765 F.2d 810, 814-15 (9th Cir. 1985) (laches not
available as a matter of law where material disputes exist as to whether plaintiff
delayed seeking a right-to-sue letter or filing suit, and not applicable unless
defendant was prejudiced); cf. Boone v. Mech. Specialties Co., 609 F.2d 956, 958-
60 & n.3 (9th Cir. 1979) (applying laches at summary judgment where plaintiff’s
seven-year delay in seeking right-to-sue letter caused defendant actual prejudice).
Accordingly, we remand for further proceedings.
Each party shall bear its own costs on appeal.
REVERSED and REMANDED.
2 11-17153