Decisions Digest #1
Published Opinions from August 12–23, 2024
Some get to go out with a bang. This newsletter gets to start with one.1
After a quiet July, the Nevada Supreme Court issued a flurry of opinions during the last two weeks—on the statute of limitations for personal-injury claims (Adkins v. Union Pac. R.R. Co.), on an additional basis to move to dismiss a criminal charge (Dayani v. Eighth Jud. Dist. Ct.), on how to treat flat attorney’s fees and when a representation ends (In re Sull), on statutory presumptions in child-reunification cases (Cardenas-Garcia v. Eighth Jud. Dist. Ct.), on how to properly formulate a duty (PHWLV, LLC v. House of CB USA, LLC), and on duties that arise when a party dies during litigation (Thomas Labs, LLC v. Marie Dukes).
The Nevada Court of Appeals also issued an opinion, on jurisdiction over child-custody issues (Kragen v. Eighth Jud. Dist. Ct.).
The Ninth Circuit issued two opinions—on the Second Amendment (US v. Manney) and on the Rooker-Feldman doctrine (Cogan v. Trabucco)—and an order denying rehearing en banc in a habeas case, to which Judge Bybee issued a vigorous statement (dis)respecting the denial of rehearing en banc (Malone v. Williams).
No federal circuit interpreted Nevada law over the last two weeks.
Dive in below.
Nevada Supreme Court
Adkins v. Union Pac. R.R. Co. (Aug. 15, 2024) [3-0; Pickering, J.]
Discovering the discovery rule. If you listen carefully, you can still hear the personal-injury attorneys around town rejoicing.
Holding.
The discovery rule—which tolls a statute of limitations till the injured party discovers or reasonably should have discovered facts supporting a cause of action—applies to NRS 11.190(4)(e) (personal-injury and wrongful-death) and “in appropriate circumstances” to other statutes with limitations periods that don’t refer to the discovery rule. Op. at 20–21.
Facts.
Plaintiffs brought personal-injury and wrongful-death claims against Union Pacific Railroad, toxic-chemicals manufacturers, CalNev Pipe Line related companies, and the City of Las Vegas Downtown Redevelopment Agency.
Plaintiffs alleged that toxic chemicals had been released on Union Pacific land that later became the Clark County Government Center. Soon after the Center opened in 1995, its workers began getting ill. Black soot was everywhere in the Center. Clark County assured workers that the illnesses weren’t related to the building. But Plaintiffs alleged that Defendants knew that (1) chemicals were present at the Center and (2) Center workers would be exposed to the chemicals.
Plaintiffs invoked the discovery rule in their operative complaint. They asserted that their claims didn’t accrue and NRS 11.190(4)(e)’s applicable two-year limitations period didn’t start till Plaintiffs reasonably could have discovered their injuries and the causes. But they didn’t give details of their individual experiences at the Center. Instead, they alleged that, as a group, they couldn’t reasonably have discovered their claims till 2020, when a toxicologist linked ground contamination to indoor contamination at the Center and a doctor linked Plaintiffs’ illnesses to exposure to the chemicals.
Defendants moved to dismiss on statute-of-limitation grounds. The district court granted the motion, concluding that Plaintiffs’ claims were untimely because the discovery rule didn’t apply.
On appeal, Plaintiffs argue that the district court erred by not applying the discovery rule or equitable tolling to their claims.
Reasoning.
If a law is clear, its text rules. Great Basin Water Network v. State Eng'r, 126 Nev. 187, 196 (2010). But laws must harmonize with other laws. Albios v. Horizon Cmtys., Inc., 122 Nev. 409, 418 (2006). And “how other states have interpreted similar [laws]” matters. Op. at 11. So does stare decisis: “precedent, including statutory interpretation, should be respected unless ‘compelling reasons’ to depart from that precedent are shown to exist.” Op. at 11.
NRS 11.190(4)(e) has a two-year limitations period “to recover damages for injuries to a person or for the death of a person caused by the wrongful act or neglect of another.” Generally, a limitations period starts “when the wrong occurs and a party sustains injuries.” Petersen v. Bruen, 106 Nev. 271, 274 (1990). But the “discovery rule” is an exception. Id. Under the rule, the limitations period doesn’t start till “the injured party discovers or reasonably should discover facts supporting” a claim. Id.
Some parts of NRS 11.190 refer to the discovery rule. Others—such as NRS 11.190(4)(e)—don’t. “Often, [a] such difference . . . signif[ies] a difference in meaning.” Op. at 12. But NRS 11.190’s parts should be read “in harmony with each other if they ‘seek to accomplish the same purpose or object.’” Op. at 12–13 (citation omitted). The discovery-rule in parts of NRS 11.190 serves “to specify when or how” the rule “applies to determine the accrual date for particular claims”; it doesn’t “purport to govern the accrual date for all of the other claims covered by [NRS 11.190].” Op. at 13.
We have read the discovery rule into parts of NRS 11.190 that don’t refer to the rule before. E.g., Oak Grove Invs. v. Bell & Gossett Co., 99 Nev. 616, 623 (1983) (reading the rule into NRS 11.220 (catch-all provision)); Soper v. Means, 111 Nev. 1290, 1294 (1995) (same into NRS 11.190(1)(b) and 11.190(2)(c) (contract claims)); Bemis v. Est. of Bemis, 114 Nev. 1021, 1024 (1998) (relying on Soper to read the rule into NRS 11.190(3)(c) (conversion claims)); Siragusa v. Brown, 114 Nev. 1384, 1400-01 (1998) (relying on Oak Grove to read the rule into civil-conspiracy claims). These cases “suggest” that the discovery rule might apply to NRS 11.190(4)(e). Op. at 14.
Whether the rule should apply to NRS 11.190(4)(e), however, is ambiguous. See Op. at 14. So the law’s history is relevant. Great Basin Water Network, 126 Nev. at 196. The law stems from California and Utah laws. So interpretations of those laws “are persuasive.” Op. at 15.
The California Supreme Court has applied the discovery rule to the limitations for personal injury and wrongful death. Jolly v. Eli Lilly & Co., 751 P.2d 923, 926–27 (Cal. 1988). (California law also now refers to the rule in the statute for personal-injury or wrongful death toxic-tort claims. Cal. Civ. Proc. Code § 340.8.)
The Utah Supreme Court has done the same for wrongful death. Myers v. McDonald, 635 P.2d 84, 85, 87 (Utah 1981). The court has clarified that the rule applies if: (1) a plaintiff doesn’t learn of the claim because of the defendant’s concealment or misleading conduct or (2) “the case presents exceptional circumstances” and the regular limitations period “would be irrational or unjust, regardless of any showing that the defendant has prevented the discovery of the cause of action.” Russell Packard Dev., Inc. v. Carson, 108 P.3d 741, 747 (Utah 2005) (cleaned up). But a plaintiff must show that he didn’t know or couldn’t reasonably have discovered the underlying facts in time to file the claim within the limitations period. Colosimo v. Roman Cath. Bishop of Salt Lake City, 156 P.3d 806, 812 (Utah 2007).
California and Utah have it right. The discovery rule’s logic is that the reason for time limits on claims doesn’t outweigh the fairness of not precluding plaintiffs from “judicial remedies before they know that they have been injured and can discover the case of their injuries.” Petersen v. Bruen, 106 Nev. 271, 274 (1990). Indeed, the discovery rule supports the reason for time limits: “to encourage the plaintiff to pursu[e] his rights diligently.” Fausto v. Sanchez-Flores, 137 Nev. 113, 113 (2021).
Thus, the discovery rule tolls NRS 11.190(4)(e)’s two-year limitations period if a plaintiff is unaware of the claim because the defendant conceals the facts underlying the claim or if act(s) at issue and resulting injury aren’t contemporaneous, “such that, despite diligent investigation, the plaintiff did not discover and could not reasonably be expected to have discovered facts supporting” the claim earlier. Op. at 17.
To invoke the discovery rule, plaintiffs “must show that they used reasonable diligence in determining” whether a claim exists. Op. at 17. Under the rule, reasonable diligence delays the clock for a claim “till the plaintiff is on inquiry notice of an injury.” Bemis, 114 Nev. at 1024–25. A plaintiff is on inquiry notice when he knows or should know “of facts that would lead an ordinarily prudent person to investigate the matter” more. Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. 246, 252 (2012). The facts need only extend to the plaintiff’s general belief that someone injured him. Id. at 252–53. But “[i]gnorance of the defendant’s identity” won’t delay the clock “if the plaintiff fails to use reasonable diligence in discovering the defendant’s role.” Siragusa, 114 Nev. at 1394.
Here, Plaintiffs allege that Clark County disregarded workers’ concerns and assured them that the Center’s building was problem free. They also allege that Defendants’ representations or nondisclosures left workers in the blue on being exposed daily to chemicals that caused their illness. Because “latent injury occurs through toxic exposure that doesn’t manifest itself until years later,” NRS 11.190(4)(e)’s two-year limitations period “could be unjust.” Op. at 18–19.
But “questions remain” on whether Plaintiffs were reasonably diligent to discover their claims. The operative complaint alleges that they couldn’t have reasonably discovered their claims till 2020, when the toxicologist and doctor connected the dots. But the complaint doesn’t include details on individual experiences at the Center. Although Plaintiffs need not plead facts supporting the discovery rule with specificity, Plaintiffs must allege individual “dates of employment, dates of injury,” and when each Plaintiff discovered or should have discovered their claims. Op. at 20.
NRS 11.190(4)(e) is also subject to equitable tolling. Op. at 20. Such a remedy “permits a court to suspend a limitations period and allow an otherwise untimely action to proceed when justice requires it.” Fausto, 137 Nev. at 113. For equitable tolling, a plaintiff must show (1) diligent pursuit of the claim and (2) that “extraordinary circumstance” beyond the plaintiff’s control caused the claim to be untimely. Id. at 118.
Both whether the discovery rule and equitable tolling applies are questions the district court must address on remand.
Dayani v. Eighth Jud. Dist. Ct. (Aug. 22, 2024) [3-0; Parraguirre, J.]
Procedural law and substantive law often operate independent of each other—by design. But sometimes the lines blur—such as here—and you must get into the substance to get into the (proper) procedure.
Holding.
Under NRS 172.145(2), a defendant may move to dismiss a charge if the district attorney fails to submit to the grand jury “any evidence [that] will explain away the charge.” Op. at 8. And NRS 34.700(1)(a)’s time limits for pretrial habeas petitions don’t apply. Op. at 8.
Facts.
While Dayani was on house arrest, police lawfully checked his residence. There, they found drugs in a bathroom. Dayani was arrested on drug charges.
That day, Dayani’s cousin told the police that the drugs were hers. Dayani’s attorney flagged the confession to the district attorney’s office in an email, stating that the confession was recorded on bodycam.
The DA’s office told the grand jury about the email but didn’t give the recording. The DA’s office also didn’t probe police testimony that there was only one bathroom in the residence when, in fact, there was another attached to Dayani’s room (Dayani had told the police about the second bathroom). The grand jury indicted Dayani.
Two hundred days after he was arraigned, Dayani moved to dismiss his charges. He argued that the State had violated NRS 172.145(2), which provides: “If the district attorney is aware of any evidence [that] will explain away the charge, the district attorney shall submit it to the grand jury.” The district court construed the motion as a pretrial petition for habeas relief and denied it as untimely under NRS 34.700(1)(a)’s 21-day deadline.
On appeal, Dayani argues that his arguments were proper in a motion to dismiss and thus the district court wrongly construed his motion as a time-barred petition for habeas relief.
Reasoning.
A “defendant may object to the sufficiency of the evidence to sustain the indictment only by [petition] for writ of habeas corpus.” NRS 172.155(2) (emphasis added). A defendant must do so “within 21 days after” the defendant’s first appearance in district court. NRS 34.700(1)(a).
But “[d]efenses and objections based on defects in the institution of the prosecution, other than insufficiency of the evidence” may “be raised only by motion.” NRS 174.105(1) (emphasis added). A defendant must do so “before trial.” NRS 174.105(1)
Thus, the proper time limit turns on “whether the motion or petition challenges the sufficiency of the evidence to sustain the indictment.” Op. at 6.
We have explained that violating NRS 172.145(2) “irreparably impair[s] the independent function of the grand jury.” Ostman v. Eighth Jud. Dist. Ct., 107 Nev. 563, 565 (1991). The law isn’t related to “the sufficiency of the evidence to sustain the indictment.” Op. at 6. A challenge based on the law instead goes “to the heart of the grand jury proceeding and asks whether the State has lived up to its mandate to ensure a fundamentally fair grand jury process.” Op. at 7. The challenge is therefore “based on defects in the institution of the prosecution.” Op. at 7 (quoting NRS 174.105(1)).
Dayani’s motion challenged “the fairness of his grand jury proceedings, not whether the State’s . . . evidence was sufficient to sustain the indictment.” Op. at 7. Thus, the district court misconstrued Dayani’s motion and erred by denying it as untimely.
In re Sull (Aug. 22, 2024) [3-0, Bell, J.]
Manage your mula well. But, attorneys, manage your client’s mula even better. If you don’t? You’ll (likely) pay for it, literally—and it could be even worse for you. Also, track the bounds of your representation carefully or you might be sorry.
Holdings.
Even if an attorney charges a flat fee, the attorney must deposit it into a client-trust account. Op. at 2 (citing RPC 1.15(a)). And an attorney must refund any advance payment of fees or expenses not earned or incurred if the client ends the representation. Op. at 2 (citing RPC 1.16(d)).
When a representation ends turns not on whether the attorney represents the client in some facet but on whether the attorney represents the client on the matter for which the client paid fees. Op. at 6.
Facts.
A client of Sull’s asked her to prepare and file an E-2 Visa application. The client agreed to pay a flat fee of $15,000 and a $750 client-file fee. The fee agreement provided that if the representation ended early, Sull’s completed time on the matter would cost $395 per hour and that she would refund any unearned fees.
Within a month of payment, Sull withdrew the funds without attributing the withdrawal to the matter. And she never put them into the firm’s client-trust account.
Six months after payment, the client told Sull to ditch the visa application. So she never filed it. A month later, the client asked Sull for an accounting of work performed and a refund of any unearned fees. Sull agreed to provide the accounting within a month. But she never did.
The client continued to request the accounting over several months and eventually filed a grievance with the State Bar. After a fee-dispute mediation, Sull provided the accounting. She later refunded the client $3,500.
The Bar filed a disciplinary complaint against Sull. The Bar asserted that Sull violated RPC 1.15 by failing to put the client’s funds into a client-trust account and RPC 1.16 by failing to provide the client with an accounting or a refund of unearned fees when the client terminated the representation. A hearing panel dismissed the complaint, disagreeing on both fronts, concluding that flat fees need not be deposited into a client-trust account and that the client didn’t terminate the representation.
Reasoning.
Attorneys must deposit into a trust account “[a]ll funds received or held for the benefit of clients.” RPC 1.15(a); see also SCR 78(1)(a). This rule covers advanced fees. See Op. at 4. A lawyer may withdraw advanced fees “only as fees are earned or expenses incurred.” RPC 1.15(c).
Attorneys can’t “avoid accounting for work performed by labeling the fee as a ‘flat fee.’” Op. at 4. As the ABA recently opined: “[u]se of the term ‘flat fee’ or ‘fixed fee’ does not transform [an] arrangement into a fee that is ‘earned when paid.’” ABA Comm. on Ethics & Pro. Resp., Formal Op. 505, at *4 (2023). A flat fee is an advanced fee. See Op. at 4–5.
Our suggestion: for advanced fees, “[a] prudent way to comply with [RPC 1.15(a)] would be to set milestones by which specified portions” of the fees are earned. Op. at 5 (citation omitted). Doing so would allow an attorney “to be paid in part before the end of the representation” and would assist “in determining the refund amount in case of early termination.” ABA Comm. on Ethics & Pro. Resp., Formal Op. 505, at *4 (2023). But, “[o]f course, ‘extreme “front-loading” of payment milestones in the context of the anticipated length and complexity of the representation’ may not be reasonable.” Id. (quoting In re Mance, 980 A.2d 1196, 1202, 1204-05 (D.C. 2009)).
Hull and the client’s fee agreement provided that the flat fee was for “legal services to be rendered” and that Sull would send billing statements to the client detailing how the flat fee would “be applied toward[] the balance of the legal services rendered.” Op. at 5. Thus, the client’s fees were paid in advance. Op. at 5. By treating the fees as “earned upon receipt,” Sull violated RPC 1.15.
What’s more, when a representation ends, the lawyer must “surrender[ ] papers and property to which the client is entitled and refund[ ] any advance payment of fee or expense that has not been earned or incurred.” RPC 1.16(d). Hull and the client had distinct fee agreements for each matter worked on. The record “establishe[d] that the client terminated the representation for the E-2
Visa after Sull had completed some work.” Op. at 6. That “Sull remained counsel of record for the client on an unrelated matter has no bearing on whether the client terminated Sull’s representation for the” visa. Op. at 6. Because Sull “delayed providing the client with an accounting of work performed and a refund of unearned fees for several months after the representation for the” visa terminated, Sull violated RPC 1.16. Op. at 6.
Cardenas-Garcia v. Eighth Jud. Dist. Ct. (Aug. 22, 2024) [2-1, Lee, J.; Bell, J., dissenting]
Vocab lesson you didn’t know you need: “ever” means always,” “at any time,” “in any way.”
Holding.
Under NRS 432B.555, parents in child-protection cases who have “ever been convicted” of felony child abuse, neglect, or endangerment must prove by clear-and-convincing evidence that the child won’t be harmed by reunification before the child may be released to the parent—no matter the legal status of the conviction. Op. at 2.
Facts.
Cardenas-Garcia’s child was removed from Cardenas-Garcia’s custody when conditions in the home became unlivable. Cardenas-Garcia was charged with felony child abuse, neglect, or endangerment. The child went into protective custody.
Cardenas-Garcia pleaded guilty under a “drop-down plea agreement.” The agreement allowed her to withdraw her plea after completing probation and instead plead guilty to a misdemeanor.
After Cardenas-Garcia completed probation and changed her plea, she moved for a ruling on whether she had rebutted NRS 432B.555’s presumption against reunification for parents who have “ever been convicted” of felony child abuse, neglect, or endangerment. The court decided that she hadn’t.
On appeal, Cardenas-Garcia argues that she need not satisfy NRS 432B.555 because she no longer has a felony conviction.
Reasoning.
If a court determines that a parent “has ever been convicted” of felony child abuse, neglect, or endangerment (or the like somewhere else), the court may not release the child to the parent, unless the parent shows by clear and convincing evidence that doing so won’t result in physical or psychological harm to the child. NRS 432B.555.
If a law is clear, its ordinary meaning is king. See Chandra v. Schulte, 135 Nev. 499, 501 (2019). Laws shouldn’t be read in a way that “render[s] any part of [it] meaningless,” and its text shouldn’t “be read to produce absurd or unreasonable results.” Leven v. Frey, 123 Nev. 399, 405 (2007).
“Ever” means “always,” “at any time,” “in any way.” Ever, Merriam-Webster's Collegiate Dictionary (11th ed. 2011). Thus, Cardenas-Garcia’s felony conviction—though no longer on the books—“is all NRS 432B.555 requires.” Op. at 5–6. Because “NRS 432B.555 recognizes a parent’s continued ability to attempt to rebut the probation,” the ordinary meaning of “ever” doesn’t produce absurd or unreasonable results. See Op. at 7.
Our caselaw doesn’t mandate otherwise. In Standen v. State, the Court held that when considering guilt, a jury may not hear evidence of a defendant’s withdrawn or invalidated guilty plea. 101 Nev. 725, 728 (1985). But Standen didn’t address a guilty plea’s collateral consequences. Op. at 6. In In re Tiffee, the Court held that once a guilty plea is withdrawn, the underlying conviction “no longer exist[s].” 137 Nev. 224, 226 (2021). But NRS 432B.555’s us of “‘ever’ unambiguously directs courts to look backwards and beyond the legal fiction of a withdrawn guilty plea.” Op. at 6. Plus, Standen and In re Tiffee were criminal cases; for child-welfare statutes, “priority is placed, as it should be, on the impact on minor children, specifically, avoiding harm to” them. Op. at 7.
Dissent (Bell, J.).
Till this case, we have “never considered a judgment based on a withdrawn plea to have any legal effect and, in fact, has consistently held the opposite.” Dissent at 1.
In Standen, we held that “[a] prior guilty plea that has been legally withdrawn or judicially invalidated is deemed never to have existed.” 101 Nev. at 728.
In In re Tiffee, we “reaffirmed that a withdrawn plea must be treated, in all respects, as a nullity.” 137 Nev. at 226. And this case has facts like those in this case. The defendant pleaded guilty to a felony for luring. Id. at 225. After completing probation, the defendant withdrew the guilty plea and pleaded guilty to a misdemeanor. Id. The defendant then tried to seal his criminal record. Id. But the State opposed, arguing that the statute prohibited sealing records of someone with a felony luring conviction. Id. The district court sided with the State. Id. But we reversed that decision, explaining that after withdrawing the felony guilty plea, the defendant “legally and factually returned to the situation he occupied before he entered the initial guilty plea, subject to the subsequent guilty plea.” Id. at 226.
The legislature has also “indicated elsewhere in NRS Chapter 432B an intent to recognize certain acts defined by criminal statute without requiring a legal conviction but has not done so here.” Dissent at 2–3 (citations omitted).
Thus, based on In re Tiffee, “after Cardenas-Garcia legally withdrew the felony guilty plea, she is deemed to have never been convicted” of the offense that triggers NRS 432B.555. Dissent at 2.
PHWLV, LLC v. House of CB USA, LLC (Aug. 22, 2024) [3-0, Herndon, J.]
In a negligence case, nothing is more key than a proper formulation of the duty. If that’s off, nothing else can be right.
Holding.
Commercial-property owners have a duty to their tenants to use reasonable care both in maintaining any fire-suppression system and responding to any events the system causes. Op. at 9. But the duty isn’t absolute; it’s circumstances dependent. Op. at 6–7.
Facts.
PHWLV owns the Miracle Mile Shops, a mall on the strip. PHWLV leased space in the mall to a shoe store and a clothing store. PHWLV maintained a fire-suppression system in the mall.
The system’s pipes separated and began to leak water. It took PHWLV two hours to shut off the water. By then, the mall had flooded, causing massive damage to the mall, including the shoe store and clothing store and their inventory.
The stores sued PHWLV for negligence. Later, they moved for partial summary judgment. The district court granted the motion, concluding that PHWLV had breached “a legal duty imposed on property owners to ensure that whatever is on a person’s property does not invade or otherwise damage the property of another.” Op. at 3.
At trial, the jury awarded the shoe store $3,000,000+ and the clothing store $400,000+.
Reasoning.
Negligence has four elements: “(1) an existing duty of care, (2) breach, (3) legal causation, and (4) damages.” Turner v. Mandalay Sports Ent., LLC, 124 Nev. 213, 217 (2008).” Here, the focus is on three issues: whether PHWLV owed a duty to the stores, the scope of any duty, and whether PHWLV breached any duty. Op. at 4–5.
As for the first issue, landowners have “a general duty of reasonable care to all entrants.” Foster v. Costco Wholesale Corp., 128 Nev. 773, 781 (2012). The duty covers landowner conduct and “artificial conditions on the land” that pose a risk to entrants. Restatement (Third) of Torts: Phys. & Emot. Harm § 51 cmt. heading (Am. Law Inst. 2012). There’s a “modern trend of defining a landowner’s duty of reasonable care under the circumstances.” Op. at 5. PHWLV had a duty to the stores to “exercise reasonable care under the circumstances” because: PHWLV owned the mall; the stores were entrants; the fire-suppression system is an artificial condition at the mall that PHWLV controlled; and the system malfunctioned and “creat[ed] a risk of damage to [the stores].” Op. at 5–6.
As for the second issue, the scope of a duty turns on the “foreseeability and gravity of harm, and the feasibility and availability of alternative conduct that would have prevented the harm.” Foster, 128 Nev. at 781. PHWLV’s duty extended only to: “the servicing, maintenance, and inspection of the fire-suppression system”; “the implementation of procedures that govern failures within the system, like a possible pipe separation”; and “PHWLV’s reaction to the pipe separation.” Op. at 6. Thus, the district court erred “by describing PHWLV’s duty in absolute terms.” Op. at 6.
As for the third issue, breach is a “case-specific determination should be determined by the jury.” Op. at 7. The jury must determine whether PHWLV breached its duty: (1) of reasonable care by not properly maintaining the system and (2) when responding to the incident. Op. at 7.
“When a negligence case is built upon an incorrect formulation of the defendant’s duty, everything that occurs thereafter will necessarily be tainted.” Op. at 8. Thus, the district court’s judgment and jury award is vacated. Op. at 8.
Thomas Labs, LLC v. Dukes (Aug. 22, 2024) [3-0, Bell, J.]
Your client’s death isn’t a get-out-of-a-case-free card; your representation—and thus your obligations—live on.
Holdings.
NRCP 25(a)’s 180-day deadline to substitute a party for a party who dies during a case doesn’t start when the decedent’s attorney notices the death unless the attorney served the notice on both the parties and nonparty successors or representatives. See Op. at 5, 10.
Under NRS 7.075, if a party dies during a case, the decedent’s attorney must substitute a party who can represent the decedent’s interest within 90 days of the death. See Op. at 9–10.
Facts.
Thomas Labs sued Dukes for money owed for veterinary products. Dukes and her boyfriend established a trust that held her property. They were the lone trustees.
Dukes died during the case. Her attorney noticed her death on January 12, 2021. He served the notice on parties in the case the same day.
Three months later, Thomas Labs moved to substitute the trust and boyfriend for Dukes, and Thomas Labs served the motion on her attorney and boyfriend. The motion went unopposed. The court granted it.
Almost a year after Dukes’s attorney filed the notice of death, a different law firm filed her will in probate court. The will named her brother as her personal representative.
Thomas Labs contacted the named parties in the will. All were then uninterested in being Dukes’s administrator. Thomas Labs petitioned the probate court to appoint a special administrator (a paralegal at the law firm representing Thomas Labs). The probate court granted the petition.
Later, Dukes’s attorney moved to dismiss Thomas Labs’ claims against Dukes, her boyfriend, and the trust. The attorney argued that the boyfriend and trust weren’t proper personal representatives and thus shouldn’t have been substituted for Dukes. The court dismissed the boyfriend and trust but returned Dukes to the case.
Thomas Labs then moved to substitute the special administrator as the proper party to continue in Dukes’s place. Dukes’s brother opposed the substitution. Later, he became special administrator before the probate court.
Dukes’s attorney again moved to dismiss the claims against Dukes, this time under NRCP 25. He argued that the 180-day deadline to move to substitute a personal representative had passed without a motion to substitute a proper party. Thomas Labs responded that the 180-day period never started because Dukes’s attorney failed to serve the notice of death on Dukes’s nonparty successors and representatives.
The district court denied Thomas Labs’ motion to substitute as untimely and granted the motion to dismiss under NRCP 25. The court concluded that Dukes’s counsel had to serve a nonparty successor or representative only if one existed when he filed the notice of death and that none did.
Reasoning.
If a party to a case dies, the case doesn’t also perish. See NRS 41.100. Any party or the decedent’s successor or representative may move to substitute a “proper party” in the decedent’s place. NRCP 25(a). But the motion must come within 180 days of service of the notice of death—or else the case “must be dismissed.” NRCP 25(a)(1).
What triggers the 180-day period depends on who files the notice of death. If an opposing party files it, the party need not serve it on nonparty successors or representatives. Gonor v. Dale, 134 Nev. 898, 900 (2018). For such a party isn’t in prime position to identify nonparty successors or representatives.2 Not so for the decedent’s attorney—who is in prime position. So a decedent’s attorney must serve the notice of death on nonparty successors or representatives. Op. at 7. (And if there are none, the attorney can petition the probate court to appoint a special administrator as the decedent’s representative to achieve proper service. Op. at 7 (citing NRS 139.040(1)(j); then NRCP 25(a)).) But the notice need not identify the decedent’s successors or representatives. McNarnee v. Eighth Jud. Dist. Ct.,135 Nev. 392, 395–96 (2019).
Dukes’s attorney never served the notice of death on Dukes’s successors or representatives. Thus, the 180-day period never started. The district court erred in concluding otherwise.
But wait, attorneys, there’s more.
If a party to a case dies, the decedent’s attorney must file a notice of death and move to substitute a party in the decedent’s place within 90 days. NRS 7.075. The failure to do so can result in sanctions. NRS 7.075. An attorney is relieved of this duty only if “another party or the decedent’s successor or representative acts faster and moves to substitute a proper party within” the 90-day period. Op. at 10.
Dukes’s attorney agreed that Dukes’s boyfriend and the trust weren’t proper parties to represent her interests. So Thomas Labs’ motion to substitute didn’t relieve Dukes’s counsel of his duty to make the same motion. Thus, by failing to do so, he violated NRS 7.075.
Nevada Court of Appeals
Kragen v. Eighth Jud. Dist. Ct. (Aug. 15, 2024) [3-0, Westbrook, J.]
Listen up, future divorcees: it just got harder in Nevada to establish that your kid’s absence from the state is permanent (which could strip Nevada courts of jurisdiction over custody issues) rather than temporary (which can’t strip such jurisdiction).
Holding.
Under the Uniform Child Custody Jurisdiction and Enforcement Act, the totality of the circumstances determines whether a kid’s absence from a state is temporary or permanent. Op. at 14.
Facts.
In 2016, Michael and Erika Kragen got married in San Diego, CA. They have three kids. In 2022, the Kragens moved to Henderson, NV. In January 2023, Erika asked for a trial separation. Michael took it bad, threatening suicide with a knife and later slicing the kid’s backyard trampoline (she said that he did it on purpose; he said that he didn’t).
Nine days later, Erika took the kids to San Diego for a week. Two days after she and the kids returned to Henderson, she left with them again to San Diego—this time without Michael’s knowledge. She also asked for a divorce. While in San Diego, the kids remained enrolled in their Nevada school, Erika remained employed in Nevada, and she and Michael attended marriage counseling.
In late February, Erika stopped talking to Michael and withdrew the kids from their Nevada school. He filed for divorce in Nevada; she did the same in California. She also requested a restraining order in California based on the knife incident and other alleged abuse. While her request was pending, a Nevada court ordered temporary joint custody of the kids. Days later, a California court issued the restraining order and awarded her temporary sole legal custody and joint physical custody.
The Nevada court and California court discussed their competing orders and jurisdiction over the kids. The California court decided to defer to the Nevada court’s decision on jurisdiction over the kids.
At an evidentiary hearing before the Nevada court, Michael and Erika agreed that the kids arrived in Nevada in early August 2022. But he and she disagreed on whether the kids’ second absence from Nevada after late January 2023 was temporary or permanent (she said the latter; he said the former). The court agreed with Michael, noting that well into February 2023, the kids remained enrolled in their Nevada school, Erika remained employed in Nevada, and she and Michael were in marriage counseling. The court also considered: how long the kids were in San Diego, why Erika brought them there, her taking them there without informing Michael or getting his permission to do so, and why the kids had come to and remained in Nevada.
As a result, the court concluded that it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act because the kids had lived in Nevada for more than six consecutive months.
Reasoning.
The Uniform Child Custody Jurisdiction and Enforcement Act governs jurisdiction over child-custody issues. NRS 125A.305. Under the Act, jurisdiction turns on a kid’s “home state.” See id. The “home state” is that in which the kid lived with a parent for at least six months, including temporary absence from the state, right before a child-custody case. NRS 125A.085(1). The Act and Nevada law don’t define “temporary absence.”
Other states that have adopted the Act use one of three tests to determine whether an absence is temporary: (1) duration, (2) intent, or (3) the totality of the circumstances. See Antonetti v. Westerhausen, 523 P.3d 969, 973–74 (Ariz. Ct. App. 2023). Duration turns on how long the kid was absent. Id. But “this test fails to account for either longer absences intended to be temporary or shorter absences that later become permanent.” Op. at 9–10. Intent turns on “the parents’ purpose for [the] absence.” Antonetti, 523 P.3d at 974. But it’s difficult to divine intent, and intentions can conflict or be in dispute. Op. at 10. Totality of the circumstances considers: duration, intent, wrongful kid withholding, why the kid came to and remained in the putative “home state,” and when the nonmoving parent had reason to recognize the kid’s absence as permanent. Op. at 10 (citations omitted). The last test is most common.
We adopt the totality-of-the-circumstances test because it “offers the greatest flexibility for the district courts to consider a wide array of relevant factors.” Op. at 10. The district court didn’t t refer to the “totality of the circumstances. But the district court applied the test in substance because the court considered intent, duration, Erika taking the kids to San Diego (the second time) without informing Michael or getting his permission to do so, why the kids had come to and remained in Nevada, and Erika’s acts that led Michael to expect that she and the kids would return to Nevada. Op. 11–13.
We agree with the district court’s math on how long the kids resided in Nevada and thus affirm the court’s ruling that it had jurisdiction over the kids’ custody status.
Ninth Circuit
Malone v. Williams (Aug. 15, 2024) [2-1 (memdispo); Owens, J., dissenting; order denying rehearing en banc; Bybee, J., statement respecting the denial of rehearing en banc; Boulware, J., (presiding district judge)]
En banc anything can incite strife among judges. Often, it stays off the record. Sometimes, it becomes public via a dissental, concurral, or disgrantle. See Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale L.J. Online 601, 606 (2012) (coining “dissental” for “dissenting from the denial of rehearing en banc” and “concurral” for “concurring in the denial of rehearing en banc); US v. Duarte, No. 22-50048, slip op. at 2 n.1 (Jul. 17, 2024) (VanDyke, J., dissenting from the grant of rehearing en banc) (coining “disgrantle” for “dissents from the grant of en banc review”).
But it’s not every day that a judge feels compelled to proclaim: (1) that a case “cries for reversal”; (2) that “the U.S. Supreme Court . . . should . . . summarily reverse” the case; and (3) that “lower federal courts” and “state courts [should] not . . . rely on our deeply flawed memorandum disposition.” Statement at 3.
So grab your popcorn.
Procedural History.
The panel—Judges Rawlinson, Owens, and Pregerson (district judge)—affirmed, 2-1 in a memdispo, an order granting habeas relief to Malone. Judge Rawlinson concurred in the result, without explanation. Judge Owens dissented. Nevada petitioned for rehearing en banc. Judge Rawlinson voted to deny, Judge Owens voted to grant, and Judge Pregerson recommended denying. A judge requested a full-court vote on whether to rehear the case en banc, but a majority of the court didn’t vote in favor of doing so. Judge Bybee issued a statement that the en banc court should have reheard this case, and thirteen judges (two fewer than a majority) joined the statement. Judge Pregerson issued a statement that the panel majority got it right.
Facts.
Malone was charged with capital murder and kidnapping in Nevada state court. He started with a public defender. Then, he chose to represent himself. What happened after that depends on who’s reading the record.
The memdispo provides that though Malone’s later statements could, in insolation, look like evidence of equivocation on whether he wanted to continue representing himself, the full record showed that”:
Malone was not equivocal about his desire to represent himself rather than have [appointed counsel] represent him. . . . Malone never wavered from that position after he was granted leave to represent himself. While Malone’s request to represent himself was conditional in that he might have accepted different counsel, it was not equivocal because he was clear if [appointed counsel] was his only option for appointed counsel then he would represent himself.
Memdispo at 6 (quoting the district court’s order); but see Owens, J., dissenting (memdispo) at 2–3 (providing that, though there are facts “that support the [memdispo] majority’s position that Malone’s request to represent himself was unequivocal,” “Malone unprompted, asked for his attorneys back, and then changed his mind. He couched his requests with the phrase ‘at this point in time,’ even when the court directed him to answer with a simple ‘yes’ or ‘no,’ implying that his position was subject to change. He told the court it was ‘denying [him] the right to . . . representation’ by not appointing standby counsel that he approved of. He said he wanted a lawyer, but ‘[n]ot the ones I got now’ and self-representation ‘wasn’t technically [his] choice.’”).
Judge Bybee’s statement provides that:
[Malone] equivocated repeatedly after [invoking his right to represent himself]. He accused the trial court of “denying [him] the right to have representation,” and he stated in no uncertain terms that he “had asked for . . . counsel.” These equivocations culminated in a memorandum to the state trial court, in which Malone complained that he had “been forced to represent himself in this case” and that he “ha[d] always been more than willing to accept proper assistance.” Malone made clear that he “did not want to represent himself” any longer. (Emphasis added.) The state trial court then held a hearing and asked Malone whether he no longer wanted to represent himself. Malone responded, “Yes. Yes, sir.”
Statement (Bybee, J.) at 4; see also Statement (Bybee, J.) at 6–9 (detailing Malone’s statements and acts relating to representing himself and to being appointed an attorney).
What follows isn’t disputed. The state trial court reappointed Malone a public defender. Malone was convicted and sentenced to life without parole. He appealed, arguing that he was denied his right to represent himself. The Nevada Supreme Court affirmed. Malone then sought federal habeas relief. The district court granted it.
On appeal, the 2-1 memdispo provides that AEDPA applies and that there’s Ninth Circuit caselaw on the “equivocality” of waiving the right to counsel in the AEDPA context. See Memdispo at 5. It first cites Stenson v. Lambert, where the court held that a waiver was “equivocal whe[n] the defendant failed to persistently or ‘consistently [] maintain his desire to represent himself.” 504 F.3d 873, 884 (9th Cir. 2007). It concludes “[t]hat clearly was not the situation here, where Malone repeatedly and insistently stated, even if conditionally, that he wanted to represent himself.” Memdispo at 5. Then it cites Tamplin v. Muniz, concluding that Malone’s efforts “far outstripped those of the defendant in Tamplin, where, reversing the district court’s denial of habeas relief, we observed that the defendant’s statements in two hearings one week apart ‘read[] like an exercise in how many ways a defendant can say that he wants to represent himself.’” 894 F.3d 1076, 1084 (9th Cir. 2018).
The memdispo dissent provides that Malone didn’t show—as required under AEDPA—that the Nevada Supreme Court’s ruling that his request for self-representation was equivocal “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Dissent at 1 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). The dissent notes that “every case the majority relies on for its conclusion, except one, was decided either under the pre-AEDPA standard or outside the habeas context entirely. Dissent at 1–2. The dissent asserts that “[t]he sole AEDPA case the majority relies on,” Tamplin, “is distinguishable” because there “the defendant never vacillated; his attempt to hire a private attorney was consistent with his position that he did not want a public defender.” Dissent 2–3.
Statement Respecting the Denial of Rehearing En Banc (Bybee, J.).
This case is easy—the panel majority still got it wrong.
For habeas relief in an AEDPA case, a state court’s ruling on the merits must be “contrary to, or involved an unreasonable application of, clearly established Federal law.” See 28 U.S.C. § 2254(d)(1). Only the Supreme Court determines such law. See Brown v. Davenport, 596 U.S. 118, 136 (2022). “If any fairminded jurist could have reached the state court’s conclusion [given] Supreme Court precedent,” no dice on habeas relief. Statement at 14.
“The Supreme has declared . . . that courts must draw all reasonable inferences against waiver of the right to counsel.” See Brewer v. Williams, 430 U.S. 387, 404 (1977). Faretta v. Californiarequires that a request for self-representation be “unequivocal.” 422 U.S. 806, 817, 835 (1975). That requirement is “a backstop” for the right to counsel, “ensuring that the defendant does not inadvertently waive that right through occasional musings on the benefits of self-representation.” Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989). “Brewer’s presumption and the unequivocal-invocation rule operate in tandem: Absent an unequivocal request for self-representation, an indigent defendant is presumed to have requested the appointment of counsel.” Statement at 15.
The Nevada Supreme Court got this right. It was the federal district court that got it wrong. The court ignored Brewer, citing only Faretta’s general right to self-representation. Statement at 16. The panel did the same and worse, mischaracterizing Ninth Circuit caselaw as support rather than, as required, relying on Supreme Court precedent. Statement at 16–18 (dissecting the caselaw). Brewer is the only applicable clearly established law. See Statement at 18.
The panel majority’s reliance on § 2254(d)(2) doesn’t fix the errors. Section 2254(d)(2) “covers the unreasonable determination of historical facts, such as whether a defendant made a particular statement.” Statement at 18. But “‘[t]he effect of admitted facts’—such as whether a particular statement is equivocal—‘is a question of law.’” Statement at 18 (quoting Guerrero-Lasprilla v. Barr, 589 U.S. 221, 227 (2020)). The panel majority couldn’t “have reached its § 2254(d)(2) conclusion without relying on legal rules found only in our direct appeal decisions and not in Faretta.” Statement at 18.
And even if § 2254(d)(2) applied, the panel majority still went awry. Section 2254(d)(2) requires federal courts to give “the state trial court substantial deference.” Brumfield v. Cain, 576 U.S. 305, 314 (2015). If reasonable minds could disagree on “the finding in question,” habeas review doesn’t “supersede the trial court’s determination.” Brumfield v. Cain, 576 U.S. 305, 314 (2015). The panel majority instead “transformed collateral review under AEDPA into an exercise of ordinary appellate review,” making “its own judgments about what the record” showed. Statement at 23. And the panel majority’s “factual finding that Malone’s Faretta request was unequivocal is just wrong under any standard of review—and egregiously so under AEDPA.” Statement at 23.
Worse still, the panel majority “ignored” an independent basis to deny relief that the Nevada Supreme Court invoked and that the State of Nevada argued to the panel:
[T]he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct . . . . The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.
Faretta, 422 U.S. at 834 n.46.
“Malone repeatedly flouted court rules, filed frivolous motions, and engaged in tactics designed to delay and obstruct the proceedings.” Statement at 25. The district court’s conclusion that “‘[t]he record does not support a finding of a pattern of substantial procedural obfuscation or delay by Malone” . . . is indefensible.” Statement 26.
The panel majority dodged this issue till its statement respecting the denial of rehearing en banc. And the panel majority gets it wrong there, too, “on both law and fact.” See Statement at 26–29 (listing what’s wrong on both fronts). In sum, the panel majority “once again create[s] a legal rule out of whole cloth—namely, that a state court opinion must discuss a ground for denying relief more than just ‘briefly’ or in ‘passing.’” Statement at 29. That approach conflicts with Supreme Court precedent. See Johnson v. Lee, 578 U.S. 605, 611 (2016) (per curiam) (holding that, in habeas cases, “[f]ederal courts have no authority . . . to impose . . . opinion-writing standards on state courts.”).
By all these missteps, “the panel has violated AEDPA through and through.” Statement at 30. Thus, the Court “should have reheard this case en banc.” Statement at 30.
Statement Respecting the Denial of Rehearing En Banc (Pregerson, J.; Rawlinson, J., joining).
The State of Nevada “made but a single, footnoted reference to Section (d)(1), acknowledging that “this Circuit, along with the majority of neighboring circuits, appears to have consistently treated [equivocation] as a question of fact
governed by §§ 2254(d)(2) and (e)(1) and not § 2254(d)(1).” Statement at 31. The district court “decided this case under Section (d)(2), [the State] argued the appeal under Section (d)(2), and the memorandum disposition analyzed the case under Section (d)(2).” Statement at 31–32. “Thus, the only question [is] . . . whether the Nevada Supreme Court’s decision “was based on an unreasonable determination of the facts [given] the evidence presented in the State court proceeding.” Statement at 32 (citing 28 U.S.C. § 2254(d)(2); then citing Est. of Saunders v. Comm’r, 745 F.3d 953, 962 n.8 (9th Cir. 2014) (“Arguments raised only in footnotes, or only on reply, are generally deemed waived.”)).
On that front, “the panel majority and the dissent looked to two of this Court’s equivocation decisions”: Stenson and Tamplin. Statement at 33. Judge Bybee’s statement calls Stenson“remarkably relevant” but ignores Tamplin. Statement at 33. There, “we concluded on AEDPA review that, contrary to the state court’s determination, a defendant had unequivocally invoked his right to represent himself.” Statement at 33. And Malone’s efforts “far outstripped those of the defendant in Tamplin.” Statement 33–34 (detailing Tamplin’s facts).
Judge Bybee’s statement “selectively quote[s] certain portions of the record out of context while eliding others” and “ignores Malone’s multiple, strident reassertions, made over the course of more than a year, of his continuing desire to represent himself.” Statement 34–35. “That [Judge Bybee’s] [s]tatement reads the record differently does not mean that the panel majority substituted its judgment for that of the state court or otherwise improperly granted relief where the state court was ‘merely wrong.’” Statement at 36.
And “[n]either the panel majority nor the dissent addressed [Judge Bybee’s] [s]tatement’s ‘serious and obstructionist conduct’ argument because, quite simply, the trial court never revoked Malone’s self-represented status on that basis.” Statement at 37.
All told, Judge Bybee’s statement tries “to force a square peg into a round hole, characterizing a memorandum disposition involving a factual conclusion as a paradigm-shifting declaration of new legal principles and usurpation of the Supreme Court’s exclusive authority.” Statement at 41. Thus, the Court “appropriately declined to rehear this case en banc.”
United States v. Manney (Aug. 19, 2024) [3-0; de Alba, J.; McKibben, J., (presiding district judge)]
The Second Amendment protects your right to buy guns. But the Second Amendment doesn’t save you from having to fill out paperwork to do so. And there’s no right to buy guns for others (especially those prohibited from possessing them).
Holding.
Section 922(a)(6) prohibits making false statements related to buying firearms. It doesn’t regulate possession of firearms. Op. at 9–10. Thus, it falls outside the Second Amendment’s text. Op. at 10–11.
Facts.
Manney went to a gun shop. She picked out seven guns. The store gave her a form to fill out for each gun. The form required Manney to affirm that she was the actual purchaser of the guns.
The shop suspected that Manney was buying the guns for someone else. So it reported her to ATF. An ATF agent showed up when Manney came to pick the guns up.
As she left with the guns, the agent approached and told her that he thought she bought the guns for someone else. She denied doing so. Later, she agreed to talk to the agent again at the ATF office. There, she maintained her denial. She let the agent search her phone. The agent found messages between her and her son about buying the guns. Her son is a convicted felon prohibited from possessing guns.
Soon after, the government indicted Manney for violating 18 U.S.C. §§ 922(a)(6) and 924(a)(2) for making false statements at the gun shop on the forms. A jury convicted her.
On appeal, Manney argues that, as applied to her, § 922(a)(6) violates the Second Amendment.
Reasoning.
The Second Amendment guarantees the “right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). But “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626.
If the Second Amendment’s text covers a person’s conduct, “the Constitution presumptively protects that conduct.” New York Rifle and Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 24 (2022). To rebut that presumption, the government must show that its regulation “is consistent with the Nation’s historical tradition of firearm regulation.” Id. “Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” Id. (quotation marks omitted).
Section 922(a)(6) prohibits any person buying or attempting to buy a firearm from “knowingly . . . mak[ing] any false or fictitious oral or written statement” related “to any fact material to the lawfulness of the sale.” Manney argues that § 922(a)(6) violates the Second Amendment in two ways: (1) it hindered her ability to buy guns by regulating their purchase and (2) it regulates a buyer’s possessory interest by imposing information requirements for future transferees. Both arguments flop.
A person can’t invoke the Second Amendment simply “by describing the conduct” at issue at “a high level of generality.” Op. at 8. Per Manney’s logic, the Second Amendment’s text would cover “any regulation related” to buying firearms, “regardless of the conduct the statute regulates.” But whether the Second Amendment covers a regulation’s text must be tied to “the conduct the regulation prevents [the individual] from engaging in.” Doe v. Bonta, 101 F.4th 633, 639 (9th Cir. 2024).
Section 922(a)(6) prohibits making false statements. It relates to firearms only in that it regulates statements made when buying firearms material to the lawfulness of the sale.” 18 U.S.C. § 922(a)(6). Just because the information the buyer provides might trigger another statute that bars buying a firearm doesn’t “transform § 922(a)(6) into a statute regulating the possession of firearms.” Op. at 10.
Section 922(a)(6) didn’t prohibit Manney from possessing the guns. Nor did it prohibit her from transferring them to someone else. All it did was prohibit her from lying about the actual buyer of the guns. Thus, § 922(a)(6) didn’t violate Manney’s Second Amendment right.
And Manney’s other argument that her false statement wasn’t “material” under § 922(a)(6) because § 922(g)(1) (prohibiting persons with felony convictions from possessing firearms) is unconstitutional is foreclosed by Supreme Court precedent. See Abramski v. United States, 573 U.S. 169 (2014) (holding that a false statement about the actual buyer of a firearm was “material” under § 922(a)(6) even if the actual buyer could legally possess a firearm).
Cogan v. Trabucco (Aug. 21, 2024) [3-0; Collins, J.; Silva, J., (presiding district judge)]
A magnetic combo for federal-courts geeks: mootness and the Rooker-Feldman doctrine.
Holdings.
A case isn’t moot if a court can grant some effectual relief to the plaintiff, so a partial settlement agreement specifying the ultimate form of redress that would result from success in litigation doesn’t moot that litigation so long as a court could grant relief beyond the stated form of redress. Op. at 11–15.
Rooker-Feldman doesn’t bar collateral attacks on state-court judgments that arise from acts in bankruptcy cases. Op. at 21–23.
Facts.
Trabucco is a surgeon. He operated on a patient who died a few days later. Around the same time, Trabucco filed for bankruptcy in Nevada.
Cogan is an attorney. He represented the deceased patient’s family members in the bankruptcy case and in their case against Trabucco in Arizona state court for malpractice.
While the malpractice case was pending, Cogan filed a complaint for the family members in the bankruptcy case, requesting a ruling that Trabucco’s liability to the family members was for money got by “false representation[s]” and debts “for willful and malicious injury by the debtor” and thus the liability was nondischargable. 11 U.S.C. § 523(a)(2)(A), (a)(6). Cogan said that he made these allegations because he thought that, if he didn’t, the family member’s malpractice claims would be dischargeable.
Later, the family members agreed to dismiss the complaint. In return, Trabucco agreed to not seek attorneys’ fees or costs. The family members were also allowed to maintain their malpractice claims but only for negligence, not malicious or intentional conduct.
A few weeks later, Trabucco sued Cogan and the family members in Arizona state court. Trabucco alleged that the now dismissed bankruptcy complaint was malicious prosecution, abuse of process, and intentional infliction of emotional distress.
A month later, Trabucco moved to dismiss the family members’ malpractice claims for failure to prosecute. The state court granted the motion. A month after that, the bankruptcy court discharged Trabucco from all pre-petition debts, including any linked to the malpractice claims.
Still, the family members later sued Trabucco for malpractice in federal court. The case was limited to recover from only Trabucco’s malpractice insurer—not from Trabucco. The family members lost this case, too.
A few months later, Trabucco won partial summary judgment on liability on his malicious-prosecution and abuse-of-process claims against Cogan and the family members. The jury later awarded Trabucco no damages against the family members but $8 million against Cogan ($6.2 compensatory, $1.8 punitive).
Cogan appealed. The appeals court affirmed on malicious prosecution, reversed on abuse of process, and vacated the damages against Cogan, remanding to determine damages for the malicious prosecution.
Trabucco appealed to the Arizona Supreme Court. There, Cogan moved to dismiss, arguing for the first time that the Arizona courts lacked subject-matter jurisdiction because Trabucco’s case related to the bankruptcy case. The court dismissed the appeal and denied the motion without explanation.
A few weeks before the trial for the malicious-prosecution damages, Cogan sued Trabucco in federal district court in Nevada. Cogan sought a declaration that any judgment in the Arizona case would be invalid and unenforceable, arguing that the state court lacked subject-matter jurisdiction.
Cogan and Trabucco settled the state-court case the day the trial. At bottom, they agreed that: (1) Cogan would owe the $8 million and (2) if Trabucco won the federal case, the $8 million would be an “unsecured, dischargeable debt”; and (3) that the malicious-prosecution claim arose only from the bankruptcy complaint.
Trabucco later moved to dismiss Cogan’s complaint in federal court. The court granted Trabucco’s motion, concluding that the Rooker-Feldman doctrine barred the case.
Reasoning.
Trabucco first argued that the federal case was moot. He asserted that Cogan had already got any relief he could have got in the case because Trabucco had agreed “not to execute” (i.e., not to sue) on the $8 million. The argument fails.
A case is moot only if it’s “impossible for a court to grant any effectual relief whatever” to the plaintiff. See Chafin v. Chafin, 568 U.S. 165, 172 (2013). Cogan sought a declaration that not only any malicious-prosecution judgment is unenforceable but also invalid. If Cogan gets that declaration, the $8,000,000 “would be entirely wiped out.” Op. at 11. But if Trabucco wins, Cogan would still owe the $8,000,000, even though (1) Trabucco can’t “execute on it” and (2) it’d be dischargeable. Op. at 11. Our caselaw “that a partial settlement agreement specifying the ultimate form of redress that would result from success in litigation does not moot that litigation” supports the decision here. Op. at 11–15.
The Rooker-Feldman doctrine bars federal cases “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
Cogan argues that the doctrine doesn’t apply here because, when he sued in federal court, no “judgment” had been entered on the malicious-prosecution claim. The district court disagreed, concluding that Cogan could have asked the U.S. Supreme Court to review the Arizona’s Supreme Court order denying his motion to dismiss for lack of jurisdiction. That’s a tricky question that we don’t need to answer for the below reason.
Cogan also argues that he can collaterally attack the malicious-prosecution judgment because it arose from acts in the bankruptcy case. He’s right. See MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910 (9th Cir. 1996) (holding exactly what Cogan argued). Rooker-Feldman doesn’t bar cases involving a “state court judgment entered in a case that falls within the federal courts’ exclusive jurisdiction.” Gonzales v. Parks, 830 F.2d 1033, 1036 (9th Cir. 1987). “The highly complex laws needed to constitute the bankruptcy courts and regulate the rights of debtors and creditors . . . underscore[s] the need to jealously guard the bankruptcy process from even slight incursions and disruptions brought about by state malicious prosecution actions.” MSR Exploration, 74 F.3d at 914. Thus, state courts lack jurisdiction “to hear a claim [against creditors] that the filing of a bankruptcy petition constitutes” malicious prosecution.” Id. at 915–916. And Trabucco agreed that the malicious-prosecution claim arose only from the bankruptcy complaint.
As a hail mary, Trabucco argues that the Arizona Supreme Court’s order denying Cogan’s motion to dismiss “has preclusive effect” on “whether the Arizona proceedings encroached on the exclusive jurisdiction of the federal courts.” Op. at 23–24. He’s wrong. See Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 386 (1996) (holding that state-court judgments have no effect in federal court if the state court lacked subject matter jurisdiction).
Concurrence (Smith, M., J.).
Our caselaw provides that (1) Rooker-Feldman doesn’t apply “when state court losers seek lower-federal-court review of injurious state-court judgments rendered pursuant to state-law causes of action that are completely preempted by federal law,” Concurrence at 27, and (2) “whenever a state-court judgment is ‘entered in a case that falls within the federal courts’ exclusive jurisdiction,’” Concurrence at 29.
Our caselaw conflicts with Mobil. See Concurrence at 27, 29. There, the Supreme Court noted “only one circumstance” in which Rooker-Feldman “may fall away” when “it would normally apply”: when Congress “explicitly empower[s] district courts to oversee certain state-courtjudgments.” Concurrence at 28 (quoting Exxon Mobil, 544 U.S. at 292 n.8.). Thus, the proper inquiry should be only “whether Congress, by statute, expressly authorized a lower federal court to engage in such review.” Concurrence at 28. Plus, after our MSR Exploration decision, “the Supreme Court has sharpened the test for determining whether a state-law cause of action is completely preempted by federal law. Concurrence at 31–32 (collecting cases).
There’s also a circuit split on “whether attorneys who allegedly abuse the federal bankruptcy process, [such as] Cogan, may be held accountable in state court” between our court and two other circuits: Paradise Hotel Corp. v. Bank of Nova Scotia, 842 F.2d 47, 52 (3d Cir. 1988) (declining to hold that malicious-prosecution claims related to bad-faith filing in bankruptcy cases are completely preempted); In re Repository Technologies, Inc., 601 F.3d 710 (7th Cir. 2010) (holding that certain state-law tort claims based on a debtor’s abusive filing in a bankruptcy case aren’t completely preempted because the bankruptcy code “does not provide . . . comprehensive, express remedies for” creditors harmed by abusive filings.). Concurrence at 26, 30–32.
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The Court doesn’t discuss what happens if a nonparty files the notice of death, but the logic for the opposing-party rule could also apply in this situation.