Decisions Digest #2
Published Opinions from August 26–September 6, 2024
Although there are fewer opinions to cover this time around, there’s no shortage of front-page legal developments.
The Nevada Supreme Court issued opinions on what a public-figure-defamation plaintiff must show to defeat an anti-SLAPP motion (Wynn v. Associated Press) and on when a trial judge may “revisit” another judge’s decision in the same case (Litchfield v. Tucson Ridge Homeowners Assoc.).
The Nevada Court of Appeals issued an opinion on when an imperfect civil trial becomes unfair enough to warrant a new trial (Hayes v. Watson).
The Ninth Circuit issued opinions on whether an attorney-fees claim can resuscitate an otherwise moot controversy and whether the catalyst-theory applies to attorney-fees claims in Longshore Act prosecutions (Berry v. Air Force Cent.) and on an ancient habeas petition (Rodney v. Garrett)—both opinions overruled Ninth Circuit precedent. The Ninth Circuit also certified a question to the Nevada Supreme Court on whether an excess insurer may sue a primary insurer for equitable subrogation (N. River Ins. v. James River Ins.).
No federal circuit court interpreted Nevada law over the last two weeks. But the Ninth Circuit also certified a question to the Nevada Supreme Court on whether an excess insurer may sue a primary insurer for equitable subrogation (N. River Ins. v. James River Ins.).
Dive in below.
Nevada Supreme Court
Wynn v. Associated Press (Sept. 5, 2024) [3-0; Parraguirre, J.]
Yet another reason why being famous isn’t all that it’s cracked up to be.
Holding.
Under NRS 41.660(3), to defend against an anti-SLAPP motion, a public-figure-defamation plaintiff must show—by clear and convincing evidence—that there was actual malice behind the defamatory statement. Op. at 2.
Facts.
Associated Press published an article about two sexual-assault complaints against Wynn for acts in the 1970s. Wynn sued AP for defamation.
AP moved to dismiss under Nevada’s anti-SLAPP statutes. The court granted the motion, reasoning that (1) the article was a good-faith statement “in furtherance of the right to free speech” on an issue of “public concern” and (2) Wynn failed to show that he’ll likely prevail “on the merits of his claim” because he failed to show, by clear and convincing evidence, that AP maliciously published the article. Op. at 4.
On appeal, Wynn argues that the court wrongly applied the clear-and-convincing standard.
Reasoning.
Courts analyze anti-SLAPP motions in two steps. First, the court analyzes whether the defendant has shown, by a preponderance of the evidence, that the statement was made in good-faith statement and “in furtherance of” the rights to petition or of free speech on an issue of “public concern,” NRS 41.660(3)(a). If so, the court next analyzes whether the plaintiff has shown “prima facie evidence [of] a probability of prevailing on the claim.” NRS 41.660(3)(b).
At step one, the defendant must show that the statement fits into one of NRS 41.637’s four categories. Stark v. Lackey, 136 Nev. 38, 40 (2020). One category is a statement about “an issue of public interest in a place open to the public or in a public forum, which is truthful or is made without knowledge of its falsehood.” NRS 41.637(4).
“[P]ublic interest” doesn’t mean “mere curiosity.” Shapiro v. Welt, 133 Nev. 35, 39 (2017). “[A] matter of public interest” is of concern to “a substantial number of people,” not just the speaker and “a relatively small specific audience.” Id. But a person can’t make private information “a matter of public interest simply by communicating it to a large number of people.” Id. “[T]he assertion of a broad and amorphous public interest” isn’t enough: “the challenged statements and the asserted public interest” must have “some degree of closeness.” Id. The speaker’s conduct must focus on “the public interest rather than [be] a mere effort to gather ammunition for another round of private controversy.” Id.
AP’s article is of “public interest.” Weeks before it, “Wynn resigned as CEO of Wynn Resorts and as Finance Chair of the Republican National Committee” after “national reports of alleged [sexual] misconduct.” Op. at 6. Business and government entities investigated his alleged conduct. Op. at 6. The reports “affected his public business and political affairs.” Op. at 6. The article’s discussion of new alleged sexual misconduct “would be of concern to a substantial number of people, including consumers, voters, and the business and governmental entities investigating precisely this kind of behavior.” Op. at 6.
As for whether the statement is “truthful or made without knowledge of its falsehood,” a defendant’s affidavit to that effect is enough, absent contrary evidence in the record. Stark, 136 Nev. at 43. AP submitted such an affidavit. Op. at 7. But Wynn asserts that there’s contrary evidence in the record. He contends that one complaint was absurd on its face and thus AP must have known that it was false, and he notes that the article’s author sent a text to a coworker that stated “[o]ne of [the complaints] is crazy.” Op. at 7.
Wynn’s cited evidence doesn’t show, “by a preponderance,” that AP knew the complaint was false. Op. at 7. Sure, the complaint was “unusual,” but it wasn’t “so unrealistic” to be false on its face, and the author’s “crazy” text isn’t “persuasive evidence that she knew” the complaint is false. Op. at 7. Plus, the complaint was redacted, so “it would have been fruitless for AP” to “investigate further at the time.” Op. at 7. All told, AP met its burden under the first step.
At step two, Wynn must show “prima facie evidence” that he’ll likely win his defamation claim. He is a public figure. For defamation, a public-figure plaintiff must show: (1) that the defendant made a “false and defamatory statement” about the plaintiff; (2) “an unprivileged publication to a third person”; (3) fault, amounting to “actual malice” shown by clear-and-convincing evidence; and (4) “actual or presumed damages.” Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 718–19 (2002).
Wynn and AP disagree on his burden at step two. He argues that he need not meet the clear-and-convincing standard because step two requires only “a ‘prima facie’ probability” of winning the claim. Op. at 8. AP maintains that the clear-and-convincing standard applies for evidence of actual malice. We haven’t sorted out how the two standards interact—till now.
At step two, a plaintiff need only show that his claim has “minimal merit.” Abrams v. Samson, 136 Nev. 83, 91 (2020). Such merit exists when there’s prima facie evidence “to sustain a favorable judgment.” Wilson v. Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002). Under Nevada law, when a plaintiff must show “a probability” of winning on a claim to defeat an anti-SLAPP motion, the plaintiff “must meet the same burden of proof that a plaintiff has been required to meet [under] California’s [anti-SLAPP] law.” NRS 41.665(2). California law uses the clear-and-convincing standard for evidence of actual malice. Op. at 9–10 (collecting California cases). Thus, that’s the proper standard here. So, at step two, though the plaintiff need only show that his claim has minimal merit, a public-figure-defamation claim has no merit “if the plaintiff’s evidence of actual malice” couldn’t “sustain a favorable verdict under the clear and convincing standard.” Op. at 10.
Wynn also argues that requiring him to meet the clear-and-convincing standard would violate his right to a civil jury trial. Op. at 11. But he’s wrong again. The standard is a legal issue—not a fact issue. See Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 685 (1989). And even outside anti-SLAPP motions, “[t]he question of actual malice goes to the jury only if there is sufficient evidence for the jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice.” Pegasus, 118 Nev. at 721–22 (emphasis added).
“Actual malice” requires that a defendant publish a statement knowing that it was false or with reckless disregard for its truth. Id. at 722. And a defendant has “[r]eckless disregard for the truth” if the defendant seriously doubted “the truth of the statement[] but published it anyway.” Id. (quoting Posadas v. City of Reno, 109 Nev. 448, 454 (1993)).
To show “actual malice,” Wynn cites the same evidence he cited at the first step: that one complaint was absurd on its face and thus AP must have known that it was false and the author’s “crazy” text. See Op. at 13. To show “reckless disregard,” Wynn highlights AP’s motivation, as a leading publisher with competitors, to publish the article quickly. Op. at 13. We view this evidence, and any reasonable inferences drawn from it, . . . in [the] light most favorable to the nonmoving party.” Wood v. Safeway, Inc., 121 Nev. 724, 729 (2005) (holding that the summary-judgment standard applies to anti-SLAPP motions). For the reasons detailed above, Wynn’s evidence falls far short of “actual malice,” and AP wanting to publish quickly, by itself, doesn’t show “reckless disregard.” Op. at 13–14.
Litchfield v. Tucson Ridge Homeowners Assoc. (Sept. 5, 2024) [7-0; Parraguirre, J.]
Apparently, appeals judges aren’t the only ones that may reverse trial judges. Other trial judges may do so, too—sometimes.
Holding.
A trial judge may revisit decisions made by another judge in the same case only when (1) later proceedings produce substantially new or different evidence, (2) there has been an intervening change in controlling law, or (3) the earlier decision was clearly erroneous and would result in manifest injustice if enforced. Op. at 6, 9.
Facts.
The Litchfields sued their HOA for harassment and excessive fines. The HOA moved to dismiss. It argued that, under NRS 38.310, the Litchfields had to first submit their claims to mediation because they relate “to the interpretation or application of the HOA’s covenants, conditions, or restrictions (CC&Rs).” Op. at 2–3. Judge Crockett denied the motion, concluding that the Litchfields’ claims didn’t turn on the CC&Rs.
Two years later, Judge Peterson was on the case—Judge Crockett had retired. The HOA moved for summary judgment, parroting the arguments from the motion to dismiss. Judge Peterson granted the motion. She concluded that she wasn’t bound by Judge Crockett’s decision denying the motion to dismiss “because the standards are different at the motion to dismiss and summary judgment stages.” Op. at 3. Judge Peterson also concluded that the Litchfields’ claims did turn on the CC&Rs. Op. at 3.
On appeal, the Litchfields argue “that Judge Peterson erred under the law-of-the-case doctrine by contradicting Judge Crockett's earlier legal conclusion.” Op. at 3.
Reasoning.
The law-of-the-case doctrine provides that “a legal decision . . . should remain the law of that case . . . unless and until” a higher court modifies or overrules the decision. See Negrón-Almeda v. Santiago, 579 F.3d 45, 50 (1st Cir. 2009). So if a case moves from one trial judge to another, the later judge shouldn’t “do so merely because the later judge disagrees with the [earlier].” Op. at 4.
Federal courts have noted three instances when a trial judge may revisit an earlier trial judge’s decision: (1) later “proceedings produce[d] substantially new or different evidence,” (2) “an intervening change in controlling law,” or (3) the decision “was clearly erroneous and would result in manifest injustice if enforced.” Hsu, 123 Nev. at 630. We adopted only number two. But we noted that we’ve “acknowledged the possibility of exceptions to the law of the case” when previous decisions “are so clearly erroneous that continued adherence to them would work a manifest injustice” or “would amount to a fundamental miscarriage of justice.” Id. at 630–31; see also Masonry & Tile Contractors Ass’n of S. Nev. v. Jolley, Urga & Wirth, Ltd., 113 Nev. 737, 741(1997) (same for reconsideration); Moore v. City of Las Vegas, 92 Nev. 402, 405 (1976) (same for rehearing).
We now adopt the other two instances. Op. at 6. We also clarify that the doctrine applies to interlocutory orders, despite NRCP 54(b) providing that a district court may revise an order or decision “at any time before” entering final judgment. Op. at 6.
Here, the “issue in both the motion to dismiss and the motion for summary judgment was whether NRS 38.310 required the Litchfields to submit their claims to mediation before” suing their HOA in district court. Op. at 7. NRS 38.310 provides that a case relating to “the interpretation, application or enforcement of any [CC&Rs] applicable to residential property or any bylaws, rules or regulations adopted by an association” may not be filed in district court unless first submitted to mediation.
So the analysis “hinges on whether the claims themselves relate to the CC&Rs, not whether there is or could be additional evidence supporting the claims’ merits.” Op. 7 (“[It’s] a legal inquiry, not a factual one”). Although the standards “at the motion-to-dismiss and the summary-judgment stages” differ, the “purely legal question . . . was identical at both stages.” Thus, Judge Peterson shouldn’t have revisited Judge Crockett’s decision unless an exception to the law-of-the-case doctrine applies.
None does:
There was no “intervening change in controlling law.” Op. at 7.
The substantially-different-evidence exception doesn’t “apply because the issue under NRS 38.310 is didn’t “depend on any additional evidence produced at the summary-judgment stage.” Op. at 7.
The clearly-erroneous-and-manifest-injustice exception doesn’t apply because “whether the Litchfields’ claims went through mediation, [the HOA didn’t] lose the ability to substantively challenge the claims at issue before the district court.” Op. at 8.
Plus, the HOA didn’t “seek mandamus relief at any point in the two years before Judge Peterson was assigned to the case, for which [the HOA] would have needed to make the same argument it makes now to justify a deviation from the law-of-the-case doctrine—that Judge Crockett clearly erred by concluding that NRS 38.310 did not apply.” Op. at 8.
Thus, Judge Peterson erred when she revisited the issue of whether NRS 38.310 applies. Op. at 8.
Nevada Court of Appeals
Hayes v. Watson (Aug. 29, 2024) [3-0; Bulla, J.]
“[T]rial is a dynamic organism.” Diakamopoulos v. Monmouth Med. Cir., 711 A.2d 321, 331 (N.J. Super. Ct. App. Div. 1998). So—though fairness doesn’t demand a perfect trial—too much error or too much curative instruction can transform an imperfect trial into an unfair one.
Holding.
Courts may apply the cumulative-error doctrine in civil cases to resolve whether a party was deprived of a fair trial. Op. at 2–3.
Facts.
Hayes is a nurse. Watson is a surgeon. Both were trauma-team members at Renown Regional Medical Center.
When a critically injured patient arrived at Renown, “the trauma team rolled the patient to her side so the backboard—a flat medical device used to safely transport patients—could be removed from beneath her.” Op. at 3. Watson “angrily confronted a paramedic for treating the patient with Versed—a sedative—while in transit to the hospital,” because doing so “potentially hindered the trauma team’s ability to accurately assess the patient’s neurological condition.” Op. at 3. What happened next is unclear, but it’s undisputed that “Watson dropped the backboard onto the floor, hitting Hayes’s left foot[,] resulting in a severe crush injury and requiring Hayes to undergo multiple surgeries.” Op. at 3–4.
Hayes sued Watson for assault and battery and sued his employer for negligent training, supervision, and retention. Over the next three years, the parties conducted written discovery and depositions.
Before trial, Hayes moved to “limit references to workers’ compensation . . . to avoid violating the collateral source rule” and to restrict a witness’s testimony to what he stated in his deposition. Op. at 4. The court granted the limitation but denied the restriction.
Later, Watson and his employer untimely designated the witness as a 30(b)(6) witness but failed to disclose the expected testimony subjects. Hayes objected to the designation and moved to strike it. The court denied the motion to but granted the objections, “which effectively barred [Watson and his employer] from calling witnesses or moving to admit any of their proposed exhibits into evidence at trial.” Op. at 5.
Still, Watson and his employer listed the untimely designated witness for trial and again didn’t include expected testimony subjects. They also waited till “the morning of jury selection”—when they tried to confirm that they could call the witness at trial—to ask the court to clarify “inconsistent rulings on their ability to call witnesses.” Op. at 5. Although the court “admonished” Watson and his employer for failing to raise the “inconsistent rulings” till the last minute, the court eventually allowed the witness to testify. Op. at 5.
At trial, Hayes preserved these alleged errors:
she objected to the court restricting her use of video clips from the witness’s deposition for impeachment only, arguing that “NRCP 32(a)(3) permitted her to use his deposition for any purpose”; and
she objected to Watson and his employer referring to Hayes’s workers’-compensation benefits, arguing doing so violated the collateral-source rule and the court’s previous order restricting referring to such.
Op. at 6. The witness also testified as an “expert” contrary to the court’s pre-trial order that his testimony be limited to what he gave during his deposition, when he was a 30(b)(6) witness. Op. at 6.
The trial lasted six days. Hayes lost.
She moved for a new trial. She argued that it was warranted—under the cumulative-error doctrine—because “the jury ignored the jury instructions regarding negligence,” because the court improperly restricted her use of the witness’s deposition, and due to numerous other “legal errors, irregularities, and [instances of attorney] misconduct [that] occurred prior to and during trial,” ultimately resulting in prejudice to and an unfair trial for Hayes. Op. at 6. The court denied the motion, finding that the individual errors didn’t warrant reversal (the court failed to address their cumulative effect on the fairness of the trial).
Reasoning.
A district court may grant a motion for a new trial based on (in relevant part):
irregularity in the proceedings of the court, jury, master, or adverse party or in any order of the court or master, or any abuse of discretion by which either party was prevented from having a fair trial;
misconduct of the jury or prevailing party; or
error in law occurring at the trial and objected to by the party making the motion.
NRCP 59(a)(1)(A), (B), (G). We review an order denying a motion for a new trial for an abuse of discretion. Michaels v. Pentair Water Pool & Spa, 131 Nev. 804, 814 (Ct. App. 2015).
Nevada’s “appellate courts have not formally recognized the cumulative error doctrine by name in a published opinion to reverse and grant a new trial.” But the Nevada Supreme Court “implicitly applied the doctrine in” Holderer v.Aetna Cas. &Sur .Co., 114 Nev. 845 (1998). There, the Court held that errors, considered together, warranted reversal, even though the errors, considered alone, might not have. Id. at 851. The Court didn’t suggest that the doctrine should be limited to the errors in the case. Also, though the doctrine “has primarily developed in Nevada’s criminal jurisprudence, the doctrine is a vital tool in ensuring a fair trial in any context.” Op. at 7. Thus, the doctrine may be applied “in both criminal and civil cases to protect a litigant’s right to a fair trial.” Op. at 8.
When reviewing an order denying a motion for a new trial based on the doctrine in the civil setting, we consider whether “there were too many errors [and whether] the errors relate to relevant matters [that] in the aggregate rendered the trial unfair.” Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 974 A.2d 1070, 1089 (N.J. 2009). We recognize that “otherwise incidental errors and irregularities of trial [might], when evaluated as a whole, be ‘of such magnitude as to prejudice [a litigant’s] rights or, in their aggregate [render] the trial unfair.’” Id. at 1088 (citation omitted). Thus, “[t]he cumulative effect of multiple harmless errors may amount to reversible error.” Error, Black's Law Dictionary (12th ed. 2024).
We will reverse and remand for a new civil trial if “several seemingly inconsequential errors has made any resulting judgment inherently unreliable.” Op. at 9–10 (quoting Herbert J. Thomas Mem'l Hosp. Ass’n u. Nutter, 795 S.E.2d 530, 546–47 (W. Va. 2016)).
There must be “two or more errors . . . to cumulate.” See Nelson v. Heer, 123 Nev. 217, 227 n.28 (2007). So we first analyze Haye’s three alleged errors to determine if she’s right.
Error One. The court ruled that Hayes could use the deposition clips only to impeach because the witness could testify at trial. The court also ruled that even if it wrong, its ruling was harmless because Hayes could impeach Watson with the deposition transcript and because the jury had evidence of Watson’s “demeanor outside the courtroom,” including testimony describing “instances of [] Watson yelling, throwing items, becoming angry, and using profanity.” Op. at 11.
We review a “court’s decision to exclude [or admit] evidence for an abuse of discretion,” LVMPD v. Yeghiazarian, 129 Nev. 760, 764-65 (2013), and a court’s “interpretation and application of a court rule to exclude evidence de novo.” Williams v. State, Dep’t of Corr., 133 Nev. 594, 596 (2017).
“An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(3).” NRCP 32(a)(3). The rule’s text doesn’t require that the witness be unavailable for trial. Op. at 12–13. But Nevada’s appellate courts haven’t yet addressed the meaning of NRCP 32(a)(3)’s “for any purpose.”
NRCP 32(a)(3) matches the federal counterpart, so federal caselaw is persuasive. Op. at 13 (citing Nutton v. Sunset Station, Inc., 131 Nev. 279, 285 n.2 (Ct. App. 2015). Federal courts interpret “for any purpose” to allow a party to introduce deposition video clips no matter the witness’s availability at trial. Op. at 13 (citing See Pursche v. Atlas Scraper & Eng'g Co., 300 F.2d 467, 488 (9th Cir. 1961)). Thus, in federal court, a judge errs by limiting a party’s use “of a party’s deposition” to impeachment. 10A Fed. Proc., L. Ed. § 26:465 (2024). We agree with the federal courts.
We recognize that deposition videos and deposition transcripts are viewed similarly under the rules, a deposition video allows the fact finder to see the deponent’s demeanor. Op. at 14–15. Indeed, Hayes stated that she sought to play the deposition video clips for that very reason. Thus, because demeanor can better show a “witness’s reliability than ‘the literal meaning of his words,’” we can’t say that the court’s restrictive ruling didn’t prejudice Hayes—especially because Watson’s demeanor was at issue. Op. at 15–16.
Error Two. Watson and his employer’s counsel mentioned “workers’ compensation at least 20 times during the trial,” Hayes objected to many of those instances, and the court sustained Hayes’s objections. Op. at 16. We could consider each instance, but “we elect to address one” and “cumulate it with the other preserved errors.” Op. at 16.
Our focus is on when counsel argued in closing argument that Hayes wasn’t satisfied with “workers’ compensation was paying for her medical bills.” Op. at 16–17. Hayes objected under the court’s order in limine barring references to workers’ compensation to avoid violating the collateral-source rule. Op. at 17. But the court responded only: “Move on. Thank you.” Op. at 17. It didn’t “expressly rule on the objection,” it didn’t give “any further admonishment to counsel,” and it didn’t give a “curative instruction to the jury.” Op. at 17. The court later stated in its order denying Hayes’s motion for a new trial that the many references to workers’ compensation “were not extreme.” Op. at 17. The court also stated that Hayes failed to show that the court’s admonishment that the jury refer to applicable jury instruction didn’t cure any violation of the collateral-source rule. Op. at 17.
We review an order on motion for a new trial for abuse of discretion, Michaels, 131 Nev. at 814, and review whether attorney misconduct happened de novo, Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 364 (2009).
An attorney violating an order in limine can be “misconduct if the order is specific, the violation is clear, and unfair prejudice is shown.” Op. at 18 (citing BMW v. Roth, 127 Nev. 122, 126 (2011)). The court’s order stated that evidence on collateral-source payments is inadmissible but highlighted the exception “for workers’ compensation payments.” Op. at 18. The court told the parties to adhere to the rule and the lone exception, and the court stated that it’d tell the jury the same. Op. at 18.
Although the court sustained “many of Hayes’s objections to the improper references to workers’ compensation,” it didn’t rule on Hayes’s objection to the instance during closing argument. We understand that over a six-day trial the single instance might not have seemed enough to grant a new trial, but courts should be “mindful” that violating the collateral-source rule “‘inevitably prejudices the jury” because doing so “greatly increases” the chances the jury will reduce the plaintiff’s damages award,” knowing “the plaintiff is already receiving compensation.” Op. at 19 (quoting Proctor, 112 Nev. at 90). Thus, the court erred by failing to “expressly and favorably rule on Hayes’s objection.” Op. at 19.
Error Three. The court allowed the witness to testify beyond the scope of his deposition testimony. The court later stated that the expanded testimony didn’t prejudice Hayes because: (1) she deposed the witness two years before trial; (2) there was good cause to amend the pretrial order granting Hayes’s objection to the untimely pretrial witness disclosures, and Hayes wasn’t prevented from calling the witness in Hayes’s case in chief; and (3) the witness “was never identified as an NRCP 30(b)(6) witness and, inferentially, he” couldn’t be expected to testify for Watson’s employer. Op. at 20.
To start, the record shows that the witness was identified as a 30(b)(6) witness. This error alone “could constitute an abuse of discretion.” See MB Ain., Inc. v. Alaska Pac. Leasing Co., 132 Nev. 78, 88 (2016). But we instead turn to whether the court erred by permitting the witness to testify at trial beyond the scope of his deposition.
A 30(b)(6) deposition’s purpose is to “streamline the discovery process” through allowing an organization to designate a witness to speak on its behalf to avoid depositions of many organization employees. Alvarado-Herrera v. Acuity, 344 F.R.D. 103, 106-07 (D. Nev. 2023). The party serving the deposition notice “must describe with reasonable particularity the matters for examination.” NRCP 30(b)(6). The organization then selects “one or more officers, directors, or managing agents” knowledgeable on the described matters to testify for the entity. See id. The selected person “testif[ies] about information known or reasonably available to the organization,” id., and that testimony binds the organization. If the organization disclosed the 30(b)(6) witness pretrial under NRCP 16.1, the organization must supplement the disclosure “when appropriate.” See NRCP 26(e)(1).
The witness here confessed he didn’t prepare for his testimony and stated that he had only briefly looked at the 30(b)(6) notice. Op. at 22–23. When Hayes asked the witness about “the standard procedure for removing a backboard,” the witness didn’t mention one. Op. at 23. He said only “that the backboard could be placed ‘somewhere’ and ‘occasionally’ it might be dropped on the floor and fall on someone’s foot.” Op. at 23. But at trial, the witness “identified a standard for dropping the backboard” supporting Watson’s testimony on “how he discarded the backboard that injured Hayes.” Op. at 23.
The court abused its discretion by allowing the witness to testify at trial about a “standard” because Watson and his employer failed to supplement their NRCP 16.1 disclosures to note that the witness would testify at trial on the “standard” for discarding a backboard. Op. at 23.
Errors 1, 2, and 3’s Cumulative Effect. When cumulated, these errors’ effect “undermines our confidence” that Hayes received a fair trial, making the judgment inherently unreliable. Op. at 24 (Pellicer, 974 A.2d at 1089). First, “[t]he jury should have been able to assess [Watson’s] demeanor by seeing the video clips, which may have provided a clearer indication of his reliability as a witness than ‘the literal meaning of his words.’” Op. at 24 (quoting United States v. Yida, 498 F.3d 945, 951 (9th Cir. 2007). Second, “[t]he district court should have sustained Hayes’s objection during closing argument, and a curative instruction should have been given that workers’ compensation does not preclude recovery in a tort action regardless of the largesse of the lien amount.” Op. at 24. Last, “[t]he jury should not have been able to consider trial testimony from an NRCP 30(b)(6) witness regarding the standard for discarding a backboard, as that testimony was not disclosed under NRCP 26(e) as required.”
Ninth Circuit
Berry v. Air Force Central Welfare Fund (Aug. 29, 2024) [3-0; Desai, J.; Mahan, J., (presiding district judge)]
If you want attorney fees, don’t beat your opponent into submission—just beat him.
Holding.
An attorney-fee claim doesn’t resuscitate an otherwise moot controversy. Op. at 7. Section 918(a) of the Longshore Act isn’t exempt from Article III and prudential jurisdictional requirements, including mootness. Op. at 7. To be entitled to attorney fees under § 928(a), a plaintiff must get a judicially sanctioned change in the parties’ legal relationship. Op. at 9–10.
Facts.
Berry worked at the Airforce Central Welfare Fund in Nevada. She got hurt there. She filed a claim against the Fund for disability benefits under the Longshore Act and Harbor Workers’ Compensation Act. Relying on a stipulation between Berry and the Fund, an administrative law judge
awarded Berry benefits. The judge also awarded her attorney fees.
Four years later, the Fund found an alternative “suitable” job for Berry and, for that reason, stopped paying her. She then requested a “declaration of default” from the Department of Labor, arguing that the Fund had “defaulted on their payment obligations under the ALJ’s compensation order.” Op. at 5. The Department sided with Berry, ordering that the Fund pay the overdue benefits plus penalties and Berry’s attorney fees. Op. at 5.
Berry then sued the Fund in federal court under 33 U.S.C. § 918(a), seeking a judgment for the amount declared in default. Op. at 5. After Berry sued, the Fund paid up in full. The Fund moved to dismiss the case as moot. Berry then requested an award of attorney fees under 33 U.S.C. § 928(a) and asserted that, because of her pending fee request, the case wasn’t moot.
The court adopted a report and recommendation denying Berry’s fee request and dismissing the case as moot, concluding that Berry didn’t “successful[ly] prosecut[e]” her claim under § 928(a) because “[n]o proceeding in this court gave a party any legal right or obligation it did not already have.”
Reasoning.
We review de novo the court’s: (1) dismissal of the complaint as moot, Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 861 (9th Cir. 2017), and (2) conclusion that Berry wasn’t entitled to attorney fees under § 928(a) on the ground that she didn’t successfully prosecute her claim in district court, see Tahara v. Matson Terminals, Inc., 511 F.3d 950, 952 (9th Cir. 2007).
A case is moot “if no present controversy exists” on which the court can grant relief. Back v. Sebelius, 684 F.3d 929, 931 (9th Cir. 2012). Generally, if any claim for damages is in dispute, the case isn’t moot. See Op. at 6. But a case becomes moot if the plaintiff receives all relief “to which he or she is entitled on the
claim.” Chen v. Allstate Ins., 819 F.3d 1136, 1145 (9th Cir. 2016) (emphasis omitted).
Berry doesn’t dispute that the Fund paid her the full amount they owed. She asserts only that the case is live because she’s entitled to attorney fees incurred in district court. But attorneys’ fees are “ancillary to the underlying action.” United States v. Ford, 650 F.2d 1141, 1144 (9th Cir. 1981). “The existence of an attorneys’ fees claim thus does not resuscitate an otherwise moot controversy.” Cammermeyer v. Perry, 97 F.3d 1235, 1238 (9th Cir. 1996).
Berry also asserts that a district court can’t dismiss a § 918(a) case as moot because the court’s only task is to decide “whether the [default] order was in accordance with law” and to “enter judgment for the amount declared in default.” Hanson v. Marine Terminals Corp., 307 F.3d 1139, 1142 (9th Cir. 2002) (quoting 33 U.S.C. § 918(a)). But Section 918(a) isn’t exempt from Article III and prudential jurisdictional requirements. Op. at 7. Whether the plaintiff has a “case or controversy” under Article III is “the threshold question in every federal case.” Warth v. Seldin, 422 U.S. 490, 498 (1975).
Berry requested attorney fees under § 928(a). That law allows a plaintiff to recover fees if she used an attorney “in the successful prosecution of” a disputed claim for compensation. 33 U.S.C. § 928(a). To interpret “successful prosecution,” we have reviewed fee-shifting statutes that require a party to “prevail.” Richardson v. Cont’l Grain Co., 336 F.3d 1103, 1106 (9th Cir. 2003). To prevail, a plaintiff “must obtain some actual relief that materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Id. (cleaned up).
Berry argues that she was “successful” because the Fund paid her only after she sued the Fund. Her argument relies on “the catalyst theory”: a plaintiff prevails “if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 601 (2001). Berry also relies on Clark v. City of Los Angeles, holding that a plaintiff “need not obtain formal relief in order to enjoy prevailing party status.” 803 F.2d 987, 989 (9th Cir. 1986).
Berry’s argument flops. The Supreme Court rejected the catalyst theory as a basis to recover fees under two “prevailing party” fee-shifting statutes. Id. at 610. The Court held: to prevail, the plaintiff must get a “judicially sanctioned change in the legal relationship of the parties.” Id.(emphasis added). We later extended that rule to statutes beyond the two in Buckhannon. Op. at 9. And we now hold that the rule applies to requests for fees under § 928(a). Clark also, unlike here, involved relief in the district court, and to the extent the case endorsed the catalyst theory, we overrule Clark.
Rodney v. Garrett (Sept. 6, 2024) [3-0; Márquez, J. (district judge sitting by designation); Jones, J., (presiding district judge)]
A (callous) moral of the story: if you win at the casino, don’t talk to strangers.
Holding.
Shinn v. Ramirez, 596 U.S. 366 (2022), “effectively overruled” our holding in Martinez v. Ryan, 566 U.S. 1 (2012), that a district court may hold an evidentiary hearing or consider new evidence to evaluate cause and prejudice. Op. at 13.
Facts.
The victim, Monko, testified that:
Rodney was at the Hard Rock Casino in Las Vegas on an October night. There, he saw Monko win almost $10,000 on slots (Monko had also won $2000 before that). Rodney gave Monko a fake name and, after some chit chat, got Monko’s cell number.
Soon after Monko left the casino, Rodney called Monko, and they agreed to meet up for a drug deal. Rodney came in a truck with a woman and another guy. Rodney and the other guy told Monko that there were too many police officers around. Monko suggested that they do the deal at his house.
Monko entered his garage. There, Rodney or the other guy began to beat Monko with a bat. One of them told Monko: “You’re dead now. We’re killing you.” One of them also tried to stab Monko in the eye with a large knife, but Monko ducked, and the knife hit him in the head. Monko eventually passed out.
When Monko woke, the sun was out. His phone, keys, wallet, and pocket cash were gone. His head was “crushed.” Op. at 5. And “[t]he knife sliced his skin down to the skull, cracked his orbital bone, and cut all the nerves.” Op. at 5. He couldn’t stop the bleeding. An ambulance took him to the hospital.
After being discharged, he needed 24-hour care. He had a ton of issues: severe dizziness and frequent seizures; cranial numbness due to severed nerves; short-term memory loss and difficulty multi-tasking; a forehead scar; and PTSD. He also had to return to the hospital for a infection that providers feared would enter his brain and have his knee drained four times.
Others also testified along the same lines:
Monko’s friend said that she called 911 after finding Monko in his bathroom, shivering, surrounded by blood, with cuts on his head and black and swollen eyes.
A paramedic trainee said that Monko had cuts on his head and bruising on his torso and eyes and that the ambulance took him to a trauma hospital because of the injuries.
Monko’s other friend said that after the attack, Monko complained of terrible headaches, losing consciousness due to seizures, shot-term memory loss, hair loss, and being unable to taste or smell.
The woman who drove Rodney and the other guy to Monko’s house said that: (1) she saw the other guy hit Monko with the bat and saw Rodney bending over Monko’s body; (2) she didn’t see the whole attack because she turned away; and (3) after leaving with Rodney and the other guy, she thought to herself that Monko was “more than unconscious.”
Op. at 6–7.
For the above acts, a state-court jury convicted Rodney of burglary while in possession of a deadly weapon, conspiracy to commit robbery, robbery with use of a deadly weapon, conspiracy to commit murder, attempted murder with use of a deadly weapon, and battery with use of a deadly weapon resulting in substantial bodily harm. Rodney got 50 years in the slammer, with a chance of parole after 20 years. The Nevada Supreme Court affirmed the convictions.
Rodney filed a pro se habeas petition in state court. He also asked for counsel for purposes of investigation and discovery. The trial court denied the petition without appointing counsel or holding an evidentiary hearing. The Nevada Supreme Court affirmed.
Rodney filed another pro se habeas petition, again asking for counsel. The trial court denied the petition on state procedural grounds without appointing counsel. The Nevada Supreme Court affirmed.
Rodney next filed a pro se habeas petition in federal court under 28 U.S.C. § 2254. In an amended petition, he listed fourteen grounds for relief, including ineffective assistance of counsel (IAC). He asserted that his counsel was ineffective in:
failing to challenge medical evidence, failing to object to medical testimony via unqualified witnesses, and failing to present expert medical testimony; and
failing to review and use Monko’s medical records, failing to object to or investigate Monko’s testimony that he had to return to the hospital for injuries related to the attack when he in fact returned for an unrelated staph infection, and failing to impeach Monko with medical records showing that he never noted seizures to his doctors.
Op. at 8. The district court deemed these two IAC claims procedurally defaulted.
We vacated that decision and remanded for the court to determine whether the defaults are excusable under Martinez v. Ryan, 566 U.S. 1 (2012). See Rodney v. Filson, 916 F.3d 1254, 1260–63 (9th Cir. 2019). We told the court to determine whether Rodney’s IAC claims are substantial (and, if necessary, to consider new evidence), allow discovery, and hold an evidentiary hearing. Id. at 1261–62.
The court invited new evidence and briefs on theMartinezissue. But before the parties submitted briefs, the Supreme Court decidedShinn v.Ramirez, 596 U.S. 366 (2022). Based onShinnand 28 U.S.C. § 2254(e)(2), the court concluded that it couldn’t consider new evidence or have an evidentiary hearing to evaluate cause and prejudice. The court then concluded—based only on the state-court evidence—that Rodney’s IAC claims weren’t substantial and thus their procedural defaults weren’t excusable underMartinez
Reasoning.
State prisoners must exhaust state-court remedies before filing a § 2254 habeas petition. 28 U.S.C. § 2254(b)(1). A habeas claim is exhausted “but procedurally defaulted if the state court declined to address the claim based on independent and adequate state procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 729–32 (1991). But a default is excused if the prisoner can show “cause for the default and actual prejudice” for the alleged federal-law violation. Id. at 750.
To show cause, a prisoner must “show that some objective factor external to the defense impeded [his] efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Because there’s “no constitutional right to counsel in state post-conviction proceedings, the ineffective assistance
of state post-conviction counsel generally cannot establish cause to excuse a procedural default.” Op. at 10. But there’s an exception: “ineffective assistance of counsel at an initial-review collateral proceeding” can excuse a procedural default of “substantial” trial-level IAC claims. Op. at 10 (citing Martinez, 566 U.S. at 14).
An IAC claim is “substantial” if it has merit. Martinez, 566 U.S. at 14. An IAC claim requires “both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, a prisoner must show: (1) “that counsel’s representation fell below an objective standard of reasonableness” under “prevailing professional norms” and (2) that there’s “a reasonable probability that, but for counsel’s unprofessional errors,” the proceeding’s result would have been different. Id. at 688, 694. A “reasonable probability” means enough “to undermine confidence in the outcome.” Id.
Under § 2254(e)(2), a district court can’t have an evidentiary hearing on a claim if the prisoner “failed to develop the [claim’s] factual basis” in state court—unless the prisoner satisfies § 2254(e)(2)(A)’s stringent requirements. In Shinn, the Court held that: (1) “because there is no constitutional right to counsel in state post-conviction proceedings, a prisoner is at fault for failing to develop the factual basis of a claim in state-court proceedings for purposes of § 2254(e)(2) even if the failure resulted from the negligence of post-conviction counsel”; and (2) when a prisoner fails to develop the claim’s factual basis and can’t satisfy § 2254(e)(2)(A)’s requirements, a court can’t “hold an evidentiary hearing or otherwise consider new evidence, either on the merits of the claim or to assess cause and prejudice under Martinez.” Op. at 12 (citing Shinn, 596 U.S. at 371, 382–83, 389).
The district court granted a certificate of appealability only “to the extent [that] Rodney’s IAC claims [affected] his convictions for attempted murder with use of a deadly weapon and conspiracy to commit murder.” Op. at 11. We expand the certificate to encompass “whether Rodney’s trial-level IAC claims are substantial for purposes of Martinez.” Op. at 11.
Rodney first focuses on Shinn. He asserts that the other side waived any Shinn arguments by failing to address the case in a surreply in district court. But the court’s local rules discourage moving to file a surrerply, and Rodney cites no supportive authority. He also asserts that Shinndoesn’t apply if the prisoner was pro se during the state post-conviction proceedings and that our previous opinion holding that the court could have an evidentiary hearing is law of the case. But Shinn is “intervening authority that effectively overruled and warrants reconsideration of our” previous opinion because Shinn “irreconcilabl[y] undercut” our opinion’s theory “by holding that the prohibition on needlessly prolonging federal habeas proceedings forbids the consideration of new evidence to evaluate cause and prejudice under Martinez when the new evidence cannot, under § 2254(e)(2), be considered on the merits of the prisoner’s IAC claims.” Op. at 13.
Rodney then turns to § 2254(e)(2). He asserts that it doesn’t preclude factual developments here because he didn’t fail to develop the factual bases of his IAC claims in state court. And we agree.
A prisoner fails to develop a § 2254(e)(2) claim when he or his counsel lacks diligence or has “some greater fault.” Williams v. Taylor, 529 U.S. 432 (2000). Diligence turns on whether the prisoner “to investigate and pursue claims in state court.” Id. at 435. Pro se prisoners aren’t in a “position to develop [an IAC claim’s] evidentiary basis,” which often turns on “evidence outside the trial record.” Martinez, 566 U.S. at 12. It’s enough if a prisoner requests post-conviction counsel and the court denies the request. See Alberni v. McDaniel, 458 F.3d 860, 873 (9th Cir. 2006).
Rodney’s IAC claims hinge on Monko’s medical records and on expert testimony. He requested post-conviction counsel during his initial-review collateral proceeding and asserted that “counsel was necessary to proceed with discovery and investigation.” Op. at 15. The state court didn’t give him counsel, didn’t allow discovery, and didn’t hold an evidentiary hearing. Rodney had no “practical likelihood” of getting the medical records or expert testimony. Op. at 15. He could do no more than make the requests he made, so he didn’t fail to develop the state-court record for § 2254(e)(2). The district court therefore erred by concluding that it could consider only the state-court evidence to evaluate the substantiality of Rodney’s IAC claims.
But we need not remand. The record is “sufficiently complete” for us “to hold without hesitation” that Rodney’s IAC claims aren’t substantial. Sexton v. Cozner, 679 F.3d 1150, 1161 (9th Cir. 2012). Even if his counsel were ineffective, there’s “no reasonable probability that the result of his trial would have been different but for counsel’s alleged errors.” Op. at 16. The alleged errors of Rodney’s counsel don’t affect his convictions “for burglary while in possession of a deadly weapon, conspiracy to commit robbery, and robbery with use of a deadly weapon.” Op. at 16. As for the conviction for battery with use of a deadly weapon resulting in substantial bodily harm, Monko’s headaches after the attack and scar qualify as “substantial bodily harm” under Nevada law. Op. at 17 (citing N.R.S. § 0.060). As for the convictions for attempted murder with use of a deadly weapon and for conspiracy to commit murder, evidence showed that Rodney “targeted and pursued Monko,” that the attack was premediated, and that “Rodney left Monko unconscious in a pool of his own blood.”
North River Ins. Co. v. James River Ins. Co. (Aug. 28, 2024) [order certifying question to the Nevada Supreme Court]
Ramifications of murder that only lawyers could contemplate.
Certified Question.
“Under Nevada law, can an excess insurer state a claim for equitable subrogation against a primary insurer where the underlying lawsuit settled within the combined policy limits of the insurers?” Order at 2.
Facts.
A man was murdered at an apartment complex in Las Vegas. The man’s estate sued the complex’s owner for negligence and wrongful death. The complex had a primary-insurance policy at James River for $1 million per incident and an excess-insurance policy at North River for $10 million per incident.
James defended the complex and rejected settlement demands from the man’s estate, all at or below $1 million. James later learned of another case against the complex from a different murder that settled for $11 million. The same month, the man’s estate upped its demand to $5 million. James settled there, paying $1 million. North paid the other $4 million.
North sued James for equitable subrogation, arguing that had North not covered the $4 million, the complex would have had a claim against James for the $4 million. North asserted that it thus had a right to step into the complex’s shoes as a subrogee of the potential claim against James.
James moved to dismiss North’s claim for failure to state a claim upon which relief could be granted. The court analyzed the claim under California’s choice-of-law rules as the forum state. The court concluded—relying on two Nevada Supreme Court unpublished orders—that Nevada law conflicted with California law because the former didn’t allow an excess insurer to maintain a claim for equitable subrogation against a primary insurer when the underlying case settled within the insurers’ combined policy limits. So the court granted James’s motion.
Reasoning.
When deciding whether to certify a question to a state supreme court, we consider: “(1) whether the question [has] important public policy ramifications” that the court hasn’t resolved; (2) “whether the [question] is new, substantial, and” broadly applicable; (3) the court’s caseload; and “(4) the spirit of comity and federalism.” Murray v. BEJ Mins., LLC, 924 F.3d 1070, 1072 (9th Cir. 2019).
This case has such ramifications about insurance companies’ duties to make reasonable settlement decisions and about whether they may subrogate claims after paying settlement fees. Order at 6. A company’s ability to do so could affect its interests. See Restatement of Liability Insurance § 24 cmt. b (2019). And for comity’s and federalism’s sakes, “we recognize that Nevada [might] have an interest in regulating its own insurance landscape.” See, e.g., Cassirer v. Thyssen-Bornemisza Collection Found., 69 F.4th 554, 557 (9th Cir. 2023).
Federal courts sitting in diversity generally start with the choice-of-law rules of the forum state. Op. at 6. So, here, California rules apply. Under those, we first ask whether the two jurisdictions’ laws are materially different. See Chen v. Los Angeles Truck Centers, LLC, 7 Cal. 5th 862, 867 (2019).
Thus, to resolve this case, we must determine whether there’s a material difference between Nevada law and California law. The latter permits an excess insurer to sue a primary insurer for equitable subrogation when the underlying settlement is within the insurers’ combined policy limits. See, e.g., Ace Am. Ins. Co. v. Fireman’s Fund Ins., 2 Cal. App. 5th 159, 183 (2016). But Nevada law on the same front is unclear.
Nevada law recognizes equitable subrogation, see In re Fontainebleau Las Vegas Holdings, 128 Nev. 556, 572 n.8 (2012), but the district court determined that Nevada law doesn’t permit an excess insurer to sue a primary insurer for equitable subrogation if the underlying settlement is within the insurers’ combined policy limits. The court relied on two Nevada Supreme Court unpublished orders: St. Paul Fire & Marine Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 521 P.3d 418 (Nev. 2022), and Aspen Specialty Ins. Co v. Eighth Jud. Dist. Ct. in & for Cnty. of Clark, 528 P.3d 287 (Nev. 2023). In St. Paul, two primary insurers and two excess insurers agreed to settle the underlying case for an amount within their collective policy limits. Later, one of the excess insurers sued the other excess insurer for equitable subrogation. The Nevada Supreme Court concluded that, because the settlement was within the policy limits, the suing insurer didn’t suffer damages to subrogate and thus its claim couldn’t proceed. And in Aspen, arising from the same facts as St. Paul, the Nevada Supreme Court concluded that the excess insurer couldn’t sue a primary insurer because St. Paul applied.
But a Nevada Supreme Court unpublished order isn’t “mandatory precedent” except in a later stage of the case in which the order was issued, in a related case, or to establish issue or claim preclusion. Nev. R. App. P. 36(c)(2). And reduced Nevada Supreme Court panels decided St. Paul and Aspen. Also, those cases are meaningfully different from this case: there, “the insurers negotiated a settlement after a jury verdict but before any award of punitive damages” and the appeal was “from the grant of summary judgment, after the close of discovery,” whereas here, “the underlying case never went to trial” and the appeal is from “the grant of a Rule 12(b)(6) motion to dismiss, before any discovery was conducted.” Op. at 10.
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