Angelica Limcaco v. Steve Wynn

Opinion

FILED NOT FOR PUBLICATION JUN 22 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGELICA CHRISTINA LIMCACO, No. 19-15949

Plaintiff-Appellant, D.C. No. 2:18-cv-01685-MMD-GWF v.

STEVE WYNN; WYNN LAS VEGAS, MEMORANDUM* LLC, FAC 13,

Defendants-Appellees,

and

WYNN RESORTS LTD.,

Defendant.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted May 29, 2020 San Francisco, California

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. In 2006 plaintiff-appellant Angelica Limcaco was a salon manager at

defendant-appellee Wynn Las Vegas, LLC’s (WLV) resort on the Las Vegas Strip.

After one of her subordinates reported that defendant-appellee Steve Wynn raped

her, Limcaco reported the alleged rape to her superiors. Shortly thereafter,

Limcaco and her subordinate were dismissed. Limcaco alleges that she was

“blacklisted” and could not find a job in Las Vegas. Nearly twelve years later,

after an exposé about Wynn’s pattern of sexual misconduct made national

headlines, Limcaco filed this lawsuit under Title VII of the Civil Rights Act,

alleging sexual harassment, retaliation, and wrongful termination against WLV, as

well as several corresponding state-law claims against both WLV and Wynn.

Limcaco contends that WLV and Wynn should be equitably estopped from

asserting a statute-of-limitations defense. The district court did not apply the

equitable estoppel doctrine, dismissed Limcaco’s federal claims as untimely, and

decided not to exercise supplemental jurisdiction over her state-law claims.1 We

affirm.

1 Limcaco does not challenge the supplemental-jurisdiction ruling on appeal. 2 1. We review application of the equitable estoppel doctrine for an abuse of

discretion.2 Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000),

overruled on other grounds by Socop-Gonzalez v. INS, 272 F.3d 1176, 1194–96

(9th Cir. 2001) (en banc). Limcaco failed to allege that she reasonably relied on

any fraudulent concealment on WLV’s part. See Coppinger-Martin v. Solis, 627

F.3d 745, 751 (9th Cir. 2010). Even if she perceived certain conduct by the

defendants as threatening, she failed to allege any affirmative threat to her

personally that prevented her from pursuing her claims. Under these

circumstances, it was not an abuse of discretion to find that equitable estoppel

should not apply.

2. After WLV filed its reply in support of its motion to dismiss, Limcaco filed

three motions for judicial notice. The district court granted WLV’s motions to

strike the requests because the motions included substantive discussion of her

claims, rendering them improper surreplies in violation of District of Nevada Local

Rule 7-2(b), which requires parties to seek permission from the court before filing

a surreply. It was not an abuse of discretion to grant the motion to strike. See

2 Limcaco incorrectly argues that, because the underlying facts are undisputed, we should review the application of equitable estoppel de novo. But that standard applies only to review of equitable tolling decisions. See Santa Maria, 202 F.3d at 1175–76. 3 Prof’l Programs Grp. v. Dep’t of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994).

Limcaco’s argument that the district court was required to take judicial notice of

the documents presupposes that those requests were properly before the court.

Because her requests were not properly before the court, it was not an abuse of

discretion not to consider the documents.

3. Nor was it an abuse of discretion for the district court to deny Limcaco leave

to amend her complaint because amendment is futile. See Miller v. Rykoff-Sexton,

Inc., 845 F.2d 209, 214 (9th Cir. 1988) (holding that amendment is futile if no set

of facts can be proven under the amendment that would constitute a valid claim).

The facts Limcaco proposed adding in her amended complaint do not reveal any

fraudulent concealment or threats by Wynn or WLV that would support her

equitable-estoppel argument.

4. Finally, the arguments raised in Limcaco’s supplemental brief lack merit.

Her “newly discovered” evidence does not reveal any error in judgment made by

the district court “in the conclusion it reached upon weighing the relevant factors.”

S.E.C. v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001). Moreover, Limcaco cites

no authority requiring a district judge to recuse in similar circumstances.

AFFIRMED.