Ball v. NP Sunset LLC

• Court: District Court, D. Nevada
• Decided: December 17, 2024
• Docket: 2:24-cv-01450
• Status: Unknown

Opinion

1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3

4 William H. Ball, Case No. 2:24-cv-01450-CDS-NJK

5 Plaintiff District Court’s Response to Ninth Circuit’s Referral Notice 6 v.

7 NP Sunset LLC, [ECF No. 17] 8 Defendant 9 10 This case came before the court on pro se plaintiff William Ball’s complaint alleging age- 11 related employment discrimination accompanied by an application to proceed in forma pauperis 12 (IFP). ECF No. 1. Before Ball’s complaint and IFP application were screened by the magistrate 13 judge, and before being served, defendant NP Sunset LLC1 filed a motion to dismiss. ECF No. 3. 14 The court had not ruled on Sunset’s motion when Ball filed his amended complaint on 15 September 5, 2024. ECF No. 8. Therefore, on September 10, 2024, Magistrate Judge Nancy J. 16 Koppe issued an order denying without prejudice the motion to dismiss because it targeted the 17 original complaint.2 ECF No. 9. Two days later, on September 12, 2024, Ball filed his opposition 18 to the now-denied motion to dismiss. ECF No. 10. Sunset subsequently filed a renewed motion 19 to dismiss directed at the amended complaint. ECF No. 11. The following day, the court issued a 20 minute order regarding the requirements of Klingele v. Eikenberry and Rand v. Rowland, thereby 21 setting the deadline for Ball to oppose the pending motion to dismiss the amended complaint on 22 or before October 16, 2024. ECF No. 12. On October 22, 2024, having found no opposition or 23 requests for additional time filed, I issued an order granting Sunset’s unopposed motion to 24 1 NC Sunset LLC is incorrectly named. The proper defendant is NP Sunset LLC. 25 2 In that order, Judge Koppe also granted Ball’s IFP application and screened the amended complaint. ECF No. 9. Therein, she found that “[a]lthough these allegations are thin, particularly as to the final 26 element of the prima facie case, they suffice to proceed past the screening stage given Plaintiff’s pro se status.” Id. at 3. 1 dismiss. ECF No. 13. Ball now appeals my decision. ECF No. 15. The United States Court of 2 Appeals for the Ninth Circuit has referred this matter to me for the limited purpose of 3 determining whether in forma pauperis status should continue for Ball’s appeal or whether the 4 appeal is frivolous or taken in bad faith. Ref. notice, ECF No. 17; see also 18 U.S.C. §1915(a)(3). 5 An appeal may not be taken in forma pauperis if the trial court certifies that the appeal is 6 frivolous or taken in bad faith. 28 U.S.C. § 1915(a)(3); see also Hooker v. Am. Airlines, 302 F.3d 1091, 7 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the district court 8 finds the appeal to be frivolous). For purposes of § 1915, an appeal is frivolous if it lacks any 9 arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989); Gardner v. Pogue, 558 10 F.2d 548, 550 (9th Cir. 1977) (stating that an indigent appellant is permitted to proceed IFP on 11 appeal only if the appeal would not be frivolous). The good faith requirement is satisfied if the 12 appellant seeks review of an issue that is not frivolous. See Gardner, 558 F.2d at 550. 13 Based on his appeal notice, Ball’s claims of error are not arguable on the merits. Ball 14 asserts that (1) he filed a memorandum in opposition to the motion to dismiss; (2) there were 15 insufficient grounds for dismissal; and (3) dismissal means that, should he file a new case, the 16 filing date will exceed the statute of limitations. ECF No. 15. As noted above, Ball filed his 17 opposition to the motion to dismiss two days after Judge Koppe denied it because of Ball’s 18 amended complaint. ECF No. 9. When an amended complaint is filed while a motion to dismiss 19 is pending, it generally moots the motion to dismiss. Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 20 (9th Cir. 2011) (An “amended complaint supersedes the original, the latter being treated 21 thereafter as non-existent.”) (internal citation omitted); see also Ramirez v. Cnty. of San Bernardino, 22 806 F.3d 1002, 1008 (9th Cir. 2015) (an amended complaint will also ordinarily moot a pending 23 motion to dismiss). Although Ball’s submissions must be held to less stringent standards, pro se 24 litigants are not excused from adhering to the rules of procedure. See Erickson v. Pardus, 551 U.S. 25 89, 94 (2007) (per curiam); United States v. Merrill, 746 F.2d 458, 465 (9th Cir. 1984). “Pro se 26 litigants must follow the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 1 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by, Lacey v. Maricopa Cnty., 693 F.3d 896 (9th 2 Cir. 2012). Ball was given a deadline to file a response to the motion to dismiss and failed to 3 adhere to that deadline (ECF No. 12); nor did he seek additional time to file a response, therefore 4 Sunset’s motion was granted under Local Rule 7-2(d) based on Ball’s failure to respond. The 5 claim was thus properly dismissed without prejudice. Moreover, Ball has not sought 6 reconsideration of my decision to dismiss the case pursuant to the Local Rules. Ball’s second 7 argument, that there were insufficient grounds for dismissal, also fails to establish error. The 8 decision did not address, nor was it related to, the merits of Ball’s age discrimination claim. As 9 noted, the motion to dismiss was granted on procedural grounds after Ball failed to respond. 10 Lastly, it is unclear if Ball’s claims are barred by the statute of limitations. Liberally 11 construing the amended complaint, it appears that Ball brings a claim for violation of the Age 12 Discrimination in Employment Act (ADEA). In Nevada, a plaintiff must bring a lawsuit based on 13 the alleged discrimination no more than 180 days after the date of the allegedly discriminatory 14 act. Nev. Rev. Stat. § 613.430(1)(a). Under 29 U.S.C. § 626(e), a civil action may be brought 15 within ninety days after the date of receipt of the right-to-sue letter from the Equal Employment 16 Opportunity Commission (EEOC). The EEOC granted Ball’s request to dismiss his charge and 17 issued a right-to-sue letter on June 27, 2024 (ECF No. 8 at 3), and Ball’s amended complaint was 18 filed on September 5, 2024, which is within the ninety-day window. In the Ninth Circuit, a 19 failure-to-hire claim accrues when the plaintiff knew they would not be hired or when they 20 should have realized they had not been hired for the position. Lukovsky v. City & Cnty. of San 21 Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008). However, because Ball’s amended complaint fails 22 to allege any specific facts regarding when he became aware or had reason to know that he had 23 not been hired for a position, it is unclear whether Ball’s claim is time-barred.3 24

25 3 Because the amended complaint was dismissed without prejudice, Ball is not foreclosed from re-filing his claims and, should there be a statute of limitations issue, he could seek equitable tolling of the statute 26 of limitations. See, e.g., Porter v. S. Nevada Adult Mental Health Servs., 2017 WL 6379525 at *6 (D. Nev. Dec. 13, 2017), aff’d, 788 F. App’x 525 (9th Cir. 2019) (observing that “where a dismissal without prejudice 1 Conclusion 2 For these aforementioned reasons, I find that the appeal is not taken “in good faith” and is therefore frivolous. This order serves as notice that Ball’s in forma pauperis status should not 4) continue on appeal. ) 5 Dated: December 17, 2024 /y Cristina). Silva 7 cris oft States District Judge 8 / 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26]| becomes ‘tantamount to a dismissal with prejudice because of the expiration of the statute of limitations,’ tolling could be warranted,” but ultimately declining to equitably toll the statute).