3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 PRIYA DEY-SARKAR, Case No. 3:23-cv-00517-MMD-CLB
7 Plaintiff, ORDER v. 8 DANIEL ADESINA, et al., 9 Defendants. 10 11 I. SUMMARY 12 Plaintiff Priya Dey-Sarkar sued Defendants Daniel Adesina, State of Nevada, ex 13 rel. Public Utilities Commission of Nevada, and NV Energy d/b/a Sierra Pacific Power 14 Company following alleged racial and sexual harassment. (ECF No. 92 (“FAC”).) She 15 alleges seven claims under federal and state laws, including negligent retention and 16 negligent supervision. (Id. at 24-33.) Before the Court is Defendants’ fifth motion to 17 dismiss, seeking dismissal of the negligent retention and negligent supervision claims. 18 (ECF No. 106 (“Motion”).)1 As further explained below, the Court will grant the Motion 19 because Defendants are entitled to discretionary act immunity. 20 II. DISCUSSION2 21 Defendants move to dismiss Plaintiff’s negligent retention and negligent 22 supervision claims, arguing discretionary act immunity shields them from state law tort 23 suits. (Id. at 4-8.) Plaintiff counters that the Court should deny the Motion because express 24 statutory duties preclude discretionary act immunity and Defendants failed to raise a 25 26
27 1Plaintiff responded (ECF No. 107) and Defendants replied (ECF No. 109).
28 2The Court incorporates by reference the general description of Plaintiff’s allegations the Court provided in an earlier order (ECF No. 91), as they have not 2 6.) The Court will address each argument in turn. 3 A. Discretionary Act Immunity 4 Defendants first argue that Plaintiff fails to state a claim because they are immune 5 from liability under Nevada’s discretionary act immunity law. (ECF No. 106 at 4-8.) Plaintiff 6 counters that discretionary act immunity is unavailable to Defendants because their duties 7 are operational rather than discretionary. (ECF No. 107 at 5-6.) The Court agrees with 8 Defendants. 9 In Nevada, certain government actors have discretionary act immunity. See 10 NRS § 41.032. NRS § 41.032 provides that no action can be brought upon a political 11 subdivision or state agency which is “[b]ased upon the exercise or performance or the 12 failure to exercise or perform a discretionary function or duty on the part of the State or 13 any of its agencies or political subdivisions or of any officer, employee or immune 14 contractor of any of these, whether or not the discretion involved is abused.” An action 15 qualifies for discretionary act immunity if it involves an element of judgement or choice 16 and is based on considerations of public policy. See Martinez v. Maruszczak, 168 P.3d 17 720, 729 (Nev. 2007). 18 NRS § 41.032 shields Defendants’ discretionary actions as an agency of the State 19 of Nevada. Hiring, training, and supervising involve a sufficient element of choice that 20 courts consistently find to be discretionary, and “decisions relating to the hiring, training, 21 and supervision of employees usually involve policy judgments of the type Congress 22 intended the discretionary function exception to shield.” Vickers v. United States, 228 F.3d 23 944, 950 (9th Cir. 2000) (citations omitted); see also Neal-Lomax v. Las Vegas Metro. 24 Police Dep’t, 574 F. Supp. 2d 1170, 1192 (D. Nev. 2008) (“Nevada looks to federal case 25 law to determine the scope of discretionary immunity, and . . . federal case law 26 consistently holds training and supervision are acts entitled to such immunity . . . .”). 27 Plaintiff argues that discretionary act immunity is unavailable to Defendants 28 because NRS §§ 703.150, 704.001(1), and 704.001(3) (“Statutes”) create mandatory and 2 word “safe” mandates Defendants to ensure safety. (ECF No. 107 at 5-6.) However, 3 under a plain reading of NRS § 704.001, which states that “[i]t is hereby declared to be 4 the purpose and policy of the Legislature in enacting this chapter . . . [t]o provide for the 5 safe, economic, efficient, prudent and reliable operation and service of public utilities,” the 6 word “safe” cannot be reasonably interpreted to create a duty of safety. Cf. Edmonds v. 7 United States Dep’t of Labor, 749 F.2d 1419 (9th Cir. 1984) (“Statutory language is 8 generally construed according to the plain meaning of the words used by Congress 9 ‘absent a clearly expressed legislative intention to the contrary.’” (quoting Consumer 10 Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980))), rev’d on other 11 grounds Brock v. Pierce Cty., 476 U.S. 253, 106 S. Ct. 1834 (1986). Moreover, Plaintiff 12 provides no caselaw to support her argument. 13 Plaintiff also cites Grover-Armont v. Cargile3 to support the argument that the 14 Statutes control and preclude discretionary act immunity in this case. (ECF No. 107 at 5.) 15 The Court does not find the case analogous. The Grover-Armont court held that 16 NRS § 484B.700 precludes discretionary act immunity. See 426 P.3d at 56. However, the 17 case does not reference the Statutes, Plaintiff presents no argument that 18 NRS § 484B.700 is comparable to the Statutes, and the language of NRS § 484B.700 19 differs significantly from the Statutes. Accordingly, Defendants are entitled to 20 discretionary immunity from Plaintiff’s negligent retention and negligent 21 supervision claims.4 22 B. Failure to State a Claim Defense 23 Plaintiff also argues that the Court should deny the Motion because Defendants 24 failed to raise a discretionary act immunity defense in their prior four motions to dismiss. 25
26 3426 P.3d 45 (Nev. App. 2018).
27 4Plaintiff alleges that Defendants engaged in bad faith conduct and therefore are exempt from discretionary act immunity. (ECF No. 107 at 6-7.) However, Plaintiff does 28 not allege sufficient facts supporting an argument that Defendants’ actions were made in 2 Civil Procedure by raising a failure to state a claim defense and that the Court has 3 discretion to permit successive motions to dismiss. (ECF No. 109 at 3-7.) The Court again 4 agrees with Defendants. 5 A defendant who omits a failure to state a claim defense does not de facto waive 6 the defense. See In re Apple iPhone Antitrust Litig., 846 F.3d 313, 317-318 (9th Cir. 2017). 7 Defendants’ defense therefore remains available. Moreover, the Ninth Circuit adopted a 8 flexible approach to Rule 12(g) where judicial efficiency may be achieved. See In re Apple 9 iPhone Antitrust Litig., 846 F.3d at 319. Successive motions to dismiss are therefore 10 permitted at the court’s discretion where said motions “are not filed ‘for the purpose of 11 delay, where entertaining the motion would expedite the case, and where the motion 12 would narrow the issues involved.’” See Razaghi v. Razaghi Dev. Co., LLC, No.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 PRIYA DEY-SARKAR, Case No. 3:23-cv-00517-MMD-CLB
7 Plaintiff, ORDER v. 8 DANIEL ADESINA, et al., 9 Defendants. 10 11 I. SUMMARY 12 Plaintiff Priya Dey-Sarkar sued Defendants Daniel Adesina, State of Nevada, ex 13 rel. Public Utilities Commission of Nevada, and NV Energy d/b/a Sierra Pacific Power 14 Company following alleged racial and sexual harassment. (ECF No. 92 (“FAC”).) She 15 alleges seven claims under federal and state laws, including negligent retention and 16 negligent supervision. (Id. at 24-33.) Before the Court is Defendants’ fifth motion to 17 dismiss, seeking dismissal of the negligent retention and negligent supervision claims. 18 (ECF No. 106 (“Motion”).)1 As further explained below, the Court will grant the Motion 19 because Defendants are entitled to discretionary act immunity. 20 II. DISCUSSION2 21 Defendants move to dismiss Plaintiff’s negligent retention and negligent 22 supervision claims, arguing discretionary act immunity shields them from state law tort 23 suits. (Id. at 4-8.) Plaintiff counters that the Court should deny the Motion because express 24 statutory duties preclude discretionary act immunity and Defendants failed to raise a 25 26
27 1Plaintiff responded (ECF No. 107) and Defendants replied (ECF No. 109).
28 2The Court incorporates by reference the general description of Plaintiff’s allegations the Court provided in an earlier order (ECF No. 91), as they have not 2 6.) The Court will address each argument in turn. 3 A. Discretionary Act Immunity 4 Defendants first argue that Plaintiff fails to state a claim because they are immune 5 from liability under Nevada’s discretionary act immunity law. (ECF No. 106 at 4-8.) Plaintiff 6 counters that discretionary act immunity is unavailable to Defendants because their duties 7 are operational rather than discretionary. (ECF No. 107 at 5-6.) The Court agrees with 8 Defendants. 9 In Nevada, certain government actors have discretionary act immunity. See 10 NRS § 41.032. NRS § 41.032 provides that no action can be brought upon a political 11 subdivision or state agency which is “[b]ased upon the exercise or performance or the 12 failure to exercise or perform a discretionary function or duty on the part of the State or 13 any of its agencies or political subdivisions or of any officer, employee or immune 14 contractor of any of these, whether or not the discretion involved is abused.” An action 15 qualifies for discretionary act immunity if it involves an element of judgement or choice 16 and is based on considerations of public policy. See Martinez v. Maruszczak, 168 P.3d 17 720, 729 (Nev. 2007). 18 NRS § 41.032 shields Defendants’ discretionary actions as an agency of the State 19 of Nevada. Hiring, training, and supervising involve a sufficient element of choice that 20 courts consistently find to be discretionary, and “decisions relating to the hiring, training, 21 and supervision of employees usually involve policy judgments of the type Congress 22 intended the discretionary function exception to shield.” Vickers v. United States, 228 F.3d 23 944, 950 (9th Cir. 2000) (citations omitted); see also Neal-Lomax v. Las Vegas Metro. 24 Police Dep’t, 574 F. Supp. 2d 1170, 1192 (D. Nev. 2008) (“Nevada looks to federal case 25 law to determine the scope of discretionary immunity, and . . . federal case law 26 consistently holds training and supervision are acts entitled to such immunity . . . .”). 27 Plaintiff argues that discretionary act immunity is unavailable to Defendants 28 because NRS §§ 703.150, 704.001(1), and 704.001(3) (“Statutes”) create mandatory and 2 word “safe” mandates Defendants to ensure safety. (ECF No. 107 at 5-6.) However, 3 under a plain reading of NRS § 704.001, which states that “[i]t is hereby declared to be 4 the purpose and policy of the Legislature in enacting this chapter . . . [t]o provide for the 5 safe, economic, efficient, prudent and reliable operation and service of public utilities,” the 6 word “safe” cannot be reasonably interpreted to create a duty of safety. Cf. Edmonds v. 7 United States Dep’t of Labor, 749 F.2d 1419 (9th Cir. 1984) (“Statutory language is 8 generally construed according to the plain meaning of the words used by Congress 9 ‘absent a clearly expressed legislative intention to the contrary.’” (quoting Consumer 10 Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980))), rev’d on other 11 grounds Brock v. Pierce Cty., 476 U.S. 253, 106 S. Ct. 1834 (1986). Moreover, Plaintiff 12 provides no caselaw to support her argument. 13 Plaintiff also cites Grover-Armont v. Cargile3 to support the argument that the 14 Statutes control and preclude discretionary act immunity in this case. (ECF No. 107 at 5.) 15 The Court does not find the case analogous. The Grover-Armont court held that 16 NRS § 484B.700 precludes discretionary act immunity. See 426 P.3d at 56. However, the 17 case does not reference the Statutes, Plaintiff presents no argument that 18 NRS § 484B.700 is comparable to the Statutes, and the language of NRS § 484B.700 19 differs significantly from the Statutes. Accordingly, Defendants are entitled to 20 discretionary immunity from Plaintiff’s negligent retention and negligent 21 supervision claims.4 22 B. Failure to State a Claim Defense 23 Plaintiff also argues that the Court should deny the Motion because Defendants 24 failed to raise a discretionary act immunity defense in their prior four motions to dismiss. 25
26 3426 P.3d 45 (Nev. App. 2018).
27 4Plaintiff alleges that Defendants engaged in bad faith conduct and therefore are exempt from discretionary act immunity. (ECF No. 107 at 6-7.) However, Plaintiff does 28 not allege sufficient facts supporting an argument that Defendants’ actions were made in 2 Civil Procedure by raising a failure to state a claim defense and that the Court has 3 discretion to permit successive motions to dismiss. (ECF No. 109 at 3-7.) The Court again 4 agrees with Defendants. 5 A defendant who omits a failure to state a claim defense does not de facto waive 6 the defense. See In re Apple iPhone Antitrust Litig., 846 F.3d 313, 317-318 (9th Cir. 2017). 7 Defendants’ defense therefore remains available. Moreover, the Ninth Circuit adopted a 8 flexible approach to Rule 12(g) where judicial efficiency may be achieved. See In re Apple 9 iPhone Antitrust Litig., 846 F.3d at 319. Successive motions to dismiss are therefore 10 permitted at the court’s discretion where said motions “are not filed ‘for the purpose of 11 delay, where entertaining the motion would expedite the case, and where the motion 12 would narrow the issues involved.’” See Razaghi v. Razaghi Dev. Co., LLC, No. 2:18-cv- 13 01622-GMN-DJA, 2021 WL 4486342, *5 (D. Nev. Sept. 30, 2021) (citations omitted) 14 (collecting cases); In re WellPoint, Inc. Out-Of-Network “UCR” Rates Litig., 903 F. Supp. 15 2d 880, 893 (C.D. Cal. 2012). Here, denying the Motion only for Defendants to later raise 16 the same defenses again defies judicial economy and would cause unnecessary delay. 17 Moreover, resolving the Motion now will allow the parties to litigate more efficiently 18 moving forward. 19 III. CONCLUSION 20 The Court notes that the parties made several arguments and cited to several 21 cases not discussed above. The Court reviewed these arguments and cases and 22 determines that they do not warrant discussion as they do not affect the outcome of the 23 Motion before the Court. 24 /// 25 /// 26 /// 27 /// 28 /// 1 It is therefore ordered that Defendants’ motion to dismiss (ECF No. 106) is granted. 2 || The Cour dismisses the third claim for negligent retention and fourth claim for negligent 3 || supervision with prejudice. 4 DATED THIS 2"¢ Day of May 2025. 5 6 7 MIRANDAM.DU- ————<“i‘“sC™~™~™~C~™ UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28