Thomas Romano v. Nv Division of Water Resources

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 24, 2019
• Docket: 18-15952
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THOMAS J. ROMANO, No. 18-15952

Plaintiff-Appellant, D.C. No. 3:16-cv-00204-RCJ-WGC

v. MEMORANDUM* NEVADA DIVISION OF WATER RESOURCES,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

Thomas J. Romano appeals pro se from the district court’s summary

judgment in his action alleging claims stemming from a water rights dispute. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Haro v. Sebelius,

747 F.3d 1099, 1107 (9th Cir. 2014). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The district court properly granted summary judgment because Romano

failed to raise a genuine dispute of material fact as to whether there was diversity

jurisdiction. See 28 U.S.C. § 1332(a); Dep’t of Fair Emp’t & Hous. v. Lucent

Techs., Inc., 642 F.3d 728, 737 (9th Cir. 2011) (state agency is not considered a

citizen of a state for purposes of diversity jurisdiction); Brady v. Brown, 51 F.3d

810, 815 (9th Cir. 1995) (presence of United States citizen domiciled abroad

defeats diversity jurisdiction).

To the extent Romano sought to allege claims under 42 U.S.C. § 1983, the

district court properly determined that the action was barred by Eleventh

Amendment immunity. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

(Eleventh Amendment immunity applies to state agencies).

The district court did not abuse its discretion by denying Romano’s motion

for sanctions because Romano failed to identify any sanctionable conduct. See

Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 859 (9th Cir. 2014)

(standard of review); Dunn v. Trans World Airlines, Inc., 589 F.2d 408, 415 (9th

Cir. 1978) (“The sanctions available to a trial judge under [the Federal Rules of

Civil Procedure] are discretionary and the imposition of such sanctions will not be

reversed unless there has been an abuse of discretion.” (citation and internal

quotation marks omitted)).

The district court did not abuse its discretion by denying Romano’s motion

2 to compel because Romano failed to demonstrate actual and substantial prejudice

resulting from the denial of discovery. See Childress v. Darby Lumber, Inc., 357

F.3d 1000, 1009 (9th Cir. 2004) (standard of review); Sablan v. Dep’t of Fin., 856

F.2d 1317, 1321 (9th Cir. 1988) (district court’s “decision to deny discovery will

not be disturbed except upon the clearest showing that denial of discovery results

in actual and substantial prejudice to the complaining litigant” (citation and

internal quotation marks omitted)).

The district court did not abuse its discretion by denying Romano’s motion

to amend his admissions. See Hadley v. United States, 45 F.3d 1345, 1348 (9th

Cir. 1995) (standard of review and requirements for the withdrawal or amendment

of admissions under Fed. R. Civ. P. 36(b)).

To the extent Romano argues that he was unable to challenge defendant’s

motion for substitution, he fails to establish any prejudice.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.