FILED

NOT FOR PUBLICATION

MAY 13 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTY HENDERSON, No. 14-15944

Plaintiff - Appellant, D.C. No. 2:13-cv-01921-RCJ-VCF

v.

MEMORANDUM*

JOHN BONAVENTURA; LOU

TOOMIN; LAS VEGAS TOWNSHIP

CONSTABLE’S OFFICE; CLARK

COUNTY,

Defendants - Appellees.

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

Argued and Submitted April 14, 2016 San Francisco, California

Before: WALLACE, SCHROEDER, and KOZINSKI, Circuit Judges.

Kristy Henderson appeals from the judgment entered against her and raises

issues with two of the district court’s orders. First, she challenges the district

court’s order dismissing four of her claims. Second, she contends that the court

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. erred in granting summary judgment in favor of Appellees on her Title VII claims.

We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

Henderson does not challenge the district court’s dismissal of Clark County

as a defendant. Accordingly, we do not address that ruling. Any reference we make

to “Appellees” in this disposition excludes Clark County.

We first address our jurisdiction to hear this case. Appellees initially argued

that we lacked jurisdiction because Henderson’s notice of appeal was not filed

within thirty days after the district court’s January 10, 2014 dismissal order. But, at

oral argument, counsel wisely withdrew this argument, since Rule 54(b) of the

Federal Rules of Civil Procedure provides that unless the district court directs entry

of a final judgment, any order adjudicating “fewer than all the claims . . . does not

end the action as to any of the claims or parties.” Because the district court did not

direct entry of a final judgment after issuing its January 10, 2014 dismissal order,

that order became appealable only after the district court issued its judgment

disposing of all the claims. Accordingly, we have jurisdiction to review all the

issues before us.

Henderson contends that the district court erred in dismissing claims four

(breach of contract), five (violations of Nevada state law and the United States and

Nevada Constitutions), and six (breach of the implied covenant of good faith and

2 fair dealing) of her complaint under the anti-claim-splitting doctrine. We review

the district court’s application of this doctrine for an abuse of discretion. Adams v.

Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), overruled on other

grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). The anti-claim-splitting

doctrine prevents a party from maintaining “two separate actions involving the

same subject matter at the same time in the same court and against the same

defendant.” Id. at 688 (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir.

1977) (en banc)). To determine whether an action is barred under the doctrine, “the

appropriate inquiry is whether, assuming that the first suit were already final, the

second suit could be precluded pursuant to claim preclusion.” Id. at 689 (quoting

Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 987 n.1

(10th Cir. 2002)).

The district court abused its discretion in applying the anti-claim-splitting

doctrine here. Adams holds that the doctrine applies where a party maintains two

actions “in the same court.” Id. at 688 (quoting Walton, 563 F.2d at 70). Here,

Henderson filed one complaint in state court and another in federal court. Because

she filed her complaints in separate courts, the proper inquiry for the district court

was whether to abstain from the case. The Supreme Court has explained that

federal courts should assess the “appropriateness of dismissal in the event of an

3 exercise of concurrent jurisdiction” by applying a non-exhaustive list of factors.

Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 818 (1976).

These factors include: (1) “the inconvenience of the federal forum,” (2) “the

desirability of avoiding piecemeal litigation,” and (3) “the order in which

jurisdiction was obtained by the concurrent forums.” Id. (citations omitted). We

therefore reverse the district court’s dismissal of claims four, five, and six, and

remand for further consideration of these claims in light of Henderson’s voluntary

dismissal of her state-court action.

The district court also dismissed claim seven (wrongful discharge) of the

complaint, concluding that Henderson was an at-will employee and had not shown

her employer terminated her in violation of Nevada public policy. We reverse and

remand on this claim because the district court did not properly apply the Nevada

Supreme Court’s decision in Allum v. Valley Bank of Nev., 970 P.2d 1062 (Nev.

1998). There, the Nevada Supreme Court held that “[a] claim for tortious discharge

should be available to an employee who was terminated for refusing to engage in

conduct that he, in good faith, reasonably believed to be illegal.” Id. at 1068. But

instead of assessing whether Henderson had a good faith belief that participating in

the reality-TV show would be illegal, the district court “estimated that the Nevada

Supreme Court would likely only recognize termination of an employee for refusal

4 to participate in serious felonies as sufficient to invoke an exception to the at-will

employment doctrine.” This stated standard conflicts with Allum. Accordingly, we

reverse and remand for the district court to apply Allum properly.

We now turn to the district court’s summary judgment. The district court

granted Appellees summary judgment on Henderson’s Title VII claims (claims one

through three of her complaint), concluding that Henderson was judicially

estopped from pursuing those claims because she failed to list them in a separate

bankruptcy filing. We review the district court’s application of judicial estoppel for

an abuse of discretion. Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC,

692 F.3d 983, 992 (9th Cir. 2012).

Under the doctrine of judicial estoppel, “where a party assumes a certain

position in a legal proceeding, and succeeds in maintaining that position, he may

not thereafter, simply because his interests have changed, assume a contrary

position, especially if it be to the prejudice of the party who has acquiesced in the

position formerly taken by him.” Davis v. Wakelee, 156 U.S. 680, 689 (1895). The

doctrine’s “purpose is to protect the integrity of the judicial process by prohibiting

parties from deliberately changing positions according to the exigencies of the

moment.” New Hampshire v. Maine, 532 U.S. 742, 750–51 (2001) (internal

quotation marks and citations omitted). Several factors “inform the decision

5 whether to apply the doctrine in a particular case,” id. at 750, including: (1)

whether the party’s later position is clearly inconsistent with its earlier one, (2)

whether the party was successful in persuading the court of its earlier position, and

(3) whether the opposing party would suffer any prejudice. Id. at 750–51.

We hold that the district court abused its discretion in applying judicial

estoppel to Henderson’s Title VII claims. The district court premised its

application of judicial estoppel on the notion that Henderson took an inconsistent

position by failing to disclose her claims in her pending bankruptcy action. But an

examination of the record shows that this premise is faulty. Henderson filed for

bankruptcy on August 3, 2012, which was about three weeks before she filed a

charge of discrimination with the EEOC. On the same day she filed her charge of

discrimination, she amended her bankruptcy schedules to disclose her potential

claims against her employer. The district court apparently missed this amendment

since it mistakenly observed that “[Henderson] does not appear to have ever

disclosed to the bankruptcy court the existence of her contingent claims.” This

statement is plainly erroneous and thus we must reverse the district court’s

summary judgment in favor of Appellees on Henderson’s Title VII claims, and we

remand for further consideration.

6 We reverse the district court’s determinations that Toomin cannot be sued

under Title VII and that Bonaventura can only be sued in his official capacity. The

district court erred by considering these arguments after Appellees raised them in

their reply brief and without giving Henderson an opportunity to respond. See

Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). On remand, the district

court shall permit Henderson to address these arguments.

Henderson’s motion for judicial notice is granted.

REVERSED AND REMANDED.

7

FILED

Henderson v. Bonaventura, No. 14-15944

MAY 13 2016

WALLACE, J., concurring in part and dissenting in part MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the panel’s disposition except for the holding reversing the

district court’s determinations that Deputy Constable Lou Toomin and Constable

John Bonaventura cannot be held liable under Title VII. While the disposition

correctly holds that the district court’s failure to give Henderson an opportunity to

address these issues is reversible error under Provenz v. Miller, 102 F.3d 1478,

1483 (9th Cir. 1996), instead of reversing and remanding for the district court to

allow Henderson to address the issues, I would follow Provenz’s lead by

considering Henderson’s proposed surreply in deciding whether the district court

erred in its determinations. Id.

Henderson argues that the district court erred in holding that Toomin “is not

an ‘employer’ who can be sued under Title VII at all.” While the court was correct

insofar as Toomin cannot be held liable in his individual capacity, Miller v.

Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993), it nonetheless erred by

holding that he cannot be held liable “at all” because an employee can create

liability for an employer under the theory of respondeat superior. Id. at 588 (“No

employer will allow supervisory or other personnel to violate Title VII when the

employer is liable for the Title VII violation”). Thus, I would vacate and remand

the district court’s ruling as to Toomin because the district court’s blanket holding fails to recognize that Toomin’s actions may create liability for the Constable’s

Office.

Henderson also argues that the district court erred in holding that

Bonaventura could be held liable only in his official capacity. I would affirm this

portion of the court’s ruling since an employee cannot be held liable under Title

VII in his individual capacity. Id. at 587.

2