Nunez v. Sahara Nevada Corp.

• Court: U.S. District Court — District of Nevada
• Writing for the Court: PRO
• Citation: Nunez v. Sahara Nevada Corp., 677 F.Supp. 1471 (D. Nev. 1988)
• Decision Date: 22 January 1988
• Docket Number: No. CV-S-86-398-PMP.,CV-S-86-398-PMP.
• Parties: Oscar NUNEZ, Plaintiff, v. SAHARA NEVADA CORPORATION, dba Mint Hotel & Casino, Defendant.

677 F. Supp. 1471

Oscar NUNEZ, Plaintiff, v. SAHARA NEVADA CORPORATION, dba Mint Hotel & Casino, Defendant.

No. CV-S-86-398-PMP.

United States District Court, D. Nevada, Las Vegas Division.

January 22, 1988.

Richard Segerblom, Las Vegas, Nev., for plaintiff.

Andrew S. Brignone, Las Vegas, Nev., for defendant.

MEMORANDUM OPINION AND ORDER: JUDGMENT ON THE PLEADINGS

PRO, District Judge.

Before the Court is Defendant's Motion for Judgment on the Pleadings, filed October 2, 1987 (# 20). Defendant's Motion seeks to have the Court, pursuant to Federal Rule of Civil Procedure 12(c), dismiss Plaintiff's Fifth Cause of Action contained in Plaintiff's Amended Complaint, filed February 12, 1987 (# 9), on the ground that there is no implied private cause of action under Nevada Revised Statutes ("NRS") § 613.160.

For the reasons discussed below, the Court must grant Defendant's Motion, and dismiss Plaintiff's Fifth Cause of Action.

FACTUAL BACKGROUND

Plaintiff had been employed by Defendant for 15 years. On or about October 9, 1984, Plaintiff was discharged from his position as Maitre'D of the "Top of the Mint" restaurant, located in the Mint Hotel and Casino. On April 23, 1986, Plaintiff filed a Complaint with the Court (# 1). Subsequently, on February 12, 1987, Plaintiff filed an Amended Complaint (# 9). The Fifth Cause of Action included in Plaintiff's Amended Complaint alleges that he "was terminated because of accusations of spotters that he sold tables," and that he was denied an opportunity to confront the "spotters" despite his specific request to do so.

While NRS § 613.160 makes it unlawful for an employer to discipline or discharge an employee based upon the report of a spotter unless the employee has the opportunity to a hearing at which he may confront such spotter, the statute does not, on its face, provide for the employee to bring an action against the employer for a violation thereof.¹ Plaintiff therefore bases his Fifth Cause of Action on Defendant's alleged breach of Nevada public policy, as implicitly reflected by NRS § 613.160. Plaintiff further invokes the pendent jurisdiction of this Court to consider his Fifth Cause of Action which arises under Nevada law.

In its Motion for Judgment on the Pleadings (# 20), Defendant contends that Plaintiff's Fifth Cause of Action fails to state a judicially cognizable claim for two reasons: (1) Nevada courts do not recognize a private cause of action where the legislature has expressly addressed the issue and provided an exclusive remedy; and (2) Nevada courts recognize only a narrow public policy exception to the at-will employment doctrine.

FEDERAL COURTS OBLIGATED TO APPLY STATE LAW

It is well established that when considering state substantive law, federal courts are bound by the state high court's decision as well as its interpretations of legislative intent. Lost Timber v. Power City Const. Inc., 809 F.2d 590, 592 (9th Cir.1987); Olympic Sports Products, Inc. v. Universal Athletic Sales Co., 760 F.2d 910, 913 (9th Cir.1985), cert. denied, 474 U.S. 1060, 106 S.Ct. 804, 88 L.Ed.2d 780 (1986).

Both parties concede that the Nevada Supreme Court has not ruled on whether an implied private cause of action under NRS § 613.160 can be inferred from the legislative history. When a state's highest court has not decided an outcome determinative issue, the task of the federal court is to predict how the state high court would resolve it. King v. Penrod Drilling Co., 652 F.Supp. 1331, 1333 (Nev.1987), citing Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986). See also, Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.1985), cert. dis. 473 U.S. 934, 106 S.Ct. 30, 87 L.Ed.2d 706 (1985). In attempting to approximate the extent and scope of state law as closely as possible under the circumstances, the federal court should not ignore well-considered dicta from state high court decisions on related issues. Dimidowich, supra, citing Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir. 1980).

STANDARD OF STATUTORY CONSTRUCTION

In construing the scope of remedies provided in a statute, Nevada State courts, just as their federal counterparts, have long recognized and applied "expressio unius est exclusio alterious," a maxim of statutory construction meaning that "the expression of one thing is the exclusion of the other."²

The Nevada Supreme Court's decision in Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358, 359 (1969), applied this maxim in finding no implied private right of action under a state statute which provided for criminal penalties against the sale of liquor to anyone who is noticeably intoxicated:

Those opposed to infering an implied private right of action from the statute urge that if civil liability is to be imposed, it should be accomplished by legislative act after appropriate surveys, hearings, and investigations to ascertain the need for it and the expected consequences to follow. We prefer this point of view. Judicial restraint is a worthwhile practice when the proposed new doctrine may have implications far beyond the perception of the court asked to declare it.

The Court further noted that the statute at issue was but one of many in the statutory scheme regulating the sale of tobacco and liquor to "minors and drunkards," and that the section immediately preceding it provided for a limited civil cause of action against the sale of liquor to a minor. The Court concluded:

By providing for civil liability in one section and failing to do so in the section immediately following, the legislature has made its intention clear. Accordingly, we must conclude that a violation of the statute at issue does not impose civil liability upon one in charge of a saloon or bar,.... Id., 450 P.2d at 360.

Similarly, while the legislature has provided for a private cause of action for damages or injunctive relief for violation of certain sections of NRS Chapter 613, dealing with "Employment Practices," the only remedy provided for in § 613.160 is a suit brought by the Attorney General to recover the $500 in the name of the State of Nevada.³

DETERMINATION OF IMPLIED STATUTORY REMEDIES

The United States Supreme Court has applied the maxim expressio unius est exclusio alterius in a string of decisions, with the result that a clear standard for its application has emerged for determining whether an implied private cause of action may be inferred from a statute. Defendant's Motion for Judgment on the Pleadings discusses an important case, National Railroad Passenger Corp. v. National Ass'n of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) ("Amtrak"), in which an association of railroad passengers challenged the discontinuance of certain passenger lines as violative of Amtrak's governing statute.

The Supreme Court focused on the statute's specific grant of enforcement suits by the Attorney General or, in cases involving a labor agreement, by employees to conclude that the statute did not imply a private cause of action:

... When legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." This principle of statutory construction reflects an ancient maxim — expressio unius est exlusio alterius. Since the Act creates a public cause of action for the enforcement of its provisions and a private cause of action only under very limited circumstances, this maxim would clearly compel the conclusion that the remedies created in the Act are the exclusive means to enforce the duties and obligations imposed by the Act. 94 S.Ct. 690, 693 (citations omitted) (emphasis added).

Although the Supreme Court in Amtrak noted that the expressio unius principle would "yield to clear contrary evidence of legislative intent," Id., Amtrak clearly indicates that where a statute provides only for a public or very narrow private cause of action, there is at least a rebuttable presumption that the legislature did not intend to grant a general, private enforcement cause of action. See, Keaukaha-Panaewa Com. v. Hawaiian Homes Com'n, 588 F.2d 1216 (9th Cir.1978), cert. den. 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979).

One year following Amtrak, in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court established a comprehensive analytical framework through which to ascertain the existence of an implied private cause of action. The Supreme Court concluded that a private cause of action was not implied in favor of a corporate stockholder under a criminal statute prohibiting corporations from making contributions in connection with presidential elections. The Court identified four factors to be examined in determining whether implication of a private right of action is appropriate:

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," ... — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (citing Amtrak) Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States? 95 S.Ct. 2080, 2088 (citations omitted).

The first and third of the Cort criteria are not problematic, and the fourth is irrelevant to this action. The second element of the Cort test, "explicit or implicit" legislative intent, however, is the most important and, in this case, the most enigmatic. The Nevada courts have yet to consider the scope of remedies provided by § 613.160. Moreover, neither the fact of the section itself nor the available legislative history provide any indication...