Trans-Sterling, Inc. v. Bible
| Decision Date | 17 November 1986 |
| Docket Number | TRANS-STERLIN,No. 85-2424,INC,85-2424 |
| Citation | 804 F.2d 525 |
| Parties | , a Nevada corporation; Karat Inc., a Nevada corporation; Fremont Hotel, Inc., a Nevada corporation; Sundance Associates, a Nevada limited partnership; Sundance Hotel & Casino, Inc., a Nevada corporation; Allan D. Sachs; and Herbert L. Tobman, Plaintiffs-Appellants, v. Paul A. BIBLE, Individually and as Chairman of the Nevada Gaming Commission; Raymond C. Avansino, Jr., Individually and as Commissioner of the Nevada Gaming Commission; Kenneth R. Gragson, Individually and as Commissioner of the Nevada Gaming Commission; Jerry Lockhart, Individually and as Commissioner of the Nevada Gaming Commission; Jack C. Walsh, Individually and as Commissioner of the Nevada Gaming Commission; James Avance, Individually and as Chairman of the State Gaming Control Board; Patricia Becker, Individually and as a member of the State Gaming Control Board; and Richard G. Hyte, Individually and as a member of the State Gaming Control Board, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Morton R. Galane, P.C., Thomas J. Tanksley, Las Vegas, Nev., for plaintiffs-appellants.
James C. Giudici, Deputy Atty. Gen., Gaming Div., Carson City, Nev., David D. Johnson, Chief Dist. Atty. Gen., Ellen F. Whittemore, James R. Chamberlain, Deputy Attys. Gen., Gaming Div., Las Vegas, Nev., for defendants-appellees.
Appeal from the United States District Court for the District of Nevada.
Before NELSON, WIGGINS and NOONAN, Circuit Judges.
Plaintiffs Trans-Sterling, Inc., Karat, Inc., Fremont Hotel, Inc., Sundance Associates, Sundance Hotel & Casino, Inc., Allan D. Sachs, and Herbert L. Tobman (collectively Trans-Sterling) appeal the district court's grant of defendants' motion for summary judgment in Trans-Sterling's section 1983 action against present and former members of the Nevada Gaming Commission (the Commission) and the State Gaming Control Board (the Board). We affirm.
In 1983, Trans-Sterling owned and operated several Las Vegas casinos and hotels. In December of 1983, the Board filed a complaint with the Commission 1 alleging that illegal "skimming" of monies was taking place at the Stardust, one of Trans-Sterling's hotel/casinos. It asked ex parte for an immediate order suspending Trans-Sterling's license for the Stardust. The Commission granted the request for immediate suspension of the license, effective on court appointment of a supervisor to take over operation of the Stardust. The Commission scheduled a hearing on the complaint for forty-five days later, in January 1984.
Thereafter, Trans-Sterling engaged in legal proceedings designed to obtain a hearing before the Commission concerning the Commission's order suspending Trans-Sterling's license. During the course of these proceedings, an attorney representing Trans-Sterling inquired of Board attorneys as to whether an overall settlement of the dispute was possible. In response, the Board presented a proposed settlement on a take-it-or-leave-it basis. The proposed settlement essentially provided that Trans-Sterling's licenses at all its hotels be revoked (after a stay of no more than 130 days to allow a sale of the properties plus 60 more if there was a buyer on the horizon); that the supervisor would remain in control of the Stardust in the meantime; that Trans-Sterling would pay fines of some $3 million; that Trans-Sterling would waive all legal rights, including the right to challenge the state action and to seek judicial review or appeal, and would release and indemnify the Board and Commission members in their individual and official capacities; and that Trans-Sterling would not have admitted any wrongdoing. Trans-Sterling signed the settlement agreement with the Board on January 5, 1984. On January 10, in a conference call hearing before the Commission, the Commission specifically asked Sachs and Tobman (as representatives of Trans-Sterling) if they signed the stipulation voluntarily and without duress or coercion. With their attorneys at their sides, Sachs answered "Yes" and Tobman answered "Yes ... under the circumstances." One of Trans-Sterling's attorneys specifically asked the Commission to approve the settlement. The Commission approved the settlement.
After the settlement's acceptance, Trans-Sterling sought buyers for the hotels and continued to receive the profits from the superviser's operation of the Stardust. The Board expedited its investigation of potential buyers because of the urgency of the sales.
On July 10, 1984, eight days before the license revocations were to take effect, Trans-Sterling filed this suit in federal district court against the Board and Commission members under 42 U.S.C. Sec. 1983 (1982), alleging that it was coerced into signing the settlement and giving up its rights and seeking rescission of the settlement agreement, compensatory and punitive damages, and an order restraining the Commission from enforcing the settlement order. The Board and Commission members moved for summary judgment, and the district court granted their motion.
Trans-Sterling timely appeals. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).
Trans-Sterling has filed three motions that are before the panel. Two are motions to supplement the record on appeal. In the first motion Trans-Sterling seeks to introduce a newspaper article containing later comments by a Commission member about the Commission's workload. Trans-Sterling cites no rule to justify such an enlargement of the record and we find none. The motion is inappropriate and is denied. A second motion brought under Rule 28(j) requests supplementing the record with evidence of action taken by the federal government to dismiss certain counts of indictment against Trans-Sterling, et al. Rule 28(j) permits a party to bring new authorities to the attention of the court; it is not designed to bring new evidence through the back door. The motion is denied. Alternatively, Trans-Sterling asks that this court take judicial notice of the dismissals. It is neither necessary nor desirable to take judicial notice of these purported facts which are, in any event, irrelevant to this decision.
Trans-Sterling also moves to strike "unauthorized" portions of the addendum to the appellee's brief that contain a copy of a criminal indictment in another, unrelated case. The indictment does not involve any of the parties to the present case, and is not relevant to the present action in any way that we can discern. We therefore grant the motion to strike.
This court reviews a grant of summary judgment de novo and will affirm such a grant only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). All inferences must be drawn in the light most favorable to Trans-Sterling. See Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748, 753 (9th Cir.1979).
The only issue we need address in this case is the validity of the waiver (or release) in the settlement agreement. 2 A waiver of a section 1983 claim is valid only if it is voluntary, deliberate, and informed. Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir.1981). 3 Trans-Sterling's only defense to the waiver is that the waiver was produced by duress and coercion and therefore was involuntary.
The district court held that Trans-Sterling's allegations of duress and coercion had no basis in the administrative record. It noted that the...
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