908 F2d 978 Vranesh v. A Foley a

908 F.2d 978

Unpublished Disposition

Walter VRANESH, Plaintiff-Appellant,
v.
Thomas A. FOLEY, individually and in his official capacity
in the Eighth Judicial District Court of the State
of Nevada as the Honorable Thomas A.
Foley, District Judge,
Defendant-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

No. 89-15975.

United States Court of Appeals, Ninth Circuit.

Submitted July 17, 1990.*
Decided July 23, 1990.

Before TANG, NOONAN and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Walter Vranesh appeals pro se from the district court's dismissal, pursuant to Fed.R.Civ.P. 12(b)(6), of his 42 U.S.C. Sec. 1983 action against Thomas A. Foley, Judge of the Eighth Judicial District Court of the State of Nevada. On appeal, Vranesh argues that the district court's conclusion that it could not entertain jurisdiction over Vranesh's suit seeking federal relief for alleged judicial bias on the part of Judge Foley, due to Vranesh's failure to litigate these claims and to pursue an appeal in the underlying state proceedings, is erroneous. Vranesh also contends that the district court's actions deprived him of his constitutional right to a jury trial, and that the district court's denial of his motion to amend his complaint was an abuse of discretion. We affirm.

3

* In 1982, Vranesh brought an action in Nevada state court against several former business associates, seeking damages for misappropriation of funds, wrongful termination, unpaid salary, and a redistribution of corporate and partnership assets. On February 12, 1987, Judge Foley entered an order granting summary judgment in favor of one of the defendants.1

4

Under Nevada state law, a trial judge considering a motion for summary judgment may not judge the credibility or weight of opposing affidavits or evidence, but must accept as true all evidence favorable to the party against whom the motion is made. Flangas v. State, 760 P.2d 112, 113 (Nev.1988). An order granting a motion for summary judgment is directly appealable to the Nevada Supreme Court. See Nev.R.Civ.P. 54(a), 56(a); Nev.R.App.P. 3A(b)(1). Nevertheless, Vranesh, acting with the advice of counsel, decided not to appeal any of Judge Foley's orders to the Nevada Supreme Court.

5

On January 12, 1989, Vranesh filed pro se in the United States District Court for the District of Nevada this 42 U.S.C. Sec. 1983 action against Judge Foley, alleging the deprivation of his constitutional rights to due process and equal protection of the laws. He alleged that Judge Foley acted with undue bias and prejudice because Judge Foley's decisions were contrary to law and fact, Judge Foley failed to disqualify himself, and Judge Foley improperly weighed evidence and questioned the credibility of the opposing party in the summary judgment procedure. Vranesh's complaint requested relief in the form of an order directing the state court to grant a new trial or to order binding arbitration of issues already adjudicated in the state proceedings.

6

The district court granted defendant's motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted, reasoning that the doctrine of abstention prevented a federal court from entertaining Vranesh's suit. We review a dismissal based on the doctrine of abstention de novo. Kitchens v. Bowen, 825 F.2d 1337, 1339 (9th Cir.1987), cert. denied, 485 U.S. 934 (1988); Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1356 (9th Cir.1986).

II

7

As a threshold matter, we determine that we are not deprived of jurisdiction to hear this appeal by Vranesh's failure to file a timely notice of appeal. The district court's order granting defendant's motion to dismiss was filed on June 5, 1989. On June 22, 1989, Vranesh filed a motion to reconsider the order granting dismissal, which the district court denied on the merits in an order filed on July 18, 1989. On July 26, 1989, Vranesh filed a notice of appeal, referencing his intent to appeal from both the June 5, 1989 order granting defendant's motion to dismiss and the July 18, 1989 order denying Vranesh's motion for reconsideration.

8

"Unless the opposing party can show prejudice, courts of appeal may treat an appeal from a postjudgment order as an appeal from the final judgment." Ward v. County of San Diego, 791 F.2d 1329, 1331 (9th Cir.1986) (citing Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)), cert. denied, 483 U.S. 1020 (1987). Because the defendant here was neither misled nor prejudiced by Vranesh's error, and mindful of our obligation to construe Vranesh's pro se papers liberally and to afford him the benefit of any doubt, see Mullis v. United States Bankruptcy Court, Dist. of Nev., 828 F.2d 1385, 1388 (9th Cir.1987), cert. denied, 486 U.S. 1040 (1988); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc), we treat Vranesh's appeal from the denial of his motion for reconsideration as a timely appeal from the district court's entry of judgment. See Ward, 791 F.2d at 1331.2

III

9

The district court correctly concluded that it could not entertain Vranesh's 42 U.S.C. Sec. 1983 action. The Nevada Supreme Court was the appropriate forum for Vranesh to challenge Judge Foley's grant of summary judgment against him, as well as to present his contentions of bias and misconduct on the part of Judge Foley. Vranesh, with the advice of counsel, made a tactical decision not to exercise his right to appeal to that court.

10

Because Vranesh chose not to appeal it, the state trial court's grant of summary judgment against him is a final judgment. As such, it is entitled to full faith and credit, and must be accorded the same preclusive effect in the federal courts as it would have in the Nevada state courts. See 28 U.S.C. Sec. 1738; Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81-85, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Under Nevada law, the doctrine of res judicata precludes parties from relitigating a cause of action that has been finally determined in a court of competent jurisdiction. See Water West, Inc. v. Entek Corp., 788 F.2d 627, 629 (9th Cir.1986); Paradise Palms Community Ass'n v. Paradise Homes, 505 P.2d 596, 598 (Nev.), cert. denied, 414 U.S. 865 (1973). Consequently, Vranesh is precluded from challenging the propriety of Judge Foley's grant of summary judgment in a collateral proceeding in state or federal court.

11

Vranesh, however, attempts to attack the grant of summary judgment against him by alleging that Judge Foley's decisions "were so contrary to law and to fact and so deliberately and unduly biased and prejudiced as to constitute ... a violation ... of [Vranesh's] civil rights, due process and equal protection," sufficient to support a cause of action under 42 U.S.C. Sec. 1983 in federal court. The district court correctly concluded that the doctrine of abstention prevents a federal court from entertaining jurisdiction over this claim.

12

Under the doctrine of abstention, a federal court should abstain from the exercise of jurisdiction over an action if to exercise jurisdiction would interfere with ongoing state judicial proceedings and if the plaintiff had an opportunity to fairly pursue his federal and constitutional claims in the state proceedings. See Moore v. Sims, 442 U.S. 415, 425, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Kitchens v. Bowen, 825 F.2d 1337, 1342 (9th Cir.1987); Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1362 & n. 15 (9th Cir.1986). "Failure to exhaust state appellate remedies satisfies the requirement that there be 'ongoing judicial proceedings' in order to justify federal abstention." World Famous Drinking Emporium v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir.1987) (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 608-09, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975)); see also Kitchens, 825 F.2d at 1341. Further, the plaintiff need only be accorded an opportunity to present his federal and constitutional claims in the state proceedings; his failure to avail himself of such opportunities does not mean that the state procedures were inadequate. See Juidice, 430 U.S. at 337; see also Moore, 442 U.S. at 425; Fresh Int'l, 805 F.2d at 1362.

13

Vranesh did not attempt to present his federal and constitutional claims before the trial court, nor did he exercise his right to appeal to the Nevada Supreme Court and argue his claims before that court. Because Vranesh chose not to avail himself of "the existence of an available forum for raising constitutional issues in a state judicial proceeding," the federal courts cannot entertain his Sec. 1983 action. See Juidice, 430 U.S. at 330.

14

That [plaintiff] failed to avail itself of the opportunity to litigate its constitutional claim in the state forum, does not demonstrate that the state forum did not provide an opportunity to litigate that claim. [Plaintiff] had an opportunity to pursue its constitutional claim upon appeal in the state courts, and failed to do so. No more is required for Younger abstention.

15

World Famous Drinking Emporium, 820 F.2d at 1083 (citation and footnote omitted). Vranesh does not allege that he would not have had the opportunity to present his constitutional claims in an appeal to the Nevada Supreme Court; indeed, he admits in his briefs on this appeal that his counsel in the state proceedings advised him that he would "undoubtedly" prevail on appeal to the Nevada Supreme Court.

16

Abstention by the federal courts is inappropriate only where the proceeding demonstrates "bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate." Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 435, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); see also Moore, 442 U.S. at 424; Juidice, 430 U.S. at 338; World Famous Drinking Emporium, 820 F.2d at 1082. However, these circumstances "must be 'extraordinary' in the sense of creating an extraordinary pressing need for immediate federal relief, not merely in the sense of presenting a highly unusual fact situation." Moore, 442 U.S. at 433 (quoting Kugler v. Helfant, 421 U.S. 117, 124-25, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975)). Here, the need for immediate federal equitable relief does not exist for Vranesh, who waited for more than a year after the alleged abuses to bring this action.3

III

17

Vranesh further contends that he was unlawfully denied his constitutional right to a jury trial by the state court's grant of summary judgment against him. The Constitution only requires, however, that bona fide fact questions be submitted to a jury. Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1077-78 n. 3 (9th Cir.1986). In the state court judgment, Judge Foley concluded that there were no genuine issues of material fact at issue. Thus, Vranesh's only possible claim is that the state court erred in this determination. See id. Vranesh made a tactical decision not to press his claims of error by appeal to the Nevada Supreme Court. For the reasons set forth above, we conclude that the federal courts may not exercise jurisdiction over Vranesh's efforts to challenge the state court judgment in the guise of a Sec. 1983 action.

IV

18

Vranesh also argues that the district court's denial of his motion to amend his complaint was an abuse of discretion, because it denied Vranesh the opportunity to amend his complaint "once as a matter of course at any time before a responsive pleading is served," as provided by Fed.R.Civ.P. 15(a), and because the denial was in advance of the period established for amending the complaint by the district court's scheduling order.

19

The district court entered final judgment dismissing the complaint on June 5, 1989. Where a final judgment is entered following dismissal of an action, amendment of the complaint is no longer a matter of right, but rather a matter for the sound discretion of the court. See Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir.1987). Vranesh's proposed amended complaint was attached to his motion to amend and was before the district court; his proposed changes are insufficient to avoid dismissal of the amended complaint on the same grounds as the original complaint. Because amendment would be futile, the district court did not abuse its discretion in denying the motion for leave to amend. See id.; Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1319-20 (9th Cir.1984).

20

Fed.R.Civ.P. 16(b) provides the district court with broad powers to control the scheduling of proceedings before it. Contrary to Vranesh's assertions, we read the district court's scheduling order as establishing the maximum, rather than minimum, period during which amendments to the pleadings will be allowed; it in no manner assures that amendments will be permitted as a matter of right until the end of the specified period. The district court's denial of Vranesh's motion for leave to amend the complaint therefore did not violate the court's own scheduling order, nor did it unfairly "surprise" Vranesh.

21

We find no merit in any of the Vranesh's remaining arguments. Accordingly, the judgment of the district court is AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Although the record before this court does not disclose the disposition of his claims against the remaining defendants, it appears from Vranesh's papers that summary judgment was eventually granted in favor of all defendants

2

Vranesh's motion for reconsideration might also be construed as a motion under Fed.R.Civ.P. 60, in which case his notice of appeal brings up for review only the denial of that motion, and not the underlying judgment. See Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir.), cert. denied, 110 S.Ct. 192 (1989). The denial of a motion for reconsideration is reviewed for an abuse of discretion. See Thompson v. Housing Auth., 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829 (1986); Fiester v. Turner, 783 F.2d 1474, 1475-76 (9th Cir.1986). Because we affirm the district court's decision when reviewed de novo, our decision would be the same under the more deferential abuse of discretion standard

3

The Supreme Court has suggested that a showing that the state tribunal is biased may constitute "extraordinary circumstances" denying a litigant an effective opportunity to pursue constitutional claims. See Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); see also Kugler v. Helfant, 421 U.S. 117, 124-25 & n. 4, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975). Vranesh, however, failed to utilize any of the procedures existing under Nevada law for disqualifying an allegedly biased judge, either at the state or appellate level. See, e.g., Nev.Rev.Stat. Sec. 1.225 (procedure for disqualifying members of Nevada Supreme Court). Because he failed to do so, the courts of this circuit will not determine that this case falls within such an exception to the abstention requirement. See Flangas v. State Bar, 655 F.2d 946, 949-51 (9th Cir.1981). Moreover, Vranesh's admission that his counsel advised him that he would "undoubtedly" prevail on appeal severely undermines any claim that he would not have had an effective opportunity to pursue his federal claims on appeal to the Nevada Supreme Court