United States District Court, D. Nevada
THOMAS J. ROMANO, Plaintiff,
NEVADA DIVISION OF WATER RESOURCES, Defendant.
C. JONES UNITED STATES DISTRICT JUDGE
case arises out of a water rights dispute. Pending before the
Court is a Motion for Summary Judgment.
FACTS AND PROCEDURAL HISTORY
Thomas Romano alleges Defendant Nevada Division of Water
Resources has improperly refused to recognize his right to
use 82.62 acre feet of water to benefit certain land.
Plaintiff appears to allege that the prior owner quitclaimed
the water rights to him in 2010, but Defendant is allegedly
of the position that it cancelled the rights in 2004 such
that the thing quitclaimed was of no value. Plaintiff sued
Defendant in pro se in this Court. Defendant
answered. Plaintiff asked the Court to strike Defendant's
affirmative defenses and to sanction Defendant for asserting
them. The Court denied those motions and struck
Plaintiff's Reply to the Answer, which was filed without
leave. Plaintiff appealed that order and also asked the Court
to reconsider or clarify it. The Court declined to
reconsider, and the Court of Appeals dismissed for lack of
jurisdiction. Defendant has moved for summary judgment.
SUMMARY JUDGMENT STANDARDS
must grant summary judgment when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. A principal purpose of summary
judgment is “to isolate and dispose of factually
unsupported claims.” Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. “When the party moving for summary judgment
would bear the burden of proof at trial, it must come forward
with evidence which would entitle it to a directed verdict if
the evidence went uncontroverted at trial.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In contrast, when the nonmoving party bears
the burden of proving the claim or defense, the moving party
can meet its burden in two ways: (1) by presenting evidence
to negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. See Celotex
Corp., 477 U.S. at 323-24.
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To establish the
existence of a factual dispute, the opposing party need not
establish a material issue of fact conclusively in its favor.
It is sufficient that “the claimed factual dispute be
shown to require a jury or judge to resolve the parties'
differing versions of the truth at trial.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,
809 F.2d 626, 631 (9th Cir. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Instead, the opposition must go beyond the assertions
and allegations of the pleadings and set forth specific facts
by producing competent evidence that shows a genuine issue
for trial. See Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial. See
Anderson, 477 U.S. at 249. The evidence of the nonmovant
is “to be believed, and all justifiable inferences are
to be drawn in his favor.” Id. at 255. But if
the evidence of the nonmoving party is merely colorable or is
not significantly probative, summary judgment may be granted.
See Id. at 249-50. Notably, facts are only viewed in
the light most favorable to the nonmoving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even if the
underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, “a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”
asks the Court to grant defensive summary judgment based on
immunity, claim preclusion, and on the merits. The Court
grants the motion for lack of subject-matter jurisdiction.
asserts only diversity jurisdiction under 28 U.S.C. §
1332. But for two independent reasons, there is no diversity
jurisdiction in this case. First, if Plaintiff is a U.S.
citizen residing abroad-and he confirmed at oral argument
that he is-he is neither a resident of any state nor an alien
for the purposes of diversity. Brady v. Brown, 51
F.3d 810, 815 (9th Cir. 1995). In the Complaint, Plaintiff
alleged residence in China but did not allege his
nationality. At oral argument, Plaintiff clarified that he
was a citizen of both the United States and Italy and that he
resided in China. Although the docket indicates Plaintiff
changed his address to New Jersey, only citizenship at the
time of filing matters under § 1332, Grupo Dataflux
v. Atlas Global Grp., L.P., 541 U.S. 567, 570-71 (2004),
and Plaintiff alleged residence in China at the time of
filing. Plaintiff also claimed at oral argument that he
continues to reside in China, although that does not matter.
Plaintiff has affirmatively admitted he was a U.S. citizen
residing abroad when this action was filed. Plaintiff's
dual Italian citizenship does not change the result, because
for the purposes of diversity, only his U.S. citizenship
matters. Mutuelles Unies v. Kroll & Linstrom,
957 F.2d 707, 711 (9th Cir. 1992). Second, even if Plaintiff
had been a resident of a U.S. state or a pure alien when he
filed the lawsuit-neither of which Plaintiff alleges-
Defendant cannot be a party to a diversity action because it
is a state agency. See Dep't of Fair Emp't &
Hous. v. Lucent Techs., Inc., 642 U.S. 728, 737 (9th
is jurisdiction supported under § 1331, even if
Plaintiff were to invoke that statute. Defendant, an
administrative arm of the State of Nevada, cannot be sued in
federal court without its consent. U.S. Const., amend. XI;
Hans v. Louisiana, 134 U.S. 1, 10-15 (1890);
NRDC v. Cal. Dep't of Trans., 96 F.3d 420, 421
(9th Cir. 1996) (citing P.R. Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-46
(1993)). The State of Nevada withheld its consent to suit in
federal court when it made a limited waiver of immunity to
suit in its own courts. See Nev. Rev. Stat. §
41.031. Although § 5 of the Fourteenth Amendment gave
Congress the power to abrogate the states' Eleventh
Amendment protection, e.g., via 42 U.S.C. § 1983, as an
arm of the State of Nevada, Defendant is not a