                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 24 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



WAYNE ROMANS,                                    No. 11-17153

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00403-RCJ-VPC

  v.
                                                 MEMORANDUM *
INCLINE VILLAGE GENERAL
IMPROVEMENT DISTRICT,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Robert C. Jones, Chief Judge, Presiding

                          Submitted September 10, 2012 **

Before:       WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Wayne Romans appeals from the district court’s judgment dismissing his

action alleging violations of the Americans with Disabilities Act and Arizona state

law. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of

discretion the district court’s application of laches. Grupo Gigante SA De CV v.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Dallo & Co., 391 F.3d 1088, 1101 (9th Cir. 2004). We reverse and remand.

      The district court abused its discretion by sua sponte dismissing the action

based on laches because, at this point in the proceedings, the record is insufficient

to determine whether Romans received a valid right-to-sue letter from the Nevada

Employment Rights Commission giving him notice of his deadline to file suit,

whether Romans delayed filing his suit, and whether defendant was prejudiced.

See Brown v. Cont’l Can Co., 765 F.2d 810, 814-15 (9th Cir. 1985) (laches not

available as a matter of law where material disputes exist as to whether plaintiff

delayed seeking a right-to-sue letter or filing suit, and not applicable unless

defendant was prejudiced); cf. Boone v. Mech. Specialties Co., 609 F.2d 956, 958-

60 & n.3 (9th Cir. 1979) (applying laches at summary judgment where plaintiff’s

seven-year delay in seeking right-to-sue letter caused defendant actual prejudice).

      Accordingly, we remand for further proceedings.

      Each party shall bear its own costs on appeal.

      REVERSED and REMANDED.




                                           2                                      11-17153
