                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                RICHARD DOMBROSKI, AN                                   No. 67405
                INDIVIDUAL,
                Appellant,
                VS.
                                                                                FILED
                NV ENERGY, INC., A NEVADA                                       MAR 1 8 2016
                CORPORATION,                                                   TRACE K. LUDEMAN
                Respondent.                                                 CLERK OF SUPREME COURT
                                                                           BY
                                                                                DEPUTY CLERK   a.
                                          ORDER OF AFFIRMANCE
                             This is an appeal from a district court order dismissing a
                declaratory relief action for failure to state a claim. Eighth Judicial
                District Court, Clark County; Jerry A. Wiese, Judge.
                             Appellant Richard Dombroski sued his former employer,
                respondent NV Energy, Inc., claiming that the severance agreement he
                signed was unconscionable. Appellant's amended complaint primarily
                alleged that the agreement unfairly deprived him of rights under various
                anti-discrimination laws, and he sought damages and rescission through
                claims for declaratory relief, rescission, and breach of the covenant of good
                faith and fair dealing. Respondent filed a motion to dismiss under NRCP
                12(b)(5), which the district court granted, and appellant appealed. Having
                reviewed the parties' briefs and the appendix, we conclude that the district
                court did not err in deciding that appellant failed to state a claim for relief
                and dismissing the action. Buzz Stew, LLC v. City of N. Las Vegas,                  124
                Nev. 224, 227-28, 181 P.3d 670, 672 (2008) (explaining that this court
                reviews de novo an order dismissing an action under NRCP 12(b)(5),
                looking at the complaint to determine whether the plaintiff has alleged
                facts that, if true, would entitle him to relief).


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                                 With• respect to his first cause of action, appellant lacks
                     standing to pursue declaratory relief, as he has not alleged a live
                     controversy in which he claims a valid legal interest.          See Knittle v.
                     Progressive Gas. Ins. Co., 112 Nev. 8, 10, 908 P.2d 724, 725 (1996) (noting
                     that declaratory relief is available only when, among other things, there
                     exists a justiciable controversy and the party seeking relief has a legally
                     protectable interest in that controversy); Jones v. Sears Roebuck & Co.,
                     301 Fed. App'x 276, 282 (4th Cir. 2008) (recognizing that no controversy
                     exists in which to declare a contract provision unconscionable when the
                     other party to the contract has not taken any legal action or threatened
                     any future action against the plaintiff that would implicate the provision,
                     and the plaintiff has not alleged an underlying dispute that could progress
                     to that point). Neither appellant's complaint nor his appellate briefs
                     indicate that he sought to assert discrimination claims against respondent
                     and was prevented from doing so, or that he intends to assert such claims
                     and will be prevented from doing so, by the allegedly unconscionable
                     provisions. And as the district court pointed out, citing 42 U.S.C. § 2000e-
                     5(e)(1) and NRS 233.160(1)(b), it appears that any such claims expired
                     long ago, which appellant does not dispute. Therefore, appellant failed to
                     state a valid claim for declaratory relief.
                                 For similar reasons, the district court properly dismissed
                     appellant's second cause of action, for rescission based on
                     unconscionability. Appellant has not alleged that respondent has sought
                     to enforce the severance agreement against his interests, and
                     "Thhiconscionability' is generally a defense to the enforcement of a
                     contract, and is not a proper claim for affirmative relief."   Ramos v. Chase
                     Home Fin., 810 F. Supp. 2d 1125, 1141 (D. Haw. 2011) (citing Gaitan v.

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                Mortg. Elec. Registration Sys., No. EDCV 09-1009 YAP (MANx), 2009 WL
                3244729, at *13 (C.D. Cal., Oct. 5, 2009) ("Unconscionability may be raised
                as a defense in a contract claim, or as a legal argument in support of some
                other claim, but it does not constitute a claim on its own.") and Carey v.
                Lincoln Loan      Co.,   125 P.3d 814, 829 (Or. Ct. App. 2005)
                ("[U]nconscionability is not a basis for a separate claim for relief.")).
                Likewise, rescission is a remedy in contract, not a cause of action. Phillips
                v. Bank of Am., No. CIV. 10-00551, 2011 WL 240813, at *9 (D. Haw., Jan.
                21, 2011) (citing Bischoff v. Cook, 185 P.3d 902, 911 (Haw. Ct. App. 2008));
                see Bergstrom v. Estate of DeVoe, 109 Nev. 575, 577, 854 P.2d 860, 861
                (1993) ("Rescission is an equitable remedy which totally abrogates a
                contract and which seeks to place the parties in the position they occupied
                prior to executing the contract.") Accordingly, appellant failed to state a
                claim for rescission based on unconscionability.
                            Finally, appellant's third claim asserts that the severance
                agreement contains unconscionable and/or illegal terms and, thus,
                defendant breached the implied covenant of good faith and fair dealing.
                While unclear whether appellant is asserting this claim in contract or in
                tort, he fails to explain how respondent performed in a manner unfaithful
                to the contract's purpose such that the implied covenant was breached.
                See Perry v. Jordan, 111 Nev. 943, 948, 900 P.2d 335, 338 (1995) (noting
                that a claim for breach of the implied covenant of good faith and fair
                dealing exists when the defendant breached his contractual duty by
                performing in a manner unfaithful to the purpose of the contract, thereby
                denying the plaintiffs justified expectations); see also Contreras v. Master
                Fin., Inc., No. 3:10-CV-0477-LRH-VPC, 2011 WL 32513, at *3 (D. Nev.,
                Jan. 4, 2011) (citing Indep. Order of Foresters v. Donald, Lufkin &

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                 Jenrette, Inc., 157 F.3d 933, 941 (2d Cir. 1998) ("[A]n implied covenant
                 relates only to the performance under an extant contract, and not to any
                 pre-contract conduct.")). As a result, appellant failed to state a claim for
                 breach of the implied covenant of good faith and fair dealing.
                             Because the district court properly dismissed appellant's
                 action for failure to state a viable claim, we
                             ORDER the judgment of the district court AFFIRMED.



                                                                     LIA-A.   ALA.;       ,J.
                                                                  Hardesty



                                                                  aitta




                 cc: Hon. Jerry A. Wiese, District Judge
                      Lansford W. Levitt, Settlement Judge
                      Kirk T. Kennedy
                      Littler Mendelson/Las Vegas
                      Karyn M. Taylor
                      Eighth District Court Clerk




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