                                                                              FILED
                           NOT FOR PUBLICATION                                APR 18 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


EQUAL EMPLOYMENT                                 No. 09-16640
OPPORTUNITY COMMISSION,
                                                 D.C. No. 2:06-cv-01225-BES-PAL
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

GNLV CORPORATION, DBA Golden
Nugget Hotel and Casino,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                   Brian E. Sandoval, District Judge, Presiding

                     Argued and Submitted February 14, 2011
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TALLMAN and BEA**, Circuit Judges, and TARNOW, Senior District
Judge.***

      The Equal Employment Opportunity Commission (EEOC) appeals the

district court’s dismissal of six individual class members’ employment

discrimination claims against GNLV Corporation following a grant of summary

judgment in favor of GNLV on EEOC’s pattern-or-practice claim. EEOC also

appeals the district court’s prior order striking as untimely the inclusion of four

additional class members and precluding the addition of new class members.

Because the parties are familiar with the general facts of the case, we do not repeat

them here.

      A judgment in favor of an employer on a classwide pattern-or-practice claim

does not preclude class members from bringing individual discrimination claims.

Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 878 (1984). Thus, the

district court erred in dismissing the six class members’ individual claims. We




      **
              Due to the death of the Honorable David R. Thompson, the Honorable
Carlos T. Bea, United States Circuit Judge for the Ninth Circuit, has been drawn to
replace him on this panel. Judge Bea has read the briefs, reviewed the record, and
listened to the audio recording of oral argument held on February 14, 2011.
      ***
             The Honorable Arthur J. Tarnow, Senior United States District Judge
for the Eastern District of Michigan, sitting by designation.


                                           2
reverse and remand to allow the district court to consider whether summary

judgment is appropriate as to any of the individual claims.

      The district court did not abuse its discretion by striking the four class

members EEOC identified in June 2008 and precluding the addition of new class

members, regardless of whether those class members, as “claimants,” were subject

to the August 24, 2007, deadline for adding “parties” to the lawsuit. See

Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986)

(reviewing for abuse of discretion a district court’s orders concerning discovery or

leave to amend pleadings and add parties). We recognize that EEOC’s mandate to

pursue discrimination claims may be furthered by expanding the scope of an

existing lawsuit to include new claims discovered as a result of reasonable

investigation. See Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 331

(1980). However, the interests of the defendant must also be considered. See id. at

333. At some point, the district court must close the universe of potential claims

against the defendant so that discovery can be completed and the case can proceed

to judgment. We cannot say that it was an abuse of discretion for the court to draw

that line where it did, when the names of the four class members had been provided

to EEOC over four years earlier, the new claims would require plaintiff-specific

discovery, and less than ninety days remained until the discovery cut-off date.


                                          3
      AFFIRMED in part, REVERSED and REMANDED in part. Each party to

bear its own costs.




                                  4
                                                                            FILED
                                                                            APR 18 2011
EEOC v GNLV Corporation 09-16640
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
TARNOW, Senior District Judge, concurring in part and dissenting in part:

      The four proposed class members identified in June 2008 are “claimants,”

not “parties.” The actual parties’ (EEOC and GNLV) own joint Stipulated

Discovery Plan and Proposed Scheduling Order entered by the district court on

March 12, 2007 specifically distinguishes between the two terms, stating, “Due to

the number of current claimants and potential class members, the parties do

anticipate the need to alter the discovery limitations imposed under the Federal

Rules...” (emphasis added). Based on this, as well as that no appellate court has

directly addressed the issue of whether the term “claimant” as used in a discovery

order in an EEOC initiated Title VII case shares the same meaning as the term

“party” and the relevant case law does not support equating the two terms, I see no

grounds for treating the terms as identical in this context.

      Although the majority does not conclude that the proposed class members

are “parties,” it nonetheless holds that the district court’s decision precluding the

addition of these potential class members was not an abuse of discretion. While I

agree in the abstract with the majority’s proposition that at some point discovery

must end and a case must proceed against a defendant, I disagree that precluding

these individuals here was warranted where nothing in the parties’ joint Stipulated

Discovery Plan and Proposed Scheduling Order or any subsequent order the
district court entered required that these class members be identified at some point

other than prior to the close of discovery. In imposing its own deadline for naming

these class members, the district court abused its discretion. Moreover, GNLV was

aware from the date the complaint was filed that the EEOC was seeking relief for

“Robert Royal and other similarly situated individuals” (emphasis added). The

parties also jointly submitted multiple stipulated orders to the district court

extending discovery deadlines, which the district court entered, and GNLV was

able to depose all four proposed class members prior the filing of its dispositive

motions.

      Accordingly, I respectfully dissent as to this issue. I do join, however, the

memorandum disposition as to its holding that the district court erred in dismissing

the six other class members’ individual claims and that a remand of this matter is

appropriate.




                                           2
