                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           NOV 09 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

SABRINA ANDREWS,                                 No. 11-16343

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00624-RCJ-VPC

  v.                                             MEMORANDUM *

HCR MANOR CARE MEDICAL
SERVICES OF FLORIDA, LLC,

              Defendant - Appellee.


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

                          Submitted November 7, 2012 **
                            San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and DUFFY, District Judge.***

       Plaintiff-Appellant Sabrina Andrews (“Andrews”) appeals a judgment of



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

       ***  The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
Judge Robert C. Jones of the District of Nevada granting the motion to dismiss her

amended complaint (“Complaint”) for failure to state a tortious discharge claim.

Andrews also appeals Judge Jones’s denial of her request to amend the Complaint

to add a claim under Nevada Revised Statute (“NRS”) 449.207 for alleged

violation of NRS 449.205. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm.

      We presume that Andrews was an at-will employee for the purposes of this

appeal because she does not allege otherwise. The Nevada Supreme Court has

repeatedly refused to recognize tortious discharge actions by at-will employees

except in “those rare and exceptional cases where the employer’s conduct violates

strong and compelling public policy.” Wayment v. Holmes, 912 P.2d 816, 818

(Nev. 1996). Andrews’s termination by Defendant-Appellee HCR Manor Care

Medical Services of Florida, LLC for refusing to shower a sick patient does not

implicate any strong public policy exception that the Nevada Supreme Court has

recognized, and we decline to create one here.

      Even if Andrews could prove that her dismissal violated Nevada’s strong

public policy, she is prevented from asserting a tortious discharge claim because of

NRS 449.207.1 The Nevada Supreme Court has been unwilling to create additional

      1
       NRS 449.207 provides nursing assistants and other medical facility
personnel a cause of action if they have been retaliated or discriminated against in

                                          2
“public policy tort liability” when a comprehensive statutory remedy is available.

D’Angelo v. Gardner, 819 P.2d 206, 217-18 (Nev. 1991).

       Andrews did not have good cause to request leave to amend the Complaint

ten days after the deadline to do so had expired under the scheduling order.

Federal Rule of Civil Procedure 16’s “‘good cause’ standard primarily considers

the diligence of the party seeking the amendment.” Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Andrews based her proposed

statutory claim on the same facts as the tortious discharge claim, even though it

was available as a cause of action at the time Andrews filed the Complaint. Such

“carelessness is not compatible with a finding of diligence and offers no reason for

a grant of relief.” Id.

       AFFIRMED.




violation of NRS 449.205. A successful claimant under NRS 449.207 may be
entitled to compensatory damages, lost wages and benefits, attorney’s fees and
costs and punitive damages.

                                          3
