United States District Court, D. Nevada
J. MICHAEL SCHAEFER, Plaintiff,
NEVADA STATE BANK, Defendant.
C. MAHAN, UNITED STATES DISTRICT JUDGE
before the court is plaintiff's motion for leave to file
a second amended complaint (ECF No. 22) and defendant's
motion to dismiss the first amended complaint (ECF No. 15).
Prior to the response deadline, plaintiff filed a motion to
extend time to respond to the motion to dismiss. (ECF No.
16). Without a favorable disposition on the motion to extend
time, plaintiff filed a response to the motion to dismiss.
(ECF No. 19). Defendant did not reply to the motion to extend
time. Defendant also objected to the second
amended complaint, and plaintiff responded to that objection.
(ECF Nos. 20, 21).
initial matter, plaintiff filed a second amended complaint
(ECF No. 17) on August 3, 2016, without the leave of this
court or, apparently, the defendant's consent.
See (ECF No. 20). On September 9, 2016, plaintiff
filed a motion for leave to file that second amended
complaint. (ECF No. 22). That motion is utterly devoid of any
explanation why a second amended complaint is necessary in
this case or even how the proposed complaint is different
than the first amended complaint. (Id.). In fact, it
appears that plaintiff may have introduced the second
complaint for the purpose of mooting the present motion to
dismiss. See (ECF No. 19) (lacking any explanation
as to why a second amended complaint was needed yet stating
that its filing mooted the motion to dismiss); see
also (ECF Nos. 5, 7).
this court cannot find that justice is advanced by
plaintiff's filing of the second amended complaint and
thus denies plaintiff's motion for leave to do so.
See Fed. R. Civ. P. 15(a)(2); see also (ECF
No. 22). As the first amended complaint is the operative
complaint in this case, the court will accordingly consider
defendant's related motion to dismiss. (ECF No. 15).
first amended complaint incorporates the underlying state
complaint by reference, which alleges claims regarding the
parties' banking relationship. (ECF No. 7). That complaint
alleges the following causes of action against defendant: (1)
breach of contract; (2) breach of implied covenant of good
faith; (3) negligence; and (4) unfair business practices.
(ECF No. 1-1).
motion to dismiss argues that plaintiff, a disbarred attorney
who has been designated a vexatious litigant, has filed five
earlier suits against defendant for “the same basic
complaint he raised in other suits; that [Nevada State Bank
(‘NSB')] is liable to him or his company because it
chooses not to do business with either of them. NSB won all
of the prior suits.” (ECF No. 15 at 3); see also
(ECF No. 15-2); see generally In re Discipline of
Schaefer, 31 P.3d 365 (Nev. 2001). Accordingly,
defendant asserts, inter alia, the doctrine of
res judicata and economic loss to bar or otherwise
defeat plaintiff's claims. (ECF No. 15). However, the
court need not discuss these arguments here.
local rules have the force of law. See United States v.
Hvass, 355 U.S. 570, 574-575 (1958). Under Local Rule
7-2(d), “[t]he failure of an opposing party to file
points and authorities in response to any motion . . .
constitutes a consent to the granting of the motion.”
The Ninth Circuit instructs that a district court must weigh
several factors before granting a motion filed pursuant to
Federal Rule of Civil Procedure 12 because a party failed to
comply with a local rule: “(1) the public's
interest in expeditious resolution of litigation; (2) the
court's need to manage its docket; (3) the risk of
prejudice to the defendants; (4) the public policy favoring
disposition of cases o[n] their merits; and (5) the
availability of less drastic sanctions.” Ghazali v.
Moran, 46 F.3d 52, 53 (9th Cir. 1995) (quoting
Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986)) (discussing a Nevada local rule construing a failure
to oppose a motion as effectively consenting to the granting
of that motion); see also Martinez v. Stanford, 323
F.3d 1178, 1183 (9th Cir. 2003) (indicating that
Ghazali provides the applicable rule for evaluating
a Rule 12 motion to dismiss in light of a local rule
brief response to defendant's motion to dismiss
references only the unexplained and unauthorized filing of
the second amended complaint; there is no citation to any
legal authority, and plaintiff offers no substantive
argument. See (ECF No. 19). Accordingly, plaintiff
has failed to file points and authorities in response to
defendant's motion. See LR 7-2(d).
the Ghazali factors, this court finds that dismissal
of this case: (1) would further the public's interest in
the resolution of cases; (2) would aid the court's
management of its docket; (3) would result in no prejudice to
defendant; and (4) no less-drastic sanctions are available in
light of the content of the motion to dismiss and its
requested relief. See 46 F.3d at 53; see
also (ECF No. 15). Moreover, the policy encouraging the
consideration of cases on their merits does not overcome the
countervailing factors. In light of this analysis and
plaintiff's violation of Local Rule 7-2(d),
defendant's motion to dismiss shall be granted. (ECF No.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
plaintiff's motion for leave to file a second amended
complaint (ECF No. 22), be, and the same hereby is, DENIED.
FURTHER ORDERED that defendant's motion to dismiss (ECF
No. 15) be, and the same hereby is, GRANTED, with prejudice.
FURTHER ORDERED that all remaining motions be, and the same
hereby are, DENIED as moot.
clerk shall enter judgment ...