United States District Court, D. Nevada
CAPITAL HOLDINGS ENTERPRISES, LLC, a Nevada limited liability company, Plaintiff,
SEASHORE MARKETING GROUP, LLC, a California limited liability company, Defendant.
M. Navarro, United States District Court Chief Judge
before the Court is Plaintiff Capital Holdings Enterprises,
LLC's (“Plaintiff's”) Motion for Summary
Judgment. (ECF No. 14). Defendant Seashore Marketing Group,
LLC (“Defendant”) did not file a Response, and
the deadline to do so has passed.
case arises out of a Loan Agreement and Promissory Note
(collectively, the “Loan Documents”) between two
third-party companies, Pinnacle Solutions Enterprises, Inc.
(“Pinnacle”) and Celebrity Beverage Group, LLC
(“Celebrity”). (Compl. ¶ 6, Ex. A to Not. of
Removal, ECF No. 1). Celebrity representative and CEO Keith
Aaron Hale (“Hale”) personally guaranteed the
loan. (Id. ¶ 8). As alleged in the Complaint,
Pinnacle loaned Celebrity $148, 640.60 on April 29, 2013,
which was to be repaid on May 2, 2013, at 3:00 p.m. EST, with
10 percent interest per month if default, along with costs
and expenses. (Id. ¶¶ 6, 7, 9). Plaintiff
alleges that Celebrity and Hale failed to tender payment on
May 2, 2013. (Id. ¶ 10). Since then, Pinnacle
has assigned its rights under the Loan Documents to
Plaintiff, and Defendant has assumed all liabilities and
obligations under the Loan Documents in place of Hale.
(Id. ¶¶ 11-13). Plaintiff alleges that as
of July 27, 2015, Defendant owes $500, 515.00. (Id.
initiated this action by filing the original complaint in
state court on September 22, 2015, asserting claims for
breach of contract, unjust enrichment, and declaratory relief
against Defendant. (Id. ¶¶ 19-39).
Plaintiff also requested prejudgment and post-judgment
interest, along with attorneys' fees and costs. (Compl.
5:27-6:3). On November 6, 2015, Defendant subsequently
removed the action to this Court under diversity jurisdiction
pursuant to 28 U.S.C. §§ 1332(a) and 1441(a). (Pet.
for Removal, ECF No. 1). On November 18, 2015, Defendant
filed its Answer. (Answer to Compl., ECF No. 7).
March 29, 2016, Plaintiff filed the instant Motion for
Summary Judgment. (Mot. Summ. J. (“MSJ”), ECF No.
14). Defendant's Response was due on April 22, 2016.
However, on April 7, 2016, Defendant's counsel, Adam H.
Springel, Esq. and Michael A. Arata, Esq., filed a Motion to
Withdraw as Counsel. (Mot. Withdraw Counsel, ECF No. 15). In
their Motion, counsel cite as their reason for withdrawing
Defendant's “unwillingness to further participate
in this case nor pay for legal services rendered on its
behalf, ” along with Defendant's indication of its
“inten[t] to file for bankruptcy protection.”
(Id. 2:15-17). On April 12, 2016, the Court granted
the Motion to Withdraw as Counsel and extended
Defendant's deadline to file its Response by over a month
to May 31, 2016. (Order on Mot. Withdraw Counsel 1:26-28,
2:14-15, ECF No. 17). Additionally, the Court explained that
because Defendant is a corporation, it cannot appear except
through counsel. (Id. 1:18-20) (citing Rowland
v. California Men's Colony, 506 U.S. 194, 201-02
(1993); United States v. High Broadcasting Co.,
Inc., 3 F.3d 1244, 1245 (9th Cir. 1993)). As such, the
Court provided Defendant with a deadline for obtaining new
counsel of May 5, 2016. (Id. 2:1-3). Defendant did
not comply or request an extension of time to comply with
either deadline. On June 1, 2016, Plaintiff filed a Notice of
Non-Opposition to the Motion for Summary Judgment. (ECF No.
November 9, 2016, the Court ordered Defendant to show cause
by December 8, 2016, why its answer should not be stricken
and default entered against it for failure to comply with the
Court's Order (ECF No. 17) to obtain substitute counsel
as it is a corporation. (Order Show Cause
(“OSC”), ECF No. 19). On December 19, 2016,
Defendant untimely filed a Response to the OSC, explaining
that the OSC was not forwarded to the company's new
mailing address. (Resp. to OSC, ECF No. 20). In its Response,
Defendant requested a 120-day extension to find an attorney
because it is a small company, this case has caused financial
hardship, and as the company is in California, it is
difficult to find a lawyer. (Id.). The Court
reluctantly granted Defendant's request for an extension
to retain counsel until April 7, 2017. (ECF No. 21). However,
as Defendant's Response to the Motion for Summary
Judgment was due approximately nine months ago, the Court
finds that it is appropriate to address the Motion for
Summary Judgment now. Even if Defendant retains new counsel
by its current deadline, new counsel will not be permitted to
file an untimely Response to the instant Motion for Summary
Federal Rules of Civil Procedure provide for summary
adjudication when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A
principal purpose of summary judgment is “to isolate
and dispose of factually unsupported claims.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
determining summary judgment, a court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial, it
must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial.” C.A.R. Transp. Brokerage Co. v. Darden
Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000)
(citations omitted). Then, “the moving party has the
initial burden of establishing the absence of a genuine issue
of fact on each issue material to its case.”
Id. In contrast, when the nonmoving party bears the
burden of proving the claim or defense, the moving party can
meet its burden in two ways: (1) by presenting evidence to
negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. See Celotex
Corp., 477 U.S. at 323- 24. If the moving party fails to
meet its initial burden, summary judgment must be denied and
the court need not consider the nonmoving party's
evidence. See Adickes v. S.H. Kress & Co., 398
U.S. 144, 159-60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
1987). In other words, the nonmoving party cannot avoid
summary judgment by relying solely on conclusory allegations
that are unsupported by factual data. See Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the
opposition must go beyond the assertions and allegations of
the pleadings and set forth specific facts by producing
competent evidence that shows a genuine issue for trial.
See Celotex Corp., 477 U.S. at 324.
summary judgment, a court's function is not to weigh the
evidence and determine the truth but to determine whether
there is a genuine issue for trial. See Anderson,
477 U.S. at 249. The evidence of the nonmovant is “to
be believed, and all justifiable inferences are to be drawn
in his favor.” Id. at 255. But if the evidence
of the nonmoving party is merely colorable or is not
significantly probative, summary judgment may be granted.
See Id. at 249-50.
under the District of Nevada Local Rules, the failure to file
a response to a motion constitutes consent to the granting of
the motion. (D. Nev. LR 7-2(d)). However, this Local Rule
specifically carves out an exception regarding motions for
summary judgment. (Id.). Accordingly, the Court must
consider the merits of Plaintiff's Motion and determine
if there are no genuine issues of material fact such that
Plaintiff is entitled to judgment as a matter of law. See
also Marshall v. Gates, 44 F.3d 722, 725 (9th Cir.
1995), as amended (Jan. 27, 1995) (“[A] motion
for summary ...