United States District Court, D. Nevada
LORI L. THOMAS; Plaintiff,
THOMAS ZACHRY; MARNA ZACHRY; JOHN HARPER; and STOREY COUNTY and its BOARD OF COMMISSIONERS, Defendants.
R. HICKS UNITED STATES DISTRICT JUDGE
the court is defendants Storey County and its Board of
Commissioners, Thomas Zachry, Marna Zachry, and John
Harper's unopposed motion for summary judgment. ECF No.
Facts and Procedural Background
heart, this case involves a dispute over a dirt road in
Storey County, Nevada, commonly known as “Sutro Springs
Road.” In October 2016, plaintiff Lori L. Thomas
(“Thomas”) purchased approximately 40 acres of
real property within Storey County located near Dayton,
Nevada. This property, originally carved out of a 960 acre
parcel of land in Storey County, was taken out of the public
domain and transferred to private ownership by United States
Land Patent No. 27-68-0138 recorded February 8, 1968
(“1968 patent”). The property conveyed by the 1968
patent was subsequently divided into smaller parcels through
the Storey County development process. On August 15, 1995,
the Storey County Board of Commissioners approved a
subdivision of one of the parcels adjacent to the property.
The final subdivision map (“1996 map”) was
recorded in Storey County on January 10, 1996, as Document
Springs Road is a now-paved road running through the approved
subdivision. The paved portion of the road terminates in a
cul-de-sac at the edge of the underlying property. A visible
dirt road then continues across the property in a
northeasterly direction, continues onto public land managed
by the Bureau of Land Management (“BLM”), and
ultimately leads to homeowner defendants Harper's and the
Zachrys' private properties above the public land.
Thomas purchased the property in October 2016, she erected
barriers and obstacles, along with no trespassing signs, at
the location where Sutro Springs Road transitions from the
paved road ending in the cul-de-sac to the dirt road entering
the property. In response, the Storey County District
Attorney advised Thomas by letter that the dirt road across
her property was a long-established public road and requested
that she remove the barriers. Thomas refused. Then, in April
2017, during its regularly scheduled meeting, the Storey
County Board of Commissioners approved a project to allow the
Storey County Public Works Department to remove all the
obstructions placed on the road.
April 7, 2017, Thomas filed a complaint against defendants
alleging four causes of action: (1) petition for writ of
mandamus against Storey County; (2) a Fifth Amendment takings
claim; (3) injunctive relief; and (4) declaratory relief and
quiet title to the roadway over the property. ECF No. 1.
Then, on April 10, 2017, Thomas filed a motion for a
preliminary injunction seeking to enjoin Storey County from
removing the obstructions she had placed on the road. ECF No.
3 The motion was denied by the court. ECF No. 41.
September 22, 2017, after the court's order denying her
motion for a preliminary injunction, Thomas transferred her
interest in the underlying property to another individual. In
light of her transfer of the property, Thomas moved to
dismiss her complaint in its entirety. ECF No. 58. Her motion
was granted in part and denied in part by the court. ECF No.
63. In that order, the court granted Thomas' motion to
dismiss her non-in rem claims for a writ of
mandamus, her Fifth Amendment takings claim, and her
injunctive relief claim because those claims did not concern
the title and nature of Sutro Springs Road as it crosses the
underlying property. Id. However, the court denied
Thomas' motion as to her declaratory relief and quiet
title claim as that claim was brought in rem to
determine the rights to Sutro Springs Road as it crosses the
property against all other persons including the named
defendants. Id. Thereafter, defendants filed the
present unopposed motion for summary judgment. ECF No. 70.
judgment is appropriate only when the pleadings, depositions,
answers to interrogatories, affidavits, declarations, party
stipulations, admissions, and other relevant materials in the
record fairly establish 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). In
assessing a motion for summary judgment, the evidence,
together with all inferences that can reasonably be drawn
therefrom, must be read in the light most favorable to the
party opposing the motion. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); County
of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154
(9th Cir. 2001).
moving party bears the initial burden of informing the court
of the basis for its motion, along with all evidence showing
the absence of any genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
On those issues for which it bears the burden of proof, the
moving party must make a showing that is “sufficient
for the court to hold that no reasonable trier of fact could
find other than for the moving party.” Calderone v.
United States, 799 F.2d 254, 259 (6th Cir. 1986);
see also Idema v. Dreamworks, Inc., 162 F.Supp.2d
1129, 1141 (C.D. Cal. 2001).
successfully rebut a motion for summary judgment, the
non-moving party must point to facts supported by the record
which demonstrate a genuine dispute or issue of material
fact. Reese v. Jefferson Sch. Dist. No. 14J, 208
F.3d 736 (9th Cir. 2000). A “material fact” is a
fact “that might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Where reasonable minds
could differ on the material facts at issue, summary judgment
is not appropriate. See v. Durang, 711 F.2d 141, 143
(9th Cir. 1983). A dispute regarding a material fact is
considered genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Liberty Lobby, 477 U.S. at 248. The
mere existence of a scintilla of evidence in support of the
party's position is insufficient to establish a genuine
dispute; there must be evidence on which a jury could
reasonably find for the party. See id. at 252.
generally the failure of an opposing party to file points and
authorities in response to any motion shall constitute a
consent to the granting of the motion under LR 7-2(d), the
failure to file an opposition to a motion for summary
judgment, in and of itself, is an insufficient ground for
entering judgment. See Martinez v. Stanford, 323
F.3d 1178, 1182 (9th Cir. 2003). Rather, a moving
party must still meet its affirmative duty under Rule 56 of
the Federal Rules of Civil Procedure to demonstrate that it
is entitled to judgment as a matter of law. Id.
Thus, the absence of an opposition in this action does not
change the defendants' burden of proof, and the court
shall consider defendants' motion on the merits.