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Thomas v. Zachry

United States District Court, D. Nevada

May 3, 2018

LORI L. THOMAS; Plaintiff,
v.
THOMAS ZACHRY; MARNA ZACHRY; JOHN HARPER; and STOREY COUNTY and its BOARD OF COMMISSIONERS, Defendants.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         Before 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. 70.

         I. Facts and Procedural Background

         At its 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”).[1] 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 No. 77085.[2]

         Sutro 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.

         After 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.

         On 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.

         On 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.

         II. Legal Standard

         Summary 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).

         The 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).

         To 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.

         While 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.

         III. ...


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