Johnson v. Kelly et al

Filing 94

ORDER. IT IS HEREBY ORDERED that 93 Defendants' Motion Pursuant to Local Rule 7-2 in Support of Motion for Summary Judgment is DENIED. The court will address 91 the motion for summary judgment on its merits in due course. Signed by Judge Jennifer A. Dorsey on 2/2/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Nathaniel Johnson,

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2:11-cv-01858-JAD-VCF

Plaintiff
Order Denying Motion to Enter Summary
Judgment By Default Based on L.R. 7-2

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v.

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Doe Kelly, et al.,

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[ECF No. 93]

Defendants

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Defendants moved for summary judgment on December 20, 2016.1 When the plaintiff

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failed to oppose the motion by the response deadline, defendants filed a separate motion asking

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the court to grant the motion under Local Rule 7-2, which allows the court to grant a motion

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when it is unopposed—except when that motion is one for attorneys fees or summary

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judgment.

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In urging the court to enter summary judgment by default, defendants rely on an outdated

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and superseded version of Local Rule 7-2. Although Local Rule 7-2(d) previously suggested that

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the court could grant any unopposed motion, the local rules were amended nine months ago. The

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new version of the rule now clearly says: “The failure of an opposing party to file points and

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authorities in response to any motion, except a motion under Fed. R. Civ. P. 56 . . . , constitutes

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a consent to the granting of the motion.”2 The local rule was amended to reflect the Ninth

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Circuit’s ruling in Heinemann v. Satterberg3 that the failure to oppose a motion for summary

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judgment does not permit the court to enter summary judgment by default by applying local rules

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ECF No. 91.

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Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013) (“Because this local rule conflicts
with the Federal Rule, it cannot provide a valid basis for granting a motion for summary
judgment.”).
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L.R. 7-2(d) (emphasis added), available on the court’s website at: http://www.nvd.uscourts.gov/

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like 7-2(d).4

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Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion Pursuant to Local

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Rule 7-2 in Support of Motion for Summary Judgment [ECF No. 93] is DENIED. The court

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will address the motion for summary judgment [ECF No. 91] on its merits in due course.

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DATED: February 2, 2017

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_______________________________
_____________________
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Jennifer A. Dorsey
nnifer A.
ife
y
United States District Judge
nited States District Judg
ict

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See Summary of Amendments to Local Civil Rules, available at http://www.nvd.uscourts.gov/
Files/Summary%20of%20Amendments%20to%20Local%20Civil%20Rules.pdf (explaining,
“Subsection (d) is amended to exclude motions for summary judgment and motions for
attorney’s fees from those that automatically may be granted if unopposed.”).
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