Louisiana Municipal Police Employees' Retirement System v. Wynn et al

Filing 110

ORDER Granting 99 and 103 Motions to Dismiss. Signed by Judge James C. Mahan on 10/9/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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2:12-CV-509 JCM (GWF)

LOUISIANA MUNICIPAL POLICE
EMPLOYEES RETIREMENT
SYSTEM,
Plaintiff,
v.

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STEPHEN A. WYNN, et al.,
Defendants.

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ORDER

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Presently before the court is defendants Stephen A. Wynn, Linda Chen, Russell Goldsmith,

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Ray R. Irani, Robert J. Miller, John A. Moran, Marc D. Schorr, Alvin V. Shoemaker, D. Boone

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Wayson, and Allan Zeman’s motion to dismiss. (Doc. # 99, 103). Defendant Elaine P. Wynn and

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nominal defendant Wynn Resorts Limited joined the motion to dismiss. (Doc. # 102, 104).1 Plaintiffs

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Louisiana Municipal Police Employees’ Retirement System et al. failed to file an opposition.2

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

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as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,

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1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a

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James C. Mahan
U.S. District Judge

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Plaintiff Louisiana Municipal Police Employees’ Retirement System voluntarily dismissed defendant Kazuo
Okada (doc. # 107), leaving no other defendants than those party to the motion to dismiss.
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Plaintiffs’ response was due October 1, 2012.

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complaint pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the

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line between possibility and plausibility of entitlement to relief.’” Id. (citing Bell Atlantic, 550 U.S.

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at 557). However, where there are well pled factual allegations, the court should assume their

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veracity and determine if they give rise to relief. Id. at 1950.

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Further, in shareholder suits, Fed. R. Civ. P. 23.1 requires shareholders to plead with

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particularity the reasons for not making a demand for corrective action on the board of directors. Fed.

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R. Civ. P. 23.1 (that is, “the reasons for not obtaining the action or not making the effort.”). Rule

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23.1 “imposes heightened pleading imperatives in shareholder derivative suits.” See Shoen v. SAC

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Holding Corp., 137 P.3d 1171, 1179 (2006) (discussing Nevada’s counterpart to this procedural

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rule).

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Pursuant to Local Rule 7-2(d), an opposing party’s failure to file a timely response to any

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motion constitutes the party’s consent to the granting of the motion and is proper grounds for

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dismissal. U.S. v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). However, prior to dismissal, the

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district court is required to weigh several factors: “(1) the public’s interest in expeditious resolution

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of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants;

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(4) the public policy favoring disposition of cases of their merits; and (5) the availability of less

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drastic sanctions.”Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing Henderson v. Duncan,

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779 F.2d 1421, 1423 (9th Cir. 1986)).

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In light of the plaintiffs’ failure to respond and weighing the factors identified in Ghazali,
the court finds dismissal appropriate.

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to

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dismiss (doc. # 99, 103) be, and the same hereby is, GRANTED. The case is hereby dismissed as

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to all defendants without prejudice.

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DATED October 9, 2012.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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