Wallace v. Las Vegas Metro Police Department et al
Filing
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ORDER Granting 4 Defendant's Motion to Dismiss. All named Defendants are hereby DISMISSED without leave to amend. Signed by Chief Judge Robert C. Jones on 09/21/2012. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SCOTT JOSEPH WALLACE,
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Plaintiff,
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v.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT, et al.,
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Defendants.
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___________________________________ )
2:12-cv-979-RCJ-RJJ
ORDER
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Currently before the Court is a motion to dismiss (#4) for failure to state a claim
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pursuant to Rule 12(b)(6). For the following reasons, the motion to dismiss (#4) is granted.
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BACKGROUND
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On May 25, 2012, Plaintiff Scott Wallace drove from his home in Tarzana, California
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to spend Memorial Day weekend in Las Vegas, Nevada. (Compl. (#1) at 2). Plaintiff alleges
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that upon crossing the Nevada state line, he observed a helicopter clearly marked with the
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insignia of the Las Vegas Metropolitan Police Department (“LVMPD”) flying above his vehicle.
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(Id.). This helicopter, along with other similarly marked helicopters which occasionally joined
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it, proceeded to follow Plaintiff until he reached his destination of the Palazzo Hotel and
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Casino in Las Vegas. (Id.). Plaintiff alleges that he later observed as many as five LVMPD
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helicopters flying above him as he moved along the Las Vegas Strip throughout the weekend.
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(Id. at 3).
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Plaintiff claims that he also suffered from similar harassment beginning in April 2005
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from the Los Angeles Police Department and the Los Angeles County Sheriff’s Department.
(Compl. (#1) at 3). Apparently one of Plaintiff’s past girlfriends had previously dated an officer
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with the air unit of the Los Angeles Police Department. (Id.). Plaintiff believes that this officer
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conspired with other Los Angeles officers to conduct surveillance of Plaintiff by helicopter in
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retaliation for Plaintiff dating this officer’s former girlfriend. (Id.). Plaintiff also alleges that the
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Los Angeles Police Department used various means of tracking devices to conduct
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surveillance on Plaintiff through the use of cell phone carriers and that he has had to change
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his cell phone carrier at least three times due to this surveillance. (Id.). Plaintiff believes that
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the surveillance he allegedly experienced in Las Vegas was a continuation of the malicious
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conduct initiated against him over 7 years ago in California. (Id. at 4).
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On June 8, 2012, Plaintiff filed a pro se complaint in this Court against LVMPD and Las
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Vegas Air Unit. (Compl. (#1) at 1). Plaintiff claims Las Vegas Air Unit is a division of LVMPD,
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but LVMPD claims that no such division exists. (Id.; Mot. to Dismiss (#4) at 7). The complaint
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lists four causes of action. In the first cause of action, Plaintiff alleges LVMPD unlawfully
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harassed him by following him with as many as five helicopters during his stay in Las Vegas.
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(Id. at 4-5). Plaintiff alleges in the second cause of action that LVMPD conspired to restrain
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Plaintiff, to cause him emotional damage, and to substantially injure him. (Id. at 5). In the third
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cause of action, Plaintiff asserts that LVMPD violated 42 U.S.C. § 1983 by infringing on his
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right to privacy by tracing his movements through the use of cell phone tracking and by car,
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foot, and helicopter. (Id. at 5-6). In Plaintiff’s fourth cause of action for declaratory relief,
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Plaintiff alleges he is entitled to an order from this Court for LVMPD to immediately cease their
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surveillance of him. (Id. at 6). Plaintiff also seeks an order in his fourth cause of action
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prohibiting LVMPD from destroying or concealing records pertaining to Plaintiff, including
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documents, emails, personal communications, GPS and cellular data, and communications
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between LVMPD and the Los Angeles Police Department. (Id.).
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LVMPD filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) on
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July 5, 2012. (Mot. to Dismiss (#4)). Plaintiff did not file a response to the motion to dismiss.
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LEGAL STANDARD
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The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test
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the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
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“[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled
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to offer evidence to support the claims.” Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th
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Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
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To avoid a Rule 12(b)(6) dismissal, a complaint must plead “enough facts to state a
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claim to relief that is plausible on its face.” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017,
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1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
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is plausible on its face “when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
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Iqbal, 556 U.S. 662, 678 (2009). Although detailed factual allegations are not required, the
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factual allegations “must be enough to raise a right to relief above the speculative level.”
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Twombly, 550 U.S. at 555. All well-pleaded factual allegations will be accepted as true and
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all reasonable inferences that may be drawn from the allegations must be construed in the
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light most favorable to the nonmoving party. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.
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2003).
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If the court grants a motion to dismiss a complaint, it must then decide whether to grant
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leave to amend. The court should freely give leave to amend when there is no “undue delay,
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bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing
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party by virtue of allowance of the amendment, [or] futility of amendment.” Foman v. Davis,
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371 U.S. 178, 182 (1962); see also FED . R. CIV. P. 15(a). Generally, leave to amend is only
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denied when it is clear that the deficiencies of the complaint cannot be cured by amendment.
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DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
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DISCUSSION
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In Plaintiff’s first cause of action, he alleges that LVMPD harassed him by following him
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with as many as five helicopters during his stay in Nevada. (Compl. (#1) at 4-5). Plaintiff is
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unclear on what legal basis his claim for harassment rests. Nevada law provides for a claim
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of harassment only under a criminal statute, see NEV. REV. STAT . § 200.571(1), and as the
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present case is civil, Plaintiff cannot rely on this statute to state a claim for relief. Wellesley
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v. Chief Fin. Officer, 2010 WL 2926162, at *1 n.4 (D. Nev. 2010).
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Even if a legal basis for his harassment claim did exist, Plaintiff has not plausibly
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alleged that LVMPD engaged in harassment. Plaintiff alleges LVMPD followed him by
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helicopter at the request of the Los Angeles Police Department because he began dating the
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former girlfriend of an officer with the Los Angeles Police Department over seven years ago.
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(Compl. (#1) at 3). Yet Plaintiff has pled no facts leading to the reasonable inference that
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LVMPD is liable for the misconduct alleged. Plaintiff has not alleged facts suggesting that
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LVMPD had any contact with the Los Angeles Police Department or that LVMPD committed
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five helicopters to following Plaintiff just to harass him for dating the former girlfriend of an
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officer in another state several years ago. Plaintiff has also not plausibly pled any facts that
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would suggest LVMPD helicopters were monitoring him. Plaintiff simply concludes that the
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helicopters—which were hovering high over a large city during a busy weekend—were
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conducting surveillance on him but he has not alleged any facts that support this inference.
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He does not allege he had any personal contact with any LVMPD officer or that the LVMPD
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harassed him in any other way. Because the facts alleged in the complaint are merely
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consistent with LVMPD’s liability but are not enough for the Court to draw the reasonable
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inference that LVMPD is liable for the misconduct alleged, this claim is dismissed.
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In Plaintiff’s second cause of action, he alleges that “Defendants . . . engaged in
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conduct with the intent to agree or conspire and with the intent to commit numerous wrongful
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acts,” specifically to restrain Plaintiff and cause him emotional damage and substantial injury.
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(Compl. (#1) at 5). “An actionable conspiracy consists of a combination of two or more
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persons who, by some concerted action, intend to accomplish an unlawful objective for the
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purpose of harming another, and damage results from the act or acts.” Hilton Hotels Corp. v.
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Butch Lewis Prods., Inc., 862 P.2d 1207, 1210 (Nev. 1993). “Agents and employees of a
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corporation cannot conspire with their corporate principal or employer where they act in their
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official capacities on behalf of the corporation and not as individuals for their individual
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advantage.” Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 622 (Nev. 1983). Yet the
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only defendants specifically named in this action are LVMPD and Las Vegas Air Unit, which
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Plaintiff alleges is simply a division of LVMPD. (Compl. (#1) at 1). As a division of LVMPD,
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it cannot conspire with the LVMPD when acting on behalf of the organization and not
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individually.
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Even if another party did exist with which LVMPD could conspire, Plaintiff has not
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plausibly alleged that any conspiracy existed with the objective of harming him or that damage
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resulted from the conspiracy. First, as noted above, the complaint does not allege sufficient
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facts that would allow the Court to draw the reasonable inference that LVMPD engaged in the
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misconduct alleged.
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helicopters hover above him while moving along public roads during his stay. Accordingly,
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Plaintiff has failed to state a claim for conspiracy.
Second, Plaintiff has not alleged that he was harmed by having
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In Plaintiff’s third cause of action he alleges that LVMPD invaded his privacy by tracing
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his movements through his cell phone and by foot, car, and helicopter. (Compl. (#1) at 5-6).
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Plaintiff alleges these action violated his right to privacy in violation of 42 U.S.C. § 1983. (Id.).
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Yet Plaintiff has not pled anywhere in his complaint that LVMPD followed him by foot or by car
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and has not provided anything but naked assertions that LVMPD traced his movements
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through his cell phone. Although Plaintiff has alleged he was followed by helicopter, as noted
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above, the complaint does not plausibly plead facts suggesting that LVMPD was tracing
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Plaintiff.
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In addition, even if Plaintiff had alleged sufficient facts suggesting his right to privacy
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had been violated, such a claim could not be brought under 42 U.S.C. § 1983 because Plaintiff
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has not alleged the unlawful conduct conformed with any official policy, custom or practice of
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LVMPD. A municipality may not be liable under 42 U.S.C. § 1983 under a theory of
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respondeat superior. Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690-95 (1978). A plaintiff
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who seeks to impose liability on a local government under § 1983 must prove that an “ ‘action
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pursuant to official municipal policy’ caused the injury.” Connick v. Thompson, - - - U.S. - - -
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-, 131 S. Ct. 1350, 1359 (2011) (citing Monell, 436 U.S. at 691). “Official municipal policy
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includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and
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practices so persistent and widespread as to practically have the force of law.” Id. The
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complaint nowhere alleges that the actions taken were performed pursuant to an official policy,
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custom or practice of LVMPD and accordingly this claim must be dismissed.
In the fourth cause of action, Plaintiff seeks declaratory relief. (Compl. (#1) at 6).
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Specifically, Plaintiff seeks an order requiring LVMPD to cease tracing Plaintiff and prohibiting
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LVMPD from destroying or concealing relevant evidence pertaining to Plaintiff. (Id.). Yet
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claims for declaratory and injunctive relief are not independent causes of action, but are
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dependent upon Plaintiff’s other claims. See Stock W., Inc. v. Confederated Tribes of Colville
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Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989); In re Wal-Mart Wage & Hour Emp’t
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Practices Litig., 490 F.Supp.2d 1091, 1130 (D. Nev. 2007); Miller v. MERSCORP, Inc., 2011
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WL 6097751, at *8 (D. Nev. 2011); Anderson v. Deutsche Bank Nat’l Trust Co., 2010 WL
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4386958, at *5 (D. Nev. 2010). As Plaintiff has failed to state a claim on his substantive
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causes of action, he has also failed to state a claim on his dependent cause of action for
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declaratory relief.
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Because Plaintiff has failed to state a claim on any of his causes of action, the Court
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grants the motion to dismiss as to all named defendants without leave to amend, as any
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attempt to amend would prove futile.
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In the alternative, the Court also dismisses the complaint in its entirety because Plaintiff
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has failed to comply with Nevada Local Rule 7-2(d). Under Local Rule 7-2(d), “[t]he failure of
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an opposing party to file points and authorities in response to any motion shall constitute a
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consent to the granting of the motion.” The “[f]ailure to follow a district court’s local rules is a
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proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Plaintiff has
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failed to file a response to the motion to dismiss and therefore is deemed to consent to the
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granting of the motion. Accordingly, the Court grants the motion to dismiss on this alternative
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ground.
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CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motion to dismiss (#4) is
GRANTED and all named defendants are hereby dismissed without leave to amend.
Dated: This 21st day of September, 2012.
DATED: This _____ day of September, 2012.
_____________________________
United States Chief District Judge
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