Knickmeyer v. State of Nevada

Filing 21

ORDER that 7 Motion to Dismiss is GRANTED in part and DENIED in part. Signed by Judge James C. Mahan on 5/13/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THOMAS KNICKMEYER,

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2:14-CV-231 JCM (PAL)

Plaintiff(s),
v.
STATE OF NEVADA ex rel. EITHER
JUDICIAL DISTRICT COURT,

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Defendant(s).

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ORDER

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Presently before the court is defendant’s motion to dismiss. (Doc. # 7). Plaintiff has filed
a response (doc. # 12) and defendant has filed a reply (doc. # 13).

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Plaintiff Thomas Knickmeyer was formerly employed by the Nevada Eighth Judicial District

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Court as a bailiff and administrative court marshal. Plaintiff alleges that he was discriminated

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against and wrongfully discharged in November 2013. The complaint contains claims for relief for:

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(1) violations of Title VII of the Civil Rights Act of 1964 and corresponding state law; (2) negligent

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supervision; (3) wrongful termination; and (4) retaliation. (Compl., doc. # 1).

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On March 25, 2014, defendant State of Nevada ex rel. Eighth Judicial District Court

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(“defendant”) filed a motion for partial dismissal seeking to dismiss the claims for relief grounded

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in state law. (Doc. # 7).

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...

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...

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James C. Mahan
U.S. District Judge

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In response, plaintiff filed the following limited opposition:

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The Plaintiff consents to the Defendant’s motion as follows:

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1. Plaintiff agrees to the dismissal with prejudice of his Second
Cause of Action for Negligent Supervision.

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2. Plaintiff agrees to the dismissal without prejudice of his Third
Cause of Action for Wrongful Termination and his Fourth Cause of
Action for Retaliation.

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Based on the foregoing, the Plaintiff’s First Cause of Action for
Violations of Title VII of the Civil Rights Act of 1964 and Nevada
law shall be the only remaining cause of action in the above-entitled
matter.
(Doc. # 12).

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Relying on Local Rule 7-2, defendant asserts that plaintiff’s failure to file points and

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authorities in response constitutes consent to granting defendant’s motion in its entirety, which

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would result in the dismissal of all state law claims (including those embedded in claim one) with

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prejudice. (Reply in support, doc. # 13).

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Local Rule 7-2(d) instructs that “[t]he failure of an opposing party to file points and

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authorities in response to any motion shall constitute a consent to the granting of the motion.”

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However, the Ninth Circuit has directed the courts to first weigh the following factors: “(1) the

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public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3)

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the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their

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merits; and (5) the availability of less drastic sanctions.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.

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1995) (internal citation omitted).

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In light of the Ghazali factors and plaintiff’s limited opposition, the court finds the following

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action to be appropriate: the second cause of action for negligent supervision will be dismissed with

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prejudice, and the third and fourth for wrongful termination and retaliation are dismissed without

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prejudice. The issue of whether immunities provided by state law are applicable to these state law

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claims is best reserved for the state court.

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With respect to the first claim for relief, the complaint generally states only that defendant’s

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conduct constituted violations of “42 U.S.C. Section 2000 et seq., Title VII of the Civil Rights Act

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James C. Mahan
U.S. District Judge

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of 1964 as amended and Nevada state law.” (Compl., doc. # 1, p. 3). It is unclear what Nevada state

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law(s) plaintiff is complaining of in his first claim which would be separate and distinct from those

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already alleged in the second, third, and fourth claims.

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In light of the complaint’s failure to specify which “Nevada state law(s)” are allegedly

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violated in count one, plaintiff’s failure to file points and authorities as required by LR 7-2(d), and

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in consideration of the Ghazali factors, the court dismisses any state law claims contained in the first

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claim for relief, to the extent any are plead.

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In summary, plaintiff’s second claim for relief is dismissed with prejudice. The third and

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fourth claims are dismissed without prejudice. To the extent any state law violations are asserted

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in the first claim, those are likewise dismissed without prejudice. As a result, only the portion of the

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first claim alleging violations of Title VII remains.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant’s motion to

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dismiss (doc. # 7) be, and the same hereby is, GRANTED in part and DENIED in part, consistent

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with the foregoing.

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DATED May 13, 2014.

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

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