Mwithiga v. MGM Resort International et al

Filing 50

ORDER Denying Without Prejudice 16 , 33 , 34 , 35 , and 43 Motions. It Is Further Ordered that Motions 9 and 10 are Denied as Moot. It Is Further Ordered that 37 Motion to File Second Amended Complaint is Granted. Amended Complaint deadline: 5/6/2015. Signed by Judge Jennifer A. Dorsey on 4/21/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Peter Mwithiga,
Case No.: 2-14-cv-2187-JAD-VCF

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Plaintiff

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vs.

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MGM Resort International, et al.,

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Order Granting Leave to Amend
and Denying Pending Motions
[Docs. 9, 10, 16, 33, 34, 35, 37, 43]

Defendants

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Pro se plaintiff Peter K. Mwithiga was given leave to amend his complaint, Doc. 31, and
timely submitted a memorandum with a proposed second amended complaint. Doc. 37 at 5-15.
Defendants MGM Resort International, Aria Hotel and Casino, CityCenter Holdings, LLC, and
Joseph D’Ambra jointly notified the court that they did not oppose Mwithiga’s proposed Second
Amended Complaint. Doc. 48. Under Local Rule 7-2(d), “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.” I find Mwithiga’s motion for leave to amend is unopposed, has merit for purposes of
Federal Rule of Civil Procedure 15(a)’s liberal amendment standard, and should be granted.
Mwithiga has until May 6, 2015, to file pages 5-15 of Doc. 37 as a separate document entitled
Second Amended Complaint.
Because Mwithiga’s underlying allegations will change, a number of the pending motions
that attack the validity of the soon-to-be amended pleadings will be mooted and should be denied
without prejudice. These include MGM’s Motion to Quash or Motion to Dismiss (Doc. 16),
MGM’s re-urged Motion to Dismiss (Doc. 35),1 Aria’s Motion to Dismiss (Doc. 33), and
CityCenter’s Motion to Dismiss (Doc. 34). Additionally, although Mwithiga’s motion for summary
judgment (Doc. 43) does not specify which version of his complaint he bases his request for
summary adjudication on, because it was filed before his second amended complaint, I also deny

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MGM’s re-urged motion to dismiss withdrew that portion of Doc. 16 that sought to quash
service of process. See Doc. 35. D’Ambra’s motion to quash (Doc. 9) is not affected by this order.
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this motion without prejudice and as moot.
Finally, I note that on April 17, 2015, Mwithiga filed an “errata” to his proposed second

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amended complaint, in which he states his intention to abandon claims against defendant D’Ambra.

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Doc. 49. He attaches the “corrected version” of his complaint to the errata and seeks leave to file it.

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See id. What Mwithiga effectively seeks is voluntary dismissal of his claims against D’Ambra under

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Federal Rule of Civil Procedure 41(a)(1)(A)(i). I thus liberally construe his errata (Doc. 49) as a

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notice of voluntary dismissal under FRCP 41(a)(1)(A)(i).

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Accordingly, it is HEREBY ORDERED that Mwithiga’s motion for leave to file a second

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amended complaint [Doc. 37] is GRANTED. Mwithiga is ordered to file pages 5-15 of Doc. 37 as a

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separate document entitled Second Amended Complaint by May 6, 2015.2

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It is FURTHER ORDERED that MGM’s Motion to Quash or Motion to Dismiss [Doc. 16],

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MGM’s re-urged Motion to Dismiss [Doc. 35],3 Aria’s Motion to Dismiss [Doc. 33], CityCenter’s

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Motion to Dismiss [Doc. 34], and Mwithiga’s Motion for Summary Judgment [Doc. 43] are DENIED

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WITHOUT PREJUDICE in light of the forthcoming amendment.

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Finally, all claims against Joseph D’Ambra are deemed voluntarily dismissed, and his Motion
to Quash [Doc. 9] and Motion to Dismiss [Doc. 10] are DENIED AS MOOT.
DATED April 21, 2015.

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_________________________________
______________________
_ __________ _
__ ____ _
Jennifer A. Dorsey
ennifer A. Do y
ni
Dorsey
United States District Judge
ed States District Judg
d t
ri
rict

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Although this version of the complaint will state claims against D’Ambra, the record will
reflect that those claims have been dismissed and are no longer active.
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MGM’s re-urged motion to dismiss withdrew that portion of Doc. 16 which requested
quashing service of process. See Doc. 35.
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